Waters and Starkey
[2010] FamCA 531
•30 June 2010
FAMILY COURT OF AUSTRALIA
| WATERS & STARKEY | [2010] FamCA 531 |
| FAMILY LAW – CHILDREN – Undefended hearing where the father has been given every opportunity to participate but does not accept the authority of the court system – Presumption for equal shared parental responsibility rebutted where the child lives with each parent in a shared care relationship but the father is uncooperative regarding important decisions, and where the mother undertakes to consult the father nonetheless |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Waters |
| RESPONDENT: | Mr Starkey |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lehmann |
| FILE NUMBER: | CSC | 919 | of | 2007 |
| DATE DELIVERED: | 30 June 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 19 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Bentley |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Queensland |
| SOLICITOR FOR THE RESPONDENT: | no appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Benson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lehmann Featherstone |
Orders
(made 19.4.2010)
The mother will have sole parental responsibility for the child L born … August 2006 (“the child”).
The mother will consult with the father prior to making any decision regarding major long term care welfare and development of the child including but not restricted to:
2.1.the child’s health;
2.2.religious and cultural upbringing;
2.3.education or development;
2.4.change of name;
2.5.changes to the child’s living arrangements that make if significantly more difficult for the child to spend time with either of the parents.
And give his views due consideration.
Each parent have the responsibility for the decisions to be made on a day to day basis whilst the child is in their care.
That the child live with the father at all times as may be agreed between the parents but failing agreement:
4.1.In week one from 9am Saturday to 11am Tuesday;
4.2.In week two from 9am Saturday to 9am Wednesday;
4.3.For Christmas in 2010 from 3pm Christmas Eve to 1pm Christmas Day and in each even numbered year thereafter ;
4.4.For Christmas in 2011 from 1pm Christmas Day to 10am Boxing Day and in each odd numbered year thereafter;
4.5.commencing in 2010 and in each alternate year for child’s birthday from 3pm on the day before the child’s birthday to 3pm on the child’s birthday;
4.6.For Father’s Day from 9am to 5pm.
At all other times the child live with the mother.
The child be in the mother’s care at all other times as may be agreed between the parents but failing agreement:
6.1.On mother’s Day from 9am to 5pm;
6.2.For Christmas in 2009 from Christmas Eve to Boxing Day;
6.3.For Christmas in 2011 from 3pm Christmas Eve to 1pm Christmas Day and in each odd numbered year thereafter;
6.4.For Christmas in 2010 from 1pm Christmas Day to 10am Boxing Day and in each even numbered year thereafter;
6.5.commencing in 2011 and in each alternate year for child’s birthday from 3pm on the day before the child’s birthday to 3pm on the child’s birthday.
The mother may on one occasion per calendar year take the child interstate or within Queensland for a holiday of up to one month, provided that:
7.1.she gives the father 28 days notice in writing;
7.2.she provides to the father details of an address and contact number.
The father may on one occasion per calendar year take the child interstate or within Queensland for a holiday of up to one month, provided that:
8.1.he gives the mother 28 days notice in writing;
8.2.he provides to the mother details of an address and contact number;
8.3.The mother consents to the proposal in writing.
If either parent proposes to travel with the child for a holiday they must provide to the other parent together with 28 days notice in writing a detailed itinerary of the travel including details of the departure and return dates, flight numbers and copy of relevant travel tickets.
In the event that the child is seriously injured or ill in the care of one parent, that parent is to immediately advise the other, giving details of any treating institution or specialist.
In the event that the child is less seriously injured or ill, in the care of one parent, that parent is to as soon as practicable contact the other, giving details of any treating institution or specialist.
All changeover are to occur at the S Day Care Centre unless otherwise agreed between the parents.
The father is not to approach or attend the mother’s house without an express invitation from the mother.
The father is not to telephone or text the mother except in an emergency.
Neither parent is to denigrate the other nor the other party’s family to or in the presence of or within the hearing of the child.
Neither parent is to consume alcohol to excess while the child is in their care.
Each party is to inform the other of their address and a mobile telephone contact number and notify the other of any change within two (2) days.
The parents shall communicate by email for any changes to the parenting arrangements from time to time.
The parents shall attempt to resolve any future issues at mediation and shall give written notice to the other parent of their wish to attend mediation. The location of the mediation is to be agreed between the parents but in default of agreement at Family Relationship Centre or Relationships Australia or similar organisation.
This order is to serve as authority to the child’s doctors and medical specialists to release information to both parents as may be requested from time to time concerning any relevant matters concerning the child.
The mother shall keep the father informed of all details pertaining to the child’s doctors and health practitioners and notify the father of any medical emergency affecting the child as soon as practicable.
This order is to serve as authority to the child’s day care, pre school, school and all educational facilities to provide to both parents all notices, letters, school reports, as may be requested from time to time concerning any relevant matters concerning the child including invitations to attend all function, parent / teacher interview or other activities to which the parents are invited to attend.
The father pay one half of the Independent Children's Lawyer’s costs in these proceedings as agreed or assessed.
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 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.
IT IS NOTED that publication of this judgment under the pseudonym Waters & Starkey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CSC 919 of 2007
| MS WATERS |
Applicant
And
| MR STARKEY |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The hearing of this matter proceeded on an undefended basis before me on 19 April 2010. The application of the applicant mother was supported by the Independent Children's Lawyer.
I had to consider what orders were in the best interests of L, born in August 2006 (“the child”) and I made orders on 19 April 2010 and deferred giving reasons, which I now give.
The father’s lack of participation in the proceedings
The father has failed to participate in these proceedings during the period of time the matter has been before me. The father at all times has lived at an address in Cairns. On 25 November 2009 I made an order that “if the father intends to participate in the proceedings, he is to file a response and any affidavit upon which he seeks to rely by 1 February 2010”. The father did not file any such affidavit.
When the matter was before me on 24 February 2010, I indicated that I had been told that the orders that I made on 25 November 2009 had been sent by the Court to the father but had been returned with markings on the envelope that indicated that the father had not opened the envelope.
The mother served upon the father her third amended initiating application filed 15 December 2009. In an affidavit of service filed on 1 February 2010, a Mr C, a licensed commercial sub-agent, deposes to the fact that on 6 January 2010 he had the following involvement with the father:
I said, “Are you [Mr Starkey], the person named in these documents?”.
He replied, “Yes” and he took the documents from the agent.
[Starkey] then advised me that he was refusing to accept the documents as his name, on the documents, was not printed in capitals. I advised him that as he had already identified himself as the person on the documents, he was now served. [Starkey] continued to argue and insist that I take the documents back. I advised him that I was not going to accept the documents back. [Starkey] then threw the documents on my folder and I then placed the documents on the recycling bin beside where we were standing. [Starkey] then said, “Well you can witness me throw the documents in the bin”.
I then replied, “I will not witness anything” and proceeded to my car. As I got into my car, [Starkey] requested to know who had signed the documents. I replied that I did not know and that my job was to simply deliver the documents. [Starkey] then threw the documents into my vehicle through the open window. I then took the documents and placed them on the ground in front of [Starkey] and drove away.
I had been informed that the Docket Registrar had spoken to the husband on Friday 16 April 2010 and he indicated that he did not intend to participate in the proceedings. That lack of participation is a little surprising given the father told the report writer he had previously challenged the authority of other government organisations. He admitted such principled challenges involved protracted legal action.
The father has communicated in this matter in a very strange way and more recently refused to communicate at all.
Exhibit A is a document prepared by the father on 29 October 2007. It is entitled “first and final notice”. It is addressed primarily to the Federal Magistrates Court and is signed by the father. It is a reasonably bizarre document with sentences such as “The Federal Magistrates Court of Australia will consent to accept punishment fees of $480,000 (per breach) plus compensation and all related costs on behalf of any decision carried out by any Federal Court Magistrate that violates the common law right of the property of [the father’s address in Cairns]…..”. There are many other equally bizarre statements in the document, including one punishment fee of $1,000,000, another of $100,000 and another punishment fee of $480,000 for various matters that appear to concern the father.
Exhibit C is an envelope apparently sent to the father on 24 March 2010 from the mother’s lawyers. The father has apparently not accepted the communication because his name is printed in lower case without his middle name being included. He has written on the envelope “issue mail to ‘FIRST NAME MIDDLE NAME STARKEY]’”. The back of the envelope also indicates that he was not prepared to open the envelope because it does not have the sender detailed on the back of the envelope (although it is on the front). The father has been sent correspondence (exhibits B and D) alerting him to the documents that would be relied upon by the mother and the Independent Children's Lawyer at the hearing. I am unaware as to whether or not the father opened that correspondence and read it.
Accordingly, I find that it is appropriate to deal with this matter on an undefended basis.
ORDERS SOUGHT BY THE MOTHER
The orders sought by the mother in her third amended application are in the following terms:
1.That the mother will have sole parental responsibility for the child [L] born […] August 2006 (“the child”).
2.The mother will consult with the father prior to making any decision regarding major long term care welfare and development of the child including but not restricted to:
2.1.the child’s health;
2.2.religious and cultural upbringing;
2.3.education or development;
2.4.change of name;
2.5.changes to the child’s living arrangements that make if significantly more difficult for the child to spend time with either of the parents.
And give his views due consideration.
3.Each parent have the responsibility for the decisions to be made on a day to day basis whilst the child is in their care.
4.That the child live with the father at all times as may be agreed between the parents but failing agreement:
4.1.In week one from 9am Saturday to 11am Tuesday;
4.2.In week two from 9am Saturday to 9am Wednesday;
4.3.For Christmas in 2010 from 3pm Christmas Eve to 1pm Christmas Day and in each even numbered year thereafter ;
4.4.For Christmas in 2011 from 1pm Christmas Day to 10am Boxing Day and in each odd numbered year thereafter;
4.5.commencing in 2010 and in each alternate year for child’s birthday from 3pm on the day before the child’s birthday to 3pm on [the child’s birthday];
4.6.For Father’s Day from 9am to 5pm.
5.At all other times the child live with the mother.
6.The child be in the mother’s care at all other times as may be agreed between the parents but failing agreement:
6.1.On mother’s Day from 9am to 5pm;
6.2.For Christmas in 2009 from Christmas Eve to Boxing Day;
6.3.For Christmas in 2011 from 3pm Christmas Eve to 1pm Christmas Day and in each odd numbered year thereafter;
6.4.For Christmas in 2010 from 1pm Christmas Day to 10am Boxing Day and in each even numbered year thereafter;
6.5.commencing in 2011 and in each alternate year for child’s birthday from 3pm on the day before the child’s birthday to 3pm on [the child’s birthday].
7.The mother may on one occasion per calendar year take the child interstate or within Queensland for a holiday of up to one month, provided that:
7.1.she gives the father 28 days notice in writing;
7.2.she provides to the father details of an address and contact number.
8.The father may on one occasion per calendar year take the child interstate or within Queensland for a holiday of up to one month, provided that:
8.1.she gives the father 28 days notice in writing;
8.2.she provides to the father details of an address and contact number;
8.3.The mother consents to the proposal in writing.
9.If either parent proposes to travel with the child for a holiday they must provide to the other parent together with 28 days notice in writing a detailed itinerary of the travel including details of the departure and return dates, flight numbers and copy of relevant travel tickets.
10.In the event that the child is seriously injured or ill in the care of one parent, that parent is to immediately advise the other, giving details of any treating institution or specialist.
11.In the event that the child is less seriously injured or ill, in the care of one parent, that parent is to as soon as practicable the other, giving details of any treating institution or specialist.
12.All changeover are to occur at the [S] Day Care Centre unless otherwise agreed between the parents.
13.The father is not to approach or attend the mother’s house without an express invitation from the mother.
14.The father is not to telephone or text the mother except in an emergency.
15.Neither parent is to denigrate the other not the other party’s family to or in the presence of or within the hearing of the child.
16.Neither parent is to consume alcohol to excess while the child is in their care.
17.Each party is to inform the other of their address and a mobile telephone contact number and notify the other of any change within two (2) days.
18.The parents shall communicate by email for any changes to the parenting arrangements from time to time.
19.The parents shall attempt to resolve any future issues at mediation and shall give written notice to the other parent of their wish to attend mediation. The location of the mediation is to be agreed between the parents but in default of agreement at Family Relationship Centre or Relationships Australia or similar organisation.
20.This order is to serve as authority to the child’s doctors and medical specialists to release information to both parents as may be requested from time to time concerning any relevant matters concerning the child.
21.The mother shall keep the father informed of all details pertaining to the child’s doctors and health practitioners and notify the father of any medical emergency affecting the child as soon as practicable.
22.This order is to serve as authority to the child’s day care, pre school, school and all educational facilities to provide to both parents all notices, letters, school reports, as may be requested from time to time concerning any relevant matters concerning the child including invitations to attend all function, parent / teacher interview or other activities to which the parents are invited to attend.
CHRONOLOGY
I accept as accurate the short chronology contained in the mother’s summary of argument which I set out.
The father was born in 1956.
The mother was born in 1982.
The parties commenced a relationship in early 2005 but maintained separate residences.
L was born in August 2006.
The relationship ended in December 2006.
On 24 October 2007 FM Coates made a recovery order in circumstances where the father had held the child over since 22 October 2007.
On 28 November 2007 FM Coates ordered, inter alia, that the parents have shared parental responsibility and the child live with each of the parents in a shared care arrangement.
On 17 March 2008 FM Coates ordered that the child live with the parents in a shared care arrangement and with the child living with the father from 6.30pm Thursday until 6.30pm Sunday in the first week and from 6.30pm Thursday until 6.30pm Monday in the second week and with the mother for the remainder of the time.
On 28 May 2008 a family report was completed by Ms P.
On 30 May 2008 the mother filed a contravention application in relation to the father’s failure to use the communication book, attend mediation, holding the child over and entering the mother’s residence.
On 2 June 2008 FM Coates ordered that the parents attend counselling.
On 27 November 2008 the parties attended a child dispute conference and an Independent Children's Lawyer is appointed.
On 4 June 2009 a second family report was completed by Ms P.
On 16 June 2009 the parties attended a child dispute conference.
On 20 October 2009 the matter was transferred to the Family Court. The father failed to appear.
On 25 November 2009 the matter was mentioned before me. The father failed to appear. The matter was listed to proceed as an undefended hearing.
STATUTORY CONSIDERATIONS
Primary considerations
The benefit to the child of having a meaningful relationship with both parents
The mother’s proposal would see the child living with the father from Tuesday at 11am until Saturday at 9am in one week and from Wednesday at 9am until Saturday 9am in the following week. What the mother is proposing consequently is a shared care arrangement. This is an arrangement that has been in place since orders were made in the Federal Magistrates Court on 28 November 2007. The two family reports that have been prepared in this matter by Mrs P both recommend that the existing arrangements for shared care continue.
If they do, it will mean that the child will continue to have the benefit of a meaningful relationship with both parents.
The need to protect the child from physical and psychological harm
The report writer was of the view that the father was a protective parent, so much so, that his concerns for the child’s safety extended to him making intrusive inquiries into the mother’s domestic circumstances.
The mother in her interviews with the report writer in April/May 2008 described her “drug of choice” as beer. There has been one occasion when, with the father, she had experimented with the single use of ecstasy. The mother denies the use of any other forms of illicit substances. I have no evidence that the level of the mother’s consumption of alcohol poses a risk to the child.
The mother conceded to the family report writer that her choice of partners in the past has been bad and indicated that she was cognisant that she must protect her child and had advised the report writer that her lifestyle had changed.
The father had alleged that the mother had an aggressive streak, claiming that on three occasions she had been violent towards him. Those allegations were not tested. I am unable to find that there is anything in the father’s concern that the child might be injured in the cross fire between the mother and a male partner. It seems clear though that the father is not asserting that the mother would intentionally harm the child.
The father in his conversation with the report writer remarked that as time goes on, the mother is changing (intimating that his concerns were abating).
In the second family report (interviews held May 2009), the mother spoke to the report writer of the father’s fluctuating moods. She spoke of the father becoming reclusive to the point where he would not answer the telephone or talk to his clients. That behaviour seems consistent with the evidence of the process server and the experience that this court has had in attempting to engage the father in a process of considering what arrangements are in the child’s best interests.
The mother asserted that the father tended to be abusive towards family and close friends during periods when he had a low mood. Having said that, the mother expressed the opinion to the report writer that the father did not get so low in energy or motivation that the child would be at risk in his care.
Overall, there is no matter in respect of which I have evidence that would mean that the need to protect the child from physical and psychological harm would mitigate against any of the orders that the mother seeks.
Additional considerations
Child’s views
Due to his age, the child was not interviewed by the report writer for either of the reports (although there was observation with both parents at the interviews for the first report and with his mother for the second report).
Nature of the relationship between the child and the parents
The report writer observed the child’s interaction with both his parents to be warm and relaxed. The child was observed being playful, friendly and curious. He readily played with his parents and the maternal grandmother. Both parents encouraged the child and responded appropriately to his needs. The mother has not lead any evidence that would cause me to have concerns about the nature of the relationship between the child and his father and notwithstanding that the father was not observed with the child when the second report was prepared, I find that both parents have a close, loving relationship with the child.
The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
Both parents appear to appreciate the significance of the other parent in the child’s life, notwithstanding the difficulties surrounding the separation.
Both parents seem to have been able to implement a shared care arrangement, notwithstanding any practical difficulties. In the interviews for the first report, both parents indicated to the report writer their willingness to be flexible in relation to the child’s living arrangements and to accommodate special events and work commitments. Both parents were confident that at times of crisis, they would be able to set aside their personal differences and focus on the child’s needs. The report writer considered that at the time of the first report, the conflict between the parents was not entrenched. In the second family report interview, the mother acknowledged to the report writer that the child’s living arrangements were working in an acceptable manner. The mother described the father as “stubborn, controlling and hard to negotiate with”. The father is somewhat of a paradox. On the one hand it seems he will work with the mother but on the other hand refused to involve himself in the formal processes of reaching a binding agreement in order to have consent orders made.
I find that the mother has a core belief that it is important that the child grow up with the father in his life. I also find that the parents are child focused. In her second report, the report writer recommended shared parental responsibility and I will deal with that issue shortly.
The likely effect of any change
The mother is not proposing any significant change to the child’s current living arrangements so this matter is not of any great import.
The practicalities and expense of spending time with and communicating with a parent
This does not appear to be an issue in this case.
The capacity of each of the parents
As is already clear from what I have said so far, both parents want to do what is best for the child. There have been disagreements about some issues and I will deal with the issue of whether or not the mother should have sole parental responsibility below.
In the first family report the father raised concerns about the mother’s level of anger and the child getting caught up in the incidents when she is angry. The mother since that time has participated in an anger management course and she credits that as having given her some insights and skills in order to deal with the father. The first report recommended personal grief and loss counselling for the father but it is unknown as to whether or not the father participated in any such counselling.
The mother described the father as a good parent in the second family report.
The mother was slightly critical of the father’s inability to provide the child with a routine saying that he let the child go (without sleep) until he dropped. It will be important when the child commences school for there to be some patterns set in relation to the child’s bedtime. It is slightly worrying that the father has indicated that he will decide the child’s routine when the child is with him and will not be dictated to by the mother. The mother has a regular pattern for the child’s bedtime which I find is beneficial for the child.
Some of the father’s alternate methods for medical treatment are a little concerning. The mother asserted that the father wrapped the child up until he sweated out a cold. I got the impression from the family report that the mother had a far better attitude to dealing with medical issues relating to the child than did the father. I accept the mother’s position that it is preferable for a parent to take a child for assessment by a properly qualified medical practitioner rather than have a parent treating misinterpreted symptoms. It would also be a preferred position if the child was taken to one medical practitioner. Part of what the mother seeks by way of a sole parental responsibility order would mean that decisions about the child’s health and who treated him in the end would be a matter for her to make.
I will say something more about my view about the parent’s respective capacities to deal with the child’s health when I deal with the issue of parental responsibility.
As I have already indicated, the father has been unable to put aside his personal attitude regarding the legal process in order to engage with the report writer in the preparation of the second family report nor engage in the process of resolving what set of orders would be in the child’s best interests.
Background
Apart from where it is otherwise mentioned, the maturity, sex, lifestyle and background of the child or either parent or issues of whether or not the child is of Aboriginal or Torres Strait Islander heritage are not applicable in this case.
The attitude to the child and responsibilities of parenthood demonstrated by each of the child’s parents
The parties have been unable to agree on some important areas which include:
54.1.Medical treatment to be sought for the child;
54.2.When a parent can take the child away from Cairns area for a holiday;
54.3.Information that the other parent should have access to about the other parent’s lifestyle; and
54.4.How parents will negotiate and reach agreement on long term issues concerning the child.
I have acknowledged that both parents love their son and strive to do the best for him. On the important issue of how much time the child would spend with each parent, the parents are in agreement and I credit the mother substantially for seeking the orders that she has for shared care. There are other contra indicators to making those orders but I am satisfied the mother is currently making them work.
Difficulties arising out of different attitudes to the exercising of the responsibility of parenthood by both the parents will be dealt with when I consider the issue of parental responsibility.
Family violence and family violence orders
In the interviews for the first family report, both parents maintained that they had concerns for the child’s safety when the other parent was angry.
The report writer however commented that the expression of the father’s concerns about the mother in that regard “presented in such a manner that can be interpreted as controlling, demanding and intrusive combined with a sense of entitlement”. The report writer recommended that the father attend the “Post-separation, Focus on Kids program” run by Relationships Australia. I do not know whether the father took up the advice to be involved in that course. There were some initial concerns about parental conflict at changeovers but on the information I have I have no concerns about that matter at this time.
There have been no family violence orders made between the parents.
There is no indication on the evidence before me that family violence is a matter that I need to take into account when making my determination in this matter.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
I am of the view that orders which the mother seeks, which basically formalise the status quo in relation to time, are orders that are unlikely to be challenged by the father.
That might not be a conclusion that can be reached in relation to the mother’s application for sole parental responsibility but as I will explain, there are reasons why such an order should be made in this case.
Any other matter
There is no issue that is of sufficient weight to affect the outcome. I note that it appears the mother pays some child support to the father. It is unclear to me as to what each parent is earning, however, it appears to me that the father is involved in some income earning activities.
SHARED PARENTAL RESPONSIBILITY
The Act provides a presumption of equal shared parental responsibility.
I have earlier recorded that the report writer in both reports recommends an order for equal shared parental responsibility. It is clear that that recommendation is made on the basis of the report writer’s view that the parties have been able to reach a workable co-parenting arrangement to date.
However, the mother now seeks sole parental responsibility. It is her current view that it is likely, given the father’s current attitudes, that there will be issues about the child’s care about which the mother will not be able to agree with the father. The mother has indicated a willingness to consult with the father and take into account the views of the father before making any decision.
The Independent Children's Lawyer supported the mother’s position in relation to parental responsibility at the hearing.
I have the impression that the child is currently being brought up in two very different homes with different sets of rules. That, in itself, may not be a reason to find the presumption is rebutted, but there is more.
It is clear that there has been much conflict between the parties in the past about parenting issues. The mother referred to paragraphs 13, 16, 17, 18, 19 and 22 of the father’s response filed 22 November 2007 to demonstrate the difficulty controlling nature of the father’s personality. I take into account the orders that the father sought in the response filed by him (which could be categorised as unreasonable, controlling orders) notwithstanding the fact that the father did not in the end participate in the process and was not present at the final hearing. I find that the mother is more balanced and child focused about the long term decision making in relation to the child.
The mother described the father as “stubborn, controlling and hard to negotiate with”. The mother in her affidavit filed 15 December 2009 (at paragraph 43) indicates that “The father is argumentative with me and I find him difficult to talk to when he has mood swings. When he is like this he screams and yells, is demanding and controlling on me”.
The mother has assiduously attended to the child’s health needs and I accept the mother has experienced difficulty in engaging the father in the treatment suggested by the child’s doctors. The mother’s affidavit of December 2009 indicates that the father at that time continued to send her abusive text messages which upset her greatly. I have little confidence that the father would cooperate with any medical practitioner that the mother chooses. That of course could place the child in an uncertain situation in relation to his health.
It appears that the father has at times had difficulty seeing the mother’s point of view. On the other hand the mother has shown a much more balanced approach and I am confident that the mother will consult with the father before making any decisions about the child and that those decisions will be child focused and in the child’s best interests.
The report writer did not have available at the time of preparing her second report, evidence that I had available to me at the trial. The report writer was given the opportunity to familiarise herself with some of that material and the report writer then gave oral evidence.
The report writer read the mother’s updating affidavit and gave oral evidence that her recommendation for equal shared parental responsibility had changed and that she was of the view that it would be in the child’s best interests to make an order for sole parental responsibility in favour of the mother.
I share that opinion. Any major decision that the two parents have to make together (if they were of different view) would create a significant difficulty for the child. Given the father’s current hostility to the concept of being involved in the court process, it is difficult to see how any such impasse would be easily resolved between them. It is probable, on an ex parte basis, that the mother would have to come back to court to seek a ruling in relation to what path might be taken in relation to some significant issue for the child’s future life.
In those circumstances I find that the presumption of equal shared parental responsibility is rebutted and I am prepared to make an order for sole parental responsibility in favour of the mother on the condition that she consult with the father prior to making any decision regarding a major matter about the long term care, welfare and development of the child.
The mother has indicated that notwithstanding her experience with the father’s fluctuating moods, the father is still capable of fulfilling parental responsibility associated with the shared living arrangements on a day to day basis.
As I have earlier indicated, I think that it is important, particularly when the child commences school, for there to be some pattern set in relation to the child’s bedtime which is consistent between the two households. I noted earlier that it was worrying that the father had indicated that he will decide the child’s routine when the child is with him and will not be dictated to by the mother. I have previously found that the mother’s regular pattern for the child’s bedtime was beneficial for the child. Given that the mother did not seek any order about the child’s bedtime in the father’s household, I make none, at this time.
COSTS OF THE INDEPENDENT CHILDREN'S LAWYER
The Independent Children's Lawyer made an application that the father pay one half of the Independent Children's Lawyer’s costs. I do not have comprehensive information about the father’s financial circumstances. He has failed to participate in the proceedings. The information that I have would not cause me to presume that the father could not pay one half of the Independent Children's Lawyer’s costs. It is appropriate that an order be made that the father pay one half of the Independent Children's Lawyer’s costs of these proceedings as agreed or assessed.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.
Associate:
Date: 30.6.2010
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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