Theodore & Theodore

Case [2021] FamCA 321

FAMILY COURT OF AUSTRALIA

Theodore & Theodore [2021] FamCA 321  

File number(s): PAC 5789 of 2014
Judgment of: FOSTER J
Date of judgment: 21 May 2021
Catchwords:

FAMILY LAW – CHILDREN – best interests – where consideration of applicable principles – where significant issues of risk – where father has history of mental illness and or personality disorder – where no issue that children should reside with mother – where presumption of equal shared parental responsibility should not apply – where in children’s best interests that the mother have sole parental responsibility – where Independent Children’s Lawyer and Single Expert proposes that father has supervised time  with the children – where opinion of Single Expert to be given significant weight – where father demonstrates little insight into the children’s circumstances as a consequence of his conduct – where orders to be made substantially as sought by the Independent Children’s Lawyer and supported by the mother.

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where oral adjournment application by the respondent father when proceedings part heard – where father the subject of outstanding criminal proceedings – consideration of the history of the litigation – whether the proceedings should be further delayed – best interests of the children – where application for adjournment refused.

FAMILY LAW – SUBPOENA OBJECTION – where a Notice of Objection on behalf of third party to a subpoena addressed to BB Company – where discussion of applicable principles – where subpoena struck out.

Legislation:

 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

Evidence Act 1995 (Cth) s 128

Cases cited:

Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905

Goode and Goode (2006) FLC 93-286

Langley & Tarelli and Anor (No 2) [2020] FamCAFC 126

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR v GRR [2010] HCA 4

Reeves & Grinter [2017] FamCAFC 19

Theodore & Theodore [2017] FamCA 588

Theodore & Theodore [2018] FamCA 188

Number of paragraphs: 184
Date of last submission/s: 8 April 2021
Date of hearing: 22, 23, 24 and 25 June 2020 and 27, 28 and 29 January 2021
Place: Parramatta
Counsel for the Applicant: Mr Schroder
Solicitor for the Applicant: Chapman & Smyth Family Law Pty Ltd
Counsel for the Respondent: Mr Batey
Solicitor for the Respondent: Madison Marcus Law Firm
Counsel for the Independent Children's Lawyer: Mr Braine
Solicitor for the Independent Children's Lawyer: Ms Rutkowska of Ark Law Lawyers
Counsel for the Objector to the subpoena addressed to BB Company: Mr Todd
Solicitor for the Objector to the subpoena addressed to BB Company: Williamson & Learmonth

ORDERS

PAC 5789 of 2014
BETWEEN:

MS THEODORE

Applicant
AND:

MR THEODORE

Respondent

AA PTY LIMITED

Objector to subpoena addressed to BB Company

MS MANSOUR

Independent Children’s Lawyer

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

27 JANUARY 2021 AND  21 MAY 2021

THE COURT ORDERS MADE ON 27 JANUARY 2021…

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AGLC
Theodore & Theodore [2021] FamCA 321
Case
[2021] FamCA 321
Decision Date

CaseChat Overview and Summary

In the matter of *Theodore & Theodore*, Foster J of the Family Court of Australia considered applications concerning parental responsibility and the time the children would spend with their father. The proceedings involved Ms Theodore (the applicant mother), Mr Theodore (the respondent father), and Ms Mansour as the Independent Children’s Lawyer. The court also addressed an objection to a subpoena by AA Pty Limited.

The primary legal issues before the court were the allocation of parental responsibility for the children, B and D, and the nature and extent of the father's time with them, given significant concerns regarding his history of mental illness, personality disorder, and documented instances of violence and abuse towards the mother, some in the children's presence. The court was also required to determine whether to grant the father's application for an adjournment and whether to uphold the objection to the subpoena.

Foster J refused the father's application for an adjournment, finding that further delay was not in the children's best interests, and upheld the objection to the subpoena, striking it out. In determining parental responsibility, the court found that the presumption of equal shared parental responsibility should not apply due to the significant risks involved. Applying the principles of the best interests of the children, and giving significant weight to the opinion of the single expert and the Independent Children’s Lawyer, the court concluded that it was in the children's best interests for the mother to have sole parental responsibility. The court's reasoning was heavily influenced by the father's history of erratic and violent behaviour, his mental health issues, and his apparent lack of insight into the impact of his conduct on the children.

Consequently, the court ordered that all previous parenting orders be discharged. The mother was granted sole parental responsibility, and the children were ordered to live with her. The father was granted supervised time with the children once per month, with additional supervised time on Father's Day and each child's birthday, to be facilitated by a professional supervising agency at the father's cost. The court also made orders regarding communication, ongoing therapeutic intervention for both parents, and restraints on each party's behaviour towards the other and the children.

Orders

Orders of the court

PAC 5789 of 2014

BETWEEN:

MS THEODORE

Applicant

AND:

MR THEODORE

Respondent

AA PTY LIMITED

Objector to subpoena addressed to BB Company

MS MANSOUR

Independent Children’s Lawyer

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

27 JANUARY 2021 AND 21 MAY 2021

THE COURT ORDERS MADE ON 27 JANUARY 2021 THAT:

1. The Application for adjournment is refused.

2. The objection to the subpoena addressed to the Proper Officer, BB Company of CC Street, Suburb DD be upheld and the subpoena is struck out.

3. The objector file and serve any application for costs arising from the objection herein by no later than Friday, 19 February 2021 and that the father file and serve any submissions in response to the application for costs by no later than Friday, 5 March 2021.

THE COURT FURTHER ORDERS THAT:

1. All previous parenting orders be discharged.

Parental Responsibility

2. The mother has sole parental responsibility for the children B born … 2009 and D born … 2010.

Live With

3. The children live with the mother.

Children’s time with father

4. The children spend time with the father once per month until each of the children reach 14 years of age on a date to be agreed, failing agreement on the first Saturday of each calendar month, for a period of six (6) hours, from 9.00 am to 3.00 pm, such time to be supervised by Z Group supervising agency or in the event that Z Group is unable or unwilling to provide supervision then such professional supervising agency as may be agreed between the parties in writing, such writing may include SMS or email communication.

5. For the purposes of Order 4, the supervisor at Z Group is to collect the children from the mother's residence and deliver them to the father’s residence at the commencement of time and then return the children to the mother’s residence at the conclusion of time with the father provided that the mother shall not accompany the supervisor when transporting the children.

6. In addition to the time provided for in Order 4, the father shall have additional supervised time with the children, supervised by Z Group for a period of three (3) hours on Father's Day and each child's birthday if a non-school day.

7. The paternal extended family are permitted to attend the supervised visits between the children and the father.

8. The costs of the supervision by Z Group shall be paid by the father.

Other time with the father

9. That otherwise the children spend time with the father at such times and subject to such conditions as agreed to by the mother and father in writing, such writing may include SMS or email communication with the parties to have regard to the reasonably expressed wishes of the children.

Telephone communication

10. The mother shall facilitate the father having telephone/FaceTime communication with the children on a fortnightly basis on Wednesdays between 5.00 pm to 6.00 pm with the father initiating the communication by calling B's mobile number and the mother is to ensure the children are available to accept such call and the mother shall be permitted to monitor such call.

Ongoing Intervention

11. The father continue to attend upon Dr L, psychiatrist and his treating psychologist as reasonably directed by them on such occasions and for such periods as the therapists considers appropriate and to follow all treatment plans, medications and recommendations including, if necessary, recommendation for intervention by any other health or allied health practitioner.

12. The mother continue to attend upon her clinical psychologist, Ms EE, as reasonably directed by her on such occasions and for such periods as Ms EE considers appropriate and to follow all treatment plans, medications and recommendations including, if necessary, recommendation for intervention by any other health or allied health practitioner.

School Reports

13. Within 14 days of these orders and within 14 days of the children's enrolment at any school, the mother shall do all acts and things and give all authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child's school reports and merit cards, any written material pertaining to each child's academic and extra-curricular activities.

Restraints

14. Each party is restrained from physically disciplining or chastising the children or allowing any third parties to do so.

15. Each party shall be restrained from making any derogatory comments about the other parent and any member of that parent's household or any extended family in the presence of the children.

16. Each party is restrained from coming within 100 metres distance of each other or any other place they may be in unless by agreement in writing.

Communication

17. The parties are to keep each other informed of their current mobile telephone contact numbers and email addresses and will notify the other parent of any change to those details within 48 hours of such change occurring.

18. Each party will immediately notify the other in the event of an emergency involving either of the children including, but not limited to, either of the children suffering a serious illness or injury or being hospitalised while in their care.

19. For the purpose of facilitating these Orders the parties are to communicate with each other via email or text message, except in the case of emergency in which case the parties are to telephone the other parent as soon as practicable.

20. Each party will ensure the other party is kept informed of the following:

(a) any medical problems or illness suffered by the children whilst the children is in their care;

(b) any medication that is prescribed for the children; and

(c) the name of the children's treating medical practitioner.

21. Each party is permitted to liaise directly with any doctor, medical practitioner (including counsellors, psychologists and psychiatrists), therapeutic or health service provider or institution attended upon by either of the children to obtain information about the health of the children and the progress of any treatment the children may be receiving, and these Orders will be sufficient authority to authorise the release of such information, including copies of any medical reports, to each of the parents.

22. Each party is permitted to liaise directly with the children's school/s to obtain any information about the children's progress at school or information about school events and educational activities or to arrange for the sending out of newsletters, photos, progress reports and any other documents provided by the school and these Orders will be sufficient authority to authorise the release of such information to both parents.

Independent Children’s Lawyer’s Costs

23. That the mother and father file and serve any submissions sought to be relied on in response to the Independent Children’s Lawyer’s application for costs within 14 days and thereafter judgment as to such costs be reserved to chambers.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

On final hearing the respondent father relied upon the following documents:(a)his primary affidavit filed 11 September 2019;(b)his updating affidavit filed 9 June 2020;(c)his further updating affidavit filed 25 January 2021;(d)the affidavit of Dr L filed 11 September 2019;(e)the affidavit of the paternal grandmother Ms U Theodore filed 11 September 2019;(f)the affidavit of the paternal grandfather Mr R Theodore filed 11 September 2019;(g)the affidavit of the paternal aunt Ms WW filed 11 September 2019;(h)the affidavit of Ms XX filed 11 September 2019;(i)the affidavit of the father’s former de facto partner Ms YY filed 11 September 2019.Background The nature of the background to these proceedings is readily apparent from the history of the litigation as set out above. During the course of the trial it became readily apparent that the issues for determination comprised the allocation of parental responsibility and what order should be made as to the children’s time with the father. The mother gives a history of her relationship with the father subsequent to marriage. His conduct over the period of years from May 2008 until separation in 2014 exhibited lack of emotional regulation and physical abuse of the mother, on occasions in the presence of the children. Otherwise, the father was financially controlling of the mother. In 2008 the father was diagnosed with bipolar disorder, the mother having observed the father’s behaviour to become increasingly erratic and violent from that time. On various occasions early in the relationship the father had smashed the mother’s laptop screen, smashed a kitchen knife into the kitchen bench and attempted to break the knife and pulled the stairway banister loose in the home. As a consequence of the father’s behaviour the mother was diagnosed with post-traumatic stress disorder, anxiety and depression and was medicated on Effexor for her anxiety. In 2011 the parties moved to their new matrimonial home at Suburb F. At those premises, in the years before separation in 2014, the father continued to exhibit violence towards the mother in the presence of the children, including throwing and smashing a beer bottle at her feet, smashing a champagne bottle on the kitchen bench and throwing a plate of food at the mother in the presence of the children, throwing an apple at the mother in the presence of the children, pulling a large clock off the wall and smashing it on the floor, forcibly endeavouring to remove the mother from the home and in anger punching a hole in the child B’s bedroom door in the presence of the child causing the child to become hysterical. The father made verbal threats to the mother including “I’ll put a bullet in your head” and “if you leave me, you’ll have nothing, I’ll take you for all you have. You’ll have to live in Suburb C”. The father’s aggression and violence became increasingly unpredictable and the father would at times scream and become enraged, alleging that the house was not spotless.

Evidence

Evidence Before The Court

In reasons for judgment delivered 11 August 2017 the mother’s concerns in relation to the father and the objective evidence in relation to the father’s mental health history was considered as follows:13.The mother asserts that almost immediately subsequent to their marriage the father was physically and emotionally abusive to her.14.In about 2009 the mother was diagnosed with Post Traumatic Stress Disorder (PTSD), anxiety and depression and has been intermittently on medication to assist her with these conditions.15.The mother asserts that whilst she was pregnant with the child, B in 2008 the father was diagnosed with bipolar disorder and his behaviour became increasingly erratic. The mother deposes to the following incidents in support of this assertion: a) the father damaging a banister in their home;b)the father on one occasion throwing a beer bottle at the mother’s feet causing it to break in the presence of the children;c)the father breaking a champagne bottle on the bench top and throwing a plate of food at the mother in the kitchen in front of the children and then throwing an apple at the mother;d)the father pulling a large clock off the wall and breaking it in front of the mother and the children, then punching holes in the doors of the home and making various threats to the mother including “I will put a bullet in your head if ever you leave” and “if you leave me, you will have nothing, I’ll take you for all you have. You’ll have to live in [Suburb C]”.16.The father’s behaviour was such, says the mother, that he attended a domestic violence counsellor in 2013 but dismissed the counsellor’s assistance saying “she is a load of shit”. The mother sought assistance from the same counsellor between June 2013 and November 2014 during which the counsellor caused notifications to be made to the Department of Family and Community Services (the Department) out of concerns relating to the father’s abusive and violent behaviour.17.The parties separated, says the mother, on at least three occasions for a few days at a time as a consequence of the father’s conduct.18.The mother says that subsequent to the birth of both children she was the primary caregiver with the father working full time and rarely being at home to assist her with the children. She says that his engagement with the children was mostly on weekends when the family would visit his parents or go on outings.19.In January 2014 the father broke his back and was hospitalised for two weeks. Subsequent to his discharge, the mother asserts that the father’s behaviour and aggression escalated significantly. 20.The father thereafter attended a mental health program as an inpatient at E Hospital for about five weeks.21.On 26 February 2014 the father was to be discharged from the Hospital. The mother expressed her concern to the father about him returning home and his behaviour. The father agreed to stay at his parents’ home. Yet on returning home on the evening of 27 February 2014 she found the father was inside the home. He commenced shouting and arguing with her and his behaviour became increasingly aggressive causing the mother to fear for her safety and the children’s safety. The mother called the police who attended at the home. The mother provided a statement to the police. The police contacted the father who had left the premises and the police were subjected to a tirade of abuse by the father.22.The police sought an Apprehended Violence Order (AVO) against the father and on 4 March 2014 a final AVO was made for a period of 12 months for the protection of the mother and the children.23.Subsequently, the mother asserts the father had no contact with the children from 27 February 2014 until September 2014 save for a family holiday in July/August 2014 in an attempt to fix the marriage.24.The father’s conduct did not abate and on 8 August 2014 the mother and children moved out of the matrimonial home to a rental property at Suburb F.25.It was agreed that the father would spend time with the children each Friday from 5.00 pm until Saturday 5.00 pm with changeovers to occur at the McDonald’s family restaurant at Suburb G.26.However, the father’s aggressive conduct continued and the father was charged with a breach of the AVO arising from an incident on 27 September 2014. In January 2015 he was convicted of this offence.27.Notwithstanding this background, final parenting orders were made by consent on 12 December 2014 that provided for the children to spend six nights a fortnight with the father together with block school holiday periods.28.Subsequently, the mother made application through the police to vary the AVO so that the father could have time with the children. 29.The AVO was amended on 12 February 2015 for a further period of 12 months with further conditions added as follows:a)that the father not enter the premises at which the protected persons (the mother and the children) may from time to time reside or work or other specified premises H Street, Suburb F;b)that the father must not destroy or deliberately damage or interfere with the property of the protected persons;c)that the father must not approach or contact the protected persons by any means whatsoever except through the father’s legal representative except every Monday, Wednesday and Friday between 6.00 pm and 6.30 pm by phone and every Sunday 9.00 am to 5.00 pm with children to exchange at McDonald’s family restaurant at Suburb G. 30.The mother has had recent concerns in relation to the behaviour of the child D. In November 2015 the child exposed his private parts in the playground at his preschool. The preschool informed the mother that they had become increasingly concerned about the child’s behaviour. The child had become disrespectful of the mother, calling her foul names and being physically aggressive towards her.31. In November 2015 the father was charged with further breaches of the AVO and other offences including common assault on the mother.32.On 10 June 2016 a further final ADVO was issued for the protection of the mother for a period of two years.33.On 17 January 2016 the children returned home after spending time with the father. The child, B, reported that the father had hit D with a wooden spoon. The child, D, was questioned by the mother and showed to her a welt and large red mark on his left buttock.34.In April 2017 the mother was spoken to by the child D’s teacher who expressed concerns about the child’s emotional behaviour in that he began to try to choke himself saying “I wish I was dead”.35.The mother expresses concern in relation to the fact that the father’s new partner’s 13 year old son on occasion shares a bedroom with the child, D. The mother has observed that D’s behaviour has become increasingly sexual and inappropriate since sharing a room with this child.36.The child, B, has complained to the mother about the father swearing at her and using foul language.37.The mother has concerns about the well-being of the children who she has observed are displaying signs of sadness, anger and anxiety after returning from the father’s home. She has also observed that the children appear agitated and aggressive when their time with the father is about to commence.38.The child, D, on 30 May 2017 reported to his teacher that he had been hit by the father with a metal spoon and that his sister, B, who was present, was upset and screaming. The teacher informed the mother that she had notified the principal and reported the matter to the Department. The child, B, also reported the matter to the mother, complaining that she had to step in between the father and her brother.39.The mother on 1 June 2017 met with D’s school principal and class teacher. They reported to the mother that the child had been agitated, upset and emotional, disruptive in class and avoidant of discipline.40.The mother has observed that the children are exhibiting signs of being enmeshed in the parental conflict, repeating the father’s abusive criticism of the mother and expressing concerns for her safety.41.On 13 June 2017 the child, D, took a knife and stabbed the yard fence saying “I don’t want to go to daddy’s”. Both children have expressed wishes to the mother not to go to the father’s home for time with him. On 15 June 2017 the mother reported her concerns to the Department.42.On 18 June 2017 the child, D, returned from the time with the father with red marks on the left buttock and complained of being smacked by the father. 43.On 28 June 2017 the father unexpectedly collected the children from school at 10.30 am. The school notified the mother that the father proposed to take the children to a psychologist “Ms J”. The mother was informed that the children were upset when they left. The mother enquired of the psychologist’s practice and was informed the children were not there and the father had not been seen for six months. The mother notified the Police and the Department. The children were located at the father’s residence. 44.The children were collected from school the next day and informed the mother that they were upset that the father had taken them from school and that the father had said that they might “never see the mother again”. The children, especially B, were upset and fearful that the father would again remove the children from school. They did not attend school on 30 June 2017, the last day of school term. 45. The mother has not made the children available to the father since. 46.The mother says she has significant concerns as to the children’s welfare should they spend time with the father by reason of the father’s behaviour and anger issues….The objective evidence 68.Colour photographs (Exh “B”) of the bruising on the child, D, show concerning bruises arising from both incidents (in January and June 2017) asserted by the mother.E Hospital69.The father was referred by his GP to the E Hospital for “mental health issues”. Documents produced by E Hospital (Exh “D”) show the father in March 2014 was admitted to its programs for a litany of issues: Bi Polar, Depression, Alcohol use, Relationship concerns, CSA, Anger and polysubstance abuse.70.His admission notes are consistent with the history given by the mother and concerningly reveal some recent suicidal ideation, alcoholic binges, aggression, raging behaviour, belittling of the mother, punching walls at home, dangerous/reckless driving, driving whist under influence of alcohol, previous cocaine use and blackouts from alcohol. 71.The notes also reveal his five year engagement till 2013 with Dr M for “anger relationship (sic)” that included prescribing dexamphetamine and later other medications. Dr M attended on the father whist he was an inpatient. There is no evidence before the Court from Dr M.72.On admission he was in possession of various medications: Endone, Lexapro, Lithium, Targan, Escitalopram, Oxycodone, Oxynorm and Dexamphetamine. 73.The father discharged himself from the E Hospital program against medical advice on 8 March 2014 but returned the next day. The father’s engagement with the hospital programs was not without incident.74.On the basis of this subpoena material and in the absence of evidence from the father’s treating psychiatrist there is concern as to the father’s current mental health. N School75.The children’s school provided some documents (Exh “E”) to the mother on request. A meeting between the school principal and the mother after 20 June 2017 revealed the concerns held by the school for the child, D, who had complained to his class teacher of being hit by the father. The child’s behaviour had deteriorated with the child being at times aggressive, teary, scared and self-harming. The school reported the child’s disclosure to the Department of Family and Community Services.76. The school material is of significant concern.77. No documents were available from the Department. 78.Notwithstanding the consent orders it is clear that there has been a substantial change in the children’s circumstances, particularly the child, D’s recent deteriorating and concerning behaviour evidenced by the documents produced by the school and the fact that the children are not spending time with their father, necessitating the reopening of parenting issues.Dr L 79.The father’s treating practitioner provides an undated report (Exh “F”) prepared after her last consultation with the father on 24 July 2017. She commenced seeing the father in February 2015 shortly after his admission to E Hospital. 80.She had seen the father on 13 occasions from 24 March 2015 to 28 July 2016, which is about monthly. Concerning, she did not see the father again until 24 July 2017, some 12 months later, presumably necessitated by the issues agitated at the interim hearing. She opines as to the reasons for his admission to E Hospital not withstanding he was not her patient at that time. 81.She reports that the father remains on a cocktail of medications but provides no diagnosis underlying the reasons for him being prescribed such medication save for a reference to ADHD symptoms. 82. She says she has never had concerns as to his ability to care for children.83.She refers to the father’s “presentation”, which as best can be determined, is a conclusion simply based on what the father has told her on interview. No objective assessment or testing was undertaken.84. In such circumstances little weight can be afforded to Dr L’s report.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This consideration, which is to be given primacy, is in itself supportive of orders substantially reflecting the minutes of orders sought by the ICL and the mother.The additional considerations: s 60CC (3) Section 60CC(3) sets out the additional considerations:(a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views; At best the evidence is supportive of the children being ambivalent in relation to their views as to the father. This is not surprising having regard to the background circumstances discussed in detail above. Both children were interviewed by the single expert who concluded:I felt that both children expressed rather qualified views in relation to resumption of visits with their father and that D described a genuine apprehension about staying overnight with him. Bearing in mind what both children said to me and also to the Family Consultant, I formed the view that this was due to fear of not just his father’s behaviour but also of the possible consequences of them saying things to their mother which might be detrimental to the ongoing visiting regime. In relation to B, while she did describe her father severely punishing D and the behaviour which led to that, her fear was less for herself than it was for D, I also note that she is a child who is very eager to please and I think it is likely that she harbours more apprehension about spending time with her father than she has expressed. Although both children have significant emotional immaturity, nevertheless I formed the view that their own account as well as various corroborative materials indicate that significant weight should be accorded to these views and that in general they should be regarded as understatements rather than overstatements. The children have coped with more recent supervised time as evidenced by the supervision reports. Yet by reason of the protective issues little weight can be attached to this consideration in the context of this matter overall.(b)The nature of the relationship of the child with: i)Each of the child's parents; and ii)Other persons (including any grandparent or other relative of the child); As to the parties this has been discussed above. The children clearly have a primary attachment to the mother. The children’s relationships with the father are circumspect for good reason as discussed above. Their relationship with the father is anxious and emotionally disorganised. The children, otherwise, have a good relationship with the maternal grandmother. The children historically have a relationship with the paternal grandparents that may resume in the context of orders to be made. (c) The extent to which each of the child's parents has taken, or failed to take, the opportunity: i)To participate in making decisions about major long-term issues in relation to the child; and ii)To spend time with the child; and iii)To communicate with the child;