Watson & Watson
[2018] FCCA 1791
•10 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WATSON & WATSON | [2018] FCCA 1791 |
| Catchwords: FAMILY LAW – Parenting – application to vary final parenting orders – final parenting orders made by consent in 2012 – where time allowed for children to spend time with their father under 2012 orders was at lower end of spectrum – respondent refused any latitude respecting 2012 orders – parties’ relationship since separation conflictual and entrenched – parties’ communication fraught – applicant made litany of generalised and unsupported complaints against respondent – respondent’s communication with applicant intractable and goading – matter extensively litigated since 2009 – extensive expert evidence – – where mother having sole parental responsibility has refused to involve father in decisions regarding children – financial and emotional costs – emotional cost of litigation having derivative impact upon the children – where family report writer has had extensive involvement with the family since 2009 – where children’s wishes expressly stated to family report writer – where children, now adolescents, have ability and desire to express their wishes – children aware of tension and conflict between parents – children want status quo to be maintained – family report writer supported children’s wishes – father’s history of depression and alcohol abuse – respondent alleges applicant has a narcissistic personality disorder – expert evidence does not support narcissistic personality disorder – depression now in remission – experts consider parties no risk to the children. APPLICABLE PRINCIPLES – Children’s best interests as paramount consideration – consideration of principles in Rice and Asplund – threshold issue whether there has been significant change since final orders made in 2012 – respondent sought dismissal with indemnity costs on the basis of no change in circumstances – necessity to be able to compare and contrast evidence – examination of earlier decision and record – nature of orders now sought are relatively confined – wishes of the children – sufficiently material change shown to re-consider existing parenting orders in all of the circumstances – children to benefit from meaningful relationship and spending time with both parents – children not at risk from serious psychological or physical harm – significant weight attached to wishes expressed by the children – neither parent lacks parental capacity to provide – no recent allegations of family violence – importance of finality of litigation – prescriptive orders appropriate – Court not obliged to accept either party’s proposal – Court satisfied it is in the children’s best interests to vary parenting orders – consecutive spend time with father over summer holiday period extended – application otherwise dismissed. |
| Legislation: Evidence Act 1995 (Cth) s.140 Family Law Act 1975 (Cth) ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 61DAB, 64B, 65D, 65AA, 65DAA, 69ZN Family Law Reform Act 1995 (Cth) Family Law Amendment (Shared Responsibility) Act 2010 (Cth) |
| Cases cited: AMS v AIF (1999) 199 CLR 160 Other texts cited |
| Applicant: | MR WATSON |
| Respondent: | MS WATSON |
| File Number: | MLC 5375 of 2009 |
| Judgment of: | Judge A Kelly |
| Hearing dates: | 9, 10-11 October 2017 |
| Date of Last Submission: | 11 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 10 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weil |
| Solicitors for the Applicant: | North Law |
| Counsel for the Respondent: | Mr Sweeney with Mr Foo |
| Solicitors for the Respondent: | Lander and Rogers |
ORDERS
Pursuant to s 65D of the Family Law Act 1975 (Cth), paragraph 2(e) of the Order made on 5 September 2012 be discharged and in lieu thereof, the following paragraph be inserted in that Order:
2(e)During the long Summer holiday period, for three weeks of consecutive duration, such time to commence at 10.00am on 1 January in each year;
The application otherwise be dismissed.
By 4.00pm on Tuesday, 24 July 2018, the parties file and serve any submissions with respect to the costs of this application (not exceeding 5 pages, 1.5 spacing, 12 font).
IT IS NOTED that publication of this judgment under the pseudonym Watson & Watson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5375 of 2009
| MR WATSON |
Applicant
And
| MS WATSON |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain orders that are made in a parenting dispute between the applicant father, Mr Watson, and respondent mother in relation to their two children [X] born 2003 and [Y] born 2004.
By his application filed on 15 September 2016, Mr Watson seeks orders so as to vary final parenting orders made on 5 September 2012. Those orders were made by consent in the Family Court of Australia part way through a hotly contested trial. At that trial each party was represented by leading senior and junior counsel. Indeed, an examination of the Court file confirms that the parties were frequently represented by senior counsel throughout an extensive series of interlocutory applications. Further, as the evidence showed, Mr Watson was also represented by leading criminal counsel in relation to his defence of an application for breach of an Apprehended Violence Order. The conduct of this proceeding has required the dedication of substantial Court resources. The proceeding has been conducted at significant cost both in financial and emotional terms, including to the children.
The matter was argued before me over three days. As expressed in his case outline, Mr Watson’s claim was for equal parenting responsibility and for extensive ancillary orders including for consultation on all parenting issues (excluding daily care), exchange of information and for the children to reside for one week with each parent (alternating on a fortnightly basis) and to share equal time with them on holidays.
At the conclusion of the hearing, Mr Watson modified substantially the relief which he sought, thereby confining the application for orders that would extend the period of time which the two children might spend with him as follows:
(a)alternative weekends, Saturday, 9.00am to Tuesday at the commencement of school time;
(b)each alternate Wednesday from the conclusion of school to the commencement of school the following morning;
(c)one half of school holidays from the conclusion of school term time;
(d)one half of summer school holidays; and
(e)other times as agreed.
Subject to one change, I have concluded that the application to vary the arrangements as embodied in the 2012 orders should be refused. The substantive alteration to the existing parenting orders is that the children should spend three consecutive weeks each summer holiday with Mr Watson in lieu of the current two non-consecutive weeks.
Background
Mr Watson, an (occupation omitted), is now aged 66 years and has recently re-married Ms G. They live at a property located in Suburb A where Mr Watson’s eldest son, Mr L, aged 22 years, also resides. It is apparent that Mr Watson conducts a thriving (business omitted) from which he derives a substantial income.
The respondent who conducts a small business, is now aged 54 years. She has had a relationship with her new partner Mr F for some years. They live at a property located in Suburb B.
The parties cohabited from 1999 and were married on 2001.
Each of Mr Watson and the respondent had been previously married.
The parties separated in 2009. Since that date the parties’ relationship has been and remains utterly conflictual.
Witnesses
The parties each gave evidence and called evidence from two other lay witnesses: Ms G who is Mr Watson’s new wife and Ms M who had been the manager of an apartment complex. In addition, expert evidence was called from Dr E, consultant psychiatrist and Mr V, clinical psychologist.
Mr Watson gave evidence in a measured way. I have found that on some issues Mr Watson had been less than candid. Some of his evidence had been tailored to advance his application. Although this may not be unexpected of a party and while some allowance may be made, on some issues the level of departure from objective facts was troubling. One aspect of this case was that Mr Watson seemed unable to recognise the veracity of, and instead chose to contest, other independent evidence that clearly undermined the case which he sought to advance. A striking example would be that despite their love for both parents, the children have expressed, and reiterated, a clear view that they would prefer parenting arrangements to remain as they are.
The respondent provided a clear account when giving her evidence but I have formed the view that she too was intractably invested in the truth of her subjective views, irrespective of the available independent expert evidence. She will not shift from her opinion that Mr Watson is a high functioning alcoholic or that he has a narcissistic personality disorder. From her perspective, the respondent has arrived at a state of resigned acceptance that the parties’ relations are what they are and must be managed until the children attain their majority.
Ms G was an unsatisfactory witness whose alignment to the support of Mr Watson’s claim was manifest. The extent of that alignment was exposed by, amongst other things, the gratuitous evidence which she gave in cross-examination that the respondent’s behaviour explained why Mr Watson’s eldest son, Mr L, hated women. Unless corroborated by other evidence, I attach limited weight to Ms G’s affidavit evidence and testimony.
Ms M gave evidence in a forthright and convincing manner. Her evidence provided an account of her dealings with Mr Watson, Ms G and the children during their holiday at the apartment complex which she managed. Where her account was in conflict with the accounts given by Mr Watson and Ms G, I have preferred the account which she gave.
The testimony of both experts was given in an objective and independent way. Importantly, each of them has had a longstanding involvement in the matter. I attach significant weight to their opinion evidence including, in the case of Mr V, the reports which he has given concerning the expressed wishes of the children who are now aged 15 and 13 ½ years.
Procedural history
It is an understatement to describe the parties’ litigation as extensive. An appreciation of the scale of their disputes and the cost which has been incurred, both in financial and emotional terms, may be gleaned from the procedural history which is summarised below. I cannot ignore that the emotional cost of the litigation will have had a significant derivative impact upon the children. I have had regard to the detail of the parties’ procedural history by reason of the need to have regard to the children’s best interests as the paramount consideration. These reasons do not address the orders made to regulate the claims for adjustment of property interests.
Applications
On 9 June 2009, the respondent filed an application for an Apprehended Violence Order against Mr Watson.
On 19 June 2009, the respondent filed an initiating application in the Family Court of Australia seeking parenting orders together with child support and property orders consequent on the parties’ separation.
On 3 July 2009, the parties agreed upon interim consent orders to regulate the basis upon which the children would spend time with Mr Watson, for such time to be supervised[1], for Mr Watson not to drive the children in any motor vehicle and for both Mr Watson and the respondent to attend upon Dr E for assessment and the provision of a psychiatric report.
[1]A notation to this order recorded the applicant’s denial of the necessity for any such supervision.
On 8 July 2009, Mr Watson filed a response by which he also sought parenting and property orders.
Interlocutory applications and orders
On 16 September 2009, consent orders were agreed by the parties following the hearing of an application before a Registrar. The orders permitted the respondent to travel with her children and Mr L, interstate for school holidays and provided for Mr Watson to have make up time shortly thereafter.
On 15 October 2009, orders were made by Justice Dessau adjourning the parties’ interim applications with respect to Mr Watson having unsupervised time with the children and the respondent seeking spousal maintenance. I note that on this occasion her Honour made an order for costs against the respondent on the basis that she had relied upon an affidavit which had been filed late.
On 4 November 2009, orders for the payment of periodic spousal maintenance and other costs were made by consent. The parties also agreed in orders which required the parties and their children to attend upon Mr V, psychologist, for the purposes of a family report. It was evidently thought that the children were already of an age where some consideration of their wishes was warranted.
On 16 December 2009, interim parenting orders were made by consent regulating the manner in which the children would spend time and communicate with Mr Watson on alternate weekends, during school holidays, on birthdays and at other times. Paragraph 8 of the order provided that Mr Watson abide by the following conditions:
a) He continue to attend upon Dr H, psychiatrist, or his nominee as directed by him and to abide by all reasonable recommendations as to treatment; AND
b) He not consume any alcohol 24 hours prior to or during his time with any of the children.
The consent orders required each party not to insult, belittle or denigrate the other or their partners in the presence or hearing of the children. Non-compliance with that order has been an issue.
By this order, the parties were further required to attend upon Mr V for reportable counselling at four weekly intervals.
In an ex tempore judgment delivered on 16 December 2009, Dessau J noted that Mr V’s recent report had recommended the children should spend each alternate weekend with Mr Watson.
On 1 September 2010, a series of parenting orders were made including that the parties comply with any reasonable instruction or request of Mr V, and that Mr V prepare an updated family report. The reasons why those orders were made were explained in a judgment delivered by Justice Young. His Honour recorded the recommendation of Mr V that he should remain involved with the parties and children to fill a supervisory and reportable role, recommending that the parties consult with him on four - six weekly intervals over the ensuing 12 months and for such meetings to be reportable and not private or confidential. His Honour recorded Mr V’s conclusion was that the parties’ prognosis was considered to be “poor in the extreme” including the rapidity of the decline in Mr L’s relationship with the respondent. Justice Young considered Mr V’s observations and prognosis to be “most disturbing”: Reasons at [13]-[14]. His Honour also recorded at [16]-[19] that certain telephone conversations conducted between Mr Watson and the children had been recorded. The first of those conversations occurred on 12 December 2009 between Mr Watson and his son Mr L (the 2009 Taped Recording).[2] The second occurred on 27 April 2010 and had been made of conversations between Mr Watson with [X] and [Y] respectively. Justice Young variously described the tenor and flavour of the conversations as highly disturbing, influential of the children, unbecoming of a father and wholly inappropriate both in content and direction: Reasons at [18]. The respondent had been the person responsible for recording each of those conversations.
[2]An electronic and typed copy of the recording had been provided.
On 10 December 2010, further parenting orders were made (some of which were by consent), addressing school holidays and preparation for trial. An order was made that Mr Watson pay the respondent’s costs of that application. From Dessau J’s reasons for judgment delivered on that date, it would appear the orders, including as to costs, related to the determination of a contravention application brought by the respondent against Mr Watson. Justice Dessau found proven:
. . . a contravention application against him for drinking alcohol when the children were in his care on 18 September 2010, just several weeks after Young J had reminded him that my orders of December 2009, restraining him from doing so, remained in force.
Her Honour’s reasons record at [9] that Mr Watson conceded a problem with alcohol and depression in the past, including a period of having spent several weeks as an inpatient at The Psychiatric Hospital. Mr Watson entered upon a six month bond to be of good behaviour. Her Honour’s reasons explicitly warned Mr Watson as to any further contravention.
Further procedural and parenting orders were made on 15 February 2011 and 21 November 2011. On 9 December 2011, an order was made for the appointment of an Independent Children’s Lawyer. On 24 February 2012, orders were made setting the matter down for trial on 14 May 2012 with an estimated duration of five days.
On 30 March 2012, further orders were made respecting the children. In her reasons, Justice Dessau noted at [8] that Mr Watson had sworn an affidavit seeking that Mr V be removed on the basis that, amongst other things, he had shouted at Mr Watson and was not listening to Mr Watson’s concerns. It appeared that Mr Watson considered Mr V’s work had been sloppy, unprofessional, inaccurate and, in the submission of his counsel, that he had been rude. Her Honour refused to discharge Mr V for what she considered to be very cogent reasons including that: (1) Mr V had noted a deterioration in Mr L’s well-being; (2) the children, [Y] and [X], had established a relationship with Mr V and there was no suggestion they were unhappy in their dealings with him; (3) Mr V had had a “longitudinal involvement that, in fact, would be helpful to me in determining what has gone on and how that impacts on the welfare of the younger children”; (4) Mr Watson’s specific criticisms of Mr V did not strike her Honour as being fair; (5) some of Mr Watson’s concerns had been known to him for ~21 months, yet were being raised for the first time shortly before a trial fixed for May 2012.
Shortly before the date appointed for the final hearing of the parties’ parenting and property claims, each of the respondent and Mr Watson filed an amended initiating application and an amended response respectively. Notably, at that point, Mr Watson’s primary claim was that the children live with him. Alternatively, claims were made for equal time followed by shared time on a cascading basis. Equal shared parental responsibility was sought.
The proceeding was not reached on the appointed day of hearing and was adjourned, with priority, to 3 September 2012. Consent orders were made with respect to the children’s spend time with their parents during the interim school holidays.
Further orders were made on 10, 13 and 21 August 2012 regulating the use of experts at the trial.
2012 trial
The priority hearing of the parties’ parenting claims was conducted over a period of three days from 3-5 September 2012. Each of the parties was represented before Justice Dessau by senior and junior counsel. The Independent Children’s Lawyer also appeared.
At the trial, the respondent gave evidence over 3-4 September 2012 and Mr Watson gave evidence over 4-5 September 2012.
In consequence of the course of the trial, the parties through their counsel proposed, and the Court made, parenting orders by consent. The parties’ consent parenting orders were made on the third day of a final hearing; namely, 5 September 2012.
The parties’ consent orders included the following:
(a) That the Wife have sole parental responsibility for the children. . .
(b) That the children shall spend time with and communicate with the Husband as follows:
(i) Each alternate weekend from 9:00 a.m. Saturday to 5:00 p.m. Sunday with the Husband to return the children to the Wife’s home. . .
(ii) Each alternate Wednesday from the conclusion of school to 8:00 p.m. with the Husband to return the children to the Wife’s home. . .
(iii) On Father’s Day. . .
(iv) For a period of seven nights during each of the Term 1, 2 and 3 Victorian School holiday periods at times to be agreed and in the absence of agreement the Husband’s time shall commence on the first night of the holiday period;
(v) During the long Summer holiday period, for two one week periods of seven nights duration (such periods not to be taken together) at times to be agreed and in the absence of agreement the Husband shall have the first week of the holiday period and the first week in January;
(vi) From 3:00 p.m. Christmas Eve to 3:00 p.m. Christmas Day in 2012 and each alternative year thereafter;
(vii) From 9:00 a.m. to 5:00 p.m. on the Husband’s Birthday in the event that same falls on a non school day and from the conclusion of school to 8:00 p.m. in the event that the same falls on a school day;
(viii) By telephone each Tuesday and Thursday between the hours of 7:00 p.m. and 7:30 p.m. with the Husband to telephone the children;
(ix) At such further and other time or times as agreed . . .
Other consent orders were made regulating the parties’ parenting arrangements including that Mr Watson’s time with the children would be conditional upon Mr Watson being in substantial attendance; the children not being left in the sole care of Mr L at any time; Mr Watson continuing to abide by the reasonable recommendations of his treating psychiatrist in relation to the taking of prescription medication and attendances upon the psychiatrist, and that he be restrained from consuming alcohol 24 hours prior to the commencement of his time with the children until the conclusion of his time with the children.
The consent parenting orders were made after Mr Watson had denied certain conduct during cross-examination, the fact of which he then admitted after it was proved by the 2009 Taped Recording with Mr L. In the course of an exchange with counsel for the respondent, Mr Watson characterised his conduct as being abhorrent but not reflective of his general personality or the way that he treated the children. Mr Watson then made a further explanation during an exchange with Dessau J.
The recusal application
Having agreed in consent parenting orders on 5 September 2012, it remained to determine the parties’ outstanding property claims.
On 7 September 2012, Mr Watson applied for Dessau J to disqualify herself on the basis of apprehended bias. In reasons for judgment delivered on 7 September 2012, her Honour refused that application. Those reasons record that the parties had agreed their trial was to be conducted on the basis that it was in the children’s best interests for the parenting issues to be resolved before their property claims.
Justice Dessau’s reasons adverted to the 2009 Tape Recording and stated that following the parties’ separation in early 2009, Mr L had continued to live with the respondent. In a family report prepared by Mr V in late 2009, Mr L had told the psychologist very clearly that he wanted to stay living with [the respondent], whom he referred to as “his mother”, and that he had spoken of her fondly: Reasons [9].
Justice Dessau noted it was common ground that some 12 to 15 months later Mr L had then changed his place of residence moving from the respondent’s home to live with Mr Watson and had, at that time, made serious allegations of long-term emotional and physical abuse against the respondent, refusing to see her again: Reasons at [9].
In dismissing the application, Dessau J’s reasons recorded the nature of the 2009 Taped Recording with Mr L in the following terms:
. . . young Mr L was subjected to very strong pressure from his father to become embroiled in the adult dispute. Despite Mr L repeatedly imploring his father not to involve him, and despite the audible deterioration in Mr L’s ease and well-being, (that is, his distress was palpable both in his words and his manner), his father continued to regale him with insults about his “mum” (Ms Watson) and her new partner (Mr F), made him promise repeatedly not to talk to and to be rude to Mr F, described Mr F as “evil”, and spoke inappropriately about Mr F and Ms Watson having sex with each-other.
Justice Dessau noted that Mr Watson had repeatedly told Mr L that the respondent would have him, Mr Watson, put into jail and had spelled out all sorts of ‘horrible’ consequences, including that Mr L would then have to leave School A because his father would no longer be able to work as a (occupation omitted). Justice Dessau also found that during the 2009 Taped Recording, Mr Watson had cried, spoken fast, and clearly had not listened to his son begging him not to involve him further.
Dessau J referred to an exchange with respondent’s senior counsel who suggested to Mr Watson that the conversation had been “at the very least, inappropriate.” Her Honour considered such description to be far too mild, characterising the 2009 Taped Recording as being:
. . . one of the most abusive pieces of evidence I’ve ever listened to . . .
Her Honour’s reasons then record that Mr Watson’s response to that observation had been to volunteer the following:
I would agree with her Honour that this is a vile abuse – vile abuse of the first order. I don’t resile from it and I’ve not tried to hide it.
After noting a further exchange between counsel and the Court, her Honour described the circumstances giving rise to the recusal application, her citation of relevant authority and her reasons for refusing to recuse herself from the trial on property issues.
The property claims were then adjourned for mention on 12 September and resumed on 17 and 19 September 2012, when evidence was given by an independent witness. On 21 September 2012, the parties agreed upon final property orders.
A year later, on 15 November 2013, the respondent filed an initiating application seeking enforcement of orders to give effect to the parties’ consent property orders. Mr Watson filed a response seeking dismissal of that application. This application was resolved by orders made on 17 April 2014. The reason for those orders were explained by reasons for judgment given by Justice Macmillan on 17 April 2014.
The present application
On 15 September 2016, Mr Watson filed an initiating application seeking parenting orders in substitution for those previously made; such orders to address the following matters: (a) parental responsibility; (b) exchange of information; (c) living arrangements for the children; (d) school holidays; (e) special time; (f) telephone time; (g) collection and delivery; (h) travel out of the state of Victoria; (i) travel out of the Commonwealth of Australia; (j) dispute resolution. Interim orders were also sought in similar terms.
As appears from the initiating application, Mr Watson had appointed a firm of lawyers practising in Brisbane to act on his behalf.
In addition to the initiating application, Mr Watson’s new lawyers also filed a notice of risk in which Mr Watson alleged that the children had been abused by the respondent. The notice stated amongst other things that the children had been psychologically abused by the respondent who continually denigrated Mr Watson in their presence. The notice further asserted that the respondent exhibited high levels of conflict and ill feeling toward Mr Watson and that this too had a negative impact upon the children’s adjustment following their parents’ separation. These allegations were amplified by particulars.
Included in the allegations contained in Mr Watson’s notice of risk were that: (a) the respondent suffered a serious parental incapacity to facilitate the relationship between Mr Watson and the children; (b) the respondent appeared obsessed with destroying the children's relationship with Mr Watson; (c) the respondent had succeeded in enmeshing the children’s personalities and beliefs about Mr Watson; (d) the respondent’s beliefs were at times delusional and irrational; (e) the respondent had an unquenchable anger toward Mr Watson; (f) the respondent had a desire for the court to punish Mr Watson with court orders that would interfere or block him from seeing the children.
By her response filed on 24 October 2016, the respondent sought dismissal of Mr Watson’s initiating application with costs.
On 25 October 2016, orders were made, by consent, regulating the preparation of the matter for trial including that it be listed for final hearing on 9 October 2017. Orders were made for the parties, their partners and the children to attend upon Mr V for a further family report. I note this order was made by consent notwithstanding Mr Watson’s earlier application before Justice Dessau that Mr V be removed as family report writer in the proceeding.
Further consent orders were made on 13 June 2017 regulating the preparation of the matter for trial. A notation to the order recorded that the respondent proposed to seek summary dismissal of the application with indemnity costs on the stated basis there had been no material change of circumstances since the Orders of 5 September 2012.
I have identified at [11]-[16] above, the witnesses who were called by the parties. Apart from an extensive array of expert evidence, a limited amount of documentary evidence was tendered.
Hearing – October 2017
Shortly before trial, each of the parties filed an outline of case in which they had detailed with some care the basis on which the application to alter the 2012 parenting orders was made and opposed respectively.
Mr Watson relied upon his affidavits sworn on 11 August 2016, 24 May 2017 and 26 September 2017. When pressed to identify the earlier evidence on which Mr Watson had relied for the purposes of the hearing before Dessau J, Mr Watson further relied upon his affidavit sworn on 10 May 2012. In addition, Mr Watson tendered an affidavit sworn by Ms G on 26 September 2017 and the reports of Dr E.
The respondent relied upon her response filed 24 October 2016, her affidavit filed on 25 September 2017, an affidavit of Ms M filed on 8 June 2017 and an affidavit of Mr V filed on 25 September 2017. When pressed to identify the evidence upon which she had relied at the hearing before Justice Dessau, the respondent tendered her affidavit filed on 8 May 2012.
I have examined all of the parties’ written and viva voce evidence together with the documentary records comprised in the reports of the expert witnesses and the 2009 Taped Recording. I have re-examined the transcript of evidence. I have set out at [12]-[16], my general findings as to the demeanour of the witnesses.
Evidence
The issues raised in this proceeding are to be determined on the balance of probabilities: s 140, Evidence Act 1995 (Cth). In the determination whether an issue has been established to the requisite standard, the Court may take into account the nature of the claim and response, the subject matter of the proceeding and the gravity of the matters alleged: sub-s 140(2), Evidence Act.
To varying extents the parties’ affidavits addressed matters which lay at the periphery of the core issues which now fall for determination. In Williams v Smith (1960) 103 CLR 539, 545, the High Court held unanimously that where divergent views are put in issue “a tribunal of fact may properly refuse to accept either party’s case and work out for itself a view of the case which did not exactly represent what either party said”: see also Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [19] (Gleeson CJ, McHugh and Gummow JJ).
In Whisprun, Gleeson CJ, McHugh and Gummow JJ accepted at [62] that the Court is not required to mention every fact or argument relied on by the parties as relevant to an issue. These principles are well settled: Lam v Lam [2017] VSCA 173, [112]-[113] (Whelan, Santamaria and Kaye JJA); Hutchinson Constructions Services Pty Ltd v Les Quatre Musketeers Pty Ltd [2016] NSWCA 135, [61] (Beazley P, Meagher and Leeming JJA); Walsh v Legal Practitioners Board (2016) 125 SASR 111, [49] (Stanley, Parker and Doyle JJ); Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241, [45] (Heerey, Weinberg and Allsop JJ); Hunter v Transport Accident Commission [2005] VSCA 1, [21] (Batt, Vincent and Nettle JJA).
Moreover, in the context of a proceeding which calls for the exercise of a discretionary judgment it is not necessary to refer to or make an explicit finding upon each disputed item of evidence. Rather it is sufficient that the Court’s findings are appropriately clear: Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 385-386 (Mahoney JA): see also Molloy & Reid [2018] FamCAFC 89, [42] (Thackeray, Murphy and Aldridge JJ); Cubbin & Cutler and Anor [2018] FamCAFC 84, [13] (Thackray, Ainslie-Wallace and Murphy JJ); Holzmann & Holzmann [2018] FamCAFC 2, [34] (Thackeray, Strickland and Carew JJ); Bell & Nahos [2016] FamCAFC 244, [28]-[29] (Strickland J).
These principles will apply to the determination of parenting proceedings under the Act.
Evaluation of the evidence
In an application to vary final parenting orders, the authorities speak consistently of the necessity to examine and then to compare and contrast the evidence upon the central issues which confront the Court: see, e.g., In the marriage of Rice and Asplund (1978) 6 Fam LR 570 at p. 572 (Rice and Asplund); Searson & Searson [2017] FamCAFC 119 at [27]. Any transcript may also be relevant.
Extensive affidavit and viva voce evidence was given by the parties. I have examined that evidence in detail. I have likewise considered the reports and viva voce evidence of the experts who have had long involvement in the matter.
In addition, I have re-examined the documentary and other evidence which was tendered at the trial. Included in that evidence is the 2009 Taped Recording and transcript of that recording. The characterisation which Dessau J attributed to that recording is not inapt.
Having regard to the volume of material which I have been required to examine, it seems to me preferable to undertake that analysis by reference to each of the central topics which the parties relied upon at trial. A by-product of this approach is that it facilitates identification of both the issues relevant to the sufficiency of change and of the wider question whether the children’s best interests would be served by reopening the issues relevant to an adjustment of parenting orders.
Having regard to the principles stated above, I set out at [73]-[194] below my findings upon the evidence adduced on this application. Then follows at [195]-[339], my analysis of the expert evidence. Necessarily, my findings incorporate the experts’ opinions and observations; however, I consider that it is important to provide a separate treatment of the reports and testimony of those experts.
The parties
Each of Mr Watson and the respondent had been previously married.
Mr Watson and the respondent met in (country omitted). At that time, the respondent was working as (occupation omitted) of a (employer omitted) (the respondent had qualified as an (occupation omitted) but did not pursue that career).
As stated, Mr Watson is an (occupation omitted), now aged 66 years who lives with this third wife, Ms G, whom he met online. They live in Suburb A with Mr Watson’s eldest son, Mr L, aged 22 years.
Mr Watson derives substantial income from his (business omitted). As at May 2012, Mr Watson worked approximately 32 hours per week.
Ms G is a (employment omitted).
The respondent is now aged 54 years and has had a relationship with her new partner, Mr F, for some years. They live in Suburb B with the two children, [X] and [Y]. The respondent conducts a small business.
The parties’ relationship began in 1999 and occurred in the context of the breakdown of Mr Watson’s first marriage and resolution of property proceedings with Mr Watson’s first wife. The complications in Mr Watson’s life at about this time were compounded by the loss of a reasonably significant sum which he suffered as a result of poor investments and the fraud of an employee and/or his accountant.
The parties cohabited from late 1999, were married on 2001 and had two children who are the subject of this application. Save for Mr Watson’s depression (which is presently in remission), the parties enjoy good health.
Mr Watson’s son Mr L lived with the parties and from that time had little contact with his biological mother. He formed an attachment to the respondent and for a period continued to live with her after the parties’ separation. He also continued to see the respondent when he moved to live with his father. Mr L’s situation was complicated by the death of his mother (Mr Watson denied that she had committed suicide).
From year 7, Mr L also attended as a boarder at The School A. From that time he moved to two other schools, (omitted) and (omitted). Mr Watson changed Mr L’s schools without reference to the respondent. Mr L is now aged 22 years and continues to live with his father. Mr L’s tertiary education and employment prospects are under consideration. He has had some employment and expresses interest in (employment omitted). He is closer to [Y] than he is to [X].
Parties’ relationship
Initially, the parties’ relationship was both intense and very happy. They conceived the two children who are the subject of this claim.
From the commencement of their relationship, Mr Watson appears to have dedicated his energy to recovering his depleted financial position and to building his business. The respondent also worked in the business and as home-maker and parent.
After three years the relationship became problematic, being beset by distrust and accusations by Mr Watson of the respondent’s infidelity. Mr Watson acknowledged to Dr E his jealous predilections, including recognition of his fixation respecting the respondent’s previous love life and the damage which this had inflicted on their relationship.
Mr Watson encountered significant mental health issues which he addressed by consulting a series of medical specialists. For at least some time, his condition appeared to have been exacerbated by alcohol and substance abuse. He was admitted to The Psychiatric Hospital for one week, on two occasions; first, in 2002 and again in 2009. Mr Watson has made candid admissions about his depressive illness.
Mr Watson was diagnosed as suffering a depressive illness from at least 1997. His condition is neither permanent nor chronic but has been serious on several occasions. Presently, he is not being treated for any such illness. I make no finding that Mr Watson has failed to comply with the directions of his medical practitioners or with respect to treatment or medication. Mr Watson’s alcohol consumption is a separate question.
Separation
The parties’ relationship ended in 2009. Separation occurred in the context of Mr Watson being admitted to The Psychiatric Hospital. Since that date the parties’ relationship has been and remains utterly conflictual, intractable and enduring.
After the first three years of the marriage, Mr Watson became fixated with the respondent’s prior relationships and then suspicious of her infidelity. Mr Watson’s general practitioner questioned whether he had a bipolar mental state, referring him to a number of psychiatrists, some of whom the parties attended together.
Dr H admitted Mr Watson to The Hospital in 2009 and arranged for him to be assessed there independently by two other psychiatrists.
Mr Watson was perplexed to discover, while an inpatient at The Hospital, that the respondent considered the marriage to be over. He was initially unable to accept that the marriage was at an end.
Mr Watson progressively developed a loathing of the respondent’s partner (whom he described as a (occupation omitted)), and sought to disrupt the respondent’s home environment. For a time, Mr Watson appeared bent on destabilising the respondent’s home environment including causing damage to the respondent’s relationship with her new partner.
An Apprehended Violence Order was made against Mr Watson in June 2009. The order was operative for a period of twelve months.
The 2009 Taped Recording with Mr L was made by the respondent in December 2009. I have listened to that recording again. While I accept the observations of Justices Young and Dessau respectively, I do consider that they must be seen in context.
Justice Young referred to the existence and content of the 2009 Taped Recording in the context of an interlocutory application held on 16 December 2009 in which his Honour made an order implementing Mr V’s recommendation that the parties and children participate in reportable non-confidential counselling: see above at [25]-[28].
Justice Dessau’s reference to the recording was made both in the course of the parenting proceeding and in her Honour’s reasons refusing the application to be recused from the property proceeding: see above at [42]-[48]. It is not unimportant to recognise that Dessau J did not deliver reasons for judgment on the parenting proceedings.
The respondent initially denied making the recording for the purposes of the litigation. Pressed as to the incredulity of her denial, she responded that she was advised by Mr V and counsel to do so as the parties’ litigation had evolved to the point where it was “consistently my word against his” and that she was simply trying to illustrate the nature of his conduct. The respondent agreed that she had taped several such conversations.
Having considered the content of the 2009 Taped Recording, I think it should also be recognised that Mr L’s communication also demonstrates his love and concern for his father. I accept Dr E’s opinion that the recording confirms that Mr Watson was then in a very bad mental state at the time of the events occurring in 2009, including the conversation with Mr L. Mr Watson accepted responsibility for and regret and contrition for his conduct. I do not think the conduct should be viewed narrowly.
The fact that the 2009 Taped Recording with Mr L was in evidence before Justice Young in September 2010 (being some 2 years before the final parenting hearing held before Dessau J), is notable. At the least it indicates that Mr Watson was squarely on notice of that evidence and that it had already been placed before the Court. I make this observation because it underscores the nature of Mr Watson’s denials of matters that had been exposed before the 2012 trial and were again exposed once the recording was played in the course of the hearing. There would have been no need for a barricade of denials had Mr Watson candidly recognised the existence of that objective evidence and dealt with it. The attempt to attribute responsibility to the respondent for being the catalyst of harm to Mr L in making the recording was disingenuous and reflected poorly upon the way in which Mr Watson had formulated and advanced the case which he sought to make in 2017.
In October 2010, Mr Watson was prosecuted for a breach of the intervention order and on this occasion was represented by Mr P Dunn QC. The suggestion that this leading criminal counsel was retained (at a daily fee of $13,000) merely to attend a directions hearing was implausible. Mr Watson entered a guilty plea and was fined. He then made a complaint about the representation by Mr Dunn QC feeling that he had not been adequately consulted.
The order was extended, by consent, for a further period of twelve months. Mr Watson then appealed the making of that order but abandoned that appeal. The respondent deposed that she agreed not to seek a further extension of the order as an act of good faith.
There have apparently been no further apprehended violence orders or recent allegations of the breach of such orders.
Allegations of respondent’s treatment of Mr L
Mr L lived with the respondent from the age of three, forming an attachment to her as a mother figure. Mr L also lived with the respondent for some 12-15 months following the parties’ separation, then moving to live with Mr Watson in rented accommodation.
During part of the time that Mr L continued to live with the respondent, he was also a boarder. In a family report prepared by Mr V in late 2009, he stated that Mr L had spoken of the respondent fondly and told the psychologist very clearly that he wanted to stay living with the respondent, whom he referred to as his mother.
Mr L changed his place of residence, moving from the respondent’s home to live with Mr Watson some 12 to 15 months after separation. Once Mr L moved in with his father, Mr Watson raised allegations that Mr L had been subjected to physical and psychological abuse at the hands of the respondent over a prolonged period during the marriage. Mr Watson’s allegations as to the respondent’s treatment of Mr L were to form a central foundation of his parenting claims in the 2012 trial.
Mr V found that such allegations were inconsistent with the observations he had made of Mr L. Before the 2012 trial, Mr V provided three reports. Dessau J refused a late application made by Mr Watson to remove Mr V from the role of family report writer.
Mr V considered that the damage to Mr L as a result of the parties’ acrimony was unmistakeably both clear and severe. An insight to the reasons for Mr V’s view may be gleaned from consideration of the allegations made in Mr Watson’s affidavit sworn 10 May 2012 at para 104(a)-(f).
Relief sought in 2012 trial
At the 2012 trial, Mr Watson sought a range of alternative orders commencing with a claim that the children should live with him.
I have described above the events which resulted in the 2012 orders. Those orders largely reflected the relief sought by the respondent’s trial affidavit. Mr V considers that the regime allowed the children to spend time with their father is at the lower end of the spectrum.
A central foundation for the relief sought by Mr Watson was his stated concern and distress at what he described as the respondent’s abusive treatment of Mr L and the consequential concern that such abusive treatment may in turn be extended to the younger children.
Contextually, it may be observed that Mr Watson’s position had shifted from one of non-acceptance of the end of the marriage, to resentment directed toward both the respondent and her partner, followed by conduct aimed at disrupting the respondent’s home, allegations of Mr L’s abuse and finally evolved to a case theory that the children were at risk of harm of the kind allegedly sustained by Mr L.
Relief sought in 2017 trial
In commencing the current claim, on 14 January 2016, a mediator approached by Mr Watson's Brisbane lawyers sent an email to the respondent seeking her agreement to participate in mediation and requested a response within 14 days. The mediator, located in Brisbane, believed the mediation was to occur in Brisbane and was unable to tell the respondent what the mediation was about. His email to the respondent gave no clue as to the subject of any mediation. On 1 February 2016, the proposed mediator signed an s 60I certificate. It may be questioned whether the request for mediation was bona fide. Having regard to the stance adopted by the respondent in her communications with him, Mr Watson may have been justified in a conclusion that mediation would have been pointless as the respondent would have refused any form of negotiation.
When his proceeding was filed, Mr Watson’s notice of risk framed allegations against the respondent in terms that there was a risk that what had allegedly been done to Mr L would in turn be done to the younger children. As Mr Watson saw matters, the respondent has retained an unquenchable anger towards him. He reported to Dr E that the respondent had subjected him to a withering campaign of intrusion and undermining of his relationship with the children in an attempt to alienate them. Mr Watson does not appear to have reflected on whether he has subjected the respondent to a similar kind of campaign. Mr Watson’s notice of risk and the particulars that it contained were in one sense redolent of the very conduct which he had denied and which had then been proved, despite his denial, to have engaged in during his conversation with Mr L in 2009.
For the purposes of the 2012 trial, Mr Watson advanced his claim both to Mr V and by affidavit on the basis of the extent of the emotional disturbance which had been caused by the respondent to Mr L. Upon this platform, Mr Watson identified the potential for like damage to the younger two children. By this stage, Mr Watson directly attributed Mr L’s problems with depression and suicidal behaviour to the treatment allegedly meted out to him by the respondent. Mr V recorded Mr Watson as portraying the respondent as having a grossly disturbed personality who had severely physically and emotionally abused Mr L, causing him untold psychological damage and “consequently was a risk of doing the same to the younger children.”
Mr V’s lack of support for, alternatively, his rejection of those claims may explain why application was made for his removal before the 2012 trial.
Having regard to the affidavits on which he relied, Mr Watson has maintained his claims that the children are at risk of harm from the respondent having regard to the matters alleged in relation to Mr L. In addition, Mr Watson points to the respondent’s intransigence in her dealings with him in relation to the children in the period 2012 – 2017.
Events between 2012 - 2017
In cross-examination, each party accepted that their respective affidavits had nothing positive to say about the other. Given the opportunity to do so, the respondent said that she accepted Mr Watson was the father of her children and an intelligent, articulate, charming and charismatic man and a very successful (occupation omitted).
Mr Watson was less forthcoming of the respondent’s positive attributes. Mr Watson conceded that the respondent was a good provider for the children who cared for them and their schooling and bringing them home and that they seemed clean and well kept. Mr Watson described the respondent as being a very consistent disciplinarian.
While the orders allowed that they might do so, at no stage have the parties been able to agree on parenting arrangements other than as prescribed by the 2012 orders. The respondent agreed that over the past five years, Mr Watson had requested some flexibility and that she had never been prepared to change the time on any occasion, adhering to the position that she observed the terms of the 2012 orders.
Although Mr Watson was told in 2012 to take what he could get and to apply for makeup time a year later, he did not do so; apparently for financial reasons.
In December 2012, the parties became involved in a dispute over consent for the children to travel overseas with the respondent; Mr Watson apparently refusing to sign passport applications. While the respondent has travelled overseas with the children, her evidence confirms that she objects to them doing so with Mr Watson.
According to the history that he had provided to Dr E, Mr Watson claimed that Dr H had agreed in 2013 that Mr Watson should cease further treatment altogether. In fact, Dr H had last seen Mr Watson in April 2012. The circumstance that Mr Watson had given an inaccurate history to Dr E in relation to his treatment was of some concern.
Mr Watson and Ms G, having formed a relationship by 2012, were married in 2015. The respondent was given nine days’ notice by Mr Watson of a request that the children be permitted to attend his wedding. The respondent objected to their doing so.
The respondent had also objected to the children attending Mr L’s 21st birthday party on the stated basis that Mr Watson had told her the event would be (activity omitted). The respondent said that the children had, however, seen Mr L on the actual day of his birthday, being a Wednesday (when the children are with their father).
Notably, the parties’ evidence largely fixed upon matters that were essentially historical inasmuch that they related to events which generally part pre-dated or occurred at or shortly after the conduct of the 2012 trial. The litany of complaints made by Mr Watson against the respondent were identified by Dr E. The majority of complaints were generalised, not proven by cogent evidence, unsupported or are for the most part now rejected.
At first sight, the position adopted by the respondent was measured. On re-examination of the evidence I was concerned by the utterly intractable and at times goading nature of her communications with Mr Watson. The respondent’s testimony was in some respects conclusory and repetitive of a position that it was in the children’s best interests to keep things as they were. By extension, it was not in the children’s best interests to spend any further time with their father.
As concerns the matters upon which the parties’ focussed their cross-examination or which were sought to be proved by their affidavits, I note the following:
(a)the respondent tendered in evidence a traffic infringement notice dated 17 September 2012 and accompanying nomination statement in which she had identified Mr Watson as the responsible party. Mr Watson had used the infringement notice and nomination so as to illustrate to Dr E what he saw as the respondent’s deliberate campaign to undermine him and alienate his relationship with the children. I consider that the traffic infringement illustration did not support the assertion that the respondent sought to deliberately undermine him. Her account of this issue was straightforward and credible. The traffic infringement illustration had nothing to do with any attempt to alienate Mr Watson’s relationship with the children;
(b)Mr Watson relied upon the respondent’s conduct in selling a property at Property A to an under-bidder. I reject the contention that the respondent sold to an under-bidder. The property is immediately adjacent to one of Mr Watson’s businesses. Mr Watson appointed an employee of a local real estate agent to attend the auction and bid on his behalf. I do not decide whether the agent attempted to denigrate the quality of the property or otherwise disrupt the auction. The agent was not called to give evidence. I accept as inherently probable that, once the property had been passed in at auction, the respondent offered both bidders (which included the agent) an opportunity to make their respective best and final offers and that having done so, she accepted the higher offer. I also accept that the respondent left the conduct of the sale to her agent. There was, in short, nothing in the respondent’s conduct to support a conclusion that she was attempting to undermine Mr Watson in this respect;
(c)the parties’ affidavits each disclose serious recurrent problems with respect to telephone communication with the children while they have been in the care of the other;
(d)the parties’ communications with one another is also fraught. Even as at 2012, the respondent employed the following in her email communications with Mr Watson:
Kind regards
Ms Watson
(formerly Ms Watson)
Happy and free!
On other occasions the respondent employed “Veritas Lux Mea.” I question whether either mode of farewell was helpful;
(e)in a similar vein, the respondent’s email replies to Mr Watson appear to have been brief or vitriolic to a fault and included statements such as “Makes me laugh that you sought ‘advice’ though. Your lawyer must LOVE you. . . MY advice is the older you get the worse you’ll get . . .”;
(f)Mr Watson’s difficulties in achieving any discussion upon the most basic issues has met with blunt resistance from the respondent. As to this, I refer in particular to Mr Watson’s affidavit sworn 11 August 2016 at para [29]-[30], [63], [69]-[78]. Mr Watson’s emails were, on occasion, no more edifying;
(g)while Mr Watson has been on holiday, the respondent has sometimes reported Mr Watson to interstate police, complaining of the breach of the non-consumption of alcohol condition upon which he has been able to spend time with the children. An intelligence log summary exhibited to Mr Watson’s 10 May 2012 affidavit showed that this complaint was without substance;
(h)the respondent has been unremitting in her refusal to allow Mr Watson any latitude respecting the precise regime contained in the 2012 orders. She also seems to refuse any make-up time;
(i)Mr Watson appeared to have a legitimate concern as to the content of the histories which the respondent provided to the children’s treating psychologists. As to this, I refer in particular to Mr Watson’s affidavit sworn 24 May 2017 at para [21]-[35] (as to Ms B) and at para [36]-[59] (as to Ms M). The respondent agreed in cross-examination that she had not informed Mr Watson that she had made arrangements for [X] to see Ms B. The respondent disclaimed responsibility for having provided the history contained in Ms M’s notes yet was prepared to concede that she may have told her that Mr Watson had a narcissistic personality disorder and was an alcoholic; that he was abusive, controlling, and that she feared for her life. She agreed she described Mr Watson as being a Disney Land dad whose house operated without rules;
(j)as the 2012 orders conferred sole parental responsibility on the respondent, it appears that she has refused to involve Mr Watson in any discussion respecting important decisions in relation to the children. It is an open question whether the respondent has thwarted Mr Watson in relation to his attendance with the children at parent teacher interviews.
Many of the matters dealt with above were reiterated in Mr Watson’s trial affidavit sworn on 26 September 2017.
In my view, there is some force in Mr Watson’s complaint that the respondent has minimised completely his role in the children’s lives. Otherwise, I do not make affirmative findings that all of the allegations or counter-allegations made by the parties are established.
Each of the experts has also recognised the entrenched depth of feeling which each party has toward the other. They reflected the subjective attitude which each party held toward the other and were pitched at a level of generality and in conclusory form. As noted, each party accepted their affidavits had nothing positive to say about the other.
Mr Watson’s contention that the respondent has attempted to denigrate him in the eyes of the children is not supported by the evidence. The respondent has presented to the experts as intelligent, caring and as not presenting with a psychiatric condition. While few positive aspects of Mr Watson’s nature or capacity were acknowledged, the respondent was prepared to do so on occasion. Asked whether they had ever had a really great time with their father, the respondent stated that they had loved the trip to (holiday omitted) and that it was the best holiday they had ever had with Mr Watson – they had “loved the experience.”
Contrastingly, the respondent’s contentions that Mr Watson has attempted to undermine the respondent and denigrate her in the eyes of the children are made out. This conclusion is corroborated in part by the evidence of Ms G, and the statements made to Mr V by Mr L and the younger children.
Over the period 2009 – 2017, nothing had changed in relation to either the family’s core functioning, or their enduring problems.
The respondent explains her conduct as having been done for what she considers to be for the children’s benefit and in order to protect them.
Mr V stated that [X] reported conflict between Mr Watson and Ms G. Mr V considered that [X] had become accustomed to the nature of the relationship between Mr Watson and Ms G and that coming to accept behaviour of that kind could be very worrying for a young adolescent. Mr V’s observations were supported by observations made by Ms M of the conflictual relationship of Mr Watson and Ms G as exhibited during an argument in the carpark.
The respondent deposes that she considers Ms G a poor role model for the children. The respondent also acknowledged the importance of the children spending time with both Ms G and Mr L, given their relationship with Mr Watson.
Mr Watson and the respondent communicate only by text or email. On at least one occasion the respondent’s email to Mr Watson stated that she would be using the email exchange as evidence. The respondent preferred the certainty of orders that prescriptively regulated the parties’ relationship.
As appears below, the expert opinions were cast in terms which were careful not to trench upon any question as to the truth or veracity of the raft of allegations that were directed by one or other parties. Where there was an absence of cogent evidence upon underlying facts or circumstances, it was not for experts to prove those matters: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, at [45]-[49]. In this context, I do not ignore also the caveats which the experts placed upon their expressions of opinion.
Further, insofar as factual matters were not proved, this meant that there was a vacuum in the evidence available to the experts when forming an opinion respecting parenting orders. It was clear that the parties’ counsel did not accept that the opinion evidence of any expert had any independent evidentiary value insofar as the underlying history of complaints, claims and counterclaims was not proved. Conformably with common practice, the reports of the expert witnesses were tendered on the unstated assumption that the opinions expressed in them depended on the histories which they gave being proved at trial. Their opinions also depended upon acceptance of the credibility of the lay witnesses. To the extent that a history as provided to an expert by a lay witness was undermined, this, at the least, detracted from the force of the opinion evidence: cf Whisprun, supra.
However, where complaints had been formulated at a level of particularity it has been possible to give them greater consideration and on those occasions I have attempted to deal with them as above.
It is necessary to address some other features of the parties’ claims.
Narcissistic or other behavioural tendencies
Mr Watson has had a history of depression from at least 1997. He has been admitted to The Hospital for a week for the treatment of his condition on two occasions.
Mr Watson’s affidavit sworn 10 May 2012 at [153] recounted that in early 2008 a medical practitioner had suggested he may be suffering a bipolar condition. As Mr Watson doubted this diagnosis, he obtained a second opinion and was referred to Dr H.
Dr H diagnosed Mr Watson as suffering from a Major Depressive Disorder in a personality which showed a mixture of narcissistic and obsessional traits.
Attempts were made, successfully, to regulate Mr Watson’s medication and manage underlying historical concerns by a course of psychotherapy. Mr Watson appears to have been a compliant patient and ceased treatment in 2012.
Mr Watson has not consulted Dr H since April 2012.
Dr E considered that Mr Watson did not have a narcissistic personality disorder and rightly questioned whether the respondent had a basis for continuing to say so in circumstances where her contact with him was remote. While troubled by the matters disclosed by the 2009 Taped Recording, he found no evidence of any further psychiatric conditions affecting Mr Watson and from a psychiatric perspective found no disqualifying reason why Mr Watson could not properly parent the children. Dr E recognised that depression may be in remission but might come out of remission on occasion. Dr E noted the medication which had been prescribed to Mr Watson was of a significant kind. The medical history informs an assessment of the seriousness of Mr Watson’s condition including at the time he was most unwell.
Mr V deferred to the opinions of Dr H and Dr E on areas of their expertise.
Dr E recognised that he had not been provided a lot of information about Mr Watson’s treatment, had not been called during the 2012 proceedings (as it had settled) and that he considered himself to be quite remote from the matter.
Perhaps critically, from a psychiatric perspective no reason was shown why Mr Watson could not manage arrangements to spend time with the children. He was considered not to be a risk to the children.
Although the respondent was present throughout the trial, including at the time Dr E gave evidence, she maintained her views that Mr Watson had a narcissistic personality disorder.
Region 1 holiday
The evidence relating to the Region 1 incident concerned events that occurred in 2012 (being three months after the 2012 trial) and related mainly to alcohol consumption.
Mr Watson agreed that paragraph 5(d) of the 2012 orders imposed a condition that he not consume alcohol for 24 hours prior to commencement of spend time with the children until conclusion of that time. Mr Watson agreed that this condition had been imposed in 2012 and that it remained operative.
Mr Watson was referred to the affidavit of Ms M, former manager of an apartment complex at which Mr Watson and Ms G had stayed in 2012 with his children. Although Ms M’s affidavit had been sworn on 28 May 2017, Mr Watson had not addressed it (the evidence was unclear as to when it was served).
(Apartment complex) is a 30 storey building comprising 93 apartments which were available for short, long and full time residences. Ms M said that Mr Watson had occupied apartment X located on level X. Asked how she was so sure of this so many years after the event, Ms M replied that she had owned the apartment.
During cross-examination, Mr Watson was given an opportunity to respond. It was put to Mr Watson that if Ms M’s evidence was accepted it would suggest Mr Watson had been in direct breach of the condition against consuming alcohol whilst the children spent their time with him. Mr Watson accepted that that would be so but questioned whether Ms M could recognise him or knew who he was or whether she could remember him.
Mr Watson denied Ms M’s evidence was accurate, stating that “she took an instant dislike to me”. Mr Watson recounted an incident which occurred when they had arrived at the apartment complex.
The incident as explained by Mr Watson was that when he arrived at the holiday complex with Ms G and the children, they discovered that the lift was not working. He said that this presented a problem as their apartment was located on the X floor of the building. Mr Watson said that when told of this by Ms M, that he had responded “that’s fine” and that they had gone away to buy groceries. Mr Watson said that upon their return he discovered the lift still was not working. Then followed an exchange in which Ms M had telephoned the lift maintenance company and at some point Mr Watson told her “look I think I’ve solved the problem”. Mr Watson stated that Ms M was furious upon receiving this information. By Mr Watson’s account, she “threw down the shutter in front of me and told me – so we just walked up and down X flights of floors for a couple of days. We had a pretty good holiday. We made the best out of it. But she certainly didn’t like me much for that reason, I suspect, and I think she was just, you know, just holding on to her competence level.”
Ms M deposed that she had been the manager of the apartment complex between 2007 and 2013. Her affidavit sworn on 28 May 2017, recounted her version of events as to what had occurred while Mr Watson, Ms G and the children had stayed at the complex in 2012. Her affidavit described Mr Watson as having behaved aggressively toward her and other staff. She explained that there had been a problem with the lifts and that Mr Watson had expressed his displeasure at this revelation to such an extent as to cause embarrassment to the children. She said Mr Watson was bad tempered.
Ms M agreed that the lifts were not working when Mr Watson, Ms G and the children arrived. Ms M stated that on occasions when lifts malfunctioned, staff (including herself) could manually operate the lifts, with the use of a key. She said that on such occasions it was her usual practice to bring lifts to and from the ground floor manually so as to assist guests upon request.
Ms M convincingly challenged Mr Watson’s evidence that the lifts had been out of operation for the duration of his stay. Ms M stated that she would guarantee that they would have been repaired by the following day. Ms M was insistent that the elevator service company would repair a failed lift within 24 hours. Ms M agreed that Mr Watson had telephoned the elevator company himself and recalled that he had “got quite stroppy” about the problem. She denied that Mr Watson had had to climb and descend the flights of stairs to gain access to the apartment or to leave it. Ms M stated that normally a guest would simply call the manager who would operate the lift manually so as to take it to the guests’ apartment level. Ms M also said that Mr Watson could not simply go straight up the stairs as the access door was locked for security reasons.
Ms M said that Mr Watson had over reacted and been aggressive towards her and had used stand over tactics to a point which had been very embarrassing both to herself and to Mr Watson’s children. She described Mr Watson as having been aggressive “towards me and the children”. Ms M said that she had been more than taken aback by the abusive manner adopted by Mr Watson.
Ms M described an occasion when she had attended the Watson apartment to assist with an internet connection. She deposed to being appalled at the dishevelled state of the rooms. Ms M swore that she “saw Ms G lying on the bed looking pale and gazing vacantly at the ceiling. When I spoke to her she was totally unresponsive.” Concerning Mr Watson she said:
Mr Watson continued to be demanding and abusive towards me and he smelled very strongly of alcohol.
In cross-examination Ms G denied these matters. The manner of her denial was remarkable. At first, Ms G stated that she had not read Ms M’s affidavit. It was then pointed out to Ms G that her own affidavit stated “the events as described by Ms Watson and the witness, Ms M, surrounding that holiday never happened”. Ms G then retreated to other positions, variously stating that she had not been sure whether she had read the affidavit or perhaps she had, stating: “maybe I did read it.” Finally, Ms G stated “the allegations that I heard that were made in it were ridiculous. So I must have read it.”
Ms M denied Mr Watson’s evidence that she had never come up to the apartment. She recalled doing so distinctly and to showing Mr Watson how the internet worked. She was able to link this evidence to her recollection that she remembered “what Ms G looked like on the bed”. She stated that Ms G was in the master bedroom and said she had gone into that room to check a phone connection adjacent to the bed. Ms M said that she had been somewhat surprised at Ms G’s condition, explaining that when she was standing beside the bed:
. . . and [a] person is lying in the bed in a dishevelled state, you usually expect them to respond but she was totally unresponsive.
Ms M also observed the children to be in their bedroom.
Ms M was taken to her affidavit where she described the apartment as having been trashed. She said that cleaners would notify her of such incidents as it would require charge for a “double clean”. Ms M described the apartment as: “the state that this room was left in was well and truly over and above the ordinary.” When it was suggested that guests would not be expected to take rubbish to the basement, Ms M replied that there was a rubbish chute outside the apartment and a notice in the kitchen reminding guests that they may incur an extra charge if rubbish had not been removed or extra cleaning was required. Ms M said that recycling bins were available on the passageway to the carpark.
Ms M stated that she observed Mr Watson and Ms G shouting at each other in the top car park which was located outside her office. She was absolutely sure that it was Mr Watson and Ms G who were engaged in this shouting match. She observed that Mr Watson and Ms G did not behave like a usual holiday couple. She described his manner to be both aggressive and abusive including towards both herself and his children and that it “left us all feeling most uncomfortable”. Ms M’s experience with Mr Watson was such that she tried to avoid contact with him.
When given an opportunity to explain why Ms M’s version of events was unreliable, Mr Watson’s non-responsive reply instead described events which, he contended, involved the respondent in forewarning the proprietors of his arrival or tendencies: “[she] says that there is a dangerous alcoholic [coming] and tries to – I’ve heard this from a couple of places – and tries to get people on the side and tells a story… and she’s very plausible”.
Alcohol consumption
The respondent’s affidavits addressed in detail and at length the issue whether Mr Watson is a high functioning alcoholic. The respondent’s affidavit described Mr Watson as having a propensity for violent and abusive behaviour which was exacerbated by alcohol consumption.
Dr E questioned the degree of Mr Watson’s insight, leaving open the possibility that Mr Watson minimised the role that alcohol consumption had played in the parties’ difficulties. Differences emerged in the history that Mr Watson gave to Dr E of enjoying a glass of wine, two or three nights a week, and of consuming three glasses of wine, three or four nights a week.
Mr Watson’s history of alcohol consumption has varied. Mr Watson had told Dr E that he had drunk to excess when he had been unwell. In 2017, he told Dr E his drinking was under control.
As concerns the repeated allegations of excessive consumption of alcohol, I accept the evidence of Ms M respecting the events which occurred while Mr Watson, Ms G and the three children were on holiday at the apartment complex in 2012. I find it most likely that alcohol was consumed by Mr Watson during this holiday and that this was in direct breach of the condition upon which consent parenting orders were made. I accept that significance attaches to the breach of that condition so soon after the making of those orders particularly in light of the circumstances in which the orders had been made.
Although the respondent was resolute in the correctness of her opinion, the allegations and evidence of alcohol abuse were largely historical.
Mr V confirmed in cross-examination that if he had formed the view that Mr Watson was a high functioning alcoholic he would have said so, but when pressed on the issue said that his considered opinion was that he did not know. Mr V also deferred to Dr E on matters beyond his professional experience.
Mr Watson gave a history to Dr E that his liver function tests were normal. During the extensive procedural applications made in this proceeding the parties’ obtained a range of orders, including for the psychiatric or psychological assessment of one or both party. No order was sought for a liver function test and Mr Watson produced no results.
Mr Watson correctly observed that the ability to perform (occupation omitted) would be impaired by consumption of abusive quantities of alcohol. He has no convictions for driving in excess of the statutory .05% limit. He was affronted by the respondent’s engagement of a private investigator who at some point photographed him drinking while he was at dinner with Ms G.
Dr E agreed that the respondent’s material disclosed that she persistently described Mr Watson as a high functioning alcoholic. Dr E did not consider Mr Watson to be a high functioning alcoholic or that the condition of a high functioning alcoholic was a completely disqualifying factor against continuation of spend time between the father and the children. I accept this evidence.
The children and their wishes
[X] is now aged 15 and [Y] is aged 13½. They are enrolled in secondary school at School B.
The time spent by the children was initially supervised and, with the reporting regime recommended by Mr V, was altered to non-supervised time. Although Mr V had recommended a more expansive regime for the children to spend time with their father, this did not occur in light of the matters which occurred in the 2012 trial.
There is no doubt that the parties each love their children.
The parties are agreed that the children are reasonably well-adjusted, happy and healthy. In an email sent by Ms M to the family general practitioner on 15 February 2016, she reported that [X] had had five consultations with her between September – December 2015 and that she had found him to participate well during counselling.
The email asserted that Mr Watson was known to be emotionally unstable. This report indicated that [X]’s problem with facial tics was ongoing. Ms M observed that [X] enjoyed his activity in sports, had good social connection with his peers and was managing well overall. He had chosen to not to continue the sessions.
Respecting [Y], there was no evidence from a treating psychologist of the kind available for [X].
Each parent regards the children as being understanding, very intelligent and as recognising the present situation respecting their parents’ dispute.
By her 2012 trial affidavit, the respondent deposed that the children and Mr Watson had a loving relationship and that she understood the importance of the children spending regular time with him in order to promote their bond; however, at that time she sought that the time that they spent with their father be restricted by reason of their young ages, the need for constant supervision and care and because they were unable properly to protect themselves or to articulate their concerns. The respondent left open that with time they might more clearly articulate their wishes.
Mr V does not consider the children are at risk of physical harm from their father. Dr E considered that Mr Watson is able to parent the children. Indeed, he has been able to do so since the 2012 consent orders were made. I do not consider that Mr Watson poses a risk of harm to the children as a result of their being subjected to, or exposed to, abuse, neglect or family violence.
I have found that the respondent’s adherence to the view that Mr Watson has a narcissistic personality and that he is a high functioning alcoholic is not established. Having regard to Mr V’s observations as to the children’s attitude toward their father and Mr Watson’s evident affection for them, I also reject the allegation that he poses a risk to them of the kind which was alleged in relation to his treatment of Mr L.
Apart from the question whether Mr Watson poses such a risk, there was some dispute in the course of closing submissions as to the nature of the harm to which the children may be exposed. By s 4 of the Act, in the interpretation of that Act, the definition of the term abuse reads:
‘abuse’, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Counsel for Mr Watson correctly pressed that none of paras (a), (b) or (d) of that definition were engaged and submitted further that there was no basis for contending that the present case fell within para (c) of that definition. Ultimately, counsel for the respondent, while maintaining that the case fell within para (d), submitted in reply that it was not the strongest point in the case.
By s 4AB, the phrase family violence is defined broadly and may include, for example, the repeated use and exposure to children of derogatory taunts: see para 4AB(2)(d), 4AB(3). However, the nature of the examples provided by sub-s 4AB(4) provide some insight to what the legislature considered to be exposure to conduct which might engage the notion of serious psychological harm in sub-s 60CC(2)(b).
While I accept that Mr Watson and Ms G may bicker and that Mr Watson seems unable to recognise the harm which may be caused by continuously denigrating the respondent within earshot of the children, I do not accept that there is a need to protect the children from serious psychological harm as a result of being in his care.
Further, it should not be thought that the primary considerations in s 60CC(2) will be determinative in every case as to how a child’s best interests will be served. The Court is required to consider each of the matters in sub-s 60CC(2)-(3). A construction which would attribute dispositive significance to a primary consideration would undermine the requirement that the additional considerations must also be considered: cf Champness v Hanson (2009) FLC 93-407, [102].
Views expressed by the children: s 60CC(3)(a)
I have addressed at some length the wishes of [X] and [Y] together with the support which Mr V gives to those views. I incorporate the observations which I have made above and reiterate that I attach significant weight to their views. The brevity with which I have done so here should not be misunderstood as diluting in any way the significance which I accord to their views.
In particular, I accept that the children especially want the status quo retained during their school terms.
While I attach significant weight to the wishes expressed by [X] and [Y], the views that they express are not determinative but comprise one – indeed the first – of the many additional considerations which the Parliament has prescribed by sub-s 60CC(3).
Nature of relationships with the children: s 60CC(3)(b)
There is no dispute that the children regard the respondent as their primary carer. Nor is there any real dispute that the children have a strong bond with their father. Again, I have described earlier the evidence and principal findings of Mr V including how the children see the amount of time that they spend with their father.
The children are now of an age where their relationship with their father as young adolescents will quickly evolve to that of young adults. To my mind the transitional process from adolescence to adulthood is one in which the children will benefit from their ability to know, be cared for and to communicate with both of their parents: cf s 60B(2).
Participation in decisions, spend time and communication: s 60CC(3)(c)
By reason of the 2012 orders, only the respondent has had any real opportunity to participate in making decisions about major-long terms issues affecting the children.
For the reasons given by Mr V, I consider that the extent to which Mr Watson has had and taken the opportunity to spend time and communicate with the children has been circumscribed by the 2012 orders. To the extent that those orders have permitted, I accept that Mr Watson has taken those limited opportunities.
This is not a case in which it was alleged that either parent had failed to take such opportunities.
Parental obligations: s 60CC(3)(ca)
Nor is this a case in which either parent has failed to fulfil obligations to maintain the children.
To the contrary, I see the present case as one in which the parents have fulfilled those obligations.
Likely effect of changes: s 60CC(3)(d)
As concerns the likely effect of changes in a child’s circumstances, this is neither a relocation, nor a change of residence, case.
Yet the children (particularly [X]) have expressed clear views that they consider constant changes in residence to be problematic. They would, in effect, prefer the simplicity of being in one house.
Practical difficulty & expense: s 60CC(3)(e)
Conformably with the requirements of s 65DAA in relation to a child spending equal time or substantial and significant time with both parent, I note that the Court is required to consider whether such a proposal is reasonably practicable. If it is not, the proposal is not open: cf MRR v GR (2010) 240 CLR 461, [13], [19].
In this case, there seems to be no particular practical difficulty in, or expense associated with, the changes that are sought by Mr Watson.
Again, it is more an issue of what the children would prefer, or perhaps more precisely, what they do not want in terms of their weekly time.
Parental capacity to provide: s 60CC(3)(f)
Paragraph 60CC(3)(f) requires the Court to consider the capacity of each of the children’s parents and any other person to provide for the needs of the children including to provide for their emotional and intellectual needs.
Mr V clearly endorses the respondent in the role as primary care giver to each of the children. In the present case, the question is more focussed upon the capacity of Mr Watson to so provide. In this context, the burden of the respondent’s case was to attack Mr Watson’s conduct and thereby seek to undermine a conclusion that he had, amongst other things, a capacity to provide for the children.
For this purpose, however, conduct includes the attitude which a parent adopts in relation to the other – it has a bilateral aspect. And in this case, Mr V’s evidence was compelling of the parties’ relations.
In addition, conduct includes the willingness of a party to make unfounded allegations against the other. While Mr Watson was prepared to pursue allegations against the respondent based upon alleged harm to Mr L and the risk of derivative harm to the children, he has also shown a preparedness to denigrate the respondent.
Equally, the respondent was prepared to press the allegations based on narcissistic predispositions and high functioning alcoholism.
However unattractive the parties’ attributes may be inter se, I also recognise that the evidence supports the ability of each party to parent their children. Specifically, I make no finding that either parent is presently disqualified for any reason from parenting their children.
Maturity, sex, lifestyle, background and like factors: s 60CC(3)(g)
I have addressed aspects of the children in some detail above.
While they might express some views as to their relative social skills, the parties each consider their children to be intelligent and mature within their respective age group.
Indigenous considerations: s 60CC(3)(h)
These matters are not relevant.
Demonstrated attitude to and responsibilities for the children: s 60CC(3)(i)
Apart from their own conflictual relationship, each parent has demonstrated competence and a sense of responsibility for the children.
This is not a case in which a change in residence is contemplated.
Family violence: s 60CC(3)(j)
Before the parties’ relationship ended in early 2009, the respondent experienced real difficulty with the behaviour of Mr Watson which was characterised by distrust and jealousy concerning the respondents prior relationships. These problems were exacerbated by Mr Watson’s deteriorating mental health coupled with consumption of alcohol and medication. I have outlined the history of events following his admission to The Hospital in 2009 and Mr Watson’s preoccupation with the respondent, her partner and her household.
There are no recent allegations of family violence. Apprehended Violence Orders which had been breached earlier have now lapsed.
There are no allegations of family violence concerning these children. Mr L continues to live with his father and is evidently fond of him.
The circumstances of the present case are not, in my opinion, sufficient to warrant application of the legislative mandate that the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence should be given greater weight over the right of the children to have a meaningful relationship with their father: cf s 60CC(2A). The expert evidence of Dr E and Mr V does not support a different conclusion.
Matters relevant to existing family violence orders: s 60CC(3)(k)
Although Apprehended Violence Orders have been made against Mr Watson (which orders have been extended and the subject of contravention applications), no such orders are in place at present.
An order that would be least likely to result in re-litigation: s 60CC(3)(l)
I have examined in some detail, finality of litigation as an important principle which informs a decision whether final parenting orders might be revisited. The same principle is an important additional consideration in relation to the question of what parenting orders may be proper to make.
In the present case, I have concluded that it would be inimical to the children’s best interests to alter the existing weekend arrangements or to grant relief in respect of mid-term holidays. In reaching those conclusions, I attach particular significance to the children’s wishes, including their preference to have a stable home environment and for there to be a minimum of disruption to existing arrangements.
Any other relevant factor: s 60CC(3)(m)
Time to be spent in accordance with children’s wishes
I have also considered whether, as commonly occurs, it might be appropriate to have adjusted the present orders by allowing the children to spend further time with their father in accordance with their wishes. As discussed in the course of closing submissions, such an approach in this case bore the quality of abdication which I conclude would be wholly contrary both to the children’s best interests and to their wishes.
In my view, it would be quite wrong to permit a situation to obtain in which the children might be constantly urged to acquiesce in or to refuse to agree to requests for further time.
Prescriptive orders are appropriate
Mr V was not aware of any instance in the preceding five years where the parties had agreed to alter the prescriptive arrangements. Mr V agreed that nothing had changed to warrant a change in the prescriptive nature of the arrangements set in place by the 2012 orders.
Mr V considered the high level of dysfunction in the parties’ relations was most unlikely to abate. He considered that prescriptive arrangement would be beneficial as removing the potential for further disputes or for the children to be included in such disputes. I agree.
Failure to call children’s psychologists
I reject the closing submission of counsel for the respondent that a Jones v Dunkel inference should be drawn against the respondent on account of her failure to call either Ms B or Ms M.
The conduct of child-related proceedings is regulated by Part VII, Div. 12A which comprises ss 69ZM-69ZX. In particular, I have had regard to the principles stated in s 69ZN and the general duties in s 69ZQ, including that the Court must decide which of the issues presented by the parties require full investigation. In my opinion, the matters adverted to in relation to both Ms B and Ms M did not require full investigation in the circumstances of this application.
In the present case, evidence was admitted without objection of an email from Ms M as to her consultations with [X]. The respondent also gave evidence of the children’s consultations with both those psychologists. I accept the submission of counsel for Mr Watson that while s 69ZT(2) allows the Court to decide what weight should be attached to any evidence that is admitted by dent of sub-s 69ZT(1), it is necessary to have regard to the gravity of the allegations that are being raised in deciding whether, in terms of weight, any adverse inference ought to be drawn on account of any supposed failure of the respondent to call either of those persons as witnesses in this case: see also s 69ZV(3).
There may be circumstances in which the Court might more easily draw an inference of this kind where a party fails to call evidence from, or ask questions of, a ‘friendly’ witness: cf Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 419; Cross on Evidence 10th Ed (2015), [1215] at p. 43.
The present case was not of that kind. There is no reason to conclude that either of the child psychologists was in the respondents ‘camp’.
Statutory pathway: s 65DAA(1)-(5)
As Mr Watson abandoned the application for equal shared parental responsibility it is not necessary to consider these matters.
Overview
In resolving the present dispute, I attach significance to the children’s expressed wishes, to the support which those wishes are given by the family report writer and to the conclusions which he has reached: see Collu v Rinaldo [2010] 10 FamCAFC 53, [355] (May, O'Ryan and Strickland JJ) citing Smith & Smith (1994) FLC 92-488.
Upon consideration of the whole of the evidence referred to above, I conclude that the Court should respect the children’s wishes for their weekend and school term parenting arrangements to continue as they are. To preserve those arrangements will obviate any difficulty in sporting arrangements and will avoid any change to the living arrangements between the parties’ respective households.
Resolution
While Mr Watson has substantially reduced the ambit of relief sought in this application, the respondent remains resolute that the application should be dismissed with indemnity costs. The Court is not obliged to accept either party’s proposal as to the orders which should be made. There are at least two reasons why this is so. First, in deciding whether to make a particular parenting order, the Court must regard the child’s best interests as the paramount consideration in deciding what order should be made. Secondly, in making a parenting order, the Court is given power to make such order as it considers proper in all the circumstances: AMS v AIF (1999) 199 CLR 160, [95] (Gaudron J), [196] (Kirby J), [218] (Hayne J), [284] (Callinan J). This conclusion is reinforced by, for example, sub-s 65DAA(7) which provides that, for the avoidance of doubt, even where the parties propose orders by consent, the Court must have regard to the paramount consideration of the child’s best interests.
In AMS, Callinan J at [295] recognised that where well-intentioned parties made competing proposals, the Court was presented with making difficult choices that the parties themselves were unable to make. In U v U (2002) 211 CLR 238, at [70], [80], Gummow and Callinan JJ (in whose reasons Gleeson CJ, McHugh and Hayne JJ agreed), observed that not uncommonly, there would be cases in which it would not be possible for the Court to adopt exclusively or perhaps even substantially a proposal of either party and that it was not bound to do so. Hayne J at [171] considered it would be quite wrong to treat a parenting decision as being confined to the party’s proposals. I do not understand the Court to have suggested that a trial judge will be presented with making less difficult choices where the competing proposals were presented by parties who were not as well-intentioned.
The importance of considering whether some proposal other than that of either party is appropriate in all the circumstances is clear: Heath v Hemming (No 2), [104] (Kent J). More recently, in Cooke & Morton at [41], Ryan, Kent and Clearly JJ observed with respect to the nature of the statutory duties of an Independent Children’s Lawyer that:
. . . it is the child’s best interests that lie at the centre of parenting proceedings, rather than any assumed right, interest, entitlement or privilege of a parent/party to the proceedings.
Thus, it is plain that neither party may arrogate to themselves an assumed entitlement to insist on what parenting arrangements ought to be made. The best interests of the child remain paramount.
Inherent in the discretion in making parenting orders is that the task is evaluative, necessarily predictive and involves assumptions where no one answer was the only, or only correct, available one to be given: Kulat & Azzarudin at [39]; CDJ v VAJ at [151]-[152]. The Court seeks to make orders that would most likely promote a meaningful relationship with the children, not orders that will ensure such a result: cf Champness v Hanson, [103].
On the whole of the evidence, I am satisfied that it is in the children’s best interests to consider making parenting orders different from those embodied in the 2012 consent orders. As Mr V recognised, the current arrangements are at the lower end of the spectrum of spend time arrangements and were probably not constructive in terms of the rights of the children to spend time with their father.
While the wishes of [X] and [Y] should be acknowledged, I consider that the children’s need to spent time with their father is also of great importance. The highly prescriptive arrangement embodied in the 2012 orders was not the only parenting regime under consideration. I do not consider that it is in the children’s best interests for that prescriptive arrangement to continue in relation to the long Summer holidays.
Relevantly, the 2012 orders operate to permit the children to spend two weeks in the Summer school holidays and prescribes that those two weeks be non-consecutive. In my value judgment that is too restrictive. Both Dr E and Mr V were agreed that although this was not a usual situation, generally, children would more likely benefit from a relationship with a parent which was not as limited as the present case. The children enjoy a positive relationship with their father. The respondent’s evidence was that she was supportive of that relationship. So too, Mr V was likewise supportive of it.
Putting aside alternate weekends and Wednesdays, the 2012 orders allows them to spend two out of an eight week Summer holiday with their father. I consider that the existing two weeks is not adequate and that it will be in their best interests to extend that period by a further one week and to provide that this three week period be consecutive. This will maximise the prospect that Mr Watson will be able to provide the children with an environment in which they might have the ‘chill’ time that they express a desire to have and to have an opportunity to spend that kind of time with him. In such an environment it may be hoped that: (1) Mr Watson will not be stressed or distracted by his professional commitments; (2) Mr Watson will himself be more relaxed at such a time; (3) Mr Watson will be able to focus upon his children and what they say that they actually want to do; (4) Mr Watson will be less prone to fall into the habit of denigrating the respondent; (5) the respondent will be less likely to communicate with the management of any accommodation where the children spend time with their father; (6) the respondent will herself be afforded an opportunity to take a break from daily parenting responsibilities; (7) extending the time that the children spend with their father during the Summer school holiday will not be as disruptive as would be a change to their residence or alternate weekends or in mid-term holidays; (8) such a change will operate within the prescriptive type of formulae that the respondent prefers and which is supported by Mr V; (9) it will provide a set of rules that the parties will abide by; (10) it will militate against the risk of further dissidence in the family dynamic.
Conclusion
For the reasons above, I have concluded that Mr Watson has discharged the onus of demonstrating that since the making of the 2012 orders there has been a significant and material change of circumstances, such that it is in the best interests of the children to revisit those orders. Having examined the primary and additional considerations and in following the legislative pathway which is prescribed by the Act, I have found that some limited change should be made to those orders.
The application should otherwise be dismissed. In reaching my conclusions, I have identified the wishes of the children as grounding a decision that parenting arrangements should largely remain as they are.
Having regard to the stance that was adopted and repeated by the respondent, including in cross-examination of Mr Watson in relation to the costs of the application, I will direct that the parties file short submissions in relation to costs and decide that question on the papers.
I acknowledge the particular assistance of counsel in the matter.
I certify that the preceding five-hundred and twelve (512) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 10 July 2018
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