Thackeray and Rand
[2013] FCCA 875
•20 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THACKERAY & RAND | [2013] FCCA 875 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility for long term decisions – whether presumption of equal shared parental responsibility is rebuttable – consideration of significant expert evidence relating to father’s inflexible attitudes and concerns with regard to long-term effects upon the child of continued exposure to such attitudes – determination on evidence that equal shared parental responsibility would not be in the best interests of the child – order for sole parental responsibility vesting in the mother – consideration of the best interests of the child in relation to time to be spent with each parent – determination that equal time as had existed was not appropriate to continue – order for child to live with mother and for father to spend alternate weekends with the child. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 65DAA, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 Chappell & Chappell (2008) FLC 93-382 U v U (2002) 211 CLR 238 |
| Applicant: | MS THACKERAY |
| Respondent: | MR RAND |
| File Number: | TVC 217 of 2011 |
| Judgment of: | Judge Coker |
| Hearing dates: | 30 & 31 May 2013 |
| Date of Last Submission: | 31 May 2013 |
| Delivered at: | Townsville |
| Delivered on: | 20 August 2013 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr Fellows |
| Solicitors for Independent Children’s Lawyer: | McKays Solicitors |
ORDERS
That all previous orders in relation to the parenting of the child X born (omitted) 2006 be discharged.
The Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, X born (omitted) 2006, subject to the Mother consulting with the Father in relation to such decisions prior to making any final decisions, such consultation and communication to include but not be limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
Notwithstanding order 2 herein:
(a)The Mother be responsible for the day-to-day care, welfare and development of the child when he is living with or spending time with her.
(b)The Father be responsible for the day-to-day care, welfare and development of the child when he is living with or spending time with him.
That the child live with the Mother.
That the child spend time with the Father at all reasonable times as may be agreed and, failing agreement, as follows:
(a)Each alternate weekend commencing from after school Friday to before school on the following Tuesday;
(b)For the first half of the gazetted school holidays in odd numbered years and the second half of the gazetted school holidays in even numbered years and with the Mother for the other half of such holidays in each year.
Notwithstanding the provisions of Order 5(b) herein, should the parent not having the child in their care be in the same locality as the other parent, then the parent who does not have the child with them for that holiday period will be able to spend time with the child from midday Christmas Eve to 1.00pm Christmas Day and from 12 noon to 5.00pm on Easter Sunday.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 3.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to before school on the day of the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 3.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(d)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until before school on the day of the recommencement of school;
(e)The first half of the gazetted Christmas school holiday period commences from 3.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(f)The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until before school on the day of the recommencement of school.
That for the purpose of the interpretation and implementation of these Orders, the time the child will spend with the parents pursuant to Order 5(a) shall be suspended during the gazetted school holiday periods.
That on the child’s birthday or the birthday of any of his siblings or the birthdays of the parents, unless otherwise agreed in writing:
(a)In the event that such birthday falls on a school day, then the parent with whom the child is not then living shall spend time with the child from after school until 7.00pm, with the non-residential parent to collect the child from school at the commencement of this time and return him to the other parent at the changeover point pursuant to Order 12 at the conclusion of this time;
(b)In the event that such birthday falls on a non-school day, then the parent with whom the child is not then living shall spend time with the child for at least four hours which shall include either lunch or dinner, and failing agreement in that regard such time shall be from 10.00am to 2.00pm with changeover at the changeover point as set out in Order 12.
That the child spend time with the Father on Father’s Day and with the Mother on Mother’s Day with the commencement of such time to begin from 5.00pm on the day before such day until 5.00pm on Father’s Day or Mother’s Day, with changeovers to occur in accordance with Order 12.
That the child shall communicate with the parent he is not living with by telephone at all reasonable times, and in particular between 7.00pm and 7.30pm each Monday and Wednesday, or as otherwise agreed in writing between the parents, with the non-residential parent to initiate such phone call and the residential parent to ensure the child is available to receive such telephone calls in a quiet and private environment.
That all changeovers, where possible, take place with start or finish at the child’s school on school days but otherwise changeovers shall occur at the (omitted) Service Station on the (omitted) Highway north of (omitted).
That subject to written agreement to the contrary, the parents’ communications in relation to matters relating to the care, welfare and development of the child be by way of email. That should a response be required to such a communication such response shall be made by 9.00am on the following day. Communication by phone or text may only occur in case of emergency.
That both parents shall ensure that the child attends all sporting, cultural or other social events including rehearsals and sporting practices when the child is with each parent.
That each party be at liberty to attend all school organised events, activities or functions routinely attended by parents in respect of the child including (but not limited to) parent/teacher interviews, sports days, speech nights, school concerts, graduations and the like.
That each parent shall advise the other of any change of address and/or telephone number within three days of such change.
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Thackeray & Rand is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 217 of 2011
| MS THACKERAY |
Applicant
And
| MR RAND |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings relate to the future parenting of the child X. X was born on 15 September 2006. He is the child of Ms Thackeray, formerly Rand, whom I shall refer to as the mother and Mr Rand, whom I shall refer to as the father.
The mother commenced these proceedings by the filing of an application on 7 March 2011. The father responded on 27 June 2011 and, thereafter, various attendances over time were made in which orders were given with regard to interim parenting and directions were made for the appointment of an independent children’s lawyer.
The parties also, at different times, amended their applications and, finally, leading up to hearing, provided details of the orders that they each sought in relation the parenting of the child, X.
PROPOSED ORDERS
From the mother’s perspective the orders were detailed in a document which commenced as follows:
The following are my suggested orders which the majority has been taken from Ms C, the report writer’s recommendations.
(1)That Ms Thackeray has Sole Parental Responsibility.
(2)That X lives in equal time arrangement spending week about with his mother and father and changeover occurs on Mondays.
(3)That changeover occurs at school as per pickup arrangement or in the event that it is not a school day it would be at the Day and Night Pharmacy in (omitted) or another location agreed to by the parents in writing.
(4)That the school holidays be shared with spending the first half of all school holidays in odd numbered years with his mother and the second half with his father; and X spends the first half of all school holidays in even numbered years w2ith his father and the second (sic) half with his mother. Half school holidays will be changeover at 4pm on the 4th Sunday of the Christmas vacation.
(5)That the beginning, half way and end of each school holiday period be clearly identified in the Order
SPECIAL DAYS
(6)That if the parent that X is with for Christmas and Easter Sunday is going to be in the (omitted) region on that day then the parents may choose to share with written arrangements 2 weeks prior so plans can be made.
(7)That X spends from 5pm on the day before either Mother’s or Father’s Day with the appropriate parent if he is not already in their care
(8)That X spend from 3pm if a school day or 5pm if a non school day until the commencement of school the following morning or a time agreed to by his parents (to be in writing 7 days prior) with the parent he does not wake up with on his birthday.
(9)That X spend from 3pm if a school day or from 5pm if a non school day until the commencement of school the following morning or until a time agree to by his parents (to be in writing 7 days prior) with the parent he does not wake up with on each of his parents birthdays
(10)If X is not spending time with his mother on each of his siblings birthdays that he will spend from 3pm if a school day or from 5pm if a non school day until the commencement of school the following morning or until the time agreed to by his parents (in writing 7 days prior).
(11)For other special occasions, on provision of seven days written notice either parent may advise of their wish to spend time as above with X.
COMMUNICATION WITH X
(12)The parent that X is not spending time with is to initiate a phone call to the other parents mobile between 6-6.30 on 2 evenings a week Tuesday and Thursday
(13)That X be allowed to phone the other parent at any reasonable time.
PARENTAL COMMUNICATION
(14)That the parent communicate by email and that the parent from whom a response is required will provide the response by 9am the following day.
(15)In the case of an emergency then the parents will communicate by text or ringing the other parents’ mobile phone.
PASSPORT
(16)That either parent is at liberty to apply for a passport for X and that the arrangements for where the passport is kept, and the process for either parent to obtain and return the passport is clearly defined.
(17)That each parent have sole responsibility for making decisions about the day to day care, welfare and development of X during periods when X is living with them (except that both parent will ensure that X attend all sporting cultural or other social events including rehearsals and sporting practices when X is with each parent.
The father’s position was detailed in a document provided by him headed “Consent Orders” though it was, more particularly, the proposals that the father put forward in relation to the parenting of the child. Those orders, again, were comprehensive and even included clauses with regard to the steps to be followed in relation to any conflict as to the resolution of difficulties in reaching decisions. The orders, 1 through 20, were as follows:
1.That the child X (born (omitted) 2006) shall live with both parents on a two week rotation being the first week with the mother and the second week with the father with changeovers to take place after school on each Friday.
1.1 That upon the child’s ninth birthday this then moves to a three week rotation of the first week with the mother and the seco9nd and third week with the father with changeovers to take place after school on each Friday.
2.That the child spends time with the father for the first half of the Christmas school vacation period commencing in odd numbered years and the second half of such holidays when commencing in the even numbered years and wit the mother for the other half of such holidays in each year.
3.That the parent that does not have the child with them for the first half of any given Christmas school vacation period pursuant to Order 2 shall spend time with the child from midday Christmas eve to 1.00pm Christmas Day. For the purposes of this Order, the parent having time with the child on Christmas Eve shall collect X at the commencement of this time from the home of the other parent and shall return X at the conclusion of this time to the home of the other parent.
4.That in relation to the child’s birthday, unless otherwise agreed in writing:
4.1 That in the event that X’s birthday falls on a school day then the parent with whom the child is not living shall spend time with X from after school until 7.00pm, with the non-residential parent to collect X from school at the commencement of this time and return him to the other parents residence at the conclusion of this time.
4.2 In the event that X’s birthday falls on a non-school day then the parent with whom X is not living shall have time with X for at least four hours which shall include either lunch or dinner, and failing agreement in that regard such time shall be from 10.00am to 2.00pm.
5.The father shall not spend time with X on the weekend which includes Mother’s day.
6.The mother shall not spend time with X on the weekend which includes Father’s day.
7.That X shall communicate with the parent he is not living with by telephone at all reasonable times, and in particular between 7.00 and 8.00, am or pm, each Sunday, Tuesday and Thursday, or otherwise agreed between the parents, with the non-residential to initiate such calls and the residential being responsible to ensure that X is available to receive such telephone call in a quiet & private location and free from interference.
7.1 That X is allowed to communicate with the parent he is not living with by telephone at all other times he requests, with the residential parent to initiate such calls without delay or interference.
8.That the parents shall have shared and equal parental responsibility, in consultation with each other, for making decisions regarding the child’s long term care, welfare and development.
8.1 That without limiting parental responsibility of either parent pursuant to paragraph 8 of these Orders, each parent shall keep the other parent informed of and shall properly consult with the other with respect to any significant parenting issue affecting the child. For the purpose of these Orders a “parenting issue” is:
(a)Any medical or health matter concerning the child; including the provision of whatever authority necessary to enable the parent to be able to speak to any relevant persons;
(b)Any medical or health matter affecting either parent which may affect the ability of that parent to care for the child;
(c)Matters relating to the education of the child, including but not limited to the choice of school and curriculum and the provision to the other parent of all school reports, school photographs and all communications from the child’s school other than with respect to routine or administrative matters including provision of whatever authority necessary to enable the parent to speak to any relevant persons;
(d)Disciplinary matters other than of a trivial nature;
(e)Matters concerning the social development and sporting activities of the child including the provision of whatever authority necessary to enable the parent to speak to ant (sic) relevant persons:
(f)Any change of place or domicile or telephone number of either parent within three days of such change.
(g)Any intended change in name by which the child is commonly known from what appears on the birth certificate;
(h)Any issuing of a passport for the child;
(i)That in the event that either parent takes the child away fro a holiday or authorize another to take the child away from the (omitted) district, that they will notify the other parent in writing at least 14 days prior, and inform the address they will be staying and ensure that the parent has a contact phone number on which they may contact and speak to the child subsequent to Order 7 & 7.1;
(j)Generally any other matter regarding the child in respect of which a parent should be informed or consulted having regard to the provisions of Part VII of the Family Law Act 1975.
9.That in the event there is some dispute and/or parental concern about the arrangements for the child, the parties will together employ the “SIX STEPS TO WIN-WIN CONFLICT RESLOUTION”, flow chart and if failing that make an appointment as soon as possible and both attend jointly with a (omitted) counsellor/facilitator from Relationships Australia to counsel and assist the parents to produce a resolution to their concerns.
10.That each parent have sole responsibility for making decisions about the day to day care welfare and development of X during periods when X is living with them.
11.That neither parent shall consume alcohol to the extent that they are not legally permitted to operate a motor vehicle whilst the child is in their care;
12.That each party shall be at liberty to attend all school organized events, activities or functions routinely attended by parents in respect of X including (but not limited to) parent/teacher interviews, sports days, speech nights, school concerts, graduations and the like;
13.For the purpose and interpretation of these Orders, the time X will spend with the parents pursuant to Order 1 shall be suspended during the Christmas School vacation periods and the following meanings shall apply to terms used in these Orders:
13.1 “School holidays” – school holidays shall be deemed to commence at 3.00pm on the last day of school of the school term and shall be deemed to conclude at 9.00am Monday the first day of school on the new school term of the school the child is attending.
13.2 “Half school holidays” – the mid-point of school holidays for the purpose of changeovers during the Christmas school vacation period shall be at 4.00pm on the fourth Sunday of that holiday period.
14.That in the event either parent is not able to personally supervise the child for a period in excess of 12 hours, they will give the other parent first opportunity of having the child in their care for that period of time.
15.That Easter Sunday is shared so that the parent with whom X is not living shall have time with X for at least four hours which shall include either lunch or dinner, and failing agreement in that regard such time shall be from 10.00am to 2.00pm.
16.That both parents’ birthdays are shared so that the parent with whom X is not living shall have time with X for at least four hours which shall include either lunch or dinner, and failing agreement in that regard such time shall be from 10.00am to 2.00pm.
17.That sibling sister’s birthdays, (omitted) (with the Father) and (omitted) (with the Mother) are shared so that the parent with whom X is not living with, shall have time with X for at least four hours which shall include either lunch or dinner, and failing agreement in that regard such time shall be from 10.00am to 2.00pm.
18.That, withstanding Orders 8 & 8.1, neither parent shall permit the child to engage in the sport of contact football.
19.That, withstanding Orders 8 & 8.1, neither parent shall permit the child to leave the school grounds unless accompanied by a suitable responsible adult.
20.That changeovers shall occur as specified in these Orders, or at the home of the parent as agreed or failing that at the halfway point between the residences, being (omitted) service station ((omitted) Highway, via (omitted)).
At the conclusion of the hearing and when submissions were made in relation to this matter, the father indicated that, having considered the position taken in relation to the matter, he sought to make slight variations to those proposed orders. The variations included the discharge of order 1.1 relating to a change to occur upon X attaining nine years of age, which would be in (omitted) 2015, and, rather, to simply contend that there should be a week about arrangement in relation to parenting, until such time as other orders were made or, of course, until X attained his majority. Additionally, the father sought to strike out orders 18 and 19 relating to a preclusion upon either parent permitting the child to engage in the sport of contact football or permitting the child to leave the school grounds unless accompanied by a suitably responsible adult.
The parties were self-represented in these proceedings. As a result of that and, no doubt, other factors which had influenced Willis FM, as she then was, orders were made for the appointment of an independent children’s lawyer to represent X in these proceedings.
At the commencement of the hearing, the independent children’s lawyer indicated a position in this matter which could be summarised as follows:
· Having regard to section 60B and the parties’ agreement that there should be shared care arrangements, the ICL would not ordinarily quarrel with them.
· A shared care arrangement would result, at least as proposed by the mother, in arrangements which were consistent with the recommendations of the family report writer and consistent with arrangements that had been in place since November 2011.
· The independent children’s lawyer had reservations concerning the ability of the parties to carry out a shared care arrangement effectively, noting that there was a long history of poor communication and decision-making and that, in respect of those difficulties, the independent children’s lawyer anticipated, following evidence, that it would be a case that the criticisms of the behaviours and attitudes of the parties would be more directly pointed toward the father.
After the hearing the independent children’s lawyer, at the commencement of submissions, put forward a set of proposed orders in relation to the future parenting of X. Those orders were in these terms:
1. Discharge all previous orders.
2.That the child X (born (omitted) 2006) shall live with the Mother and spend time with and communicate with the father each alternate weekend commencing from after school Friday to before School on the following Tuesday.
3.That the child spends time with the Father for the first half of the school vacation periods commencing in odd numbered years and the second half of such holidays when commencing in even numbered years and with the mother for the other half of such holidays in each year.
4.That the parent that does not have the child with them for the first half of any given Christmas school vacation period pursuant to Order 2 shall spend time with the child from midday Christmas Eve to 1.00pm Christmas Day.
5.That the parent who does not have X with him or her on Easter Sunday shall spend time with X from 12 noon to 5.00pm on such day.
6.That all changeovers shall where possible shall take place with start or finish at X's school on school days but otherwise changeovers shall occur at the (omitted) Service Station on the (omitted) Highway north of (omitted).
7.Subject to written agreement to the contrary, that the parents’ communications in relation to matters relative to the Care Welfare and Development of X shall be by way of Email. That should a response be required to such a communication such response shall be made by 9.00am on the following day. Communication by phone or text may only occur in case of emergency.
8.That in relation to the child’s birthday or the birthday of any of his siblings or the birth day of his parents, unless otherwise agreed in writing:
8.1. In the event that such birthday falls on a school day then the parent with whom the child is not then living shall spend time with X from after school until 7.00pm with the non residential parent to collect X from school at the commencement of this time and return him to the other parent at the changeover point pursuant to Order 5 at the conclusion of this time;
8.2 In the event that such birthday falls on a non-school day then the parent with whom X is not then living shall spend time with X for at least four hours which shall include either lunch or dinner, and failing agreement in that regard such time shall be from 10.00am to 2.00pm with changeover at the changeover point as set out in Order 5.
9.That X shall spend time with the father on Fathers Day and with the mother on Mother’s Day with the commencement of such time to begin from 5.00pm on the day before such day until 5.00pm on Father’s Day or Mother’s Day as the case may be. Changeovers shall take place in accordance with Order 5.
10.That X shall communicate with the parent she is not living with by telephone at all reasonable times, and in particular between 7.00pm and 7.30pm each Monday and Wednesday, or as otherwise agreed in writing between the parents, with the non residential parent to initiate such phone call and the residential parent being responsible to ensure that X is available to receive such telephone call in a quiet and private location.
11.That the mother has sole parental responsibilities fore the major long-term issues relating to X. The mother is to inform the father of decisions she is about to make for X and seek his input in writing before making any decision. Upon a decision being made by her, she shall then inform the father of such decision in writing.
12.That without limiting the parental responsibility of the mother pursuant to these Orders, the mother’s decision on long term responsibilities shall include:
12.1 Any medical or health matter concerning X;
12.2 Any medical or health matter affecting either parent which may affect the ability of that parent to care for X;
12.3 Matters relating to the education of X, including but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, options to purchase school photographs and all communication from X’s school other than with respect to routine or administrative matters;
12.4 Matters concerning the social development and sporting activities of X;
12.5 Generally, any matter regarding X in respect of which a parent should be informed of or consulted with having regard to the provisions of the Family Law Act 1975.
13.That each parent have sole responsibility for making decisions about the day to day care, welfare and development of X during periods when X is living with them (except that both parents shall ensure that X attends all sporting cultural or other social events including rehearsals and sporting practices when X is with each parent).
14.Each parent shall advise the other of any change of address and or telephone number within three days of such change.
15.That each party be at liberty to attend all school organised events, activities or functions routinely attended by parents in respect of X including (but not limited to) parent/teacher interviews, sports days, speech nights, school concerts, graduations and the like.
16.For the purpose of the interpretation and implementation of these Orders, the time X will spend with the parents pursuant to Order 1 shall be suspended during the Christmas School vacation periods and the following meanings shall apply to terms used in these Orders:
16.1 “School holidays” – school holidays shall be deemed to commence at 9.00am on the day immediately after the last day of school of the previous school term and shall be deemed to conclude at 4.00pm on the Sunday immediately prior to the first day of school of the next school term. School holidays shall be the actual school holidays for the school the child is attending.
16.2 “Half school holidays” – the mid point of school holidays for the purpose of changeovers during the Christmas school vacation periods shall be at 4.00pm on the fourth Sunday of that holiday period. For the mid year school vacation periods the midway point shall be 4.00pm on the second Sunday of that vacation period.
17. That the Independent Children’s Lawyer be discharged.
THE CONDUCT OF THE HEARING
The application is one which was conducted in a somewhat different way, stemming, in part, from the fact that the parties were self-represented and the independent children’s lawyer had taken a more significant role, in relation to obtaining evidence in respect of proceedings. It was contended that the various experts who had been consulted, one way or the other in relation to the proceedings, should be called prior to the parties and, in that regard, it was suggested and agreed that the clinical psychologist, who had been involved with the parties, Mr J, should be called first and that the report writer, Ms C, should be allowed to hear the evidence given by Mr J and then called second. If required, Ms S, a psychologist who had provided assessments in relation to the parties, would then be called to follow Mr J and Ms C and, finally, the mother and father would be called to give evidence in relation to the matter.
The parties were consulted in relation to that change and other issues dealing with the conduct of the proceedings and, following discussion and, when necessary, rulings being made in relation to the course to be followed and the evidence to be relied upon, it was agreed that the experts would be called first, followed by the mother and the father.
It was not agreed initially as to whether Ms S would be required for the purposes of cross-examination, but it certainly was agreed that, if she was to be called, that leave would be granted for her to attend by telephone. In any event, subsequent to the evidence being taken from Mr J and Ms C, Ms S was not required to give evidence and her affidavit, which annexed her reports in relation to the mother and the father were admitted without cross-examination being required.
THE EXPERT EVIDENCE
I intend to deal with the evidence of the experts called in relation to the matter before turning to the evidence of the parties and then, of course, to the law. In the circumstances, therefore, I intend, firstly, to comment upon the evidence of Ms S, as contained within the reports of 19 July 2012 which are annexed to her affidavit sworn 20 July 2012 and filed 27 July 2012.
Ms S’s reports relate to both the mother and the father and, in relation to the mother, noted, under the heading, “Appearance”, that Ms Thackeray presented as someone who was high functioning and well socialised and that Ms Thackeray’s attitude to Ms S, as the examiner, was polite, friendly and forthcoming throughout the interview. Additionally, she noted that her demeanour was appropriate to the setting and for the purposes of the appointment.
Ms Thackeray did apparently become tearful at times during the interviews, particularly when recalling specific episodes of the marriage, as well as difficulties that she said developed following the breakdown of the relationship with the father.
In particular, Ms S noted, under the heading “Insight”, that the mother appeared to value ideas about not disappointing people, including the father, it was important and that she seemed concerned about the disapprobation of others, regarding her behaviour.
More particularly, Ms Thackeray admitted that she had used alcohol as Ms S put it:
In a frequency and quantity during the marriage that exceeds her current pattern of use and said that alcohol was the means by which she coped with the stress of the relationship with Mr Rand while she was married.
Ms S noted, in particular, under the heading “Assessment”, that Ms Thackeray had some:
Personality traits and tendencies that have stymied the resolution of conflicts with Mr Rand.
And, finally, under the heading “Summary” noted, at paragraph 30, the following:
Ms Thackeray has been socialised in a way that is typical of many women, as the meeting and anticipating of the needs of others supplants those of the self. This makes it difficult for women to act assertively to resolve conflict as this challenges the beliefs held about normative behaviour and values. Ms Thackeray appears to have tried to keep the peace and attend to the emotional needs of her family members in an effort to make everyone happy. This is neither possible nor helpful in the resolution of conflicts following the breakdown of a relationship. It is also not indicative of psychopathology but it does make it difficult to remain calm and withstand anxiety when confronting conflict.
The assessments provided by Ms S in relation to this matter were of particular assistance in relation to these proceedings, noting, firstly, that they were unchallenged and, secondly, that they, to a significant degree in relation to the mother, were reflective of my own observations and assessments.
In relation to the father, the psychological assessment provided by Ms S was of particular assistance. Ms S made a number of observations and assessments which were telling and were a recurring theme in the proceedings before the court. She says, at paragraph 6 of her report:
He (the father) did express the view that he had been treated unfairly in the Court as the female magistrate had taken a side against him without justification. Mr Rand would answer my questions in a concise manner but he returned to the conduct of Ms Thackeray as a predominant theme of his responses.
Most particularly, however, later in her report, Ms S addressed a number of issues which were concerning in relation to the father and, as I have indicated, were to be raised by other experts, in relation to the proceedings. Under the heading “Thought Content”, she says:
Mr Rand returned to ideas of unfairness as well as his views on the behaviour of Ms Thackeray during the evaluation. Mr Rand expressed the view that there was the potential for an unfair or inequitable outcome of proceedings as far as he was concerned. He described the previous family law litigation regarding Y, a daughter from a previous relationship as “…it wasn’t my choice…”, although he reported that these went on for more than three years.
Mr Rand spoke about Ms Thackeray in mostly negative terms describing her as having a “…strong history of alcohol abuse…”. He was prepared to concede that Ms Thackeray, “…had been a good mother during the pregnancy…” as she had abstained from alcohol use at that time. Mr Rand reported Ms Thackeray not being involved in the early care of X due to suffering from postpartum depression. He said, “I had step in and care for him …I’m not saying Ms Thackeray didn’t do anything…but I developed the primary bond…”. Mr Rand described X as having a special bond with him as a much longed for son.
Under the heading “Insight”, Ms S noted, at paragraph 17:
Mr Rand did have a pervasively negative thinking style about the nature of relationships. He also expressed views that were either all good or all bad regarding his relationships. Mr Rand did not express any empathy for Ms Thackeray having suffered postpartum depression following the birth of X, the experience of which seems to have been the main reason for the termination of a subsequent pregnancy.
Interestingly, and I think, again, significantly, under the heading “Insight”, Ms S noted, at paragraph 19:
Mr Rand reported that X had expressed the wish to live with him. He did not qualify this statement with any regard to the child’s ability to understand the impact of this wish on his life or his relationship with Ms Thackeray. Mr Rand was of the view that this indicated a preference of X that supported his own goals in litigation rather than the best interests of the child.
In addressing issues with regard to the father’s judgment and his capacity to act appropriately, in relation to the situations that might confront he and the mother, particularly with regard to decisions to be made in relation to X, she noted:
Mr Rand did not seem to be able to acknowledge his own contribution to the ongoing litigation. He attributed the inability of the parties to resolve their conflicts to Ms Thackeray’s intransigence which in turn reflected his view of her mental health.
And:
Mr Rand could have limited decision making skills probably as a result of his reported dysfunctional relationship with his own father, who did not serve as a positive role model to him.
Significantly, at paragraph 21, Ms S, having spoken with both the report writer, Ms C, and the clinical psychologist, Mr J, notes the following:
Both Ms C and Mr J related their frustration with Mr Rand’s inability to cooperate with Ms Thackeray in decision making regarding X. They both told me about protracted arguments Mr Rand had with Ms Thackeray regarding the school that X would attend. It appeared that Mr Rand was inflexible about which school X should attend despite the apparent negative impact of this indecisiveness had on the child and that the limited finances of both parties did not allow for much latitude in decision making.
Finally, under the heading “Summary”, Ms S notes the following at paragraph 29:
There is probably little benefit to the resolution of the ongoing conflicts by an overlay of diagnostic terms. Mr Rand has a history of a high level of functioning that he can call upon in the task of developing a business-like relationship with Ms Thackeray in the shared care of X. He is certainly capable of being a good enough parent to X.
At paragraph 30:
Mr Rand is probably struggling with a sense of abandonment a result of the breakdown of his relationship with Ms Thackeray. The picture is clouded by his recent bereavement due to the death of his mother following a lengthy illness. It is reasonable to assert that Mr Rand will probably develop a perspective of this time as one of the most trying episodes of his life. It is equally reasonable to assert that the vicissitudes of life have made more salient the shortcomings of Mr Rand in terms of his personality and coping strategies.
And, finally, and perhaps rather presciently, Ms S notes, at paragraph 32:
It will be essential in the first instance that some structure is imposed on Mr Rand through orders made by the Court. Mr Rand is likely to generate ongoing conflicts and crises if he is left to negotiate outcomes with Ms Thackeray regarding the parenting of X. This tendency to conflict is best understood as a product of the breakdown of the marriage as well as the impact of the bereavement on Mr Rand. It is my professional opinion that Mr Rand has an impaired ability to make decisions and implement plans but this should be remedied through ongoing therapy.
Ms S’s assessments in relation to both of these parents, was, I think, most helpful and accurate. Both parents, as evidence flowed in the matter, had difficulties in their relationship but an ongoing theme, and one which continued to develop, leading, of course, to the strong recommendations of the independent children’s lawyer, was that the father lacked empathy, was unable to consider others’ opinions and, in particular, lacked any respect for the mother, nor did he hold any trust in the mother’s ability.
Called first in relation to giving evidence in respect of these proceedings, was the clinical psychologist, Mr J. Mr J was the psychologist chosen by the father to have significant involvement in assisting the parties to deal with issues of conflict. Mr J was asked about his involvement with this family and, in particular, was asked to comment about the contents of a Department of Human Services-Child Protection interview, which was conducted in relation to concerns with respect to the wellbeing of the father’s child of a previous relationship, Y.
On 24 April 2013, Mr J was interviewed by Ms M, a child safety officer. Under the heading “Content of Interview with Agency Staff Member”, the following is noted:
Mr J provided the following information:
· I was first involved 10 years ago
· All I remember of Y is her being in her push chair (pram)
· Nothing specifically to her
· Always custody issues between parents
· Received a phone call 10th December 2012 from other
· Mother worried Y hurting herself
· Mother said Y is already receiving counselling around Y didn’t want to meet her father
· I tried to stay in the middle of the ongoing issues
· Support Mr Rand and also working with mother of his other boy
· Mr Rand has had minimal success
· He is a very controlling man
· I guess he sees me as an ally to a point
· I have attempted to maintain some middle ground to maintain some engagement with Mr Rand and be sympathetic
· I don’t have direct evidence one way or the other for parents
· Not had a lot to do with Ms I, only what she told me last year
· Doesn’t surprise me that he is having these issues
· He is usually persistent, wanting contact with children
· Mr Rand has an insufficient regard for common sense and practicality
· Serial offender similar issues with X mother, control issues
· He has done heaps of parenting courses covered all basis, relation to other child had independent psychological reports done
· Wrote a report, letter 2004 solicitors
· Mr Rand has idealised perspective and puts this ahead of practically
· Ms Thackeray is also in tune to X as Ms I seems to be
· He can be violent, sure he would do things like that (spoke about concerns his discipline with Y)
· He just wants his way, not flexible and tries to control
· Lat contact November last year with Mr Rand
· My view he gets stuck on things that should happen with kids and doesn’t relate that well to practical situations and is over focused on what is going to be good without sensitivity to Y
· What he doesn’t do well is have sensitively and pay attention to the child and allow the child to have their points of view incorporated
· Mr Rand is closed to feedback, good at hearing what is said but not in a way that leads him to change his behaviour
· He has few occasions where he demonstrates empathy to his child and others and needs to improve this
Mr J was asked whether the notes of the conversation were an accurate reflection of the discussions between he and Ms M and he confirmed that they were and then went on to say:
I hold to what I said before.
Mr J was then cross-examined by the father, the mother indicating that she had no questions for Mr J. The father’s line of questioning was unusual in that it did not challenge, to any real extent, if at all, the concerns that were acknowledged by Mr J as having been noted in relation to the father. In particular, the father did not challenge the fact that Mr J had commented that the father was usually persistent, wanting contact with the children, that he had insufficient regard for common sense and practicality and that he was a serial offender, in that there were similar issues with X’s mother in relation to control as appears to have arisen in relation to Y.
More particularly, Mr J noted, and was not, to any real extent, challenged about the assessment that the father had:
Idealised perspective and puts this ahead of practicality.
as well as the fact that:
he just wants his way, he was not flexible and tries to control.
Most specifically, and, again, I think astutely, Mr J noted:
My view is that he gets stuck on things that should happen with kids and doesn’t relate that well to practical situations and is over focused on what is going to be good without sensitivity.
Mr J also noted that what the father does not do well is to have sensitivity and pay attention to the child and allow the child to have their point of view incorporated.
Most significantly, and, again, most accurately, I think, the psychologist, Mr J, noted that the father is:
Closed to feedback. Good at hearing what is said but not in a way that leads him to change his behaviours.
and that there were:
few occasions where he demonstrated empathy to his child and others and that this needed to be improved.
Notwithstanding those significant comments and criticisms of the father and his parenting, there seemed to be little appreciation by the father of the consequences of those comments. In fact, his line of questioning and his demeanour entirely in these proceedings, was reflective of the fact that the father was good at hearing what was said but not good at accepting the validity of what might be raised in relation to his behaviours and then attempting to deal with those behaviours.
Mr J, in cross-examination, repeated such comments. When asked about the discussions in relation to the school that the child, X, was to attend and the circumstances that might need to be considered in relation to costs of school and the like, Mr J noted that the father was, he thought, disingenuous on costs and after school care and was fixated on getting his own way, in relation to the school that the child was to attend.
Additionally, Mr J noted that the father followed one line inflexibly and that the father was, correspondingly, unprepared and unable to change course. Mr J noted, when asked about the statement in the Department of Communities’ file, that he lacked empathy, to explain that he thought that the father had difficulties, “being the child” and lacked any empathy for the child. Rather significantly, Mr J noted that this attitude was “what gets you into trouble.”
Mr J was a most helpful witness in relation to these proceedings. His evidence clearly indicated the difficulties that were being experienced in this family unit, as well as between the father and the mother of the child, Y, and it was noteworthy that Mr J assessed that the behaviours of the father in these proceedings, were identical to the types of behaviours that also were observed in the interaction between the father and the mother of the child, Y.
Also called was Ms C. Ms C prepared two reports in relation to this family, the first attached to an affidavit filed 25 May 2012 and the second, to an addendum or updated report, filed 6 May 2013.
In the first report, Ms C, after lengthy consideration of the circumstances that she observed, noted the difficulties in relation to communication between the parties and recommended, at 12.1 of her report, as follows:
Consideration should be given to Ms Thackeray having sole parental responsibility in order to reduce the very high likelihood of ongoing conflict around decision making in the future. Alternatively if the parents are to retain equal shared parental responsibility it may be helpful to have some mechanisms in place to prevent protracted disputes in the future.
Thereafter, Ms C recommended that there should be equal time spent, perhaps on a week about basis, between the mother and the father’s household and that the child should have the opportunity for phone communication with the parent he was not living with, once a day, however, less if the parents agreed. Otherwise, Ms C recommended arrangements in relation to holidays and special days as proposed by the mother and the continued attendance by the child, at (omitted) State School.
The updated report was prepared approximately one year later. Under the heading “Evaluation”, Ms C noted, at paragraph 89:
Unfortunately there has been no progress over the past twelve months in Ms Thackeray and Mr Rand being able to work cooperatively and collaboratively. Parental communication continues to be highly conflictual. The high probability of the parents being unable to reach agreement in a positive and timely matter that was highlighted in the previous Family Report is supported by the incidents during the last year.
At paragraphs 91, 92 and 93, Ms C notes:
There is no doubt that Mr Rand loves his son; however he continues to lack the insight and self awareness about his own behaviours and fails to take responsibility for his actions while consistently focusing on and blaming Ms Thackeray.
Mr Rand hears and takes from reports what he wants to; the information that he is comfortable with. For example, in the psychological assessment he was pleased that Ms S had quite appropriately identified that he was experiencing grief and loss and its resultant impact on him. However he chose not to focus on or acknowledge the other comments or recommendations contained in the report.
Mr Rand chose not to acknowledge Ms S’s comments or recommendations regarding his need for therapeutic and psychological counselling; arguing that he is now engaged with Ms A at Relationships Australia. I suggested this was not the counselling that Ms S was referring to to address the underlying issues.
Significantly, and it was a recurring position and statement made by the father, was the need for there to be a consultative process. At paragraph 95, Ms C notes:
Mr Rand’s focus is primarily on the “consultative process”; the likelihood of or achieving a positive outcome appears to be inconsequential. Consequently he is consumed with engaging Ms Thackeray in mediation about a range of matters that the Independent Children’s Lawyer has previously pointed out to Mr Rand “that not all decisions in relation to the children need to be counselled. Something like a couple of hours spent with the mother on her birthday is something that does not require counselling. Secondly, holiday time is something that you and she should be able to agree upon without having to go to counselling.”
Ms C then notes, at paragraph 96:
In my opinion, equal shared parental responsibility will continue to be highly problematic. It is my assessment that Sole Parental Responsibility to Ms Thackeray is in X’s best interests and furthermore it is my assessment that Ms Thackeray will act responsibly and respectfully in her administration of parental responsibility and in her son’s best interests.
Thereafter, Ms C goes on to reiterate the recommendations previously made, including with respect to the mother having sole parental responsibility and the parents having equal time on a week about basis with the child. Changeovers were proposed to occur, if possible, at the child’s school but, otherwise, at a day and night pharmacy in (omitted) or another location agreed and holidays, etcetera, should be shared.
It was further proposed that there would need to be specific days and times recorded in relation to special days as well as in regard to communication, so as to ensure that there was a framework that both parties clearly understood and were able to comply with.
Ms C’s reports in relation to this matter were a most astute assessment of the position in relation to the proceedings. She assessed, I think, quite accurately, the difficulties that the father had in having any empathy for those, other than himself. Additionally, she noted his fixation on issues with regard to consultation and mediation, though there appeared to be no appreciation whatsoever by the father of the fact that, with consultation and mediation, comes also a need for concession and cooperation.
Rather, the father’s overarching position in relation to such matters was that, with consultation and mediation, he would be able to achieve his own ends. I gained the distinct impression that, if anything, the father’s determination to continue a consultative interaction between he and the mother was a means of control, manipulation and intimidation of the mother. I was most concerned by that and the fact that all of the experts analysed that as a serious consideration, in relation to this matter.
Ms C, when cross-examined by the father and the independent children’s lawyer, reiterated her concerns, in respect of the relationship between the parents and, perhaps more significantly, the relationship between the father and X. She noted, in particular, that, having become aware of the records of the Department of Communities in relation to concerns with respect to the child, Y, that her concerns for emotional risks to X had been increased.
In her assessment, the various reports provided by the school principal, by Mr J, by Department of Communities officers and the observations that she had made herself, showed that the father was not hearing the child, that he was inflexible in his views and attitudes and she reiterated what she said was a concern, as to an inability of the parties, particularly arising from the father, to parent collaboratively. She reflected upon that statement, making reference to the difficulties in reaching timely decisions in relation to parenting and that, having conducted a second series of interviews and, further, having read the Department of Communities’ file, that sole parental responsibility would appropriately vest in the mother.
Ms C confirmed for the mother, in cross-examination, that she saw the mother as the “better parent, child focused and attuned to the needs of the child” and, further, went on to say, in light of the Department of Communities’ files, that she would support more time spent with the mother than with the father.
In the father’s cross-examination, there was, again, emphasis by the father on what he saw as his strong points, without any appreciation whatsoever of the concerns that the experts had noted, in relation to him. He cross-examined Ms C at length about his proposal for there to be a “code of conduct for parental discussions” and whether that was important or a reflection on his determination to act responsibly, in relation to parenting. Ms C, I think, most astutely, observed that the issue was not attending courses and taking bits and pieces of the recommendations from the courses, but, rather, more completely, an assessment of what a person attending a course, took away from it. As she most succinctly put it, “attendance does not connote competence”.
When the father emphasised that he had repeatedly sought family conferences to deal with issues of dispute between he and the mother and whether that reflected positively upon him, in relation to attempting to deal with issues in respect of parenting, Ms C noted that that was not necessarily a positive and that what she and, it would seem, Mr J and the mother had also observed, was that the, father continuously sought mediation but there was no change in his attitude or approach in relation to such issues.
Ms C, in fact, indicated that, in her assessment, there was, as she put it, an ongoing inability to parent collaboratively and cooperatively, and that she saw the only possibility of dealing with that issue, as there being sole parental responsibility vesting in one parent, so that the difficulties in communication and cooperation were removed. She went on to specifically note, that she recommended that in favour of the mother, in X’s best interests and to take the frustration and the inabilities of the parties to make decisions, out of the equation.
Ms C’s assessment in relation to the father and his behaviours toward the mother and, it would appear, also, on occasion, toward the child, were to the effect that, he laboured points and heard only what he wanted to hear, but his mindset remained unchanged in relation to the mother and, most significantly, that despite time having passed since separation, that the father remained disrespectful of the mother and of her role, as the mother of this little boy.
When asked to explain that by the father, in light of the fact that he had repeated numerous times that he had gotten a lot out of counselling courses, Ms C noted, I think, again, most astutely, that the father could elaborate broad principles but that the mindset of the father generally remained unchanged and that there was a continuation of a lack of respect for the mother, notwithstanding the words spoken.
Ms C was asked particularly about the exchange between the mother and the father relating to the mother’s birthday and her wish to spend time with the child. The exchange of emails on 19 March 2013 related to the mother’s wish to have the child come to dinner with her and other family members, including the child’s sisters, on 20 March 2013. The father had insisted upon attending counsellors, though the mother indicated that that was not possible. The father, in response to that request, indicated a lack of trust for the mother, which is, as I have noted, a recurring theme, and then went on to note:
If you want my consent without counselling as per the Orders, you will need to produce to me:
· A statutory declaration stating verbatim; “I guarantee I will not consume alcohol whilst X is in my responsibility and in my care and I will not subrogate responsibility for him to any other person.
· A statutory declaration stating verbatim; “I guarantee I will not allow X to play football what so ever whilst he is in my care and not allow others, specifically including my de facto husband, to allow him to play football either”.
The father then, gratuitously and hurtfully, went on to say:
I have discussed with X his wishes, and he really only wants to visit you for your birthday and not stay overnight. I did suggest, as a persuasion, that he might be able to stay with me then until 5.30 on Saturday afternoon. He seemed happy with that, so again my consent is conditional upon this.
The mother’s response is:
You can’t really be serious????? Its dinner with X’s family! I will not be signing any legal binding documents, demanded by you.
The father’s response was disparaging of the mother and indicative of his attitude. He said:
I’m not interested in your drama queen performance. You have the alternatives before you, it’s your choice.
The mother responded understandably:
I choose not to be bullied by you. I will go and see X at school.
Incredibly, the father, having achieved the result that he wanted, keeping the child away from his mother on her birthday, could not, however, allow the opportunity to pass and sent a final email on the afternoon of 19 March 2013 in these terms:
Wrong, you are the bully. Make an appointment with Mr P or Ms A to counsel as per the Orders, or I will have to commence contravention proceedings. X is not to play football. This is about his safety. Advise of the appointment time.
I must say I’m disappointed but not surprised, at your selfishness, in you choosing alcohol over X’s wellbeing. You are clearly not the parent, to even be considered, for sole responsibility of X’s welfare.
Ms C was aware of this exchange of communication and noted that, in her assessment, “X gets lost in the communication.”
She noted that the father would only allow the child to spend time with his mother on condition and that the father’s position was one of control and manipulation.
The father’s stance in relation to the mother’s birthday was the height of intimidating, harassing and disparaging behaviours between the parties. It was indicative, in no way, of any failures on the part of the mother in relation to such issues, but reflected so poorly upon the father and his lack of any appreciation of the best interests of the child, over and above what he sought to achieve, that it was almost determinative itself of the decision to be made in relation to this matter.
But the father, notwithstanding the concerns that everyone expressed in relation to his behaviours, his control and his attitude, would not accept that there were other issues which needed to be addressed. The father’s lack of insight and determined view that his way was the only way was damning of the father and of his lack of appreciation of the importance to this child, of a relationship with both parents that was fostered and developed.
The father challenged Ms C as to her recommendations with regard to the mother having sole parental responsibility, and inquired upon what basis she could suggest that the mother might act respectfully in relation to the parenting of the child and the involvement of the father. Ms C simply noted that the mother could separate her views of the father from her role as the decision-maker, in relation to X. She went on to note that the mother demonstrated a respect for the father as the parent of X and that she recognised that the child enjoyed his time with his father and that she was satisfied with that and happy to facilitate it, notwithstanding concerns that she had, on occasion, with regard to certain decisions made by the father.
The father seemed somewhat surprised at that response and inquired as to whether that was appropriate when, in the first report of May 2012, Ms C had noted, at paragraph 7.7, the following:
Ms Thackeray wants what is best for X and she acknowledges that X and his father currently have a good relationship. Ms Thackeray says that X is comfortable with the week about arrangement, that Mr Rand “really makes an effort” with X and “loves him to death”; and feels that it would be “cruel to take X away from Mr Rand”.
Ms C’s response in relation to that was to simply note that it reinforced the respect that the mother had for X and her ability to put aside her own views of the father, to ensure that X’s best interests were to the fore.
Ms C’s assessment in relation to this matter, like the assessment of Mr J and Ms S, was insightful and indicative of the various and multitudinous concerns that arose, in relation to the father. Most significantly, it reflected the fact that over a period of one year, from when the first concerns were raised by her, in relation to the father, to the second occasion that interviews had been conducted, there had been no real change in position and, in fact, if anything, there had been a deterioration in the father’s position and respect for the mother and her role as a significant person, in the life of this little boy.
THE EVIDENCE OF THE PARENTS
I turn, then, to the evidence of the parties. I would commence, obviously, with the statement that it is clear that both parents love this child dearly and, more significantly even than that, X loves each of his parents dearly. What is tragic, however, is that only one of the two parents is able to fully appreciate the needs of the child, including, most importantly, the needs of the child to have a relationship of a respectful and appropriate nature with both of his parents.
The mother impressed me enormously in relation to these proceedings. She seemed, I thought, to at least some extent, to have been worn down by the exchanges and the interaction between she and the father. When cross-examined by counsel for the independent children’s lawyer, she spoke of the hurt that she felt in relation to the dealings with the father in attempts to have opportunities to spend special days, such as her birthday, Mother’s Day and the like, with the child.
She responded to the inquiry by counsel for the independent children’s lawyer about the difficulties that existed in relation to any arrangements, with a simple acknowledgement that every arrangement is difficult and nothing could be done easily. She reflected upon the exchange of emails in relation to her request to spend time with the child on her birthday and, if nothing else, that exchange of emails reflected the fact that the mother simply gave up in trying to deal with the father in relation to such matters and that, in the end, she made other arrangements on another day, rather than continue the discussions with the father.
The mother’s position was an understandable one. She said that she feared that there was no possibility of ever being able to collaboratively parent with the father. She acknowledged that since seeing the Department of Communities’ file and the assessments made in respect of the father’s dealing with the older child, Y, that her concerns with regard to the emotional well-being of X had been increased.
The mother says and, I think, with some justification, that she was concerned about the dreadful things that were said by the father to the child about her and that she was entirely worn down by the exchanges between the parties.
The mother clearly indicated her love for the child. Until recently, she had proposed equal shared parental responsibility without, I would think, any real expectation that that would be able to work or that there would be any reduction in the demands placed upon her by the father. The mother’s position in relation to this matter does her enormous credit because, until such time as she became aware of the concerns held by the Department of Communities, in relation to the father and his parenting of the child, Y, she was willing to subjugate her own wishes and concerns, in order to, hopefully, provide the child with the best opportunities for a relationship with both she and the father, notwithstanding the ongoing difficulties that have continued since separation and the total lack of respect provided by the father to her and her role as a parent of this child.
I was enormously impressed with the mother and her determination to provide, in every way, for the best interests and welfare of this little boy to be to the fore.
Unfortunately, in relation to the father, where there were only positives that could be found in relation to the mother and to her determination to act responsibly and appropriately in relation to the parenting of the child, there was little, if anything, that could be seen of a positive nature, in relation to the father and his attitude to the responsibilities of parenting.
The father was an out and out bully. He behaved in a manner that would broach no consideration whatsoever of the opinions, views or wishes of any other person. Cross-examination by counsel for the independent children’s lawyer exampled so many of the issues of intimidating and overbearing behaviours by the father, that it would be a most lengthy recitation of that cross-examination, if all issues were dealt with.
Suffice it to say, that the circumstances that existed around the mother’s wish to have time with the child on Mother’s Day, when she had been most generous in allowing time by the father with the child on Father’s Day in 2012, notwithstanding that it was her time with the child, was an indication of the entirely different attitudes that each parent had to parenting. The mother was child focused. The father was entirely focused on his own wishes and to suggest, as he did, that he was only acting in a manner which was reflective of the wishes of a child of only six years of age, damned him from the start as a person determined to achieve, in any way, the goals that he set for himself.
The father was asked, at one stage, by counsel for the independent children’s lawyer, whether he considered the mother to be a good mother. He sat, considering what answer he could give, knowing that there was only one possible answer that could be appropriate and, after a pause of perhaps 20 seconds or more said simply, “She is his mum.”
It was again damning of the father, because it reflected exactly what the father really thought, in relation to this particular matter. He had no respect for the mother, he had no respect for her position in the life of the child and had no intent whatsoever of recognising the hurt that would be caused to this young child, if that relationship were not fostered and developed.
The father’s attitudes in relation to the parenting of the child were outrageous. The father seemed to suggest that he was being a good parent where he tried to encourage the child to spend time with the mother when X really did not want to by suggesting that the child should, “Go to your mum’s and you’ll be back in a week.”
The father had no appreciation whatsoever of the negative impact of statements such as that and had no insight at all into the serious concerns that arose where he believed simply that he was the better parent and that the child was more closely bonded with him.
The father lacked any appreciation of the concerns expressed by the mother and the numerous experts called in relation to this matter, in relation to his lack of empathy for the thoughts or wishes or feelings of those, other than himself.
The issues in relation to decisions with regard to the school that the child was to attend or the importance of others, including siblings in the child’s life, did the father no credit. The father was simply of the view that any assessment contrary to what he considered appropriate, was constituted as a result of bias or, in fact, sexual discrimination. His suggestion to Ms S, that a female magistrate had made decisions contrary to him smacked of discriminatory views and behaviours.
Similarly, the report prepared by Ms C, where it was not agreed to by him, was simply a situation of bias and a total lack of appreciation of what the father’s attitudes were when, in fact, each of the reports and assessments, including, most significantly, I would think, in light of the reliance that the father placed upon Mr J, of his assessments that the father lacked empathy and lacked appreciation of the importance of the mother, were further indicators of the total lack of insight or appreciation by the father of the needs of the child or the aspirations or wishes of others.
The father’s attitudes were hypocritical. His dictatorial attitude in relation to the child not participating in football but that the child could have a horse and be involved in riding was extreme. The father allowed the child, he says under his direct control, to ride the horse without a helmet, but the child was not able to play under six or under seven football. The hypocrisy was almost overwhelming and the explanation that the purchase of a horse, contrary to the mother’s wishes, was an appropriate position by him, because it was a skill that the father would like the child to learn, without any appreciation of the ludicrous stance of refusing the child to gather the skills that arise from playing junior football, including, perhaps, the great benefit that would come from the socialisation and skills that develop in relation to team sports.
The father’s position in relation to this matter was one that did him no credit whatsoever. Most significantly, it was also clear that the father’s attitude was simply unchanged and not influenced in any way, shape or form by the recommendations of others. All those who disagreed with him were biased. All those who disagreed with him failed to appreciate the importance of the relationship between he and the child. The father’s total lack of insight into the needs of this child, do him no credit whatsoever.
I could spend significantly more time in commenting upon the attitudes of the father and to the evidence that was given, in relation to this matter, but am of the view that it is, perhaps, most appropriate simply to recognise the total difference between the child-focused and caring attitude of the mother, compared and contrasted with the self-interest and determined approach of the father.
THE LAW
I turn then to the issues of the law and to the application of the evidence in this matter to the law.
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the paramount consideration is the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010. His Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption 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 ss 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, 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 in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
There is no such indication in relation to this matter.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
All that has gone before in these reasons would abundantly show that any proposal for equal shared parental responsibility is doomed to fail. The father’s attitude is uncompromising. His determination to negotiate settlement of any issue by counselling is nothing short of an opportunity for abuse, denigration and harassment. One could not imagine a clearer circumstance where the presumption of equal shared parental responsibility is rebutted pursuant to section 61DA(4) where the evidence satisfies the court that such an arrangement would not be in the best interests of the child.
As was emphasised by the experts and restated by counsel for the Independent Children’s Lawyer, the mother, but more particularly, the child, must have a settled and stable routine where decisions can be made in the best interests of this little boy, without the need for continued discussion and exchange. The father’s failure to appreciate the harm that is caused to the child through his inflexibility means that the only child-focused and appropriate arrangement is one that reflects the mother having sole parental responsibility in relation to decisions to be made with regard to the child’s long-term care, welfare and development. I intend to make orders reflective of that.
In the circumstances, there is not the statutory requirement to consider those matters that arise pursuant to the provisions of section 65DAA. However, it is appropriate in my view to be mindful, when looking at the objects, principles and considerations as detailed in sections 60B(1) and (2) and section 60CC(2) and (3), to consider what time should be spent with each parent, including whether such time should be equal time or substantial and significant time.
I am not of the view that equal time would be appropriate. Clearly, the expert evidence recommended contrary to that and the evidence that has fallen from the parties would also clearly show that equal time between each of the parent’s households has not been in the vest interests of this little boy. Substantial and significant time, however, is another consideration altogether, it being recognised that X has a close relationship with his father and, if his father were able to redirect his energies to be child-focused, then that there would be real benefits in involvement by the father in all aspects of the child’s life and to X in being involved in all aspects of the father’s life. Such an arrangement would be reflective of what is defined in section 65DAA(3), which is in these terms:
***
The proposals put by the Independent Children’s Lawyer at the conclusion of the hearing reflected such an arrangement, both in relation to the gazetted school terms and the gazetted school holidays, and would in my view be appropriate insofar as ensuring that X has the opportunity for a full and beneficial immersion in the life of the father.
Such an arrangement would require changes on the part of the father and there must be concerns as to the father’s ability or even willingness to change from what has been his practices during the entirety of the life of this little boy and, in fact, of longer standing in relation to his behaviours toward his older child, Y.
When considering the best interests of the child, note must be taken, as I indicated previously, of the objects and principles as set out in section 60B(1) and (2), and the considerations which are a reflection of the objects and principles, as set out in section 60CC(2) and (3). Those sections are in these terms:
**
It is important that note be made of a number of the considerations which are relevant in relation to this particular matter. Firstly, the provisions of section 60CC(2)(a) and (b) are relevant. X has a meaningful relationship with both of his parents. This is despite the behaviours of the father in adversely affecting the relationship with the mother. It is significant here, because not only is there a need to recognise the child’s right to a meaningful relationship with both of his parents, but there is the absolute need to ensure that the child is protected from harm and in this instance, from the psychological harm that stems from the behaviours of the father.
I do not consider that the father’s actions are intentional. If that were the case, it would be impossible to consider any opportunities for interaction between the father and the child because of the obvious risk of harm to this little boy. However, noting the father’s inflexible behaviours and persistent approach to parenting and the decision-making process, there is an obvious risk to the child of psychological harm should the father have the majority of time with the child or even equal time with the child. It will no doubt be difficult for the father to accept from me, as it is from any expert expressing views contrary to the father, that he must change, but it is essential if this child is to have all of the opportunities that should properly be available to him.
To make orders which allow the child to have a meaningful relationship with both parents, but to also protect and foster his relationship with his mother, means that the time proposed by the Independent Children’s Lawyer, and adopted by the mother, reflects a proper balance between the child’s attachment to his father, and the need to protect and foster the relationship with the mother. That protective element relating to psychological harm is significant in this matter.
The additional considerations that loom large here include those matters set out in section 60CC(3)(a), (b), (d), (f), (i) and (l). Insofar as the child’s wishes are concerned, there is no specific indication given by any of the experts into the wishes of the child, but one could properly infer from the existing relationship that the child’s wish would be to have a relationship with both parents, which is not affected by the hurtful comments and behaviours which have previously been exhibited by the father.
The child deserves a positive relationship with both of his parents and would no doubt thrive if that could be facilitated. At the present time, the father’s lack of insight into the effect of his behaviours upon the child and the child’s relationship with his mother is of concern, and as Ms C noted in her report, “X gets lost in the communication”. If the father’s determination to be involved in X’s life could be redirected from the negative aspects so far displayed to a more positive direction, then the child would be the obvious beneficiary.
At the present time X’s relationship with each parent is as good as could be expected, in the circumstances that exist. It is not, however, as good as it could be or should be, as a result of the behaviours of the father. Unknowingly, I assess, he undermines and denigrates the importance of the relationship with his mother and with others significant in his life, and that is a factor which weighs heavily in emphasising the need for a reduction in time with the father and a corresponding increase in time to be spent with the mother.
These reasons have detailed at length concerns with regard to the capacity of the father to provide for the needs of X, including particularly his emotional needs. Both parents can no doubt provide for the child’s intellectual needs and academic development, but it is obvious from all of the evidence presented in relation to this matter that the mother is far more attuned to the needs of the child and to meeting those needs. As was emphasised by the experts and counsel for the Independent Children’s Lawyer, the mother will act responsibly and respectfully in relation to decisions to be made with regard to the child. As was emphasised by Ms C in her oral evidence, the mother was more “child-focused and attuned to the needs of the child”.
The father’s apparent inability to even recognise the hurt caused to this child reflects poorly upon him, and until such time as he is able to address such issues within himself, his capacity to provide for the emotional needs of X fall far short of what the mother is willing and able to provide.
Section 60CC(3)(i) relates to the attitude to the child and the responsibilities of parenthood, and it would be repetitive to set out again those factors which have been detailed earlier in these reasons giving rise to very obvious distinctions between the attitude and approach of the mother and the father. Suffice it to say, on the evidence that is available in relation to this matter, that the attitude of the mother to ensuring that the best interests of the child are to the fore, are significantly better and more child-focused than is the attitude or approach of the father. That again is a factor significant in relation to the final determination of what is in the best interests of this child.
Finally, consideration must be given, as best one can, to making orders that would be least likely to lead to further proceedings. Any orders are always possibly subject to a need for revision or reconsideration, but if orders were made other than in terms of those proposed by the independent children’s lawyer, then the father’s attitude and behaviours would be reinforced and would lead, no doubt, to further difficulty and dispute, as well as further hurt to the child. One could not imagine that further proceedings would not then ensue and orders which limit the father’s time with the child and require him to consider his behaviours are the orders which are most likely to result in settled and stable future parenting arrangements.
For the reasons given therefore, I am satisfied that the appropriate orders in this matter are generally reflected in the orders proposed by the independent children’s lawyer and adopted by the mother. The orders of the court will be as set out in the orders section of these reasons.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 20 August 2013
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