Windsor & Kava
[2012] FMCAfam 1221
•11 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WINDSOR & KAVA | [2012] FMCAfam 1221 |
| FAMILY LAW – Parenting – two children, boys aged 8 and 3 – parental responsibility – high conflict between parents – parents do not communicate – time children should spend with father – whether children should spend overnight time with father. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAB, 65DAC(2) and (3) Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Schedule 1 |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 KB & TC, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224 |
| Applicant: | MS WINDSOR |
| Respondent: | MR KAVA |
| File Number: | PAC 3320 of 2010 |
| Judgment of: | Halligan FM |
| Hearing dates: | 17, 18 November 2011, 2, 3, 10 and 11 October 2012 |
| Date of Last Submission: | 11 October 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 11 October 2012 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | In Person |
| Counsel for the Independent Children’s Lawyer : | Mr Jackson |
ORDERS
All prior parenting orders in relation to the children [X] born [in] 2004 and [Y] born [in] 2009 are discharged.
The mother have sole parental responsibility of the children, [X] born [in] 2004 and [Y] born [in] 2009.
The children live with the mother.
The children spend time with the father as follows:
(a)each Christmas Day from 9am until 5pm;
(b)each Father’s Day from 9am until 5pm;
(c)on the children’s birthdays ,from 3pm until 7pm;
(d)for the first six months from the date of these orders, being every alternative weekend, from Friday at 3pm until the following Saturday at 5pm, commencing on 19 October 2012;
(e)for the following six months ,being every alternative weekend from Friday at 3pm until the following Sunday at 5pm,and thereafter;
(f)thereafter, every alternate weekend from Friday at 3pm until the following Monday at 9am, or Tuesday 9am if the Monday is a public holiday;
(g)commencing with the school holidays at the end of Term 1, 2015, for the second half of all school holidays, and the father’s time under the preceding sub-paragraph shall be suspended during school holidays on the commencement of this provision.
The fathers time with the children if relevant, be suspended from 9am to 5pm on Mother’s Day.
For the purpose of the school holiday orders as referred to above at sub-paragraph 4(g):
(a)the school holidays shall be defined to commence on the last day of school term prior to the school holidays, and shall be defined to conclude on the last day of such school holidays.
The place of changeover is to take place at either:
(a)the McDonald’s Restaurant located at [B], or
(b)the children’s school if such a changeover takes place on a weekday during a school term period.
Each party shall do all things necessary to ensure that the other party is sent directly from their school, copies of all school reports, weekly bulletins, correspondence and school photograph applications.
Each other party shall inform the other in a timely manner, all significant medical events, significant educational and sporting events, directly relevant to the children.
Within 7 days from the date of these orders, the parties each contact Unifam Parramatta and do all things necessary to apply to be accepted in the “Keeping the Contact Program” and if accepted each party shall attend all appointments as directed by Unifam Parramatta.
Within 7 days from the date of these orders, the parties each contact Relationship Australia and do all things necessary to enrol in such parenting group if available, focusing on improving parental interaction as is recommended by that organisation, and thereupon each party will attend all appointments required by Relationships Australia.
The mother shall not engage the children in any extra curricular activities that may occur during times the children are to be with the father under these orders without the father's prior written consent.
The mother shall cause the children to telephone the father at 6.00 pm each Monday, Wednesday and Friday that the children are not spending time with him and the father shall make himself available to receive the call from the children at those times.
Each party is restrained from:
(a)denigrating the other party or members of the other party’s family in the presence or hearing of the children and shall ensure no other person does so;
(b)discussing these proceedings with or in the presence or hearing of the children and from showing the children any documents filed in or prepared for these proceedings, and shall ensure no other person does so; and
(c)passing information or messages through the children to the other parent.
Both parties shall do all things necessary to ensure the children are known at all times by the last name of Kava.
Otherwise, all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Windsor & Kava is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3320 of 2010
| MS WINDSOR |
Applicant
And
| MR KAVA |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested proceedings under the Family Law Act 1975 concerning the parenting arrangements for eight year old [X], born [in] 2004, and three year old [Y], born [in] 2009. The applicant is the children’s mother and the respondent is their father.
The principal, though not the only, issues for determination are-
a)whether the parents should have equal shared parental responsibility, as the father seeks, or whether the mother should have sole parental responsibility, as the mother seeks and the Independent Children’s Lawyer proposes; and
b)whether the children’s time with the father should be limited to daytime only, as the mother seeks, or whether the children should spend overnight time with the father, as the father seeks and the Independent Children’s Lawyer proposes, and, if the latter, what overnight time the children should spend with the father.
There are other issues raised by the orders sought, and I will deal with these later in these reasons.
Background
The mother is aged 42 (born [in] 1970), the father 43 (born [in] 1968). Both parents were born in Indonesia. They commenced cohabitation on the date of the marriage, [omitted] 1997. They migrated to Australia in 1998. Both are Australian citizens.
The parties were separated from about [omitted] 2009, that is, the month before [Y]’s birth, until 2 January 2010, and they finally separated on 30 June 2010. The parties’ marriage was dissolved with effect from 27 April 2012.
Consent interim parenting orders were made in these proceedings on 22 September 2010. They provided for the parents to have equal shared parental responsibility, for the children to live with the mother, and for the children to spend time with the father each Saturday from 9 am to 5 pm, and each Wednesday from 3.45 pm to 8 pm. The mother was to deliver the children to, and collect the children from, the father’s residence at the commencement and conclusion of his time with the children. At the same time the Court ordered that a Family Report be prepared. The resulting Family Report dated 22 November 2010 is in evidence as exhibit C.
On 14 June 2011 further interim parenting orders were made by consent providing that, in addition to the time the children were to spend with the father under the orders of 22 September 2010, they also spend time with him for half of the autumn, winter and spring school holidays from 9 am to 8 pm each day. The children were also to spend time with the father on Father’s Day and on each of the children’s birthdays.
Also on 14 November 2011, an updating Family Report was ordered addressing the same matters as the initial Family Report. The updating Family Report, dated 17 October 2012 and prepared by a different Family Consultant, is in evidence as exhibit D.
The applicable law
The proceedings fall to be determined under Part VII of the Family Law Act 1975, being proceedings for parenting orders. As the proceedings began before the commencement of Schedule 1 of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, a number of the amendments effected by that Schedule, importantly those as to sections 4(1), (definition of family violence) and 60CC do not apply to these proceedings (see Part 2 of Schedule 1).
The Court may make such parenting order as it sees fit subject to section 61DA (presumption as to equal shared parental responsibility) and section 65DAB (parenting plans) (section 65D). There have been no parenting plans about these children, so section 65 DAB is not relevant.
Section 60B sets out the objects and principles of Part VII. In deciding what parenting order to make, the children’s best interests are the paramount consideration (section 60CA). Section 60CC indicates how the Court determines the children’s best interests.
The synthesis of sections 60B and 60CC in the decision-making process is explained by the Full Court of the Family Court of Australia in Goode & Goode, (2006) FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration… and the framework in which best interests are to be determined are the factors in section 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in section 60B provide the context in which the factors in section 60CC are to be examined, weighed and applied in the individual case.”
If the Court is to make an equal shared parental responsibility order, the Court must consider the children spending equal time with each parent, and if such an order is not made must consider the children spending substantial and significant time with each parent (section 65DAA). In relation to each of these options the Court must consider whether such an arrangement would be in the children’s bests interests (section 65DAA(1)(a) and (2)(c)) and is reasonably practicable (section 65DAA(1)(b) and 2(d) and (5)). If so satisfied, the Court must consider making such an order (section 65DAA(1)(c) and (2)(e) and see MRR & GR (2010) HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424. As to the Court’s power to consider options other than those presented by the parties and the need to afford procedural fairness if doing so, see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, KB & TC, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224.
Credit of witnesses
The parties were the only witnesses in their cases. The only other witnesses were the authors of the two Family Reports.
The author of the first Family Report was not available for cross-examination. That was the reason for obtaining an updating Family Report from a different Family Consultant.
Despite the inability of the parties and the Independent Children’s Lawyer to cross-examine the author of the first Family Report, I am satisfied the opinions and the reported observations of the children with each of the parents set out in it warrant being given significant weight as they are consistent with those in the second report, and I am not satisfied the author of the second report was successfully challenged in relation to the opinions she expressed, albeit she changed her opinions when informed of evidence that arose during the hearing but of which she was not made aware when she prepared her report.
As to the parties, I am not satisfied either was a credible witness.
Parts of the mother’s evidence were untrue. Examples are:
a)When being cross-examined about an incident between the parties in about May 2009 during which the mother was struck by a box, the mother asserted she suffered bruises as a result of this incident. When challenged about this assertion the mother said she did not mention the bruises in her evidence-in-chief because she did not go to hospital and so such evidence would not carry any weight. When it was put to the mother that she had given other uncorroborated evidence and expected it to be given weight she agreed there was an inconsistency in her evidence and ultimately admitted she suffered no bruising.
b)When cross-examined about a letter to the Parramatta Local Court she signed in January 2010 seeking the withdrawal of an interim AVO and of an application for an AVO, the mother sought to explain an inconsistency between the contents of that statement and her affidavit evidence as to whether or not there had been family violence by the father since June 2009 by saying she did not believe that an incident she alleged occurred in August 2009, which she said was family violence, was a breach of the interim AVO then in force. When challenged about this statement, among other things that were not credible, she said there were a lot of witnesses to the incident and they would have told her if it was a breach of the AVO. She then admitted none of the witnesses were aware of the AVO.
c)Further, the mother agreed that her description of certain actions by the father around the time of [Y]’s birth and her reaction to them were as set out in this letter to the Parramatta Local Court. This is inconsistent with the way the mother sought to portray these actions in her evidence-in-chief.
d)The mother alleged that the father parked his car to block a removalist truck she booked when she moved out of the matrimonial home at final separation. In cross-examination she admitted the father’s car was in the garage at the time.
The mother impressed as being prepared to shape her evidence and past events to meet her desired goal of denying the father any overnight time with the children. I was not satisfied she was an honest and candid witness. Her credit is seriously compromised and I treat her evidence generally with considerable caution.
Parts of the father’s evidence were untrue. Examples are:
a)The father’s evidence in cross-examination in relation to the incident when the mother was struck by a box differed from his evidence-in-chief as to how the father was physically seeking to have the mother go to bed. He also gave inconsistent evidence as to whether the parties’ voices were raised and said at first he did not know the mother did not want to go to bed but then admitted he did know. Generally, the father tried to falsely minimise this incident while the mother sought to falsely exaggerate it.
b)When cross-examined about his evidence about assisting the mother when she came out of hospital after [Y] was born, he claimed the parties were not then separated. When challenged on this he prevaricated but ultimately admitted the parties were separated. His attempts to justify his initial statement by asserting there was nothing to prevent him spending time with his children was a nonsense as there was nothing to prevent him spending time with his children at other times he said the parties were separated.
c)The father was challenged about his assertion that he helped the mother care for [Y] when the mother came home from hospital after his birth by among other things nursing [Y] “in the early hours of the morning when he was restless”. He agreed the parties were separated and that he did not stay overnight but said that by “the early hours of the morning” he meant 7 am or 8 am. This is clearly not the import of his evidence-in-chief and I am satisfied that the father’s evidence-in-chief on this point was at best deliberately misleading or at worst knowingly false.
d)In relation to the same evidence of assisting the mother with [Y] by coming to the matrimonial home, he said he asked the mother if he could come and he gave inconsistent evidence as to whether the mother failed to answer at all or said he could come.
e)The father admitted his evidence that between February and May 2011 the mother permitted him to retain the children until 8 pm every Saturday was wrong.
f)The father said that, at this time, he explained to the children they had to return to the mother when she came to collect them and he did not have them ready as a result of mommy taking daddy to court. The father then denied he explained this to the children. When challenged on this direct contradiction, he admitted he did explain this to the children.
g)
When cross-examined about his evidence-in-chief that the mother failed to deliver the children to him on Saturday, 8 January 2011, the father said he did not think he had requested to have the children on Sunday, 9 January 2011 instead of Saturday,
8 January 2011. He could not remember if the mother delivered the children to him on the Sunday but was adamant the children were not delivered to him on the Saturday. When challenged about what he could and could not remember about incidents one day apart, he admitted the mother delivered the children to him on the Sunday. When challenged about this inconsistency I am satisfied that the father further lied.
As with the mother, I am satisfied the father’s animosity towards the mother and his desire to achieve what he seeks in these proceedings has resulted in him lying and being selective to the point of misleading in the evidence he gave. I consider his credit as a witness is also seriously compromised and I treat his evidence with the same degree of caution with which I treat the mother’s.
The evidence
The parties gave evidence on a range of matters, most of which ultimately have no bearing on the decision I must make. I therefore do not intend to canvass all of the evidence given by the parties in detail.
There was considerable divergence in the evidence of the parties. Because of the view I take of the credit of both parties, I am not prepared to prefer the evidence of one over the other on any issue.
The parties disagree as to the extent of their respective involvement in the care of the children before separation. While I am unable to make findings as to the detail of each party’s involvement in the care of the children, I will deal later with my overall impression of their involvement before and after separation.
Family violence
The mother sought to raise a significant family violence issue and suggested she was very fearful of the father. She suggested that she was now selling her home and moving through fear of the father because the father had discovered her address. The mother does not wish to communicate with the father.
Not only does she wish to keep her address secret from him, but she has blocked emails from the father from being received into her email account and has obtained a 1300 telephone number to use a virtual secretary to block direct telephone contact with her and to screen all telephone calls to her. She asserted this was through fear of the father.
Relevantly for these proceedings, family violence is defined as follows (Family Law Act 1975, s.4(1))-
“family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”
Bearing in mind the view I take of the credit of both parties and based on the evidence of both of them, I am satisfied that there has been family violence within the meaning of that term on only one occasion. That incident occurred during the mother’s pregnancy with [Y] when the father wanted the mother to go to sleep, he believed in her own best interests, but the mother wanted to relax and watch TV. His insistence that the mother do what he thought was best for her against the mother’s clearly expressed preference to do otherwise, including him taking the mother by the arm to physically escort her against her will to her bedroom during which he kicked a cardboard box that struck the mother, was, I am satisfied, family violence. The father conceded the mother was justified in calling the police the next day. But the fact that the mother waited until the next day to call the police in the circumstances puts into perspective the relative seriousness of this incident. In my view, it is at the lower level of seriousness.
I am not satisfied the mother has proven the father threatened to kill her while holding a knife during an argument which she alleged. The father denied the allegation and gave a plausible explanation of why he was holding a knife when the argument erupted and his explanation was not challenged by the mother in cross-examination.
The mother also alleged that the father raised his fist to her “as if to hit her.” She said she rang the police after such an incident in January 2009 and told [X] then aged four to call the police after another such incident in February 2009. She said she did not ask the police to take any action after the alleged incident in January 2009, “as I was afraid of the effect this would have on my safety.” That concern did not stop the mother telling [X] to call the police the next month. She gave no evidence as to whether the police came and if they did what action, if any, she took. In light of the father’s denials of the mother’s allegations about these incidents and the view I take of the parties’ credit, I am not satisfied the mother has proven them on the balance of probability.
The mother said that in April 2009 the father hit her with his fist during an argument. In cross-examination the mother said she felt something made contact with her back and turned around and saw the father behind her. She thus did not see what made contact with her. The father denied striking the mother. In light of the father’s denials of the mother’s allegation that he struck her and the view I take of the parties credit I am not satisfied the mother has proven this incident on the balance of probabilities.
The mother applied for an AVO on 31 May 2009. She gave no explanation why she decided to do so at that time but took no action four months earlier because of an asserted concern about the effect of doing so on her safety. The father consented to an AVO being made. It was made on 16 June 2009 for a period of 12 months and contained the three mandatory orders only.
The mother moved from the matrimonial home to rented premises with [X] in [omitted] 2009. The mother entered hospital for [Y]’s birth on [omitted] 2009 and was released from hospital five days later. While the mother was in hospital, the father, without the mother’s consent, moved her belongings back into the matrimonial home and moved some of his belongings to the mother’s rented premises. When the mother and [Y] were released from hospital the father came to take her home. He took her to the matrimonial home, not her rented premises. I am satisfied the mother was upset by what the father did.
The mother agreed to live with the children in the matrimonial home and the father moved into the mother’s rented premises. On 13 October 2009 the mother obtained an interim variation of the AVO made on 16 June 2009 to prevent the father residing at the premises at which the mother resided.
The father constantly came to the matrimonial home both before and after the variation of the AVO but did not stay overnight.
In January 2010, the parties having agreed to reconcile, the mother signed a letter to the Local Court prepared by the father’s solicitor seeking revocation of the AVO and withdrawal of the pending application to vary the AVO. In that letter she stated that her reaction to the father moving her belongings back to the matrimonial home without her consent after [Y]’s birth was one of unhappiness at what he had done, rather than feeling any threat to herself or her wellbeing. The mother made no mention of this letter in her evidence-in-chief. In cross-examination she said this letter correctly described her reaction to the father moving her belongings back into the matrimonial home.
I am satisfied the father believes he knows better than the mother what is best for her and has persistently sought to persuade the mother to his point of view to the point of becoming an irritating nuisance to the mother. I am satisfied that after final separation the father continued to communicate with the mother by phone call, SMS messages and emails to urge her to reconcile their marriage despite the mother’s repeated rejection of his approaches to the point that the mother has felt harassed by the father’s incessant communications. She has now prevented that communication occurring by blocking the father’s emails and obtaining a 1300 telephone number to screen all phone calls.
However, I am not satisfied that the mother has an abiding fear of the father as she sought to represent. It is simply not consistent with the mother’s own description of her reaction to the father moving her belongings back into the matrimonial home without her consent at the time of [Y]’s birth or the manner of the mother’s entry of the father’s premises over his objection to take the children home in December 2010, six months after separation. I am not satisfied the mother’s desire to keep her place of residence secret from the father and her blocking of his ability to communicate directly with her by phone or email is a result of fear of the father. Rather I am satisfied it is a result of the mother seeking to protect herself from the nuisance of the father’s persistent requests for a reconciliation and her desire for privacy from the father.
I am not satisfied there is any ongoing risk of family violence. I am not satisfied that the mother has reason to fear the father, nor am I satisfied that the mother subjectively in fact fears the father, as she asserted in her evidence.
Father's alleged mental instability
The mother sought to portray the father as suicidal and a threat to both himself and the children.
I am satisfied that the loss of the marriage and his children greatly distressed the father. I am satisfied he may well have been depressed for a time after final separation. However, I am not satisfied that any of the statements the mother attributed to the father amount to a threat to kill himself much less a threat to harm the children in any way.
I am satisfied the mother has opportunistically sought to represent the father’s understandable expressions of great distress of the loss of significant contact with his children and the loss of his marriage as being sinister and indicative of risk to the children to bolster her case.
I am not satisfied the mother honestly believed at any time that the father posed any risk to the physical wellbeing of the children. The fact the mother consented to the interim orders earlier referred to and to the unsupervised time they provided for the children to spend with the father is simply inconsistent with any suggestion the mother honestly believed the father proposed a real risk to the children’s physical safety.
When the father collected [X] from kindergarten in August 2010 without her consent the mother rang triple 0 and asked the police to check on the child and to bring him back to her. At no time did she suggest she informed the police she believed the father may harm [X]. In fact when the police reported back to the mother the result of the welfare check, she was informed [X] was at the matrimonial home with the father. The child was watching TV while his father cooked him his dinner and the child did not want to return to the mother. The mother sought to suggest that the boy would have been engrossed in his favourite TV programs and asked the police to bring him back to her when the child’s TV programs finished. That is not consistent with a genuine fear the boy was at risk of physical harm with the father.
The mother’s claim that during subsequent SMS exchanges between the parents that evening she was reluctant to talk to the father for fear it would make him “more upset and he might be angry with [X] and hurt him,” is simply not credible. Her statement that when the father delivered the child to school the following day she collected the child and withheld him from school thereafter because she feared the father would take [X] and harm him is similarly not credible. I am satisfied the reason the mother withheld the child was to prevent the father having time with the child other than as she dictated.
I am satisfied the children are not at any risk of physical harm with the father.
Ultimately, I am satisfied that the critical issues in the determination of this matter are the conflict and animosity between the parents and their exposure of the children to that conflict and animosity, their inability to communicate about the children, the children’s relationships with their parents, and the effects on the children of ordering overnight time. I am not satisfied there are any current family violence concerns nor am I satisfied there are any child protection concerns, with one exception to which I will refer when addressing the second primary consideration.
I will deal with the proposals of the parties and the Independent Children’s Lawyer, summarise the Family Reports, address the relevant considerations under section 60CC and then finally assess the various proposals against the relevant considerations.
The parties’ proposals
Mother
The mother sought orders that she have sole parental responsibility of the children, the children live with her, and the children spend time with the father-
a)each Sunday from 11 am to 5.30 pm commencing this coming Sunday;
b)each Wednesday from 10 am to 7 pm for [Y] until he commences kindergarten and from 3.10 pm to 7 pm for [X] (I am left to infer that the mother intends that when [Y] commences school he would spend the same time with the father on Wednesdays as [X]);
c)for half of the term 1, term 2 and term 3 school holidays from 10 am to 8 pm each day, being the second half in odd numbered years and the first half in even numbered years;
d)during the Christmas school holidays each year from 9 am to 5 pm each day in each alternate week commencing in the second week of the holidays, subject to specific arrangements for Christmas Day;
e)each Christmas Day from 9 am to 5 pm; and
f)on each child’s birthday for two hours if a week day or for four hours if on a weekend, at times as agreed and failing agreement from 5.30 pm to 7.30 pm if a weekday and from 3 pm to 7pm if on a weekend.
The mother sought that if the children would otherwise be with the father, his time be suspended-
a)for the first half of the term 1, 2 and 3 school holidays in odd numbered years and for the second half of those holidays in even numbered years;
b)subject to specific provisions for the father’s time on Christmas Day, for each alternate week of the Christmas school holidays commencing on the first day of the Christmas school holidays;
c)on Mother’s Day each year; and
d)on each child’s birthday on the same basis as she proposed the children spend time with the father if they are otherwise with her.
The mother proposed changeovers occur at school if the father’s time commences after school or ends at the beginning of the school day and otherwise at a contact centre, and if the contact centre is not available at a local library or police station.
The mother also sought orders restraining-
a)the father from approaching within 500 metres of her residence;
b)both parties from physically disciplining the children or allowing other persons to do so;
c)both parties from denigrating the other or members of the other’s family to, or in the presence or hearing of, either of the children;
d)both parties from discussing the proceedings with the children or showing them any document “connected with” the proceedings; and
e)both parties from passing information and messages through the children to the other party.
At the close of the evidence the mother sought to rely on a Minute of Orders she sought (Exhibit G) in which for the first time the mother sought an order restraining both parties from removing the children from Australia with a Watch List order. This was on sixth day of a hearing originally estimated to take two days. I refused to entertain the mother’s application so late in the proceedings as there had been an issue between the parties about overseas travel previously, albeit no orders had been sought, and to allow such an application would have necessitated recalling both parties and having further cross-examination, and there was no satisfactory explanation why the mother had not raised the issue much earlier in the proceedings.
The father had sought an order that the parties take all steps to have the children’s names removed from the Watch List but there had been no order restraining removal of the children from Australia and for placement of their names on the Watch List. There was no evidence that the children’s names were currently on the Watch List, and if so, why. It seemed that if the children’s names were on the Watch List, it must have been for purely administrative reasons and for that reason I was not prepared to consider further the father’s application concerning the Watch List.
In any event, I note that whether the children’s names are on the Watch List for administrative reasons or they are not on the Watch List, both parents must consent to the issue of any Australian passport for the children and must consent to the removal of either child from Australia. For this reason no further order appears necessary.
The mother and the children live in a four‑bedroom home which she owns. Also residing in the home is a live-in nanny.
The mother is in the process of selling this home because, as I have mentioned, the father has become aware where she lives. The sale is due to settle in November 2012 and she proposes to buy another home in the same area.
It is of some concern that the mother is selling and moving because the father has discovered her address, because it is highly likely that the father will discover the mother’s new address. Logically, when he does, the mother would move again and continue to do so every time the father discovers her address, as he surely will. That suggests a high degree of instability in the children’s residential arrangements with the mother. However, I am not satisfied the mother either has reason to fear the father as she asserts or in fact fears the father as she asserts. Thus, I am not satisfied the mother has reason to move at all and I am not satisfied she will in fact continue to move in future whenever the father discovers her address.
The mother said that her mother and stepfather will move to live with her and the children in the not too distant future. The children see their maternal grandparents regularly and relate well to them.
In August or September 2010 the father spoke to the mother’s mother, the children’s maternal grandmother, and secured her agreement to supervise his time with the children without the mother’s prior knowledge. The mother was then insisting that the father’s time with the children be supervised. The mother said her mother was not an appropriate supervisor. The mother said that her mother is aged in the mid 60s and “has a mental health issue”. She said she believes her mother has “early dementia” and is very forgetful, often loses her belongings and makes up fanciful stories to cover her forgetfulness. She said her mother had been advised to see a psychiatrist but refused to do so. She said the maternal grandmother’s husband, her stepfather, is aged in his early 90s.
Nonetheless, as the father maintained he had a cordial relationship with the maternal grandmother and her husband, and as he proposed her as a supervisor, I am not satisfied this raises any issue of concern in relation to the mother’s proposed care arrangements for the children.
Nor am I satisfied the mother’s use of nannies is any cause for concern. The parties had a nanny after the mother returned to work 12 months after [X]’s birth, to which the father expressed no objection, and the father himself arranged a nanny to assist the mother after [Y]’s birth.
The mother works full‑time but is able to work from home two days a week, or more if the children are ill. When working away from home, she is absent from 9 am until 7 pm.
[X] is at school and appears to be progressing satisfactorily. [Y] is in family day care three days a week, on the days the mother does not work from home. Otherwise, if the mother is not at home when either or both the children are, the nanny cares for them.
[X] has now commenced sleeping in a separate room with [Y] and not in the mother’s bedroom. While the transition has taken longer than the mother expected, he now only occasionally comes into her room at night and that is usually when he is woken during the night by [Y].
The mother receives child support from the father.
Father
The father sought orders that the parents have equal shared parental responsibility for the children and the children live with the mother except when living with him. He proposed that the children live with him for increasing periods of time as follows:
a)For two months-
i)each week from 9 am Saturday to 9 am Sunday; and
ii)each Wednesday from 9 am to 7.30 pm;
b)Thereafter, for two months-
i)each week from 9 am Saturday to 9 am Sunday; and
ii)each week from 9 am Wednesday to 9 am Thursday;
c)Thereafter-
i)each alternate week during school terms from 9 am Saturday to 9 am Sunday
ii)“each alternate week during school term time” but inferentially being each other week during school term time, from 9 am Sunday to 9 am Monday;
iii)each week during school term time from 3 pm Tuesday to 9 am Thursday;
iv)for half of all school holidays (although which half was not intelligibly articulated);
v)
from 10 am on 24 December 2012 till 12 noon on
25 December 2012 and each even year thereafter;
vi)from 12 noon on 25 December 2013 to 6 pm on Boxing Day 2013 and each odd year thereafter; and
vii)on Fathers Day from 9 am to 9 am the following day.
The father also sought orders that from four months after the orders are made-
a)each parent have liberal telephone and Skype communication with the children on each day the children are not living with him or her between 6 pm and 6.30 pm;
b)the parent with whom the children are not then living spend time with the children on each of the children’s birthdays from 3 pm to 7.30 pm if a school day or from 9 am to 3 pm on a non-school day; and
c)if the children are not otherwise living with the parent on the night preceding that parent’s birthday, that parent “is to collect the children at 3 pm and is to return the children to the other parent the next day at 9 am”. I infer the intention is that the birthday parent have the children from 3 pm on the day before his or her birthday until 9 am on the birthday.
The father proposed changeovers that did not occur at school, occur at an agreed venue at the commencement of his time and that he return the children to the mother’s residence at the end of his time.
The father sought orders that when the parents convey the children in a car each child be in a proper car seat, child restraint or booster seat appropriate for the child’s age and weight. As this is the law I do not intend to make this order.
The father also sought that if a blood relative of the children died, the orders be suspended to enable the children to spend time with the parent whose relative had died for the purpose of attending “a funeral, memorial service, wake or the like and cancel all airport Watch List.” Thus, it seems the father’s intention was that the order suspending time to enable the children to be with the grieving parent would extend to attendance of a “funeral, memorial service, wake or the like” held outside Australia.
The father also separately sought an order that the parents forthwith do everything necessary to remove the children’s names from “federal police watch”.
I have referred to this issue when referring to the mother's belated attempt to seek a restraint on the children being removed from Australia. I have already indicated why I do not propose to address the application for removal of the children from the Watch List further.
The father also sought a range of other orders, including some that seemed to cover matters covered by an equal shared parental responsibility order, plus a mutual non-denigration injunction in wider terms than the mother sought.
Finally the father sought an order that the children remain known by the last name of Kava. There was evidence, both from the father and in one of the Family Reports, of [X] saying he was [X] Windsor and that he was not [X] Kava.
The time the father sought to spend with the children after the initial incremental steps in his proposed regime would involve the children splitting their nights with the parents over a fortnight during school term, commencing with the first night with him, on a 1/2/2/3/1/1/2/2 split. That is, the children would have to move between the parents’ houses eight times each fortnight during school terms. The fact the father professed not to see any potential problems with such an arrangement, despite conceding a high level of conflict and a total lack of communication between the parents, and the children being settled in their current arrangements, suggests either that the father lied or that he simply fails to understand the needs of these children. Despite my findings as to his credit, I am satisfied it is more likely than not to be the latter.
The father remains residing in the parties’ former matrimonial home. It seems he retained the former matrimonial home under an agreed property division between the parties.
While initially the father suggested he would hire a live-in nanny to assist him to care for the children, ultimately he proposed he would care for the children himself.
He is a self-employed [omitted]. He works from home. He said on Mondays he commences work at 7 am, then 8.30 am, then 9 am, and that he finishes at 7 pm. He said his typical working hours on Tuesdays were from 9 am to 4 pm, then he said to 3 pm, then to 3 pm or 4 pm. On Wednesday he said he typically worked from home from 9 am to 3 pm and later said he works on Wednesdays from 9 am to 2 pm or 3 pm.
Thus, the father’s evidence as to his working hours was inconsistent and left me quite uncertain as to what they were.
In relation to his application to have the children ultimately mid week from 3 pm Tuesday to 9 am Thursday, thus having care of [Y] all day Wednesday until he commences school, he said he would cease working on Wednesdays. He said he had not given any thought as to how this might affect his income. He said on Wednesday he normally works answering phone calls and said he normally gets a couple of calls on Wednesdays. When asked how he would prevent such calls encroaching on his time he said he would tell callers to call back later.
I was left unsatisfied that the father had really thought in any detail about how he would accommodate his working from home in his own [omitted] business, where customer service and customer satisfaction would be critical ingredients to the success of such a business, with his intention to care for [Y] each Wednesday during school terms or his intention to have the care of both children for half of all school holidays.
Independent Children's Lawyer’s proposals
The Independent Children’s Lawyer proposed that the mother have sole parental responsibility for the children, that the children live with her, and that they spend time with the father-
a)each Christmas Day from 9.00 am to 5.00 pm;
b)each Father's Day from 9.00 am to 5.00 pm;
c)on the children’s birthdays from 3.00 pm to 7.00 pm;
d)for the first six months after orders are made, every alternate weekend from 3.00 pm Friday to 5.00 pm Saturday;
e)for the following six months, every alternate weekend from 3.00 pm Friday to 5.00 pm Sunday;
f)for the following six months, every alternate weekend from 3.00 pm Friday to 9.00 am Monday;
g)thereafter-
i)every alternate weekend during school terms from 3.00 pm Thursday to 9.00 am Monday; and
ii)for half of all school holidays, commencing in the first April school holidays that [Y] is enrolled in school, with school holidays to be defined as commencing on the last day of the preceding school term and concluding on the last day of the holidays.
The Independent Children’s Lawyer proposed that the father’s time be suspended from 9 am to 5 pm on Mother’s Day and proposed that changeovers occur at school when time begins after school or ends before school, and otherwise at McDonald’s [B].
The Independent Children’s Lawyer proposed that the mother ensure the children have telephone communication with the father “on at least three times per week whilst the children are otherwise in her care.” I am not confident leaving it to the mother to choose the day and time of the phone communication for the children with the father will be conducive to regular telephone communication. In my view, the days and times must be unambiguously specified.
The Independent Children’s Lawyer also proposed orders to seek to ensure the parents keep each other informed about the children’s health and that both parents receive reports and other communications from the children’s schools.
Finally, the Independent Children’s Lawyer proposed orders requiring both parties to attend the Keeping Contact program with Unifam and such parenting group if available focussing on improving parental interaction as may be recommended by Relationships Australia. Ms B, the author of the second Family Report, recommended that the parents attend the former program. Counsel for the Independent Children’s Lawyer did not ask her her views on the possible relevance or usefulness of the latter program.
Family Report
As mentioned, the author of the first Family Report was unavailable for cross-examination. She interviewed the parties and [X] and observed each of the parties with both children on the 10th, 11th and 15 November 2010, that is, when the children were aged six and a half and 14 months respectively.
When interviewed, [X] was reported to have told the Family Consultant that about two weeks previously when he and [Y] were with the father, the father took them to a religious seminar despite [X] telling the father he did not want to go and the father telling him they would have fun that day. He is reported to have said the father left him in the disabled person’s toilet, watching TV with [Y] in his pram just outside the toilet door. [X] named the movies he watched. He is reported to have said his father was not in sight but inside the hall. that there were a few other children with him, and that there was no outside play area and he had to stay inside. He is reported to have said he felt angry that his father had lied to him, that is, about what they would do that day.
[X] was reported to have recalled some enjoyable times with his father, however he was reported to have said he did not want to sleep in his father’s house because “I have to sleep with mummy.”
[X] had apparently been exposed to the father’s distress at the parents’ separation and his attempts to reconcile with the mother and to at least one incident of family violence. He was reported to have described his father as the saddest person in his family because he saw him cry and beg his mother to come back to him. He was also reported to have recalled his father crying when [X] returns to the mother and at the religious seminar. The Family Consultant expressed the opinion that the child’s description of the father as the saddest person in his family was “a concern” and seeing his father crying at different times in different settings was “worrying.”
The child was reported to have recollected his father hitting his mother once, not with his hand but with something else “when the baby was in her tummy”, resulting in his parents sleeping in separate beds. This seems most likely to be a reference to the incident during the mother’s pregnancy with [Y] when the parties argued over whether the mother should relax in front of the TV or go to bed and the mother was struck by a cardboard box.
[X] was reported to be positive about spending time with his mother.
When asked his response if the judge said he had to see his father during the day only, [X] was reported to have said, “Why should I go to daddy’s place. Daddy said I liked to go, but I do not.” When asked his response if the judge said he had to sleep some of the time in his father’s home and some of the time at his mother’s home, [X] was reported to have said, “I don’t want to sleep in daddy’s house. I don’t feel like it.”
In the observation session of the father with the children, [X] is reported to have largely ignored the father other than to seek his assistance to get something out of reach and when it was provided to resume play separate from and independent of the father. [Y] appeared happy to be passed to the father and sought his attention, seeming to be unhappy to be left on the floor to explore the room. The father seemed to have had difficulty in simultaneously meeting [Y]’s needs and demands for attention and being able to persist in attempting to engage with [X]. When the father “grabbed” [X] to give him a farewell kiss, the boy was reported to have averted his face and struggled to get down. He was reported to have neither greeted nor said goodbye to his father. The Family Consultant described [X]’s behaviour towards his father during the observation session as “very avoidant”.
The interaction between the mother and both children in their observation session was reported in starkly contrasting terms to the interaction of the children with the father. [X] was reported to be engaged with his mother throughout the session, talking to her “all the time”. When the mother put [Y] on the ground, he was reported to have crawled to where [X] was. The mother was reported to have managed both children appropriately, to have demonstrated a capacity to share attention between the two children, to have been able to interact and remain engaged with both. Both children, in the Family Consultant’s opinion, demonstrated healthy attachment behaviour with their mother.
The Family Consultant described [Y] as a “much more confident baby when in the care of his mother”, being happy to play and not wanting to be cuddled all the time when with her, being more vocal and more interested in his surroundings with her, and being more interested in interacting with his brother when with her. In contrast, the Family Consultant described [Y] with the father as being “very clingy, quiet and undemanding, other than in his wish to be picked up most of the time”. The Family Consultant said he “did not want to be put down to explore the room, and demonstrated little interest in the toys” with the father.
The Family Consultant opined that [Y]’s behaviour with the mother indicated a “strong and healthy emotional attachment”, whereas his clingy, constricted behaviour with the father “was indicative of lack of confidence and a limited emotional attachment”.
The Family Consultant said that despite an opportunity for the father to develop a close parental relationship with [X], given the then-recent final parental separation, she expressed the opinion that “[X]’s relationship with his father seemed to lack enthusiasm and emotional warmth, and [X] seemed to distance himself from his father at every opportunity”. She expressed the opinion that the boy’s negative reaction to being taken to the religious seminar two weeks before on his own “would seem insufficient reason to explain [X]’s behaviour during this assessment”. The Family Consultant observed that if [X] had been jealous of the father’s attention being given to [Y], “it could have been expected that [X] would have attempted to actively compete for his father’s attention to try to divert him away from the baby”. She opined that [X]’s behaviour with the father was “indicative of difficulties in the relationship [X] has with his father”.
In relation to the father’s belief that [X] was being influenced by his mother’s attitude, the Family Consultant said that “a child who has been pressured to reject a parent will usually be unrelentingly negative about that parent”, but “[X] was not completely negative about his father”. She further stated that “for a child of [X]’s very young age, even if they parrot the negative utterances of a parent, their behaviour when they interact with that parent is different, and inconsistencies can usually be seen between what the child says and how they behave”. She expressed the view that what [X] said and how he behaved “was very consistent”.
The Family Consultant reported that when asked, the father said he did not consider the behaviour of either child at the observation session was how they normally behaved at his home or in church.
The Family Consultant commented that despite the apparent difficulties in the father’s relationships with the children and inability to manage both at the one time, the children could not improve their relationship with him if they did not spend time with him. She therefore recommended the children continue spending day time with the father, engaging in simple but child-focused activities such as going to the park, rather than taking them to church activities where the father leaves the children and does not interact with them, to develop a warm and close relationship.
The Family Consultant also recommended that the father seek assessment by a qualified psychiatrist “in relation to management of his possible depressive state”, and that he attend a parenting group focusing on promoting children’s development and managing behaviour.
Updating Family Report
Ms B, the author of the updating Family Report, interviewed the mother and [X], and observed both children with the mother on 31 August 2011. She interviewed the father and observed the father with both children on 8 September 2011. Thus, when seen by Ms B, the children were aged 7 and 2.
Ms B said her report was to be read with Ms P’s report.
At the time of his interview with Ms B, the father was reported to be seeking an equal time arrangement for the children. That was not he was seeking before me.
The mother was reported to have said to Ms B that since the first Family Report, the father had “cleaned up his act” and was doing things with the children.
On the parents’ reported responses, when asked by Ms B what the other parent offered the children, it seemed both had difficulty identifying anything positive, the mother reportedly saying of the father, “to a certain degree, he does love them, but he still puts his needs above the kids’”, while the father reportedly said of the mother, “I’m not sure at the moment,” saying the mother “is a career woman”.
Despite this, both parents are reported to have said that the other parent was important to the children. Why each would think the other parent, lacking in anything significant to offer the children, would nonetheless be important to them is not readily apparent. Ms B understandably expressed the opinion that both parents presented a negative view of the other and appeared to minimise what the other offered to the children as a parent.
Ms B reported that when interviewed, [X] told her his name was “[X] Windsor”, and that it had been fun changing his name from Kava. He was reported to have spoken of enjoyable activities he did with both parents, but said his father was “angry most of the time” when the father spoke to the mother and sometimes when the father spoke to him. He was reported to have said that he did not want to stay with his father because “most of the time, he’s angry” and because “he lies”. He was reported to have said his father took him to the religious seminar again, people prayed, and he had to sit on his father’s lap, and he did not want to do this. [X] was also reported to have said his father lied about a certificate he had received at school.
When asked about spending time with the father during the day, Ms B reported that [X] did not reply, but when asked about spending overnight time with his father, he said he would feel “sad” and “homesick”, and that his father is a “big sleeper”. The latter reference is a reprise of a complaint by the mother against overnight time, that the father is a deep sleeper and will not wake up if the children are awake during the night. I am concerned that this statement by the child is simply repeating what he has heard or been told by the mother.
Ms B reported that in her opinion, the mother’s interactions with both children during the observation session “appeared appropriate to their apparent developmental levels”.
In the observation session of the father with the boys, as in the observation session as reported in the first Family Report, [X] avoided the father, not responding to the father’s attempts to engage with him at all, or giving only very limited or dismissive responses. On this occasion, [Y] was not seeking to be picked up by the father as previously. Ms B reported limited observed verbal interaction between the father and [X], and between the father and [Y].
As with the observation session for the first Family Report, Ms B reported that at the end of the observation session, [X] did not appear to reciprocate the affection when the father cuddled him. Ms B reported that [Y] appeared to reciprocate the father’s affection.
The father was reported by Ms B to have said the children’s behaviour during the observation session she saw was not indicative of their usual behaviour, commenting that the children would usually cuddle him. He believed [X] was ill, and the number of toys in the observation room had been a distraction for the children.
While the children were observed with the parents eight days apart by Ms B, and it is possible [X] may have been ill when seen by the father but not when seen by the mother, despite Ms B not reporting that she observed anything to indicate [X] was unwell, otherwise each of the parents were observed with the children in the same room with the same toys to distract them for a similar period of time. Ms B’s observations of the children’s interaction with both parents were consistent with those of the other Family Consultant. Ms B expressed the view that while it was possible for there to be circumstances which result in children displaying atypical behaviour under observation with a parent, the consistency between her observations and those of the other Family Consultant 12 months prior rendered such a possibility unlikely. I accept this evidence.
Ms B expressed the opinion that-
a)Both boys appear to have positive and established relationships with the mother.
b)The mother’s interactions with the children appeared sensitive and responsive to the children’s needs and appropriate to their apparent developmental levels.
c)[X]’s apparent relationship with the mother appeared consistent with his views expressed on interview.
d)Neither child appeared to have a close or positive relationship with the father.
e)[Y] appeared indifferent towards the father.
f)[X] appeared at times to intentionally avoid his father and to be less verbal in his play during observation with the father.
g)The reason(s) for the apparent difficulties in the children’s relationships with the father were not clear.
h)It is unlikely those difficulties are related to a lack of opportunity to build a relationship with their father, as both parents reported the children spend regular time with their father.
i)It may be the children’s relationship difficulties with the father are due, at least in part, to the father’s capacity to interact with the children in a child-focused manner.
j)While the father’s interactions with the children during observation appeared appropriate to the children’s developmental levels, they did not consistently appear to be sensitive or responsive to the children’s needs.
k)It may also be that the reported inter-parental conflict has contributed to the children’s apparent relationships with the father.
l)The children being exposed to their parents’ negative views of each other could result in the children being unable to maintain a relationship with both parents without a detrimental impact on their emotional wellbeing, which may lead to them “choosing” one parent to the exclusion of the other.
m)Given the children’s apparent relationships with each parent, they are likely to experience extended periods away from the mother, as the father then sought, as difficult.
n)For the same reason, it is possible the children would experience spending overnight time with the father as difficult, which is likely to be exacerbated at present by the children continuing to sleep with the mother, and the mother should encourage the children, [X] in particular, to sleep in their own beds. As previously mentioned, this has now happened.
o)Changing the children’s circumstances, as then proposed by the father, may result in emotional and behavioural changes in the children, in relation to which the father appeared to have little insight and few strategies for managing difficulties overnight stays may cause.
p)The children’s needs would most likely be met by spending short, frequent periods of time with the father such as under the current arrangements, and so it would not appear to be of benefit to significantly alter the current arrangements.
q)It may be of benefit to [X] to reduce the mid-week time both children spend with the father to 7 pm.
r)It may benefit the father to attend a parenting group with a focus on improving parental interaction, and the mother could also separately attend the course to assist in providing consistency in parenting techniques between the parents’ households.
s)It may be of benefit to the children if the parents engage in an intensive program such as Keeping Contact to assist them in encouraging the children’s relationships with the other.
The father’s proposals at hearing had changed somewhat to those he presented to Ms B, but she remained of the opinion that a shared care arrangement – that is, six or seven nights with one parent, and the rest of the time with the other each fortnight, and thus including the father’s including current proposal – was not in the children’s interests. She said that the eight transitions between the parties’ homes each fortnight during school terms that the father’s proposals would require may cause problems for the children, bearing in mind the parental conflict. She was also of the view that the children should spend more time with the mother on weekends than allowed for under the father’s proposals.
In cross-examination, Ms B said her recommendation against the children spending overnight time with the father was based on her assessment of the parent-child relationship, not on the belief that the father had no experience of caring for the children overnight. She said her understanding was that the children had not spent overnight time with the father, and the fact that [X] had spent overnight time with the father in the mother’s absence in 2009 with no signs of anxiety in the child, to which the mother agreed in cross-examination but of which Ms B was previously unaware, would cause her to change her opinion about [X] spending overnight time with the father and about [Y] spending overnight time with the father when he turned three.
She said the concerns she expressed in her report about the children spending overnight time with the father were in relation to his then proposal for an equal time arrangement and those concerns were not applicable to the children spending shorter overnight periods with the father in light of the fact [X] had spent overnight time with the father in the past without difficulty.
Ms B saw the benefits of overnight time as including the opportunity for the children and the father to participate in more activities together including a bedtime routine and taking the children to and from school. If there were no overnight time, the children’s relationships with their father may be limited and it may have a negative impact on the children’s attitudes and relationships with the father by validating what the mother may be telling the children about why there should be no overnight time.
Ms B foresaw the potential for difficulty in [X] adjusting to a change to overnight time with the father with possible emotional and behavioural changes and that this may be significantly affected by both parent’s ability to support [X] adjusting to a new regime. When Ms B was asked her opinion as to where the balance of benefit and detriment from overnight time may fall, if the court were satisfied the mother would not support overnight time and would expose [X] to interrogation after spending overnight time with the father trying to establish that he had suffered the psychological harm the mother was convinced he would suffer, Ms B said the harm may be greater than the benefit to [X], especially if the father had little capacity to manage [X]’s distress or difficulty. She said she had some concerns about the father’s ability to do this. However, she ultimately said she could not say whether it would be better for [X] to have overnight time or not to have overnight time.
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
Turning then to the relevant considerations, the first of the primary considerations is the benefit to the children of a meaningful relationship with both parents. I am satisfied both parents have much to offer these children and that the children can benefit from a meaningful relationship with both parents. A significant issue in this case is whether the parents’ conflict and their exposure of the children to that conflict and to their negative attitudes of each other will permit the children the opportunity to have a meaningful relationship with both parents.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In relation to the second primary consideration, as previously mentioned I am satisfied of one incident of family violence as alleged by the mother. I am not satisfied there remains a risk of family violence. I am not satisfied the father poses any direct risk to the physical safety of the children.
My only concern in relation to this consideration is the father’s actions in leaving the children unattended while he attended a religious seminar in November 2010. Despite the father denying doing so, I am satisfied that, as [X] reported to the first Family Consultant, he left [X] watching DVDs in a toilet with [Y] in his stroller outside the door of the toilet. I am satisfied both children were out of the father’s sight for significant periods of time. [X] was then six and [Y] was 13 months.
I am satisfied that the father’s actions on this occasion amounted to neglect of both children as well as demonstrating an inability to fully appreciate the needs of the children and put them ahead of his own needs and wants. I am not satisfied the children suffered a physical illness as a result of being left in a toilet, as the mother sought to suggest. The evidence simply does not support the allegation. In any event, only one of them was left in the toilet. But leaving such young children unsupervised for any significant period in a place open to the public, as I am satisfied this was, is, in my view, neglectful and placed the children’s safety and wellbeing in jeopardy.
[X] objected to going with the father on this day because of the proposal to go to the religious seminar and the father assured him they would not go to the seminar and would have fun. The father thus deceived the child and the child subsequently has complained long after the event about the father lying to him. However, I am not satisfied [X]’s complaints about this incident are as significant as the father’s actions in themselves. I am satisfied that [X]’s ongoing adverse reaction to this incident is, to a significant degree, though not solely, a result of the mother’s adverse reaction to it and her exposure of the children, especially [X], to her highly negative views of the father.
I note that [X] told Ms B that he had been taken to the religious seminar again but his father kept him with him on that occasion. I am not satisfied there is a risk the father will again leave the children unattended and without adequate supervision while he pursues his own interests.
Assessment of additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
Turning to the first of the additional consideration, [X]’s stated views to both Family Consultants were consistently against overnight time.
Despite the mother placing significant importance on [X]’s statements indicating resistance to spending overnight time with the father, when she was asked her attitude if [X] said he wanted to spend overnight time with the father, the mother said it would be okay with her but she would want to trial it first. She said she would not be prepared to encourage [X] to spend overnight time with the father because she would be lying. She said if the child asked her to spend overnight time with the father she would question the child to make sure he was not being pressured by the father.
In fact, the mother agreed [X] knows she does not want him to spend overnight time with the father. She said she accepted that to a certain extent she has influenced [X]’s attitude towards the father. She said she does not have a good attitude towards the father and she accepted that her attitude had filtered through to the boy. However, she was adamant this was not the cause of the boy’s attitude towards the father and she did not agree that for [X] to tell her he wanted to spend overnight time with the father, he would have to tell her something he knows she disagrees with and that would create a conflict for the boy. I am satisfied that the situation the mother described, a situation of her own making, would make it extremely difficult, if not almost impossible, for [X] to tell her he wanted to spend overnight time with the father.
Despite the consistency between [X]’s statements of aversion to overnight time with the father and his consistent avoidant behaviour with the father reported by two different Family Consultants, I am satisfied that the undoubted toxic effect on [X] of exposure by both parents to the parental conflict in their highly negative and judgmental attitudes towards each other, when taken with [X]’s relatively young age, means I should give very limited weight to what [X] has said about his time with the father.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The parties disagree as to their respective involvement in the care of the children before separation. While I am unable to resolve the conflict in the detail of that evidence, it is common ground that the mother took 12 months maternity leave after [X]’s birth and three months after [Y]’s birth. I also note that the parties were separated at the time of [Y]’s birth, and while the father asserted he was involved in assisting the mother with the child care and household tasks on virtually a daily basis from [Y]’s birth until the parties reconciled in early 2010, he was working at the time and he did not stay overnight. I also note the evidence about the parties having the assistance of a live-in nanny.
The children were aged six years and 10 months respectively at the time of final separation and the mother has been the children’s primary carer since. The children, and especially [X], have slept with the mother or at least in the same room as the mother until quite recently, despite this practice having been recommended against by both Family Consultants. This practice, which I am not satisfied the mother seriously tried to discourage until recently, has had the effect of reinforcing an unnecessary and unhealthy sense of reliance on the mother by the children, especially [X].
I am satisfied that whatever the father’s involvement with the children may have been before final separation, the children now are closely attached to and bonded with the mother and [X] in particular has a sense of reliance and dependence upon the mother which I am not satisfied is either appropriate for his age or in his best interests. This dependence and reliance, I am satisfied, has been engendered by the mother’s parenting of him and by her reinforcing and exaggerating any adverse experiences [X] may have had with the father.
I accept the findings in the Family Reports that both children have good and close relationships with the mother but are somewhat emotionally detached from the father.
I do not accept that the observations undertaken by the Family Consultants were insufficient to found an assessment of the children’s relationships with the father, as he sought to suggest. The children were observed for similar periods with both parents in the same setting. The children responded warmly to the mother but not to the father. The father suggested variously that the behaviour observed by the Family Consultants was not typical, that the children were distracted by the toys, and that [X] was unwell when observed with him for the second Family Report. But the stark contrast in the behaviour of the children with each parent in the same setting over a similar period of time observed by two different Family Consultants on two different occasions is clearly indicative of a significantly different relationship between each child and each parent.
As already adverted to, the children have been exposed by both parents to their conflictual relationship and to their negative views of and attitude towards each other. This, I am satisfied, has impacted on the relationships of both children, but especially [X], with the father. But I am concerned at the extent to which both children have demonstrated avoidant behaviour when observed with the father, and I am not satisfied that it can be wholly explained by the mother’s exposure of the children to her poisonous attitude towards the father. I am satisfied it speaks also of something in the father’s ability to engage with the children and to understand and meet their emotional needs, and hence his ability to engage with the children at an emotional level.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I am not satisfied the mother has appropriately facilitated the father’s relationship with the children since final separation. I am not satisfied her initial insistence on supervision of the father’s time with the children was justified. I am satisfied she has exaggerated and manipulated evidence to seek to restrict the father’s time with the children. She did not consult the father about the enrolment of [X] in school.
Until interim parenting orders were made, the parenting of the children was marked by a degree of anarchy, with each of the parents seeking to impose situations on the other. However, while the father removed [X] from school on one occasion without the mother’s consent, he returned the child to school the next day and was happy for the child to return to the mother after school that day. This was at a time when the mother was placing unreasonable and unjustified restrictions and conditions on the father’s time with the children. The mother’s reaction of withholding the child from school for weeks to prevent the father seeing the child was totally unjustified, and I am satisfied had nothing to do with the child’s welfare and everything to do with the mother imposing her will on the father about the parenting arrangements.
I am concerned that the mother will not in future facilitate and encourage the children having time with the father that she does not agree to. Her evidence is that she is concerned the children will suffer psychological harm from spending overnight time with the father - but curiously not when spending daytime with the father - and that if the court orders the children to spend overnight time with the father, she will need to speak to [X]’s psychologist to see what she can say to make [X] happy about spending time with the father and to teach her how to make [X] tell her about how he will be harmed psychologically by spending overnight time with the father because he will by psychologically harmed. The presupposition that [X] will suffer psychological harm satisfies me that the mother will press [X] to report matters to her consistent with that preconceived view, that she will not accept as reliable any report from [X] inconsistent with that view, and that she will continue to press [X] until he tells her what she wants to hear. That, I am satisfied, would be psychologically abusive of the child.
If the mother were to do this, then I am satisfied this would be precisely the scenario Ms B referred to of the children being exposed to their parents’ negative views of each other with the possible result of the children being unable to maintain a relationship with both parents without a detrimental impact on their emotional wellbeing, possibly leading to them “choosing” one parent to the exclusion of the other.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
I am satisfied that moving to a regime of overnight time with the father will have two significant effects on the children-
a)It will give the children an opportunity to deepen and strengthen their relationship with the father.
b)It will risk increasing the children’s exposure to both parents’ negative attitudes towards the other parent. On the mother’s side that is because of her negative attitude towards the father and her total opposition to overnight time and the actions she has said she will take to protect the children, especially [X], from what she claims to be a risk of psychological harm from the father if overnight time is ordered. On the father’s side, that is because more time with the father will mean more opportunity for exposure for his negative attitude towards the mother.
I am satisfied that the only psychological harm to which the children would be exposed by increasing their time with the father to include overnight time arises from the parents’ poisonous attitude towards each other and their exposure of the children to those attitudes, and the mother’s implacable opposition to overnight time and the steps she says that she will take if overnight time is ordered.
Another area of concern about overnight time is the father’s apparent inability to forge an emotional bond with the children. as evidenced by their avoidant behaviour when observed with him. I am satisfied that the reasons for this are complex, including the impact of exposure to parental attitudes and conflict and the father’s parenting capacity and apparent inability to “connect” with his sons, both of whom he loves dearly. But I am satisfied that unless the father is given greater opportunity to bond with his children by increasing his time to overnight, there can be no prospect of the children’s bond with him deepening and strengthening. On the other hand, increasing the time is no guarantee that the improved bonding will occur. That is a matter for the father and his parenting capacity.
But the regime of overnight time the father proposes is highly fragmented, with many and frequent moves between the parties’ household each fortnight during school term. I am satisfied that this would be highly disruptive for the children. It will create great instability and confusion for them and it will create many opportunities for disagreement and conflict between the parents from which these parents have proven themselves incapable of shielding the children. To put it bluntly, I am satisfied the regime proposed by the father is a recipe for disaster.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
I am not satisfied that there is any relevant consideration concerning the practical difficulty and expense of the children spending time or communicating with either parent.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I am satisfied the mother can and will meet the children’s needs, except their need to be protected from the risk of psychological harm that comes from exposure to her negative attitude towards the father, and except their need for a meaningful relationship with their father which she has persistently restricted and limited.
The mother, I am satisfied, does not appreciate the children’s need for a strong relationship with their father. And her actions since separation and in the orders she seeks in this hearing have the effect of significantly limiting the children’s opportunity for forge such a relationship with the father. To that extent, I am not satisfied the mother can meet the children’s needs or put those needs ahead of her own.
I am satisfied the father generally can meet the children’s needs, except their need to be protected from the parental conflict and from his negative attitude towards the mother. That, too, involves exposing the children to a risk of psychological harm. I am also concerned about the father’s apparent inability to forge a bond with his sons, notwithstanding the mother’s exposure of the children to her poisonous attitude towards him. This may be indicative of deficiencies in his parenting capacity and ability to meet the children’s needs. I am also concerned that the father’s appreciation of the children’s needs, and hence his ability to meet them, in leaving them unattended in 2010 while he attended a religious seminar, and in his failure to appreciate that the highly fragmented regime he proposes itself creates risks for the children.
I am satisfied that the father has exposed the children to displays of his deep and abiding grief at the loss of his relationship with the mother and at the significant limitation in his time with his children. While the father’s deep sense of loss and grief may be understandable, his exposure of the children to open displays of it suggests either a failure to understand the children’s need to be shielded from it or the father’s inability to shield them from it despite understanding that he should do so.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
There are no matters concerning the maturity, sex, lifestyle, etcetera, of the child or either parent other than those I have already mentioned.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
There are no issues of Aboriginality.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There is nothing I wish to add concerning the attitude to the childhood and responsibilities of parenthood of either parent beyond what I have previously mentioned, particularly in relation to the parties’ parenting capacity and the effects of change.
(j) Any family violence involving the child or a member of the child’s family
and
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
I have already dealt with family violence and family violence orders. There are no current family violence orders.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
I am not satisfied that any of the orders under consideration would be less likely than any of the others to lead to further litigation.
(m) Any other fact or circumstance that the court thinks is relevant
I am not satisfied there is any other relevant fact or circumstance.
Consideration of s.60CC(4) and (4A)
In relation to section 60CC(4) and (4A), I have already touched upon matters relevant to this consideration. I am satisfied the mother has prevented the father spending appropriate time with the children since final separation without proper justification and has enrolled [X] in school without any reference to the father.
The father has sought, at all times, to be involved with his sons and he pays child support as assessed.
Assessment of competing proposals and decision
Turning then to an assessment of the competing proposals, the rebuttable presumption as to equal shared parental responsibility under section 61DA does not arise as a result of my finding of family violence (section 61DA(2)).
I am satisfied that these parents are incapable of exercising equal shared parental responsibility as the father sought. Where a decision about a long term issue in relation to either child is to be made, an order for equal shared parental responsibility has the following consequences (section 65DAC(2) and (3)):
“(2) The order is taken to require the decision to be made jointly by those parents.
(3) The order is taken to require each of those parents:
(a) to consult the other parent in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.”
I am satisfied that these parties cannot communicate, that their mutual animosity is such that they are unable to put the children’s interests ahead of their antipathy for one another, and that hence they cannot consult one another, make genuine efforts in a child focused manner to come to common ground, and make a joint child focused decision.
I am therefore satisfied that the parent with whom the children live for the majority of the time should have sole parental responsibility. It is common ground that the children should live the majority of the time with the mother and, hence I am satisfied it is in the children’s best interests that the mother have sole parental responsibility for the children. However, that should be subject to a restriction that the mother may not engage the children in any extra curricular activity that occurs at a time the children are to be with the father without the father’s prior written consent.
The mother is implacably opposed to the children spending overnight time with the father despite the fact that before final separation, [X] had spent overnights with the father in the mother’s absence on several occasions with no suggestion of any adverse consequences. I am satisfied that the mother’s attempts to justify her current position are contrived and baseless. The only matter different after final separation was the mother’s assertion of the father being suicidal and a threat to the children’s lives. I am satisfied there is no objective basis for that asserted concern and, in fact, I am not satisfied that the mother honestly holds that concern.
Overnight time ultimately was a matter upon which Ms B could not make any recommendation.
I am satisfied that despite [X]’s stated objection to overnight time and the avoidant behaviour of both children towards the father observed by both Family Consultants, and despite the increased risk of exposure of the children to the parents’ mutual antipathy, the children should commence spending overnight time with the father to afford them an opportunity to strengthen and develop their relationship with him.
I am satisfied, however, that the father’s fragmented proposal is not in the children’s best interests. Nor am I satisfied that any midweek overnight time during school terms is in the children’s best interests, because of the risk to the children that the need to have something in the other parent’s home for school the following day will prove an insurmountable hurdle for these parents to overcome without involving the children or the relevant child directly in the parental conflict. I am satisfied that the father’s overnight time during school terms must occur on weekends only.
I am also satisfied that the father’s overnight time with the children must be gradually and relatively slowly introduced. There is a real risk to the children of exposure to the mother’s strong antipathy to overnight time and this will make the transition for these children to overnight time problematic and difficult. In my view, therefore, it should be introduced relatively slowly.
I am satisfied that in general terms the orders proposed by the Independent Children’s Lawyer are appropriate and in the children’s best interests. However, for reasons already given, I am not satisfied that the children should spend Thursday nights with the father during school terms, as the Independent Children’s Lawyer proposed in the final step of the escalating regime of time for the father.
I am satisfied an order should be made as sought by the father to ensure the children remain known by their current names, because of the evidence of the father and in the Family Report suggesting [X] has suggested more than once that he is [X] Windsor and not [X] Kava.
I am not satisfied that the father should be restrained from approaching within 500 metres of the mother’s home, as the mother sought, or from unreasonably stopping within 500 metres of her home or watching her home, as she modified the order in submissions. I am not satisfied the mother has reason to fear the father or that she, in fact, genuinely fears the father. And under the orders I will make there will be no need for the father to visit the mother’s home. If the mother subsequently has evidence the father is watching and besetting her home and, in consequence, is genuinely in fear or apprehension for her wellbeing, she may take that matter up with the police or herself apply for an apprehended violence order.
Nor am I satisfied orders should be made in relation to a restraint on physical discipline. This was not a matter that I am satisfied was raised by the evidence. Nor am I satisfied that the other orders sought should be made beyond those that I will now pronounce.
I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date: 10 December 2012
3
2
2