Thynne and Brier
[2009] FMCAfam 6
•6 April 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
THYNNE & BRIER [2009] FMCAfam 6
FAMILY LAW – Parenting – teenage child – parental conflict – willingness and ability to facilitate close relationship.
Family Law Act 1975, ss.60CA, 60CC, 60CC(2), 60CC (3), 60CC (4) , 61DA, 64B, 65DAA
In the Marriage of Hall (1979) 5 Fam LR 609
Applicant: MR THYNNE
Respondent: MS BRIER
File Number: MLC 6096 of 2008
Judgment of: Monahan FM
Hearing date: 11 December 2008
Date of Last Submission: 12 December 2008
Delivered at: Melbourne
Delivered on: 6 April 2009 REPRESENTATION
Counsel for the Applicant: Mr MacFarlane
Solicitors for the Applicant: Whyte Just & Moore
Counsel for the Respondent: Ms Teicher
Solicitors for the Respondent: Samantha Ward Pty Ltd ORDERS
The Husband and Wife have equal shared parental responsibility for the long term care, welfare and development of the child of the relationship, [X] born in 1995 (“the child”).
2.The for the purpose of paragraph 1 herein:-
2.1the long term care, welfare and development of the child includes:-
(i)education, including secondary and tertiary;
(ii)healthcare, medical and dental issues;
(iii)religious observance; and
(iv)travel, including the obtaining of a Passport.
2.2in respect of each issue concerning the long term care, welfare and development of the child, the Husband and Wife shall:-
(a)consult with the other parent in relation to the decisions made; and
(b)make a genuine effort to come to a joint decision about that issue.
THE COURT ORDERS THAT:
3. The child live with the:
3.1 Husband as follows:-
3.1.1from the commencement of the second term in 2009, each alternate week from after school Thursday (or 3.30 pm to before school Monday (or 9.00 am), commencing Thursday 23 April, 2009;
3.1.2from the commencement of the third term in 2009, each alternate week from after school Thursday (or 3.30 pm) to before school the following Tuesday (or 9.00 am);
3.1.3from the commencement of the fourth term in 2009 and thereafter, each alternate week from after school Thursday (or 3.30 pm) to before school the following Wednesday (or 9.00 am); and
3.2 Wife at all other times.
THE COURT FURTHER ORDERS BY CONSENT THAT:
4.In addition to paragraph 3.1 herein, the Husband shall spend time and communicate with the child as follows:-
4.1on the child's birthday, in the event that he is not in the Husband's care on that day:-
4.1.1if on a school day, by telephone; and
4.1.2if on a weekend or non-school day, from 9.00am to 2.00pm
and in the event that the child is in the Husband's care on that day, the child shall spend like times with the Wife;
4.2for Christmas, from 3.00 pm Christmas Day until 6.00 pm Boxing Day in even numbered years and from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years and for like times with the Wife;
THE COURT FURTHER ORDERS THAT:
4.3for up to one half of each of the school term holidays as agreed between the parties PROVIDED THAT the Husband is available to care for the child on a full time basis during such holiday periods and for the purpose of same, the Husband shall provide to the Wife as much notice as possible of his availability to supervise the child during the school holiday time;
4.4for up to one half of the long summer vacation as agreed between the parties subject to those conditions provided for in paragraph 4.3 herein;
THE COURT FURTHER ORDERS BY CONSENT THAT:
4.5on the Husband's birthday, in the event that the child is not in the Husband's care on that day:-
(i)if on a school day, by telephone and for like times with the Wife; and
(ii)if on a weekend or a non-school day, from 9.00 am to 5.00 pm and further, in the event that the child is in the Husband's care on the Wife's birthday, for like times with the Wife.
4.6for Father's Day, in the event that the child is not in the Husband's care on that weekend, from 5.00pm on the Saturday preceding such occasion to 5.00pm on Father's Day and further, in the event that the child is in the Husband's care on Mother's Day, for like times with the Wife;
4.7for a minimum of four hours on [M]'s birthday on [date omitted] in the event that the child is not in the Husband's care on that day and in the absence of agreement, from 9.00 am to 2.00pm or at such other time to coincide with the Husband’s time with [M] on that day.
4.8 at such other times as agreed between the parties in writing.
5.For the purpose of paragraphs 4.3 and 4.4 herein:-
5.1in the event that the parties cannot reach agreement about the holiday time, the Husband shall spend time with the child for:-
5.1.1the first week of the first, second and third term holidays from the conclusion of school term to 12 noon on the middle Saturday subject to the conditions imposed in paragraphs 4.3 and 4.4 herein; and
5.1.2for the first half of the Christmas Holidays in odd numbered years and for the second half in even numbered years subject to the conditions imposed in paragraphs 4.3 and 4.4 herein; and
5.2in the event that the Husband is unable to provide full time care and supervision to the child during those holidays periods as required pursuant to these Orders, the Husband's time with the child shall take place each alternate weekend from 5.30 pm Friday to 9.00 am Monday or at such other time to coincide with the Husband’s time off work.
6. For the purpose of the living arrangements contained in these Orders:-
6.1 all changeovers shall occur at the child's school (where possible);
6.2all other changeovers shall occur at the [B] Centre and in the event that [B] is not available to facilitate changeover, such changeover shall occur out the front of the [B] Centre;
THE COURT ORDERS THAT:
6.3the Husband's time with the child shall occur in accordance with these Orders provided that such arrangements are consistent with the child's expressed wishes and in the event that the child wishes to spend less time with the Husband than that ordered by the Court, the parties shall respect those wishes;
THE COURT FURTHER ORDERS BY CONSENT THAT:
6.4in terms of ascertaining the expressed wishes of the child as contemplated in paragraph 6.4 herein, the child shall advise both of his parents accordingly in the event that he seeks to change those living arrangements in any way; and
6.5in the event that either party seeks to change the living arrangements contained in these Orders, they shall provide the other with at least 14 days written notice and any time missed by either party shall be made up as soon as practicable thereafter.
6.6in the event that the child travels to the Husband’s residence by bus following the conclusion of the school day, the Husband shall ensure that the child is supervised by an appropriate adult person in the event that the Husband is not home at that time.
7.Each of the Husband and Wife be and are hereby restrained by themselves, their servants or agents from:-
(a)denigrating and/or criticising and/or otherwise demeaning the other parent or any other member of the parents family in the sight and/or hearing and/or presence of the child;
(b)discussing these proceedings with or in the presence or hearing of the child; and
(c)discussing the Family Law proceedings between the Husband and Ms Thynne with or in front of the child.
8.Both parents shall be at liberty to telephone the child whilst he is in the other parents' care on a reasonable and liberal basis with both parents to facilitate and encourage such communication, ensuring that the child is permitted to speak with each parent in private.
9.Both parents shall ensure that the other is informed of their current residential and contact details.
10.Both parents shall be authorised at their respective costs (if any) to obtain from the Principal of any school attended by the child, copies of all school reports, newsletters, notices and photograph order forms in relation to the child and the Husband shall be at liberty to provide a copy of these Orders to the child's school.
11.Both parents be at liberty to attend any school functions, events that parents ordinarily attend.
12.Each parent inform the other of any serious illness or injury to the child requiring medical treatment as soon as practicable following the onset of the illness or injury and consult the other prior to the child receiving any medical treatment, except in an emergency.
13.Each parent shall inform the other of the name, address and telephone number of any and all medical practitioners from whom the child receives treatment and authorise those medical practitioners to release any information requested by the other parent in relation to the health, wellbeing or treatment of the child.
14.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THE COURT ORDERS THAT:
15.The parties shall exchange a communication booklet to travel with the child in order to keep the other parent informed of the child's activities, health, education and development.
16.Both parties shall participate in Family Dispute Resolution in the event that they are unable to reach agreement relating to the child's long-term, care, welfare and development.
IT IS NOTED that publication of this judgment under the pseudonym Thynne & Brier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNEMLC 6096 of 2008
MR THYNNE Applicant
And
MS BRIER Respondent
REASONS FOR JUDGMENT
Background
1.
The Applicant husband was born in 1974 and is currently aged 34 years. Although the court documents do not disclose the date of birth or the age of the Respondent wife, the family report conducted by
Dr Todd Jacobson discloses that the wife is aged 32 years. The parties commenced cohabitation in 1994 and married in September 1995. There was one child of the marriage, namely [X] who was born in 1995.
2.The parties separated in June 1998 when the wife left the former matrimonial home with the child. The party’s relationship following the separation was relatively strained and necessitated the wife obtaining a restraining order against the husband in July 1998. Various parenting orders were made in the Family Court of Australia in Melbourne on 15 December 1998 and again on 7 December 1999. The consequence of the latter orders was that apart from both parties retaining joint parental responsibility for [X], the child was to live with the wife and spend time with the husband on each alternate weekend from 6.00 pm Saturday to 6.00 pm Sunday, each alternate Monday from 10.00 am to 4.00 pm and at such other times as the parties agree. From that time until April 2008, [X] continued to live with the wife on a full time basis and spend time with the husband on a regular basis as agreed between the parties. Generally speaking, [X] spent alternate weekends with the husband as well as during school holidays and other special occasions. The parties appeared to have cooperated well in relation to [X]’s upbringing until April 2008. This cooperation was marked by agreement as to schooling including [X]’s enrolment in secondary school at the commencement in 2008. The wife later remarried and in December 2004 she relocated with her present husband and [X] to [Z]. The husband’s evidence is that he did not oppose the relocation despite the added distance required to travel for contact purposes, a point acknowledged by the wife in paragraph 26 of her affidavit filed on 12 August 2008. In addition, there appears to have been no issues with respect to the payment of child support by the husband to the wife for [X].
3.At paragraph 16 of his affidavit filed on 3 July 2008, the husband states:
“I otherwise note that save for a brief period following my separation from the Respondent, relations between us [referring to the husband and the wife] were always good and amicable. We were always able to communicate about [X]’s welfare and well-being. I always supported the Respondent financially by paying child support and I otherwise supported [X] as best I could. I also supported the Respondent when she decided to relocate to [Z] even though it was clearly not in my best interests for this move to take place. In fact, when [Ms Thynne] [the husband’s second wife] first issued proceedings against me with respect to [M], I discussed these matters with the Respondent and she offered to provide a reference for me in support of my parenting capacity. Annexure “RT-2” is a true copy of this reference signed by the Respondent and dated 21 January 2008. In this reference, the Respondent has stated that:-
(i) on “all occasions (following my time with my son) [X] has been returned home safe and well, and has enjoyed his time with his Father”;
(ii) I have “always been a very supportive father of [X], both morally and financially”; and
(iii) the Respondent and I have “conducted an amicable shared care relationship for (our) son [X].””
4.The husband remarried in September 2004 and his new wife Ms Thynne gave birth to their child [M] in 2005. The husband separated from his second wife on 21 January 2008. This separation was less than amicable and has resulted in a number of Court proceedings. The falling out between the husband and wife over the husband spending time with [X] appears to have arisen as a result of legal proceedings between the husband and his second wife. It would appear that on 14 April 2008 an interim hearing was held with respect to a parenting dispute between the husband and his second wife over their child [M] that resulted in an order from his Honour Federal Magistrate Walters that the husband spend time with his child on a fortnightly basis under supervision at [B] Centre. It would appear that the wife was advised of this result by the husband’s second wife and of the circumstances that were alleged to have led to this decision. The consequence was that the wife unilaterally ceased all telephone and face to face contact between the husband and [X] between May 2008 to early July 2008. This decision by the wife led to the husband issuing an application for parenting orders on 3 July 2008 which are the subject of these proceedings.
Application for parenting orders
5.
The husband filed an application seeking various final and interim parenting orders on 3 July 2008. The husband amended the parenting orders he sought in his outline of case document filed on 10 December 2008 (which refers to an alleged further amended response filed on
12 September 2008):
“1. THAT the Husband and Wife have equally shared parental responsibility for the long term care, welfare and development of the child of the relationship, [X] born in 1995.
2. THAT for the purpose of paragraph 1 herein:
2.1 the long term care, welfare and development of the child includes;-
(i) education, including secondary and tertiary;
(ii) healthcare, medical and dental issues;
(iii) religious observance; and
(iv) travel, including the obtaining of a Passport.
2.2 in respect of each issue concerning the long term care, welfare and development of the child, the Husband and Wife shall:
(a) consult with the other parent in relation to the decisions made;
and
(b)make a genuine effort to come to a joint decision about that issue.
3. THAT the child live with both parents on a shared care basis.
4. THAT the husband otherwise spend time and communicate with the child as follows:-
4.1 on the child’s birthday, in the event that he is not in the Husband’s care on that day:-
4.1.1 if on a school day, by telephone and further, in the event that the child is in the Husband’s care, for like times with the Wife; and
4.1.2 if on a weekend or non-school day, from 10.00 am to 2.00 pm and further, in the event that the child is in the Husband’s care on that weekend, for like times with the Wife.
4.2 for Christmas, from 3.00pm Christmas Day until 6.00 pm Boxing Day in even numbered years and from 3.00 pm Christmas Eve until 3.00 pm Christmas Day in odd numbered years;
4.3 for one half of each of the school term holidays as agreed between the parties and in the absence of agreement, for the first half of those holidays commencing on the last day of term until 12 noon on the middle Saturday and for the purpose of same, the Husband’s usual time with the child as provided in paragraph 4.1 and 4.2 herein shall be suspended;
4.4 during the long summer vacation from 9 January to 25 January each and every year;
4.5 on the Husband’s birthday, in the event that the child is not in the Husband’s care on that day:
(i) if on a school day, from after school to before school the next day and further, in the event that the child is in the Husband’s care on the Wife’s birthday, for like times with the Wife; and
(ii) if on a weekend or a non-school day, from 9.00 am to 5.00 pm and further, in the event that the child is in the Husband’s care on the Wife’s birthday for like times with the Wife.
4.6 for Father’s Day, in the event that the child is not in the Husband’s care on that weekend, from 5.00 pm on the Saturday preceding such occasion to 5.00 pm on Father’s Day and further, in the event that the child is in the Husband’s care on Mother’s Day, for like times with the Wife;
4.7 for a minimum of four hours on [M]’s birthday [date omitted] in the event that the child is not in the Husband’s care on that day and in the absence of agreement, from 10.00 am to 2.00 pm; and
4.8 at such other times as agreed between the parties in writing.
5. THAT for the purpose of the living arrangements contained in these Orders:
5.1 all changeovers shall occur at the child’s school;
5.2 all other changeovers shall occur at the [B] Centre and in the event that [B] is not available to facilitate changeover, such changeover shall occur out the front of the [B] Centre;
5.3 the Husband’s time with the child shall occur in accordance with these Orders provided that such arrangements are consistent with the child’s expressed wishes and for the purpose of same, the child shall advise both of his parents accordingly in the event that he seeks to change those living arrangements in any way; and
5.4 in the event that either party seeks to change the living arrangements contained in these Orders, they shall provide the other with at least 14 days written notice and any time missed by either party shall be made up as soon as practicable thereafter.
6. THAT each of the Husband and Wife be and are hereby restrained by themselves, their servants or agents from:
(a) denigrating and/or criticising and otherwise demeaning the other parent or any other member of the parents family in the sight and/or hearing and/or presence of the child;
(b) discussing these proceedings with or in the presence or hearing of the child; and
(c) discussing the Family Law proceedings between the Husband and Ms Thynne with or in front of the child.
7. THAT both parents shall be at liberty to telephone the child whilst he is in the other parents’ care on a reasonable and liberal basis with both parents to facilitate and encourage such communication, ensuring that the child is permitted to speak with each parent in private.
8. THAT both parents shall ensure that the other is informed of their current residential and contact details.
9. THAT both parents shall be authorised at their respective costs (if any) to obtain from the Principal of any school attended by the child, copies of all school reports, newsletters, notices and photograph order forms in relation to the child and the Husband shall be at liberty to provide a copy of these Orders to the child’s school.
10. THAT both parents be at liberty to attend any school functions, events that parents ordinarily attend.
11.THAT each parent inform the other of any serious illness or injury to the child requiring medical treatment as soon as practicable following the onset of the illness or injury and consult the other prior to the child receiving any medical treatment, except in an emergency.
12. THAT each parent shall inform the other of the name, address and telephone number of any and all medical practitioners from whom the child receives treatment and authorise those medical practitioners to release any information requested by the other parent in relation to the health, wellbeing or treatment of the child.
13. THAT the parties shall exchange a communication booklet to travel with the child.”
6.The husband’s application was supported by his affidavits filed 3 July 2008, 12 September 2008 and 10 November 2008. The husband attaches as exhibit “RT-3” to his affidavit filed 3 July 2008 a copy of a medical report of Ms M, a consultant psychiatrist, dated 28 May 2008 that was prepared in relation to his proceedings with his second wife, Ms Thynne. In addition the husband sought to rely on the affidavit of Dr N filed 12 September 2008.
7.In her response filed on 12 August 2008, the wife sought the following interim and final orders as follows:
“1. That the application of the applicant husband be dismissed.
2. That the applicant husband pay the costs of and incidental to this application.”
8.The wife’s response was supported by her affidavits filed 12 August 2008 and 11 September 2008. In addition, the wife sought to lead evidence from the husband’s second wife, Ms E (formerly Ms Thynne).
9.
The matter came before His Honour Federal Magistrate Turner on
12 August 2008where upon His Honour ordered the parties to attend upon a family consultant as agreed between the parties for the preparation of an urgent family report. When the matter returned to
His Honour on 15 September 2008 the following orders were made:
“1.The Husband and Wife have equal shared parental responsibility for [X] (“the child”) born in 1995
2. The child spend time with the Husband: -
(a) Commencing on 19 September 2008 on two alternate weekends from 5.00pm Friday to 5.00pm Saturday;
(b) Then, commencing 17 October 2008 on two alternate weekends from after school Friday to 5.00pm Saturday to be extended to 5.00pm on Sunday if the child so wishes and advise his mother accordingly;
(c) Thereafter, alternate weekends from after school Friday until 5.00pm on Sunday, to be extended to commencement of school Monday if the child so wishes and advises his mother accordingly;
(d) If Friday is not a school day, the time with the Husband shall commence at 5.00pm that Friday. If Monday is not a school day, time with will end at 9.00am Monday; and
(e) For a period of 4 hours on the child’s birthday. In the event that he is not in the Husband’s care on that day from 10.00am to 2.00pm; and further, in the event that the child is in the Husband’s care, for like times with the Wife.
3.Save when changeovers occur at the child’s school, all other changovers shall occur at [B] Centre or otherwise as agreed.
4.That both parents be restrained from: -
(i) Denigrating the other;
(ii) Discussing thses family law proceedings with the child; and
(iii) Discussing the family law proceedings between the Husband and Ms Thynne with the child.
5.By telephone on a reasonable basis and the parties are to exchange telephone numbers.
6.That the Husband hsall continue to consult with his treating psychiatrist as directed by that psychiatrist.
7.The parties are to provide a communication book to travel with the child.
8.The matter is fixed for final hearing in the Geelong Circuit of the Federal Magistrates Court of Australia in the week commencing 10 November 2008 at 10.00am.
AND THE COURT NOTES:
A. That both parties shall respect the child’s expressed wishes.
B. That the Husband’s time be suspended between 28 October 2008 and 2 November 2008 to allow the child and the wife to have a holiday and the Husband’s time shall be made up the following weekend when the child is not spending with the Husband.”
10.Unfortunately the matter was not able to be heard at the Geelong circuit in the week commencing 10 November 2008, and as a consequence His Honour Federal Magistrate Connolly made an order on 12 November 2008 adjourning the matter for hearing in Melbourne on 11 and 12 December 2008.
Family Report
11.
The family report prepared by Dr Todd Jacobson and dated
7 September 2008was tendered in evidence with the consent of both parties. Dr Jacobson conducted his interviews with all relevant parties on 1 September 2008. In paragraph 2 of his report, Dr Jacobson identified that the primary issues in dispute between the parties appeared to be:
“A. The time that the child spends with Mr. Thynne,
B. Family violence issues including orders that are currently in force.
C. Parental conflict.
D. Lack of communication.”
12.Dr Jacobson describes his interview with Mr Thynne in paragraphs 3 to 21 of his report. Dr Jacobson’s interview with the Respondent is described in paragraphs 22 to 37 of his report. Dr Jacobson describes his interview with [X] as follows:
“38. [X] impressed the writer as a child of at least average intelligence. He was well mannered and polite. Furthermore, he impressed the writer as being as mature as one would expect from a child his age.
39. [X] told the writer that he has not spent time with his father recently. He said it has been approximately 4 months since the last time his father and he spent time together. When asked how he feels about so much time passing since spending time with his father, [X] said, “I feel a bit sad because I haven’t seen my dad for ages” When asked why he has not seen his father recently, [X] said, ‘My dad was doing bad stuff.” Upon clarification, [X] said that he received information from his mother that his father had “spat on my stepmum and he is abusing her and stuff.” Upon further clarification, [X] said that his mother informed him that his father had sworn at his stepmother. Being offered that whereas [sic] he has never observed his father spit on his stepmother, he has overheard his father swear at her, “A few times”.
40. When asked how he feels about his father, knowing that his father might have done these things, [X] said, “I think of him in the same way.” Upon clarification, [X] said that he is still fond of his father and would like to spend time with him in the future.
41. When asked about information contained in Ms. Brier’s affidavit material, [X] acknowledged that his father, albeit on one occasion, referred to his mother as a bitch. He also acknowledged that his father has said that he hates his mother and that he should pack his bags because he ([X]) is going to live with his father. When asked how he feels when his father makes such statements, [X] said, “I feel sad because my dad is baking out everyone.” Upon clarification, [X] said that his father does not usually denigrate other people.
42. When asked, Who scares you? [X] said, “No one.” Upon clarification, [X] said that his father does not scare him.
43. When asked for his views about future parenting arrangements, [X] described wanting to spend time with his father at his ([X]’s) discretion and he said that he might want to spend time with his friends when he is supposed to spend time with his father. Upon clarification, [X] said that his father has always permitted him to spend time with his friends even when it has interfered with scheduled time he is to spend with his father. Even though he said that he would like to spend time with his father at his discretion, [X] said that it is likely that he would continue to spend time with his father on alternate weekends and approximately half of all school holidays. He also described wanting to spend some overnight visits with his father midweek.”
13.Dr Jacobson describes the observed interaction between [X] and the husband in paragraphs 44 through 47 of his report. Similarly, he describes his observed interaction between [X] and the wife in paragraphs 48 through 51.
14.Following his interviews with the parties and his observed interactions between the child and the parties, Dr Jacobson went on to provide a comprehensive evaluation at paragraphs 52-63 of his report.
15.In relation to [X]’s views, Dr Jacobson makes the following comments at paragraph 52:
“52. [X] impressed the writer as a reasonably intelligent boy who was polite and well mannered. Furthermore, he impressed the writer as being as mature as one would expect of a person his age. Consequently, the writer is inclined to place significant weight on [X]’s expressed views regarding future parenting arrangements. [X] stated clearly and unequivocally that he would like to continue living with his mother and he would like to spend time with his father at his ([X]’s) discretion. He said that while it is likely that he would spend time with his father on alternate weekends as well as sometimes overnight midweek, he would also like to spend time with his friends. It is the writer’s opinion and experience that preferring to spend time with peers is appropriate for a child of [X]’s age; wanting to do so does not necessarily suggest anything untoward about a child’s relationship with either parent. The writer has no reason to conclude that [X]’s expressed view is anything other than a genuine reflection of his own thoughts and feelings.”
16.In relation to the recent events that had occurred between the parties, Dr Jacobson makes the following comments in paragraph 53 onwards about their likely effect on [X]:
“53. According to [X] his mother has informed him that his father has behaved inappropriately in the context of the breakdown of his marriage to his current wife. [X] stated that his mother told him that his father spat at his current wife and swore at her. He denied ever observing his father spit at his wife but he acknowledged overhearing his father swear at her. In light of being told about these incidents and despite being exposed to some of them, [X] appears to have maintained a favourable impression of his father. This is likely to be testament to the good relationship with [X] and Mr. Thynne forged over several years and apparently has not been damaged by Mr. Thynne’s (alleged) recent behaviour vis-a-vis his wife. Moreover, [X] has not spent time with his father in approximately 4 months. While they have communicated via the telephone, their relationship impressed the writer as strong.”
17.
It is clear that the wife’s decision to unilaterally stop all contact between [X] and the husband was a direct result of her concern over the husband’s current behaviour vis-à-vis his current wife. While
Dr Jacobson acknowledges at paragraph 54 that the wife describes herself as being “terrified” of the husband, Dr Jacobson goes on to state in the same paragraph that he did not observe:
“any sign of fear or trepidation at the prospect of [[X]] spending time with his father…On the contrary, [X] impressed the writer as comfortable and at ease with his father; a relationship was obvious. It is also important to point out that Mr. Thynne was appropriate at all times while interacting with [X].
18.At paragraph 57, Dr Jacobson states:
“57. For the above reasons, the writer can see no reason why [X] should be restricted in any way in relation to spending time with his father. Moreover, it is the writer’s opinion and experience that people of [X]’s age tend to pursue their own parenting arrangements regardless of any formalized arrangement put in place on their behalf, Therefore, the writer recommends that [X] spend time with Mr. Thynne at [X]’s discretion.”
19.At paragraph 58, Dr Jacobson states:
“58. In an attempt to protect [X]’s relationship with Mr. Thynne as well as in an attempt to avoid future litigation, the writer recommends that Ms. Brier undertake not to discourage [X] from spending time with Mr Thynne. For the same reasons, the writer recommends that Mr. Thynne undertake not to put any undue pressure on [X] to spend time with him.”
20.At paragraph 59, Dr Jacobson states:
“59. In a further attempt to protect [X]’s relationship with his father (as well as with his mother), the writer recommends that Mr. Thynne and Ms. Brier undertake not to express any negative thoughts, opinions or attitudes about the other parent in [X]’s presence or permit anyone else to do so.”
21.At paragraph 60, Dr Jacobson recommends that [X] be able to communicate with his father by means such as email, text message, telephone or any other form of written communication at such times as [X] desires.
22.At paragraph 61, Dr Jacobson recommends that the parties establish and use a communication book to record information and ask questions limited to [X]’s care.
23.At paragraph 62, Dr Jacobson comments that with respect to changeovers:
“…it would appear that [X] is old enough, mature enough and savvy enough to use public transport. He even proposed using it to travel to/from his father’s home. The writer can see no reason why [X] cannot arrange his own handover arrangements. Furthermore, the writer can see no reason why handover could not occur by negotiation between [X] and Mr. Thynne [the husband].”
24.Lastly, and although not a live issue in these proceedings, Dr Jacobson states that in his opinion there is no reason why the parties “should not equally share parental responsibility for [X]’s long term care, development and welfare.”
25.Dr Jacobson makes the following specific recommendations at pages 18 and 19 of his report:
“1. Mr. Thynne and Ms. Brier equally share the parental responsibilities for [X]’s long-term care, development and welfare.
2. [X] to spend time with Mr. Thynne at [X]’s discretion.
3. [X] and Mr. Thynne to negotiate handover between them.
4. [X] and Mr Thynne to communicate with each other without restriction via the telephone, e-mail, text message and other forms of communication.
5. Mr. Thynne and Ms. Brier undertake to establish and use a communication book as described above.
6. Ms. Brier undertake not to discourage [X] from spending time with Mr. Thynne.
7. Mr Thynne undertake not to put any undue pressure on [X] to spend time with him.
8. Mr. Thynne and Ms. Brier undertake not to express any negative thoughts, opinions or attitudes about the other parent in [X]’s presence or permit anyone else to do so.”
Evidence of the parties
26.As previously indicated, both parties provided the Court with affidavit and oral evidence.
Applicant’s evidence
27.In his affidavit filed on 3 July 2008, the husband describes his relationship with [X] from late “2008” (the Court assumes he means “1998”) until April 2008 as being “excellent”. At paragraph 12 of his affidavit he states:
“…Generally, [X] would stay with me every second weekend from Friday to Sunday and half of all the school holidays. In addition to this, as time went on and [X] became old enough to express his own wishes, my contact with [X] increased substantially. For a number of years while the Respondent was living in [N], [X] stayed with me during the week on Wednesday and Thursday. These evenings, I attended with [X] to tutoring and Jujitsu Classes. In or around 2004, the Respondent sought my consent to relocate to [Z] with [X]. Given that the Respondent’s family all reside in [Z], I did not object. In fact, I supported her in her move to [Z] even though I would have preferred if they stayed in the Geelong area as this was closer to me. I even offered to undertake all the travel for changeovers.”
28.At paragraph 13 of his affidavit filed 3 July 2008, the husband states:
“When I was married to [Ms Thynne] [his second wife] and after the birth of [M], whenever [X] stayed with me he would spend time with both [Ms Thynne] and [M]. [X] and [M] were always very close and we would go on family outings together and holidays. [X]’s relationship with [Ms Thynne] was generally pretty strained. In fact, after my separation from [Ms Thynne], [X] told me that he was secretly pleased that we were no longer together.”
29.
The husband describes his family law proceedings with his second wife in paragraphs 18 through 31 of his affidavit filed 3 July 2008.
He further describes the fall out of those proceedings with respect to these proceedings in paragraphs 32 to 46 of his said affidavit. At paragraph 37 he states:
“the only time that [X] was ever involved in the family law matters between [Ms Thynne] and myself was on one occasion on the 5th of April 2008. On this day, I was driving in the car with [M] and [X] and we were on our way to Werribee Park. I received a call from the [O] Police Station with respect to the breach of IVO matters. The Police Officer stated to me that I needed to attend at the Police Station. I indicated that I was in the car with my children and I asked whether I could attend when they were not in my care, as I felt that it was not appropriate for my children to attend at the Station with me. The Officer demanded that I attend there immediately so I turned the car around and went to the Station. Given that both [X] and [M] were with me, I had to take them to the Police Station with me as it would have been irresponsible to leave them unsupervised in the car, particularly given that I did not know how long I would be. This was not the ideal arrangement and I did not want to take the children with me which is why I had requested that the appointment be postponed. Both [X] and [M] were distressed on this day.”
30.At paragraph 38 of his affidavit, the husband asserts that “[X] has never been exposed to any form of violence” between himself and [Ms Thynne] (the second wife). This evidence was disputed by the wife who was allowed to call evidence from the second wife with respect to an incident she alleges occurred between the husband and the second wife with [X] being present. The evidence of Ms E [Ms Thynne] will be considered shortly.
31.Under cross examination the husband appeared composed and was articulate in his responses. Under cross examination, the husband agreed that the Court should give weight to the views that [X] expressed to Dr Jacobson in his family report. The husband was also cross examined as to an incident which occurred between himself and his second wife on 27 January 2008. In answer to a question from Ms Teicher the husband replied:
“…I acknowledge that he [[X]] possibly did overhear me swearing and yelling. [Ms Thynne] and I had some heated discussions and heated arguments. I'm not proud of my behaviour over that period and there is a possibility that [X] did hear that, yes.”
32.The husband also acknowledged under cross examination that his mother (the paternal grandmother) had been assisting him with collecting [X] from school on Fridays due to work commitments. The husband then went on to suggest that such assistance would not be necessary if [X] was allowed to catch public transport from school to the husband’s home.
33.Ms Teicher also cross examined the husband at some length about his “body art” (ie his tattoos). It was suggested to the husband that his most recent tattoos were of “devil women” and that they somehow related to both his former spouses. In his response, the husband said that he:
“…wouldn't call them devil woman. They are of gothic images and gothic themes…”
The husband then stated:
“I sent [X] a text message telling him that I was going to be in a magazine, that they'd done a review on my artwork. That was the only discussion I had with him on those - on that magazine and those images.”
34.The husband also relied on the affidavit of Dr N, a consultant forensic psychiatrist filed on 12 September 2008, which attached her psychiatric report on the husband dated 30 July 2008. The psychiatric report was prepared following orders made in Mr Thynne’s legal proceedings with his second wife. At page 10 of her report, Dr N states:
“From the information provided by Mr. Thynne, it would appear that he has a history of depression, probably dating back to his teens. As a result of issues pertaining to his childhood years, he has experienced difficulties in trusting people, and a tendency to feel distressed and anxious in conflict situations. Unfortunately, he then becomes angry and appears to speak without thinking of the impact of his words on others or the ramifications they may have.
He describes a previous depressive episode in the context of this earlier marital separation…At present, I believe he is suffering from a depressive disorder, most likely an Adjustment Disorder with depressed mood, and difficulties managing anger, relevant to the current social circumstances.
His psychiatric condition appears to be well controlled at present, by means of appropriate medication, and supervision by a psychiatrist.
In addition, his difficulties in controlling his anger are being addressed in an anger management situation.
Whilst it is possible that he may experience altered judgment in the future when depressed and/ or angry, he is more likely to be able to manage potentially conflictual situations in a pro-social manner, if he maintains contact with his psychiatrist, continues with prescribed medication and completes the anger management course as proposed so as to learn improved coping strategies.
At present however, his presentation is such that his psychiatric symptoms are quite minimal, and he would not pose a threat to himself or others. I do not believe that his condition currently would result in any impairment in his ability to care for this children…’
35.Unfortunately, Dr N was not available for cross examination. The Court agreed to allow her evidence to proceed, over the objections of Counsel for the wife, on the basis that the issue of the husband’s medical condition was a live issue and one which the wife had exploited in her own evidence. Moreover, as the wife proposed to call the second wife as a witness to specifically give evidence about an alleged incident in the early stages of the breakdown of his second marriage, it was only fair that the husband be able to adduce evidence of what he has done, in terms of anger management, following from the break down of his second marriage.
Respondent’s evidence
36.At paragraph 3 through to 27 of her affidavit filed 12 August 2008, the wife refers to matters relating to the breakdown of the parties marriage and the care arrangements for [X] that followed that breakdown. At paragraph 28 onwards, the wife provides evidence of what she alleges [X] has expressed by way of wishes relevant to the parenting dispute. For example at paragraph 28 of the said affidavit the wife states:
“[X] always seemed to have a good relationship with the husband’s second wife.”
37.And paragraph 29, she states:
“After they separated [X] told me that his father had said to him that [Ms Thynne] did mean things to him (that is [X])…”
38.At paragraph 31 the wife disputes that [X]’s school ([W] Secondary College, is close to the husband’s residence in [L]. It would appear that [X]’s school is located approximately 15 km from [L] (where the husband lives) and approximately 40 km from [Z] (where the wife lives).
39.At paragraph 32 she states that:
“At about Christmas time [2007] when [X] returned from spending time with his father when he [returned] home he was very upset, sobbing uncontrollably and kept on saying that dad was saying that he had to come and live with him…He said that his father had told him to pack as much stuff as he could as he was coming to live with him when he came for the next fortnightly visit.”
40.At paragraph 39, the wife acknowledges that she has “quite a good relationship” with the husband’s second wife. Interestingly, the wife does not explain why she provided the husband with what may be described as a character reference at the time of the husband’s separation from his second wife (see Annexure “RT-2” of the husband’s affidavit filed 3 July 2008).
41.At paragraph 40, the wife describes the circumstances that led to her decision in April 2008 to end [X] spending time with his father. She states:
“That despite serious concerns about his behaviour towards his second wife while [X] was present I was prepared to continue allowing him to spend time with [X]. I learnt about the problems he had at the [O] police station where he apparently abused the police in the presence of [X] and [M] and as a consequence caused [X] great distress and upset. Despite this I was prepared to give him the benefit of the doubt until I learnt about the incident where he threatened to kill his second wife. I am also aware of his behaviour in Court after Federal Magistrate Walters ordered that his time with [M] be suspended and that he only have supervised contact at the [B] Centre in the future. Shortly after that order was made I stopped [X] spending face to face time with his father although I have reluctantly permitted telephone contact to continue.”
42.At paragraph 45, she states:
“During various telephone conversations with [X], [X] had reported that his father had made remarks to him as follows:
(i) your mums a bitch
(ii) dad says he hates you mum
(iii) pack your bags your coming to live with me
(iv) you let your mum control you
(v) why does dad have to pay you so much money when [sic] he cant afford it
(vi) on another occasion [X] reported that his father asked for his permission to sue his mother
(vii) Even on the 29th July 2008 [X] said his father told him he should get some pocket money as he (the husband) was paying child support. In fact I am not receiving any child support at all.”
43.At paragraphs 41 through 48 the wife describes various conversations between herself and the husband and herself and [X]. At paragraph 47 she states:
“I have tried to talk and reason with the husband on a number of occasions about the situation. He has abused me verbally and threatened to sue me and always hanging up. In particular on the 24th June 2008 he telephoned me and used the following expression “you’re a fucking cunt bitch slut you just want to see what happens to you” and then hung up.”
44.Later at paragraph 52 she states:
“I am aware that the husband pleaded guilty to breaches of the intervention orders his second wife obtained against him and also to making threats to kill her. I am aware that he [was] placed on a good behaviour bond one of the conditions of which was that he continue his anger management and that he was also fined the sum of $1,500.00.”
45.In her affidavit filed in Court on 11 December 2008, at paragraph 19, the wife says:
“I have read Dr. Jacobson’s report and truly support his recommendations which in my respectful view are in the interests of [X].”
46.Under cross examination, the wife presented as composed and articulate in her responses.
47.The wife was very candid in her cross examination about her unilateral decision to stop [X] spending time with his father. She repeatedly stated that her decision was solely based on her safety and welfare concerns for [X]. She stated that she still had concerns for [X]’s safety despite having received a copy of Dr N’ report dated 31 July 2008. On more than one occasion she indicated that she believed her position was reasonable and that, if faced with similar circumstances, she would “do it again”. During cross examination, Mr MacFarlane asked:
“You think that's being fair on this man, more particularly, do you think it was being fair on [X]?”
“I would do it again. If that's what you want – if that's what you're…”
“Your answer is that you would do it again. If [Ms Thynne] told you something which caused you some concerns, if two psychiatrists said they don't have concerns about his mental health, you would still prevent this man from seeing [X]?”
“Yes, if I was concerned for my son I would.”
“But you're telling this court that you will encourage [X] to see his dad whenever [X] wants to?”
“Yes, and I have… Since [X] has started unsupervised visits with his father, I have encouraged him to go.”
“But you're telling this court that you will encourage [X] to see his dad whenever [X] wants to?”
“Yes, and I have.”
“You have?”
“Since [X] has started unsupervised visits with his father, I have encouraged him to go.”
“You didn't though, you've encouraged [X] to go after you were ordered?”
“Yes.”
“After you were ordered that [X] have unsupervised contact, you say you've encouraged him?”
“Yes.”
“But between 17 April and 15 September you did not do anything to encourage [X] to see his dad. That's correct, isn't it?”
“No.”
“You did. You say you did?
“He still had phone contact with his father at all times.”
“You thought that was sufficient?”
“Yes, at the time.”
48.Later, under cross examination the wife admitted that she had discontinued her telephone landline six months previously and that she had not informed the husband that that had occurred.
49.Earlier in his cross examination of the wife, Mr MacFarlane asked her a series of questions in relation to her relocation in 2004. In her evidence the wife asserted that she did not seek the husband’s approval to move her residence. She was then asked:
“You just moved?”
“I told him that I was relocating to [Z].”
“So you just didn't even consult him. In 2004 you didn't consult Mr Thynne and say, "Do you mind if I move [X] from Geelong to [Z]"?”
“No.”
“No. Do you think you should've?”
“I just - we said that we were going to move to the country. I didn't really think I needed approval of whether I thought it was in the interests of moving house.”
“This man is one of [X]'s parents?”
“Correct.”
“[X] was seeing a lot his father whilst you were living in Geelong. Is that right?”
“Yes.”
“It certainly would make it more difficult for his father to spend time with [X] with that move to [Z]. Do you agree with that?”
“Yes.”
“You didn't think it was of any importance or didn't give any consideration to how Mr Thynne would feel about that?”
“Not directly. We discussed travel arrangements.”
“In any event, Mr Thynne didn't put any obstacles in your way. He accepted you wanted to move and he just made alternative arrangements in relation to travel and?”
“We both did, yes.”
50.The wife later asserted that the husband puts his interests ahead that of [X]. Nevertheless, she was unable to provide any specific examples in her evidence.
Evidence of Ms E (formerly Ms Thynne)
51.Despite some concerns expressed by the Court, Ms E, the second wife of the husband, also gave evidence on behalf of the wife. In allowing Ms E to give evidence, the Court limited her testimony to the events that occurred on 27 January 2008 when [X] was allegedly present during a heated conversation between the husband and the second wife.
52.In her examination of Ms E, Ms Teicher asked:
“Can you tell his Honour about an incident occurring on Sunday, 27 January 2008?
“Yes.”
“Could you tell his Honour who attended your home and what occurred?”
“Mr Thynne arrived at the home at 5.30 with his son [X], to collect [M] for his visitation. He knocked on the front door and I opened the door, and [M] ran out to her dad. [X] was standing there with a big pink box that was a gift for [M]. At that point he gave [M] a big cuddle and they were acquainting themselves, and I asked him if he wanted to take [M]'s pram for the visitation and he…”
“Who did you ask, [X] or Mr Thynne, are you saying? Mr Thynne. Yes?”
“I asked Mr Thynne if he wanted the pram. He turned around and said, "Fuck off." So I just went and got the pram, and I had some bags loaded on it, containing the toys, clothes, nappies, her vaporiser and medication because she had been unwell. I pushed it out to the front door. He looked in and he said, "What the fuck is all that shit? I don't need all that."”
“What did you say then?”
“I think at that point I had said something along the lines of, "Can you please not speak like that in front of the children?" He stepped into the house and he was holding [M] in one arm, and he came and stood right over me and he said to me, "This is never going to be fucking easy for you, you evil fucking bitch" - or "evil fucking cunt" I think was the words he used. I had the phone in my hand at that stage - sorry, on the shoebox – and I picked it up and I was going to dial the police. He said to me, "Go on, call the police, you stupid fucking bitch. I'll wait for them."”
“Then what happened?”
“He snatched the bag, her fairy bag out of my hand that I had, and he walked out the door and he and [M] and [X] started - well, he was carrying [M]. They walked towards the gate. I said to him, "Can I please give [M] a hug." He said, "Fuck off, you evil cunt." At that point I just - I didn't want to argue. I just let him go. He put the kids in the car and drove off, and then I called the police.”
“Was [X] with him through the whole of this interchange?”
“[X] was standing right outside the front door with him.”
53.In his cross examination of Ms E, Mr MacFarlane put it to the witness on several occasions that the alleged conversations did not occur in the way asserted by the second wife. The second wife on each occasion did not resile from the language she asserts was used. For example, in answer to the following question posed by Mr MacFarlane:
“I suggest that he didn’t say any of the words you attribute to him on that occasion.”
“He did.”
“You certainly are very hostile towards Mr Thynne now, aren't you?”
“I don’t acknowledge him. I'm not hostile towards him.”
“You dislike him intensely?”
“I dislike the way he has treated me, yes.”
“Yes, you dislike him intensely?”
“No. I dislike the way he has treated me.”
54.Mr MacFarlane also questioned Ms E with respect to her current relationship with the wife:
“You've become very friendly with Ms Brier, haven't you?”
“I was friendly with [Ms Brier] during our marriage, yes.”
“Well, you weren't that friendly… prior to the separation, were you?”
“It was just a nodding acquaintance …But you've become very friendly since, haven't you?”
“More so, yes.”
“You and [Ms Brier] talk about Mr Thynne a lot, don't you?”
“We talk about our children.”
“You talk about Mr Thynne a lot. You criticise Mr Thynne, do you not?”
“We have discussions about him, yes.”
“You've become very involved in [Ms Brier]'s case in relation to [X], haven't you?”
“Well, I am testifying for her, yes.”
“You also attended at the appointment for the family report with Todd Jacobson, didn't you?”
“I didn't attend the appointment, no.”
“No, you were just lurking outside, weren't you, in your car?”
“I drove [Ms Brier] and [X] to the appointment and I parked my car about four doors down the road, yes…”
“I suggest to you that you have been feeding [Ms Brier] a lot of your vitriol towards Mr Thynne, haven't you?”
“I wouldn't say that, no.”
“See, you say all this happened on 27 January?”
“Yes.”
“Yet three days later you entered into consent orders which provided for basically a shared care arrangement between you and Mr Thynne in relation to [M]. That's right, isn't it?”
“Yes.”
“You did that willingly? It was by consent?”
“Yes.”
“Then as a result of incidents which occurred in March, you went back to court and Mr Thynne then got supervised contact to [M]?”
“Yes.”
“That supervised contact continued up until 29 August this year?”
“I think, yes.”
“When you came back to court in front of Riethmuller FM and he ordered that the supervision be lifted?”
“Yes.”
“And [M] now sees his dad unsupervised?”
“Yes.”
“That order made by Riethmuller FM on 29 August was not by consent, was it?”
“No.”
“You were opposing unsupervised contact, weren't you?”
“Yes.”
“And you still do?”
“Yes.”
The report writer’s evidence
55.A previously mentioned, Dr Jacobson’s report was tendered in evidence with agreement of both parties (being exhibit A). Dr Jacobson was also cross examined by Counsel for both parties and the Court agreed to allow him to give his evidence by telephone. In his cross examination, Mr MacFarlane for the husband appraised Dr Jacobson of the husband’s proposal for a “six nights per fortnight” live with regime. Mr MacFarlane then stated:
“So the concern here is, and what my client is saying and asking the court to say, "Well, look, he wants specific orders in place, six nights per fortnight, but subject to [X] expressing in any fortnight or any time that he wants to vary those in some way." What he says is that that's in [X]'s best interests. Would you agree with this: that if this court comes to this view, that after hearing all of the evidence the court comes to the view that the mother would not facilitate any additional time over and above what is ordered in the court, then it would be better for [X] if the father's proposal is ordered rather than the mother's? Do you understand what I'm saying?”
Yes, if the mother is not going to facilitate anything other than alternate weekends and one overnight midweek, then that's the maximum that the child is going to get, where dad's arrangement might be at the maximum already and then they can cut back from there.”
“Correct. So would you have any comments to make about that proposal and that scenario? That is, if his Honour finds that the mother was not going to be willing to facilitate additional contact to that ordered, would you prefer the husband's position or the wife's position in relation to these orders?”
“The way you've put that to me, it looks like the father's position would be preferable.”
56.
In relation to a question pertaining to school holiday arrangements, and with respect to the two week notice the husband proposed to provide the wife of his intentions to avail himself of school holiday time,
Dr Jacobson commented:
“However, two weeks' notice might be a reasonable period beforehand to give notice of on that sort of thing. Can you remind me how much flexibility dad has in his work conditions to take time off during school holidays?”
“He only gets his four weeks annual holidays and if he was going to take further time off it would have to be either some accrued public holidays or alternatively it would be leave without pay?”
“Yes. Many parents are in that same situation. They have got more school holidays available to spend time with children than parents have time to spend with children. So I suppose that his proposal would be realistic.”
57.In relation to questions about whether [X] was old enough to spend more than two weeks away from the wife, Dr Jacobson was specifically asked by Mr MacFarlane:
“Do you see [X] as being too young to spend more than two weeks away from his mother?”
“No. He impressed me as being as mature as a 13-year-old child should be. I would expect a 13-year-old could be able to separate from mum for more than two weeks.”
58.In her cross examination of Dr Jacobson, Ms Teicher for the wife canvassed the wife’s proposal for [X] to spend “four nights per fortnight with the applicant” and “with a view for [X] opting to have more time when he wants to have more time.” Ms Teicher specifically asked whether the wife’s proposal of allowing [X] the option of having more time with his father (in addition to “four nights per fortnight”) was preferable to the husband’s proposal of up to “six nights per fortnight” (subject to [X]’s wishes):
“Well, look, I don't disagree with you there. The way that it was put to me - and I'm just answering the questions the way they were put to me - was if the court were to give time and that the mother would not be going to give any additional time, which one would be better for [X]. But if the mother is willing to give additional time, I think that [X] would prefer to do the alternate weekend and some midweek stuff; you know, mum's proposal.”
59.Ms Teicher then questioned Dr Jacobson with respect to the apparent need for formal Court orders to resolve this dispute:
“… Then in terms of orders - because it probably is agreed between the parties that there needs to be some order - would it be preferable then to just have the alternate weekend as something that's stipulated, or are you saying there not be any orders in relation to [X]?”
“Well, I think that my recommendations were that [X] spend time with dad at [X]'s discretion, but if the parents are saying that they're agreed that an order is necessary then I think we're getting to the situation that we're in right now, where you're asking me these specific questions and which would be better; six nights over a [fortnight] or mum's proposal. Look, in some ways it comes down to much of a muchness. I mean, his Honour is going to have to make a determination if mum is going to be willing to facilitate additional time. If she's going to be facilitating additional time at [X]'s discretion, I would see no problem with the alternate weekend arrangement and you know, midweek visits.”
60.Ms Teicher also questioned Dr Jacobson about his discussions with [X] in respect to what [X] may have overheard with regard to the conversations between the husband and the second wife:
“You're aware that [X] has spoken to you about overhearing some conversations with his - where he has spoken offensively to the current wife?”
“Yes.”
“He has also told you that he has heard his father call his mother a bitch. Is that correct?”
“I recall that, yes.”
“Do you think that has had any - if that was to continue, that sort of conduct, does that impact on [X]?”
“Well, it is likely to impact on [X], but I think the interesting thing is [X] has already been exposed to those things but it does not appear to have negatively affected his relationship with his father. However, what happens in the future is really difficult to predict. I mean, a child just might get jack of dad saying these things and say, "No more." So I would think that dad would have to be very careful. I mean, it really is inappropriate that dad would be saying those sorts of things. So I would think that to protect his relationship that dad would want to desist from making any more statements like that.”
“As well as that, does it have any effects in terms of modelling? Does it give [X] some sort of a latitude for behaving like that when he's an adult or being any less respectful to his mother than he ought to be?”
“Well, let's not draw any clear rules about that, but it certainly has the potential to do that.”
“And both of those things, if I lump things in together: so firstly the modelling, modelling that sort of behaviour when he's an adult. Does it have that potentiality?”
“Yes, it does.”
“And does it have a potentiality in terms of how he interacts with his mother if he hears his father speaking ill of her and speaking ill of his second wife?”
“Yes, it does.”
61.The Full Court of the Family Court’s decision of In the Marriage of Hall (1979) 5 Fam LR 609 contains an authoritative statement about how reports such as the one written by Dr Jacobson should be treated in proceedings such as this case:[1]
[1] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-615.
“In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11, 182, In the Marriage of Harris Fam LN No 33; (1977) 29 FLR 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.”
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”
62.In this matter the report writer’s evidence was tested and not found wanting in relation to his recommendations. In addition, as Dr Jacobson is the only independent and expert party in these proceedings, the Court must give the report and his oral evidence considerable weight.
Formal proposals of the parties
63.As previously indicated, the husband is seeking an order that [X] live with him after school Thursday to before school Wednesday every fortnight (i.e. “six nights per fortnight”), together with one half of the school holiday periods. The school holiday time would be conditional upon husband obtaining appropriate leave and advising the wife of his availability to take leave at least fourteen days prior to the commencement of that period.
64.The wife is proposing that [X] spend time with the husband from after school Friday to before school Monday every fortnight, and an additional Wednesday night in the other week (i.e. “four nights per fortnight”). In addition the wife proposes [X] spend four weeks of his school holidays with the husband but that [X] spends no more than two weeks at a time away from the wife.
The law and approach of these proceedings
65.The Court is asked to make specific parenting orders in relation to these proceedings. More specifically, the Court is asked to determine how much time [X] will live with, spend time with and communicate with the husband and in what circumstances. There is no disagreement between the parties that each should have equal shared parental responsibility for [X].
66.Parenting orders are defined in section 64B of the Family Law Act 1975 (“the Act”). Parenting orders deal with where the child is to live, the time the child is to spend with another person or otherwise allocate parental responsibility in relation to a child.
67.Section 60CA of the Act makes it clear that for the purposes of making a parenting order the Court must regard the best interests of the child as the paramount consideration.
68.Section 61DA incorporates a presumption that the Court is required to consider when making a parenting order. That is, the Court must apply a presumption that it is in the best interests of the child concerned for the child’s parents to have equal shared parental responsibility. There appears common ground between the parties that they should have equal shared parental responsibility for the children. In any event, the issue in this case was not the issue of parental responsibility but rather the time that [X] should live with, spend time with and communicate with the husband and in what circumstances.
69.In this respect, the Court is required under section 65DAA of the Act to consider whether the child’s best interests would be served by making an order that [X] spends equal time or alternatively substantial and significant time with each of his parents. While the husband initially sought that [X] “live with both parents on a shared care basis”, his proposal was clearly for a “six nights per fortnight” live with regime (albeit with [X] having the option of having less time if he so desires). In contrast, the wife is proposing a “four nights per fortnight” live with regime (albeit with the option of [X] having more time if he so desires). Both parties appear to be in relative agreement that [X] should spend a significant period of his school holidays with the husband. In other words, there is clear agreement between the parties that [X] should live with or spend time with the husband for a substantial and significant time. Clearly, both parties believe that such would be in [X]’s best interests.
70.Given that this was the extent of the controversy between the parties in relation to these parenting orders, this decision only addresses those issues raised for the Court’s consideration. In any event, the Court needs to approach the determination of the controversy between the parties by reference to what orders should be made in the best interests of the child.
71.The issues that arise for this purpose are the primary and secondary considerations that the Court must take into account under section 60CC of the Act. What is considered to be in the best interests of the child in these types of cases necessarily depends on the particular circumstances in each case. In each case different circumstances require different resolutions.
72.The Court will now turn to a consideration of the factors in section 60CC(2), (3) and (4) of the Act in the context of this case.
The benefit to the child of having a meaningful relationship with both parents
73.The husband’s position is that the best interests of [X], and the benefit of [X] spending more time with the husband, prompted this application. It was also a response to the wife’s decision to stop [X] from spending any time with his father following certain events that occurred in relation to the breakdown of his second marriage. As previously mentioned, the Court notes that neither party is suggesting that the child should not spend significant time with the husband.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
74.In this case, whilst there were considerable allegations of inappropriate behaviour on the husband’s part towards the wife and his second wife, there was no specific evidence of any physical risk or harm to [X]. While the events that occurred earlier in 2008 may have provided some justification for the wife to unilaterally stop [X] spending any time with his father, it is clear that the circumstances have changed. While the Court understands the overly protective concerns of the wife in considering it appropriate that [X]’s time with his father be supervised, the evidence certainly does not warrant the necessity for such an arrangement.
The child’s expressed views and the weight those views should be given
75.The views expressed by [X] provide the key to unlock the future arrangements between the parties with respect to [X]. The evidence from Dr Jacobson is quite clear that [X] would like to spend as much time with his father as he wants to. It would appear that [X] would possibly favour the more minimalist proposal favoured by the wife (that is alternate weekends plus an additional overnight in the other week) together with the option of having additional time as he wishes. The husband’s concern is that the evidence suggests that the wife may be reluctant to facilitate [X]’s wishes to spend more time with his father. This aspect is discussed shortly.
The nature of the relationships between the child and each parent and other people important in the child’s life
76.There is no doubt that both the husband and the wife love [X]. The Court is satisfied that their positions are largely motivated by their concern for [X]’s care and welfare. The Court also needs to consider [X]’s relationship with other siblings, namely, [M] (the child of the husband and the second wife) and [Y] (the child of the wife and her second husband). While the wife provided no information about [Y] in her affidavits, the Court allowed her to give some evidence in chief about [X]’s relationship with this sibling and his step father Mr B (the wife’s second husband).
77.Consequently, the outcome must respect [X]’s ability to spend as much time with both [M] and [Y] as is possible in all the circumstances.
The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other parent
78.This was a live issue in this case. It is quite clear from the evidence that after many years of generally good relations between the husband and the wife in their parenting of [X], the parties’ ability to facilitate and encourage a close and continuing relationship with [X] and the other parent became severely derailed earlier in 2008. While this is not a contravention application, it is arguable that the Court would excuse the wife’s behaviour in unilaterally discontinuing [X]’s contact with his father in April 2008. That having been said, it is of some concern that it has been necessary for the husband to commence these proceedings to facilitate the resumption of [X]’s contact with his father. The evidence clearly suggests that certainly by August 2008, there were no longer any concerns that would necessitate [X] spending time with his father under supervision. It is also clear that the fall out from the failure of the husband’s second marriage has had more than an impact in relation to the parenting of [X]. While the Court is not critical of the wife pursuing a friendship with the second wife (indeed the Court accepts such may be beneficial to [X] and [M]), it would have added additional pressure upon the husband to see both of his former wives uniting to prevent him from spending any time with his children.
79.The wife was extremely candid in her evidence in stating that if circumstances such as those that arose in April 2008 arose again, that she may unilaterally stop [X] from spending any time with his father.
80.Given that the parenting dispute with the second wife is still unresolved, the Court does have concerns that its fall out may impact upon the parenting arrangements for [X]. Consequently, the Court does have some concerns about whether the wife would facilitate [X]’s views should he desire to spend more time with the husband in the future.
Any changes in the child’s circumstances including the likely effect on the child of any separation
81.Both parties appear settled in their current environments and neither propose any specific changes in respect of the child’s physical circumstances. [X] is currently in high school near Geelong and it is anticipated that he will remain there to complete his high school studies.
The practical difficulty and expense of the child spending time with both parents
82.While there are some travelling issues in this case, they are relatively unremarkable. Dr Jacobson is certainly of the view that [X] is old enough to utilise public transport to facilitate any changeovers from school to the husband’s home. The Court sees no reason to disagree with Dr Jacobson’s evaluation. Despite some differences expressed by the parties in relation to the various bus timetables, it was clear that [X] would be able to travel from school to the husband’s home and return without much difficulty.
The capacity of each parent to provide for the child’s needs/ the attitude each parent has demonstrated to the responsibilities of being a parent
83.As previously indicated, the Court is satisfied that both parents are focused on [X]’s needs. The Court accepts the wife’s decision to stop [X] spending time with the husband in April 2008 was welfare motivated, however its continuation beyond August 2008 was arguably not appropriate in light of the evidence.
84.The use of a communication book as recommended by Dr Jacobson will assist the parties into the future in dealing with the responsibilities of parenthood.
The maturity, sex, lifestyle and background of the child and the parents
85.There are no specific matters here that assist the Court.
Any family violence (or any family violence order) involving the child or a member of the child’s family
86.As previously indicated, there are no family violence issues directly related to [X]. While the wife alleges some disturbing conversations occurred between herself and the husband following her decision to stop [X] spending time with the husband, any history of family violence or family violence orders relate to the period of their initial separation, more than a decade ago.
87.As previously indicated, there is no evidence that would promote any need for [X]’s time with his father to be supervised.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
88.While it is clear that both [X] and (Dr Jacobson) would prefer a live with regime that was as flexible as possible, it is clear to the Court that both parties would not be able to facilitate that easily. In other words, the Court has reluctantly come to the conclusion that some defined orders in respect of [X], notwithstanding his age, is required in the foreseeable future. That having been said, the Court had formed the view that some flexibility must be incorporated into the relevant orders.
Any other fact or circumstance the Court thinks is relevant
89.There are no additional issues that the Court thinks are relevant.
Conclusion
90.The husband and wife should continue to have equal shared parental responsibility with respect to [X]. Having considered all of the evidence in this matter, and in particular the evaluations and recommendations of Dr Jacobson in his report dated 7 September 2008, the Court has concluded that [X]’s best interests would be promoted by him living with the husband for defined periods each alternate week and for up to half of the school holidays. In relation to fortnightly time, the Court believes that there needs to be both certainty and flexibility in its frequency. Presently, [X] lives with the husband from after school Friday to before school Monday and one additional night in the other week. The Court considers that [X]’s best interests would be served by increasing the time that he lives with his father over the next six months. Consequently, the Court proposes there be final orders that enable [X] to spend time with his father during school terms as follows:
From the commencement of the second term 2009:
a)From after school Thursday to before school Monday;
From the commencement of the third term 2009:
b)From after school Thursday to before school Tuesday;
From the commencement of fourth term 2009 and thereafter:
c)From after school Thursday to before school Wednesday.
91.The above extensions in the time that [X] lives with his father will be subject to [X]’s views. In the event that [X] would wish to spend less time with the husband than that ordered by the Court, the parties shall respect those wishes.
92.In relation to school holiday time, the Court proposes that there be final orders to effect [X] spending up to one half of each school holiday period with the husband, subject to the husband being available to care for the child on a full time basis during such school holiday periods. The orders should include that the husband provide as much notice as possible of his availability to supervise [X] during school holiday time.
93.The orders should also include obligations on both parties to keep each other informed about [X]’s activities, health, education and development (preferably through the use of a communication book) and not to denigrate each other in [X]’s presence.
94.Lastly, the orders should include a requirement that both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to [X]’s long term care, welfare and development.
95.Counsel will now have the opportunity to present precise terms of the orders sought by the parties in order to give effect to the terms of this judgment.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Monahan FM
Associate: Shani Drogemuller
Date: 3 April 2009
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