WESTER & WESTER

[2013] FamCA 72

FAMILY COURT OF AUSTRALIA

WESTER & WESTER [2013] FamCA 72

FAMILY LAW – CHILDREN –With whom the children spend time – where the children live with the mother – where the children spend substantial and significant time with the father - where the children have a strained relationship with their father – where there was a risk of neglect to the children living in the father’s care – Where the father was unable to meet the children’s needs for stability and security – where the parties’ son desired a closer relationship with the father - where the father demonstrated no insight into the needs of the children as independent from his own -  where the father directly involved the children in the Court proceedings 

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY - where the parties consented to having equal shared parental responsibility for the children

FAMILY LAW – CHILDREN – Orders relating to child’s mental health – where parties consented to orders for their son to attend upon a counsellor – where the child had been bullied at school – where the child was upset regarding his relationship with the father

Family Law Act 1975 (Cth) ss 60CC, 65DAA

APPLICANT: Ms Wester

RESPONDENT: Mr Wester

FILE NUMBER: SYC 4158 of 2007

DATE DELIVERED: 19 February 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATES: 20, 21 and 22 November 2012

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Nash

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. That all previous parenting orders are discharged.

2. That the mother and father have equal shared parental responsibility for the children S born … July 1999 and R born … February 2001.

3. That each party have responsibility for decisions as to the children’s day to day care, welfare and development during periods when they are living with him or her.

4. That the children live with the mother.

5. That the children spend time with the father as follows:

   (a)each alternate weekend (following the existing pattern in place) from the conclusion of school Friday until return to school the following Monday;

   (b)for R each Tuesday from after school to before school Wednesday;

   (c)each alternate Easter commencing in 2014 which is defined as after school on the Thursday preceding Good Friday until 6.00 pm on Easter Monday;

   (d)for one half of each school holiday period;

   (e)for one half the school holidays being the second half of school holiday periods in 2012 and the first half of school holiday periods in 2013 commencing with the school holiday period at the conclusion of Term 1, then alternating thereafter;

   (f)

   in 2013 and alternating years thereafter, the father’s time with the children is suspended from 11.00 am Christmas Day until 9.00 am

   
   

   27 December during which time they shall live with the mother;

   (g)

   in 2014 and alternating years thereafter from 4:00 pm until 8:00 pm on Christmas Eve and from 3:00 pm Christmas Day until 9:00 am on

   
   

   27 December;

   (h)on Father’s Day from 5.00 pm the previous day (Saturday) until return to school on the following day (Monday) noting that the children’s time with their father shall be suspended for  Mother’s Day from 5.00 pm on the previous day (Saturday) for the balance of the period.

   (i)On each child’s birthday the children spend time with the parent with whom they are not living on that day as follows:

   (i)if the child’s birthday falls on a school day then the parent with whom the child is not living on that day shall spend time with both children from 5.00 pm until 8.00 pm on the day before the child’s birthday;

   (ii)if the child’s birthday falls on a weekend then the parent with whom the child is not living on that day shall spend time with both children from 11.0 0am until 2.00 pm on that day;

6. That the father and mother shall each be at liberty to attend any school activity or function at which parental participation or attendance is required or encouraged no matter with whom the children are living at that time.

7. Neither parent shall organise an extra-curricular activity for the children or either of them if that activity is to take place within a time when the children would be living with the other parent, without first gaining the consent of the other parent.

8. That each party shall keep the other informed at all times of their home address, email address and telephone numbers including mobile telephone numbers and in the event that a party is holidaying out of Sydney with the children, that party shall inform the other of their holiday destination and a telephone number for such period.

9. The parties are restrained from:

   (a)       Speaking to the children or either of them about the following matters:

   (i)any part of the evidence in these proceedings, including but not limited to oral evidence, recorded material, evidence in affidavits, reports and exhibits;

   (ii)the likely outcome of this hearing.

   (b)Showing the children, or allowing the children or either of them to have access to any written or other material relating to Court proceedings between the parties

BY CONSENT IT IS ORDERED:

1. The parties shall arrange for R to consult a qualified child psychologist (to assist R with present difficulties).  Either parent may initiate the process and the initiating parent must, before any appointment is made, provide the other parent (the responding parent) with the name and contact details of the proposed psychologist and invite the other parent to participate and to attend as and when required by that psychologist.

2. If after 28 days the responding parent has not responded, then the initiating parent may proceed to make an appointment with the psychologist of his or her choice and take R to appointments as and when required and shall advise the responding parent of:

   (a)       the name and contact details of the particular child psychologist;

   (b)       the time and date of the first appointment for R.

3. The initiating parent shall provide the consulting child psychologist with the name and contact details of the responding parent prior to the first appointment.

4. The mother shall ensure that R attends upon a medical practitioner for the purpose of obtaining a referral for R to attend a specialist to address his problem with enuresis and the mother shall provide to that specialist the name and contact details of the father.

5. The parents are to follow all reasonable recommendations of the specialist and should each attend upon that specialist if required.

6. As soon as practical after the delivery of these orders the mother is to ensure that both children attend upon the Independent Children’s Lawyer for her to explain the orders to each of them.

7. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wester v Wester has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC3170 of 2011

Ms Wester

Applicant

And

Mr Wester

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is a dispute between parents over the time their children should spend with them during term time and at other special times. The applicant is the mother, Ms Wester, aged 45 years.  The respondent is the father, Mr Wester, aged 44 years.  The children are S aged 13 and R now almost 12 years. 

2. The parties married in 1993, separated 13 years later in 2006 and were divorced in November 2007.  They have been separated for almost seven years.

3. In August 2006 the parents consented to final orders in relation to property and parenting.  The orders were made in the Local Court and both parties were legally represented.  The children were then aged seven and five.  The parenting orders provided for equal time between the parents.  The father remained in the family home.

4. Eighteen months later the mother began to raise complaints about the equal time arrangement.  In 2009 the father agreed to S attending more occasional time with her mother and for a little more time for both children with the maternal family at Christmas. 

5. In 2009 there was a JIRT investigation into the mother’s complaint of inappropriate sexual conduct by the father in front of the children.  There was found to be no risk of harm.

6. On 19 May 2010 the mother filed an Initiating Application seeking that the children live with her and spend defined time with the father. 

7. In November 2011 a final hearing commenced which led to interim orders being made by consent.  Those orders provided for the children to live with their mother and spend defined time with their father.

8. On 19 November 2012 a final hearing of the applications began before me.

Proposals of the parties

1. The parents agree that they should have equal shared parental responsibility.  They also agree that school holiday periods should be shared equally.  They were unable to agree on the arrangements for time during school terms and certain special times.  The ultimate proposals were these:

2. The mother’s proposal was contained in a minute of order forming part of her Case Outline filed 30 October 2012:

   a)That the children live with her and spend time with their father on alternate weekends, from the conclusion of school on Friday until before school Monday, or 6.00 pm Monday night if the Monday is a public holiday;

   b)That R spend additional time one day each week from the conclusion of school until 9.00 pm with the father to provide the evening meal, this to happen on Tuesday evening unless otherwise agreed.

3. Accordingly, the mother’s proposal is that S spend three nights per fortnight with her father and R three nights per fortnight and two additional evenings of five to six hours.

4. The father’s proposal was contained within his amended response filed 25  September 2012:

   a)That the children live with him:

   i)S on alternate weekends from after school on Friday until the commencement of school on Tuesday;  and on each Monday evening

   ii)R on the same alternate weekend from after school Friday until the commencement of school Wednesday; and on each Monday and Tuesday evening.

1. Accordingly the father’s proposal is that S spends five nights per fortnight with him and for R to spend equal time with both parents.

2. To consider the difference between the two sets of proposals as inconsequential, since both amount to shared care, is to underestimate the impact the proceedings have had on the hostility between the parents.  Anger, contempt, frustration and despair were on display as these two unrepresented parents cross-examined each other.  To my observation, the mother believes that the father is oblivious to the needs and feelings of the children and the father believes that the mother has deliberately and maliciously said and done whatever it takes in order to reduce his weekday time with the children.  Neither resiled from their respective views.  

The evidence

The applicant mother

1. The mother relied on the following documents:

   (a)Affidavits of the mother filed 11 October 2011, 2 April 2012, 11 May 2012 and 28 September 2012. 

   (b)Report of Mr B dated 4 November 2010;

   (c)Reports of Court appointed Single Expert, Dr L dated 8 April 2011, 18 April 2012 and 11 June 2012.

2. The mother was cross-examined by the father and counsel for the Independent Children’s Lawyer.  She remained child focused despite many of the questions put to her by the father relating to her motivation for making the application.  For instance, the first question related to the partners demonising each other post divorce.  The mother conceded the father’s involvement in certain areas of the children’s lives, in particular in AFL, at a soccer camp and soccer training and various martial arts.  She easily conceded the proposition, “[R] becomes happy and excited when he plays sport with me”. 

3. The points she made through her responses was that the father had a strong interest in martial arts and probably sport generally, and that he fitted the children into those interests.  Her concern is that the father does not reflect on the children’s own interests.  Further the mother said and the evidence supports, that the father lacked interest in supporting even those activities that he himself had initiated.  He had no particular interest in taking the children to lessons, washing their uniforms, ensuring they had their gear with them or organising them in general.

4. One of the themes that quickly emerged was that the father at all times expected the mother to attend to the organisational aspects of the children’s lives: their uniforms, sports gear, participation in activities, transport, which he regarded as “trouble shooting that the mother could do.”  The mother clearly holds the view that the father enjoys the children participating in those things that interest him, has no interest in the day to day business of caring for the children and leaves that to her, despite living in separate households.

5. I accept that generally the father did not attend to the children showering or brushing their teeth.  He did not prepare their breakfasts or supervise their eating, he did not make lunch for them, he did not always make dinner for them, although his current partner usually does.  He did not regularly wash their clothes, change their beds or supervise their homework.  They walked a very short distance from their father’s home to the school alone, likewise to Guides and Scouts.  I was left with the impression that the father has treated the children like young flatmates and had the view that the way for them to learn how to look after themselves was by doing it. 

6. The father’s focus in his cross-examination and his own evidence was the significance of sport in the lives of the children and in particular martial arts.  He was critical of the mother for having taken the children to swimming lessons and ceasing that activity after each of them could swim 50 metres safely.  The father referred to the swimming as, “a physical activity that failed.”  The mother’s view was once the children were competent swimmers, she had achieved her aim.  This is a profound difference between the parents.  The father has an almost obsessive focus on the significance of physical activity and sport.  The mother sees physical activity and sport as important, but not central to the lives of the children.

7. The other theme that emerged was that the father had introduced the children to those things that most interested him.  In addition to martial arts, music specifically guitar and keyboard and the use of digital multi media.  Again, while the mother freely conceded the children’s involvement in those things, and certainly conceded that S was interested in digital multimedia, she did not consider, as the father seemed to, that it was inevitable that everything that interested the father would necessarily be taken up with interest by the children. 

8. The mother appeared to be more attuned to the real natures, personality and emotions of the children than the father.  That is not to say that both parents do not love their children, clearly they do.  Rather I was left with the impression that the father believes he has created the children to some extent in his own image and that this is a positive reflection on his parenting capacity.

9. The mother agreed that the father had taught R to play chess and had bought R a guitar and had taught S to play short pieces on the piano.  She agreed on the value of it, but was critical of the father’s tendency to start something and then not follow through.  For example, in relation to chess, she said, “You took the time to teach him but now he asks you to play chess and you are too busy.”  The children certainly seemed to have been involved in a tremendous number of activities, sports, Guides, Scouts, music, drama for S and computer games for R. 

10. The evidence about S’s involvement in Brownies and Guides was illuminating.  She walked to Brownies herself from the father’s house and the mother’s evidence, which I accept, is that the Guide leader had rung her more than once to say that the father had not collected her and that S was told by the Guide leader several times, “Tell your dad to come and pick you up, it’s not enough that you tell us he is at home.”  This picks up another theme in the parent’s very different approach to parenting.

11. The father’s home is close to the Guide hall.  In his view there was no reason when S began in Brownies that she should not walk between his home and the Guide hall alone.  The mother and the Guide leader were both concerned by the father’s attitude and expected him to collect S and take her home safely, not only for her own physical safety, but for her sense of safety.  The father disagreed.

12. The father considers that the mother is over protective of the children and that her complaints about his lack of organisation and lack of supervision are a reflection of that, “The children learn by their own mistakes and should be responsible for their own actions and activities.”  He has applied that philosophy since the parties separated. 

13. Perhaps the two styles of parenting worked well for the children when the family was in tact, but it does seem on many occasions left alone, the father has failed to meet basic standards of care in terms of feeding the children, ensuring that they were fed, showered and safely in a clean bed on a daily basis.  I had the clear impression the father simply could not understand why S was unable to organise herself to bring with her on Friday, everything she would need for school on Monday.  That the mother got into the habit of delivering a clean, washed martial arts uniform and the books that S would need for school on Monday was, in the father’s view, something the mother chose to do, but was not something he should have done.

14. Likewise the father seemed puzzled by the mother’s proposal that R spend Tuesday evenings with him and included in the order, a direction that the father provide a meal.  The question he put to the mother was this:

    Q:You choose to put the obligation on me regarding [R] (with reference to dinner).

    A:       Yes, if he’s with you.

15. On 6 March 2011, the father asked the mother to take S to a particular event because he was working and not be able to be there.  The mother readily agreed.  Two days later, the father sent the mother an email which said this:

    I will tell the kids to go to your place tomorrow after school.  I have also told the kids generally that I think it best that they go to your place on a Monday or Tuesday if I can’t be available at home for them but you can.

16. The mother responded with concern that the father was in the habit of leaving the children unsupervised from in the early morning and in the evenings when he was at work.  Not unreasonably, she said she would be willing to have the children on the Monday and Tuesday overnight in the father’s week, but thought that it would be too destabilising for them to come home to her and then back to the father’s home when he collected them after work.  She suggested that the father employ somebody to look after them in his home[1].

    [1]  Exhibit 10 Email exchange between the parents

17. In her oral evidence, the mother recounted an incident when she had agreed to take the children on the Friday night of the father’s week for school tutoring. She observed on that occasion that the father had been quite unreliable, did not communicate with her to let her know that he was late and what time he would be arriving, that it had been disruptive for herself and her partner and upsetting for the children. Ultimately, she formed the decision not to take the children after school on Mondays and Tuesdays.

1. In relation to R, the mother gave thoughtful evidence.  She said there was no doubt R wanted to see his father. She described R, “at his most upset and agitated after time with [the father].  He wants to be cared for and engaged with by [his father].”  This evidence was in explanation for the mother’s expressed uncertainty about what additional time R should have if any, to what his sister was having.  The father appeared to be genuinely bemused.  He said this: 

   That’s bizarre, [R] wants time, I want time, can you explain that to me? 

   The mother did and in a compelling way.  She said this: 

   You neglect [R], that’s devastating him.  Look after him, care for him and be interested in him.  When it doesn’t happen he hopes that it will happen next time, and the next time.  [S] doesn’t hope any more, but [R] does.

2. The picture that was ultimately painted by the father’s questions and the mother’s answers was that in the father’s home, before he began working from home, the children got up to an empty house, dressed themselves, packed their own bags, fed themselves, walked to school, came home to an empty house, amused themselves until the father came home, ate with him, showered if they chose and went to bed when they felt ready.  It is a disorganised, unattended, cold environment that was described.  I accept the evidence of the father that things changed once he began working from home and even more so since he formed a new relationship with somebody who is kind to the children and regularly cooks for them.

3. The father was very much focused on the fact that he continued to live in the family home and that it was the geographic heart of the children’s lives.  He clearly did not accept that the mother living 2.7 kilometres away could be defined as the parties living close together. 

4. It was common ground between the parents that R is currently being bullied at school, at Scouts and in the wider community.  Bullied in quite a cruel and persistent way where he is taunted with cruel names and songs and by children who provoke him for sport until he loses his temper.  As a serious proposition, the father put a question to the mother:  “Do you think that [R] is being bullied because of being out of zone” (this is a reference to the distance from the school to the mother’s house).  The mother said she was definite that this had no impact at all. 

5. Worryingly, the father also suggested that the reason why R was being bullied might be knowledge of the sexual abuse allegations that had been made by the mother in relation to the father’s past conduct in front of the children.  The mother was clearly horrified that anyone other than the Principal whom she had spoken to would know about that.  The father was unable to say why he thought anyone at the school would know about it.  In his own evidence, the father referred to having discussed with boys in the area whether or not R was, in their opinion, being bullied.  I am not confident that the father is as respectful of R’s privacy as he should be. 

6. On 24 April 2012 R apparently sent an email to his mother, whilst he was at his father’s home[2].  It came from an email address that R had never used before.  It is worth quoting in its entirety:

   Hi Mum

   This is [R] speaking and I need to go to Dads on Mons and Tues from next week because I need more time with Dad and I do not want to go through [anymore nonsense] of Court so I will be going to dads Mon and Tuesday.  If you have any objections about that please email me... I am not ok with just Tues or just Mon I want 50%  I‘ll say it again I want 50%.

   Love [R]   

   [2]  Affidavit of Mother filed 11/05/2012, para 16

7. This triggered an anxious response in the mother, who forwarded R’s email to Dr L and to the Independent Children’s Lawyer.  The mother reports that in fact when R returned home to her that he was upset and that he had no choice because he had promised his father and was scared of what would happen if he did not go to his fathers on a Monday.  The mother describes R as erratic and agitated on the day following the email.  He got into a play fight with a friend which became a real fight, such that the friend was hurt and crying.  R is reported to have said that he did write the email himself, but that his dad had told him to do it and how to create a new email account.  That his father had also told R to forward the email to him.  R was thoroughly upset and had a long conversation with his mother’s partner Mr C, in whom he apparently has confidence.

8. On 26 April 2012 the father emailed the mother referring to the email which R had sent.  He says this[3]: 

   Two days ago, from my house, again at his own initiative, [R] sent the email to you below stating that unless you specifically wrote back to him with your objection, he would recommence the 50% residence arrangement starting this coming Monday.  This action is consistent with our current orders which permit changes to the routine with the consent of both parents. 

   If you do object then please communicate this directly and clearly to both myself and to [R]. 

   [3]  Affidavit of Mother filed 11/05/2012, para 20

9. The reference to R recommencing “the residence arrangement” reflects the father’s stated view that R would break Court orders if he did not get his way.  It was irresponsible of the father to promote or encourage such an idea in R.

10. On any view of it, considerable pressure was placed on R to be an advocate, either for his own wishes, or for what he perceived to be the wishes of his father.  Significantly, the email that R sent was rude and peremptory in the way that he addressed his mother.  I have no difficulty in accepting that the language used was not the ordinary way that R speaks to his mother.  Both parents agree that R is a sensitive child and he seems to be the lightning rod between the parents.

11. The father refers to him as “a conciliator who is trying to look for a position.”  That certainly seems to be the case.  I consider the parents but most particularly the father have completely failed to protect R from their dispute over almost three years about changing the care arrangements for the children.  The father has a belief that if 50/50 time between the parents is re-established for R, R will have had his wishes granted and happiness and contentment will be restored to R’s life.  The evidence does not support that proposition. 

12. S told their mother that their father demanded respect and S replied, “You have to earn respect” and had been put in her room for the afternoon as punishment. S is clearly a more forthright and resilient child than R.  In his attempts to please and engage with his father and at least to some extent because he does long for a good relationship with his father, R has been led into conduct of which he must feel ashamed and somewhat guilty. R has taken on responsibility for his own situation.  It is immensely unfair to him and the father has failed to protect him emotionally.

13. There is no evidence that either parent has acted to reassure R that whatever the outcome of the proceedings, the parents would be happy with it.  In my view, that is because the father to use his own words, “has fought hard for what he wants” which is equal time between the parents for R and more time than is currently happening with S.

14. The mother has attended the school for a meeting with the Vice-Principal about the teasing that R is subjected to.  She did not know about the name that R is called and the song that goes with it.  R has started bed wetting again, something that had been put behind him two years ago.  The mother has been reluctant to speak to the father about it, because she did not want to introduce any additional pressure at all on R.  The very poor relationship between the parents has led to R being left to struggle with a constellation of difficulties which could overwhelm him. 

Evidence of the father

1. The father relied on the following material: 

   (a)   Affidavits of the father filed 25 September 2012 and 30 October 2012.

   (b)  Without reference to any particular proceedings, the father also filed a Notice of Child Abuse or Family Violence on 1 November 2012, supported by his own affidavit.

2. I made clear to the parties at the commencement of these proceedings, that given the narrowness of the issues between them, I would not allow the hearing to be expanded into an inquiry of all past allegations between the parties of physical violence, sexual and emotional abuse.  For that reason, the Notice of Child Abuse, to the extent that it is necessary, is dismissed as part of the determination of these proceedings.

3. The father also nominated the three reports of Dr L and the Magellan Report of 29 September 2010 as documents he referred to.  There were also occasional references to six earlier affidavits of the father between 22 June 2010 and 11 November 2011.

4. The father was cross-examined by the mother and counsel for the Independent Children’s Lawyer.  The mother closely questioned the father about his assertion that, “[R] has broken Court orders and come to my place nearly every day.”  The mother quickly established that R had not without her knowledge, been to the father’s house nearly every day.  What was established was that on the one or two occasions when R was at the father’s house without reference to the mother, the father had not contacted the mother to let her know that R was there and safe.  This was an immature response by the father.

5. One of the themes of the father’s evidence was his rejection of the proposition that he pressured the children.  The father explained that in his view, it was appropriate for him as a parent to help the children make mature decisions and understand the impact of their choices on their own future.  That came up in the context of the father having explained to S that if she had less than equal time with him, it is likely that she would lose contact with her friend who lived close by to the father’s home[4].  There is some substance in what the father’s says, but it is important to allow children to understand the implications of the decisions they make.  However this was not a conversation where the father discussed with S the benefits and disadvantages of the change in arrangements, rather he laid out the deficits and disadvantages.  Whether or not he intended it, this certainly represented a pressure on S to go in the direction that the father wanted.

   [4]  Transcripts before Bell J, November 2011, p 225 at line 25 to 30

6. During the course of his submissions the father drew the attention of the Court to the fact that if orders were not made in the way that restored equal time for R between his parents, one of the consequences would be that the father would be obliged to appeal.  I accept that the father has a habit of setting out in clear terms the negative consequences of decision making which does not accord with his own view, with the intention and the hope of creating enough pressure to result in his desired outcome. 

7. Likewise, the father explained to R that one of the consequences of R not having regular weekday time, was that the father would no longer need such a big house, might sell it and move to an apartment in the city.  The father was clear to say that he knew how much R likes the family home and enjoys being resident there. 

8. Tendered into evidence[5] was a recording of a telephone conversation between R and his mother, when R learned of the possibility of his father selling the house if R did not spend significant time with him. R was immensely distressed and had rung his mother for comfort.  The father was asked whether he agreed that he had been pressuring R and making him feel guilty.  The father disagreed and said this:

   Clearly my preference is for the children to live with me through the week and I’m fighting very hard for this.  I think it’s inconceivable that they would not live with me through the week.

   [5]  Exhibit 12 – DVD containing telephone recordings

9. The father was dismissive of Dr L’s opinion that the father pressured the children and was disengaged as to their real feelings.  Indeed the father was entirely dismissive of Dr L’s reports.  This is unfortunate.  In his first report Dr L had in effect offered an invitation to the father to consider some of the criticisms made of his parenting style and gaining insight into the nature of his parenting deficits[6].  Whether or not the father had confidence in Dr L, it would not be unrealistic for him to at least consider that Mr B, Social Worker, had raised in 2010 the difficulties he saw with the father being insensitive and having to some degree, a lack of empathy with the children.  When these comments were repeated by Dr L the father might have contemplated that there was something he was missing about his own parenting style.

   [6]   Report Dr L dated 08/04/2011, para 171

10. In his cross-examination on this topic, the father indicated that he had reflected on the criticisms, he said this: 

    I’ve reflected.  I acknowledge it’s a fraught situation.  It’s difficult to know what’s right.  I haven’t at all times felt confident in my approach, but on balance I am content with my approach. 

11. The father certainly did not take responsibility for the fact that R had the opportunity in his home to read his affidavit on a computer.  Not only did R read the affidavit, he made changes to it.  The father interpreted R’s distress in the telephone call to his mother as strong evidence of R’s attachment to the house: 

    It’s a very nice house.  It’s at the centre of their lives and the social activities that goes on there.  That shows what a loss it would be for [R] to lose the house.  [R’s] reaction of shock and sadness will be multiplied by ten if I have to tell him he will not be having week time residence.

12. I consider that the father placed disproportionate emphasis on the physical dwelling and had not considered reassuring R that wherever he lived there would be a place for R and he would be welcome there.

13. It seems reasonably clear from his own evidence that the father is not a particularly sensitive or empathetic father.  The situation with S’s martial arts class is a clear example of it.  The father had consented to interim orders, which included provision for S to spend Monday night with him and be returned to her mother at 8.30 pm, on the basis that the father would attend martial arts with her.  He subsequently learned that the Monday night class was one where mixed abilities did not train together.  Further, the father found the need to collect his partner from the train on Monday nights for reasons related to her family.  The father told S that she should stay over on the Monday night to solve the problem and when she declined, he told her she was selfish. He attributed the situation to S and blamed her for thwarting the alternative which the father wanted to implement.

14. When testing the father about this, the mother put a simple question:  “Why not prioritise getting her to [martial arts] on Monday night?”  There was no simple answer.  However, when counsel for the Independent Children’s Lawyer cross-examined the father, it became clear that he simply was not interested in the thought of watching his daughter’s [martial arts] class.  His answer, “I’ve seen hundreds of hours of [martial arts] training” suggests that the prospect was boring rather than the explanation he gave that S would be embarrassed if he stayed. 

15. Equally clear is that the father is unlikely to change.  He is not sensitive to the children’s needs, not empathetic to their feelings and not likely to take up the organisational work involved in the education, supervision and raising of children generally.  S, on the evidence of the mother, has come to understand that and in a sense, to accept her father’s essential nature.  It suits her to be with the parent who meets her needs in a more complex and sensitive way.  She has said so and to a certain extent, the father has accepted her decision. 

16. R has not yet reached the age or maturity to have that understanding about his father, and is both torn and distressed about how to deal with his own needs and his father’s implacable will.  R too, may come to understand that his hopes for a more responsive father, who engages with R’s interests rather than fitting R into his own, is never going to happen.  However, because there are other difficulties in R’s life, he will need help to come to accommodate the relationship with his father and it is for that reason that an order has been made for R to have the assistance of a child psychologist.

17. My impression of the father is that he has a forceful, tenacious personality, that he is rigid in his world view and certain about his own perspective.  He sees his role as a father as encouraging and developing activities for the children, especially sporting activities, specifically martial arts.  He has been content to leave everything else to the mother.

18. The mother has been left in the situation of having the pleasure of the children’s company for half of the time, but the parental responsibility for their schooling, health and hygiene almost all of the time.  The frustration that arose from that situation, continuing over five years until November 2011, was evident and easy to understand. 

19. The father has been in the habit of involving R in these Family Law proceedings.  He said he wanted the children to have the courage to say what they really wanted, without reference to people’s agendas, that’s why he asked about their wishes, that’s why he “fact checked” his affidavit with R before he filed it.  The father has a lot to offer the children when they are all engaged in something that interests the whole group, especially if it is an outdoor physical activity, or relates to computer use, but his philosophical approach is to treat the children as small adults and not to protect them from matters that are beyond their levels of maturity to cope with.  An example of this is contained in the following exchange:

    Q:Had you discussed with [R] what [Dr L’s] second report said?

    A:No, I just explained to him that his mother was trying to take away all time during the week.

20. R needs a relationship with his father, despite his primary source of support being his mother with the added assistance of his mother’s partner, but he does need to be protected in the next few years from his father’s approach to life.  It is for that reason that an order was made on an interim and now a final basis, restraining all discussion of these proceedings and related documents between the parents and the children.

21. R’s physical environment will also need careful attention in the coming years.  He has suffered from enuresis and there is an order for the parents to arrange for R to be examined by a medical specialist, to exclude the possibility of a physical cause. He has been bullied in a very nasty way for a considerable period of time.  I note that when the father was asked about R’s bed wetting, he was somewhat dismissive.  He said “very occasionally, sometimes there was just a faint odour, some seeps into his underwear.”  The father also acknowledges that R often slept on the floor in his home, although he denied that was because the bed might have been wet.

22. The father is most unlikely to pay scrupulous attention to ensuring that R sleeps in a clean fresh bed and is always dressed in clean fresh clothes.  I had the very strong impression that the father did not want to engage with this aspect of R’s current distress.  Despite the cruel nicknames, including “…”, the children at school call R the father had not been down to the school.  He said there was no point, there was nothing to be achieved by doing so and it would be embarrassing for R if he did.  I asked the father if it would be embarrassing for him and my impression was that it would be.  I think it highly unlikely that the father will attend at the school to keep the school advised of R’s situation and to engage in an effective program of countering the bullying that R lives with every day.

Doctor L

1. Dr L was cross-examined by both parties and the Independent Children’s Lawyer.  The father’s line of cross-examination was to the effect that Dr L did not understand the ethical standards by which he was bound and the rules of the Legislation giving rise to his appointment.  The father had generated a document titled “Reductio Ad Absurdum [Dr L’s] Expert Logic” containing objections to Dr  L’s Report which I did not read in the proceedings.

2. The father was therefore denied the opportunity to challenge  Dr  L on a variety of points, including that in the father’s view he had wrongly assumed that the mother asserted physical abuse of her by the father during the marriage.  The father was offended by Dr L’s criticisms of him and that was on display.  The central criticism of Dr L was that the father failed to understand the dependent needs of children: “I saw neglect where you saw establishing their independence”.

3. The father was particularly dismissive of the notion that not getting the children’s breakfast, not providing them with lunch, not being there when they left for school and arrived home from school, had been neglectful given their age. On more than one occasion the father expressed the view that such matters were trivial, “Do you mean was I there to pour the milk on their cereal?” 

4. Dr L in his first report had effectively offered the father the opportunity to reconsider his practice of “grilling” the children and putting them under pressure to take a certain position.  In his second report Dr L concluded that the father had been unable or unwilling to take up that suggestion.  I accept that to be the case. 

5. The addendum to Dr L’s second report was prepared in response to the mother alerting Dr L of the email sent to her by R.   Dr  L’s main concern was R: 

   [R] has a longing to be with his father, but when they are together he is neglected so that is emotionally abusive for him.  It’s the lack of emotional nurturance.  He is distressed, alone and there is a negative impact with increasing significance as [R] moves into adolescence.

6. Dr L’s view was that R did need a bit more time with his father than S did, but “not too much or he will get angry and upset.”  I accept that evidence.  To some extent, the deficits in the father’s approach to parenting are reduced in significance by the passage of time.  That is, now that the children are older and more self sufficient, when they are both at high school, many of the things that were detrimental to their sense of safety have diminished.  Feeding themselves, getting themselves to school, washing their own clothes or at least gathering them are all possible. In holiday times the organisational aspects are somewhat less significant and the children’s own adolescent needs and abilities will address the hygiene issues which mattered much more when the children were younger.

7. The father simply could not understand why Dr L did not give him more credit for having participated with the children in various sports and martial arts.  Dr L’s view that physical activity is important, but for R school sport might be enough, was certainly not a view that the father shares.  He is not obliged to.  What the father could not understand about Dr L’s evidence was the father’s own obligation to meet all aspects of parenting and not simply those that most appeal to him.

The law

1. This is a matter where the parents have agreed on equal shared parental responsibility.  They have been able to agree on issues for the children in the past, such as where they go to school, medical and dental treatment.  Those things have in a sense been uncontroversial because the school was near the father’s home and the father was content for the mother to arrange for their health needs.  The parents are also able to agree on equal shared school holidays and that each parent makes the decisions about the children whilst they are in that parent’s care.

2. In this case, as the orders provide for the parents to have equal shared parental responsibility, I must consider the provisions of s 65DAA of the Family Law Act 1975 (Cth) (“the Act”).

3. First of all I must consider first whether it is in the child’s best interests that there be an order for equal time in this instance the evidence establishes this is not so as such an arrangement has in the past failed to meet their needs for an organised and supportive home life. 

4. Second I must consider whether it is in the best interests of the children and if so reasonably practicable for them to spend substantial and significant time with the father.

5. I consider in this case that it is both in the child’s best interests (particularly R) and reasonably practical for them to spend substantial and significant time with the father.

6. The Act suggests that substantial and significant should includes weekends and holidays, days that do not fall on weekends as well as time that allows each parent to be involved in the children’s special occasions and their daily routines (s 65DAA(3)). However, the Act goes on to grant the Court a wide discretion as to the meaning of substantial and significant time ultimately being one of quality time and not quantity of time (s 65DAA(4) )

7. The orders provide for S to spend alternate weekends with her father, together with R who has additional times on Tuesday evenings overnight.  In combination with the shared school holidays and arrangements for other special times, I am satisfied that this regime amounts to both children spending substantial and significant time with their father.  The father perceives that his time has been taken because the parties for five years had an equal time arrangement, with the children changing over approximately every three days. However, the new orders are simply a reflection of the children’s current needs as articulated by the evidence.

Section 60CC(3)(a) - any views expressed by the children and the weight it should give to the children’s views

1. S has expressed a clear view that she does not wish to spend weekday time with the father during school terms, because she prefers the level of organisation and support in the mother’s home.  To a great extent the father accepts that.  The arrangement for Monday nights did not prove to be productive for S and her father and there is no reason that her involvement in martial arts needs to be tied to Monday evenings in her father’s home.

2. R’s wishes have been strongly, consistently and stoutly expressed to be for a continuation of an equal time arrangement.  I accept that pressure has been placed on R by the father to express this view.  I also consider that pressure has come from within R himself as he struggles to please and accommodate both his parents.

3. R is under a lot of pressure.  Both parents agree that R is sensitive and often upset.  Objectively his life is often difficult and really unpleasant.  R needs to be relieved of the burden of “fixing” his family. The orders acknowledge his desire for more time with his father, but do not simply grant his wish for equal time.  I consider that R will benefit from full alternate weekends and Tuesday nights which should be a time for relaxation and easy engagement with his father when it is just the two of them and the pressure of these proceedings has been lifted from R’s shoulders.

Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents; and other persons

1. Each of the children has a loving relationship with each of their parents.  The children’s relationship with their father is problematic at times.  He is sometimes quite authoritarian demanding respect, at other times an observer rather than a participant in their lives and activities, more of an older sibling than a parent.  R more than S, continues to want more from the father emotionally than he is able to deliver.  That is not to say the relationship is not an important one, it is.

2. The relationship between the children and their mother is a loving, supportive and structured relationship.  The mother is there at times when the children need supervision.  This will have somewhat less significance as they get older and are more able to manage their own lives, but will continue to be important for their safety and security.  The children rely on their mother to be there for them and to know what they will be doing in the future. The father also relies on the mother’s knowledge of their children, their plans and future activities.

Section 60CC(3)(c) - the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship

1. The father has never attempted to encourage the children to want more time with him than with their mother He has always wanted equal time.  The mother has made strenuous efforts to support the relationship between the children and their father and often made up the difference when he was unavailable to supervise and care for them.  That she did not always do so, is attributable to her hope that the father would become totally responsible, rather than any lack of interest in the children’s welfare.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

1. Since November 2011, the children have been spending alternate weekends with their father, with additional time for S on Monday evenings and additional time for R on Tuesday evenings overnight.  This has been the result of interim orders made by consent.

2. The change for S to no longer spend Monday evenings is likely to have a positive effect, as the anticipated involvement of the father in her martial arts class did not take place, such that she spends very little time with him in any event and they have clashed over her unwillingness to extend the period to overnight.  S has a very strong wish to attend school from her mother’s home, although she is able to accommodate one Monday morning a fortnight from the father’s home.

3. For R, an increase in time spent with his father back to equal time would leave his needs for organisation, structure, supervision and particular care, unmet.  This is especially so when R is about to start high school.  Although friends from primary school will no doubt be there, high school represents the possibility of a fresh start for R and it is his mother who is most able to ensure orderly routines, supervision of homework and management of activities.  A reduction of current time as the mother proposes, from overnight Tuesdays to 9.00 pm would likely create conflict between the parents over the evening meal and timely delivery, and would ultimately put pressure on R himself.

4. It will be especially important for R to spend the Monday night after the weekend period with his mother, to regroup, ensure that he has the books and equipment he needs.  That way on Tuesday he can easily walk home to his father’s house and enjoy an afternoon and evening with his father and local friends in the area.

Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent

1. There is no practical difficulty and expense associated with these children travelling between the two homes, which are less than three kilometres apart.

Section 60CC(3)(f) The capacity of the children’s parents to provide for the needs of the children, including emotional and intellectual needs

1. On behalf of the Independent Children’s Lawyer, it was submitted that this issue together with the attitude of the parents to the responsibilities of parenthood, was fundamental to the case.  I agree.

2. The mother has the capacity to meet all of the children’s needs, financial, emotional, physical and intellectual.  I am satisfied that she understands that being available to the children, to listen to what they have to say to her, to support them in their interests, to be an observer of their successes and to understand their difficulties, is a big part of the parental role.

3. The father has a more limited capacity to provide for the children’s needs.  His personal strength is in physical activity, competitive sport and in particular, his passionate interest in martial arts.  To the extent that the children wished to be involved in those interests, the father will be strongly supportive and proud of their achievements.  He does not have a very great capacity for understanding their individual perspectives and the extent to which each of them is a different personality to his own, with entirely different needs.  Those aspects of parental care which have not interested him, he has left to the mother.  That may have worked well when the marriage was in tact, but with separate households, it has left gaps in the children’s care, narrowing as the children grow older, but still evident.  However, there remains great value for the children, particularly R, in preserving the relationship with their father.   

Section 60CC(3)(g) The maturity, sex, lifestyle and background of the children and of their parents

1. The children are a 13 year old girl S, who is bright, articulate and mature.  She is quick to learn and successful in most things she puts her mind to. 

2. R is an almost 12 year old boy who struggles emotionally.  The evidence suggests that he is not a child who naturally enjoys physical activity and sports.  It seems that his particular strengths and interest have not had a chance to develop.  That is almost certainly because he struggles under a burden of being bullied and taunted by his peers.  He is sensitive and easily upset.  He loses his temper and lashes out.  He would benefit from the assistance of a psychologist in learning techniques for managing himself and his most important relationships.

Section 60CC(3)(i) The attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

1. I accept the evidence of the mother that she has and will continue to advise the father of events in the children’s lives, providing projections of times that the children spend in the respective households, letting the father know of school events, ensuring that he and his mother receive copies of reports and school photographs.

2. The father has been responsible for the children to the extent that he is able.  He began to work from home and was therefore more available to them by being in the house, even if not directly engaged.  He wants the children to grow up to be good citizens.  He is somewhat dismissive of R’s difficulties and regards him as “a bit of an actor.”  The father may be right about that, but if not and R is anxious, there are risks to his future mental health which should be taken seriously.  The father is apparently able to accept that possibility, although he himself does not hold that view.

3. In his submissions, the father attributed R’s anxiety to the amount of time he spent with his father.  I accept that R’s over involvement in Court proceedings has contributed to his difficulties, but consider that the causes are more varied.

Section 60CC(3)(j) Any family violence involving the children or a member of the children’s family

1. There is no family violence involving the children or any member of their respective families. 

Section 60CC(3)(l) Whether it would be preferable to make the order least likely to lead to the institution of future proceedings

1. The father’s submissions were quite concerning in this regard.  The submission that the children might seek to see their father outside the appointed times, was an example of the father’s view that children break orders rather than adults.  I reject the submission and the false premise on which it is based.

2. Section 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant

3. That it took three days of hearing to determine this matter, is a clear indication of the level of conflict in this family, almost seven years after the separation of the parents.

4. The mother intends to seek counselling for herself, to learn strategies about how to react to conflicts as they arise.  The parties would benefit from participating in an education program provided by organisations such as Relationships Australia on parenting after separation.  In my view the father would benefit from education on the developmental stages of childhood, but that is a matter for him to consider and not the proper subject of an order.

5. I consider that the orders promote a meaningful relationship between the children and both of their parents, whilst protecting them from psychological harm arising from neglect and emotional abuse. 

6. In six years time both children will be adults.  It is a matter for the parents to ensure compliance with the orders, unless the time comes that they agree on different arrangements.

7. The impact on the children, especially R, of any further litigation could be really destructive.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 February 2013.

Associate: 

Date:  19 February 2013