High level parental conflict

High level parental conflict

Mullins & Vass

REASONS FOR JUDGMENT

Introduction

1. 1. These are final parenting proceedings between the Applicant father, Mr Mullins and the Respondent mother Ms Vass relating to the only child of the parties, X born (omitted) 2010.
   2. The child lives with the mother and this is something that the parties agree should continue to occur.
   3. The proceedings were commenced by way of Initiating Application filed by the father on 19 May 2016.
   4. When the proceedings were first listed before the Court on 7 July 2016 both parties appeared self-represented, and they have remained self-represented throughout the proceedings. On that day the Court ordered the parties to attend a Child Dispute Conference forthwith.
   5. The parties attended upon Mr M, Family Consultant and it appeared that the parties did not reach any agreement during the course of the Child Dispute Conference other than that the child should spend time with the father on alternate weekends and also during school holiday periods. However the parties could not agree at that stage on the practicalities which they faced in the child spending time with the father.

Evidence in the Proceedings

Short Chronology

10. The father was born on (omitted) 1979 and is currently 38 years old.
11. The mother was born on (omitted) 1983 and is currently 33 years old.
12. The parties commenced a relationship in October 2009 and began cohabiting at this time.
13. The child of the relationship was born on (omitted) 2010.
14. The parties’ relationship ceased in 2012. On the father’s version this occurred in December 2012, the mother asserts this occurred in June 2012.
15. In January 2013 the mother applied for an Apprehended Domestic Violence Order however the mother did not proceed with the charges and accordingly an order was not made.

The Father

16. The father lives in (omitted), New South Wales and is currently employed as a (occupation omitted).
17. The father relied upon the following documents at final hearing:
    1. Amended Initiating Application filed 28 November 2016; and
    2. Affidavit of Mr Mullins sworn 21 November 2016 and filed 28 November 2016.
18. The father says that the parties commenced their relationship via Facebook and shortly after meeting, the mother commenced cohabitating with the father in (omitted) with her daughter from a previous relationship.
19. The father says that the mother soon became “home sick” and wanted to relocate to the (omitted) to be closer to her family. The father agreed that this would be a good move for them and the parties commenced living in a granny flat on the property of the maternal aunt’s house.
20. The father says that the parties’ relationship began to sour after a few months of living on the (omitted) and the father ultimately returned to live in (omitted). The mother and her eldest daughter joined the father and they secured rental accommodation in (omitted).
21. The father says that the mother “became very obsessive to the point of hacking my emails, my phone, she demanded I have lunch with her every day from work”. The father says it was at this point the parties began arguing daily and they would become verbally abusive towards each other and in May 2010 he asked the mother to move out which she did by returning to the (omitted) with her family.
22. The father says that following the birth the parties’ child the mother would travel to (omitted) with the child to allow the father to spend time with her and they would “play the happy family role”. He says that he became frustrated when it was time for the mother to return to the (omitted) and the parties would argue frequently over this.
23. The father asserts that when the mother would visit she would become verbally abusive and on one occasion threatened the father’s house mate to tell her information or she would “tag him on Facebook calling him a rapist”. He says that the mother did not allow him to see the child for some time following their final separation in 2012.
24. The father says that the mother eventually let him see the child from 5.30pm Friday until 5.30pm Sunday every week with changeover occurring at McDonalds in (omitted). The father says that changeover at this stage was difficult with the mother’s then partner being present and abusive towards him. They separated and changeovers became “a lot smoother”.
25. The father says that the mother began another relationship and she moved further away to (omitted), New South Wales, some two hour drive away from the father. The father’s visits with the child then reduced to each fortnight with the mother demanding a changeover location further away than McDonald’s (omitted).
26. The father says that due to the distance increase between the parties this resulted in the father’s time with the child being reduced and on some occasions being missed due to the father’s work commitments conflicting with the pick-up time due to the distance he had to travel.
27. The father says that the mother obtained an interim Apprehended Domestic Violence Order against the father following a verbal altercation between the parties again concerning the father’s time with the child and regarding the changeover location.
28. The father says that at the time of hearing of the Apprehended Domestic Violence Order without admitting facts he consented to the granting of a final order “with the hope that it may help me to see my daughter and spend time with her and speed up the process in the Family Court”.
29. The father was placed on a good behaviour bond following pleading guilty to a breach of the Apprehended Domestic Violence Order. The breach related to the father sending a text message to the mother regarding time with the child.
30. The father says that he has difficulty if the changeover point remains at (omitted) and that the changeover location should be at McDonald’s (omitted). His difficulties are twofold in that he is required to collect his daughter from a previous relationship from her mother’s residence at 4.30pm as per Orders made in the Federal Magistrates Court (as it then was) on 21 December 2001 and the current location requires him to finish work earlier than is expected of him by his employer which may be detrimental to his employment.
31. The father submits in his Affidavit material that he does not have an issue with the changeover location being at (omitted) on the return of the child to the mother’s care; however his main concern is the changeover location at the commencement of his time with the child.

The Mother

32. The mother relied on the following documents at final hearing.
    1. Amended Response filed 29 November 2016;
    2. Affidavit of Ms Vass affirmed and filed on 29 November 2016.
33. The mother currently lives in (omitted), New South Wales. The mother is married and lives with her husband, her eldest daughter from a previous relationship and her husband’s two children from a previous relationship.
34. The mother submits that there were a number of occasions of family violence perpetrated against her by the father. She says this was the reason that she ultimately moved from the father’s home in (omitted) back to the (omitted).
35. In her Affidavit the mother says that the father “put his hands around my throat and squeezed it. I blacked out momentarily. He then let go and started laughing”.
36. The mother says that following the father being evicted from his accommodation in 2009 he moved in with the mother at her Aunt’s home. She says it was not long following this that the father began smoking marijuana on a daily basis and he began drinking heavily, “consuming 12 – 15 drinks of Wild Turkey in a day”. She says that he began to gamble heavily and that these habits led him to become financially depleted. She said that he began becoming irritable and violent towards her again by pulling her hair, pushing and slapping her and also once punching her in the face whilst she was driving with him in the car.
37. The mother gives other examples of the father’s controlling and violent behaviour towards her and her eldest daughter. She says that the father had demanded she give him her rings to “hock” them so that he could place a bet. The mother refused to give them to him and he then said “you are not having lunch then”. The mother says that the father then proceeded to buy lunch for himself and his eldest daughter and did not buy food for the mother or her eldest daughter.
38. The mother describes an incident between the parties where they had been gambling together and the father had been drinking heavily. The father, upon being told by the mother that she had won some money, became angry and hostile. They went to McDonald’s to get some food and upon leaving the father “rubbed a burger” in the mother’s face saying “here’s your cheeseburger”.
39. The mother goes on to describe an incident where the father had grabbed the mother’s handbag from her shoulder which hurt her neck. The mother’s eldest daughter had witnessed this and the mother says she had made some comments to her day care teachers that “Mr Mullins hurt mummy’s neck”.
40. The mother says that the father became verbally and physically aggressive upon finding out the parties were expecting a girl. The mother says that the father said words to the effect of “You’re useless. You would have had much more value to me if you carried a son”. The mother says that later that night the father sent her a text message which showed a hole in the wall of the house where the father says he punched it “because of you. You can’t give me a son”.
41. The mother says the father would force her eldest child to go swimming and that he had slapped the mother in the face when she had yelled at him to “stop it”.
42. The mother describes an incident when she had visited the father at his home unannounced. When she arrived he appeared angry. When the mother said she wanted to leave the father grabbed her keys and went outside and threw them into a canal across the road. She says that he disconnected the battery from her car and locked her inside the home. She says that he began to rant and yell making fun of her when she was crying. She says that he grabbed her mobile from her when she tried to make a call and he smashed it on the floor. The mother says that this occurred a few days before the mother was due to give birth to the parties’ child in an attempt to force the mother to move back in with the father. The father ultimately retrieved the mother’s keys and reconnected her car battery and allowed her to leave after two or three hours.
43. The mother says the father’s controlling behaviour continued following the birth of the parties’ child with him often sending the mother a text message demanding that she send him a photo of her standing next to“the Foxtel” showing the time and date to prove that she was at home.
44. The mother gives a detailed account of the father’s continued verbal abuse and controlling behaviour towards her following the birth of the parties’ child and the lead up to the Apprehended Domestic Violence Order.
45. The mother says in recent times that the child does not wish to communicate or see her father because “he’s always yelling at me”^[1].
46. The mother says that Facetime contact between the father and the child is difficult because the child is:
    always upset about having to talk to Mr Mullins on Facetime calls. Beforehand she usually sobs and whines when I say “Dad will be calling soon”. She will always say things like “Why do I have to talk to him” and “Can’t I ring him another day?” and “He always yells at me”

She says that frequent electronic communication is upsetting and disruptive for X as it does not allow her to settle during the week.

47. In relation to the distance the parties have to travel for changeover the mother says that she does not like to travel in high speed traffic and long distances and that there is no appropriate public place that is exactly half way between the parties’ homes. She says travelling in high speed traffic for a long distance makes her anxious and stressed. She says that she also has to travel with the other children of her household.
48. These seem to be the only concerns that the mother has about a changeover location closer to the father’s residence.
49. The mother seeks that the father’s time with the child be supervised due to his behavioural issues including his drug and alcohol consumption and his temper. Until the father seeks help with these issues the mother does not agree that the father should have unsupervised time with the child.

Documents Tendered

50. The following documents were tendered and became Exhibits in the proceedings:
    1. Exhibit 1 – Tabbed documents produced under Subpoena from New South Wales Police, Sleeve 3;
    2. Exhibit 2 – Yellow tabbed documents marked H, I, J, K, L produced under Subpoena from New South Wales Police, Sleeve 4; and
    100. Exhibit 3 – Pink tabbed documents marked B and C produced under Subpoena from (omitted) Medical Practice, Sleeve 2.

Best Interests Considerations

51. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. The central enquiry is for the Court to determine the outcome that will be best for the child the subject of the proceedings.
52. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
53. The child’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.^[2] It is well recognised that the additional considerations may outweigh the primary considerations.^[4] In applying the primary considerations set out in subsection 60CC(2), the Court is to give greater weight to the consideration set out in paragraph (2)(b).
54. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence: s.60CG (1)(b)^[5]. The Court may include^[6] in the order any safeguards that it considers necessary for the safety of those affected by the order.
55. In Starr & Duggan^[7] the Full Court stated that the legislation does not mandate consideration of the relevant sections in any particular order. The Full Court in McCall & Clark also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be dual consideration of some matters. This is so because consideration of the s.60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.^[8]

Relevant Additional Considerations

Child’s views and the nature of the child’s relationships

56. The child’s views, except as stated by the parties are not known. The mother’s evidence is that the child is reluctant to spend time with the father or to speak to the father. That the child is saying such things to the mother is understandable given the acrimony between the parents and particularly as the child is not shielded from such acrimony by either of her parents.
57. The child is six and a half years old. She has a number of half-siblings and step-siblings in the mother’s household and a half-sibling in the father’s household. The nature of her relationships with her sibling groups are not the subject of any evidence.
58. It appears that there is some strain in the child’s relationship with the father. It is important for the child that she benefits from a relationship with both of her parents.
59. Except if it is contrary to the child’s best interest, she has the right to know and be cared for by both of her parents, and the right to spend time on a regular basis with and communicate on a regular basis with both of her parents and other people such as grandparents and other relatives: s60B.
60. There is no objective evidence which would suggest that the child does not have an appropriate relationship with her father or that she would not benefit from continuing to have a relationship with him.

The Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making long-term decisions, spend time with the child and communicate with the child

61. The child has been living with the mother her whole life. During periods of time when the parties were together after the child’s birth, the child also lived with the father. However, it is the mother who has always been the child’s primary carer.
62. The father has spent time with the child, on a regular and continuing basis, since at least mid-2013, with such time being exercised on alternate weekends.

Parents obligations towards maintaining the child

63. At paragraph 127 of the mother’s Affidavit she gives evidence that the father pays child support as assessed in the amount of $37.56 per week. However she says that as at 25 November 2016 there is a child support debt in the amount of $1,515.95^[9].
64. The father does not address this issue in his evidence, nor was it the subject of any cross-examination by either party.

Likely effect of any changes in the child’s circumstances; Practical difficulty and expenses of a child spending time with a parent and Capacity to provide for needs of the children

65. There have been major difficulties with the parties regarding changeover, particularly since the mother’s move to the (omitted) in 2015.
66. There is significant disagreement between the parties as to how changeover is to be facilitated and what might practically work for the parents. Very little consideration was given to the child’s best interests in the submissions made by the parties as to changeover.
67. There is no doubt that it is in the child’s best interest for the parents to meet as infrequently as possible. Given the distance between the parents’ households, and that it is unlikely that either of them will move to be closer to the other’s residence in the near future, changeover and travel are going to continue to be difficulties for the child.
68. This does not mean ipso facto that the child should spend less time with the father because of those difficulties, rather it means, in the Court’s view, that changeovers have to be managed and parental contact minimised.
69. It is for those reasons that orders are made which will require the father or his nominee to pick the child up from school at the commencement of the child’s time with the father and for the mother or her nominee to collect the child from the father’s residence at the conclusion of such time.
70. While the father submitted that his employment would be compromised if he was to have to leave work early every second weekend in order to pick up his child, the Court does not see any other solution where the parents coming into contact with each other is minimised. The letter annexed to the father’s Affidavit from his employer states that because of the interim orders which required the father to pick up the child at 4.30pm every second Friday from the (omitted) he was unable to work every second Friday. There is no evidence that the father’s employer will not continue to accommodate the father in this manner.
71. The orders which the Court makes will result in a significant reduction of instances where the child has to witness the acrimony between her parents and where she might feel that she has to take sides.

Maturity, sex, lifestyle and background of children and parents

72. The mother submits that the father’s lifestyle of heavy use of alcohol, some drugs and heavy gambling compromise his ability to provide a physically and emotionally safe environment for the child. The Court does not accept this submission. The mother has not established on the evidence those particular facts which are asserted.

Attitudes to the children and responsibilities of parenthood

73. Both parents have demonstrated, at times, a poor attitude to the child and to their responsibilities of parenthood. This is in part demonstrated by their poor ability to discuss the matters which are relevant to the child’s best interest, as opposed to matters which are in their best interest – such as for example how changeover is to occur and trying to accommodate the child’s relationship rather than their own conveniences.

Allegations of Family Violence and Apprehended Violence Orders

74. The father denies the allegations of family violence which the mother makes.
75. While each of the parents was able to and did cross-examine the other parent, there was very little meaningful testing of the evidence by either parent.
76. Despite the many allegations which the mother makes, some of which are historical, the child has continued to spend time with the father on an alternate weekend basis since mid-2013 to date, and this was in circumstances where there were no parenting orders until July 2016.
77. The mother submits that she had:
    failed to appropriately protect the child from exposure to the father’s violent behaviour, but that she has now gained greater insight into his behaviour and has undertaken what protective measures she can.

The Court was not taken to any specific evidence in support of this submission.

78. The mother now submits that an order for the child’s time with the father to be supervised is an order that is appropriate and in the child’s best interest. It was not said what the unacceptable risk of harm to the child was if she was to spend unsupervised time with the father. It was submitted by the mother that should the father undertake appropriate interventions to address his substance abuse and use of controlling and coercive violence the child would benefit from spending unsupervised time with him on weekends and during holidays.
79. Despite the mother’s submissions, the Court does not find that the mother’s evidence establishes to the requisite standard that the father has engaged in family violence.
80. This does not however mean that the issue of possible harm to the child is to be ignored. However, such risks are assessed in light of the findings on the evidence.
81. In relation to the issue of unacceptable risk of harm^[10], Her Honour Justice Ryan stated:^[11]

If the Court determines that it cannot or should not make a positive finding that there has been abuse, the Court must determine whether in all the circumstances there is an unacceptable risk of it. Where none, rather that some only, of the accumulation of factors considered satisfy the standard of proof it is generally accepted a judge should be cautious in reaching a conclusion that an unacceptable risk of abuse has been established. Whether or not there exists an unacceptable risk involves an evaluation of the nature and degree of risk and whether, with or without safeguards, it is acceptable. The components, which go to make up that conclusion, need not each be established on the balance of probabilities. The Court may determine that a constellation of factors comprises an unacceptable risk even though none or only some are proved to that standard.^[12]

82. Having considered all of the evidence in the proceedings, the Court does not find that the child is at an unacceptable risk of harm if she is to spend unsupervised time with the father.

Likelihood of further proceedings

83. These are final parenting orders.
84. The parents have never had the benefit of final parenting orders, only interim orders and only since July 2016. There is no evidence that either parent has failed to comply with parenting orders to date.
85. Given their history of compliance and the fact that despite their long standing difficulties in co-parenting, they have managed to agree on most aspects of the child’s care to date. The Court is of the view that once final orders are made and there are no changed circumstances, there is unlikely to be further proceedings.

Other relevant matters

86. The mother makes a number of allegations that the father is continuing to drink alcohol to excess and to take illicit substances. There was no evidence of these matters except the mother’s opinion.
87. The father in his Affidavit annexes letters from his current employer and a labour agency both of which indicate that the father has been tested for drug and alcohol, and that he remains subject to random drug and alcohol screening. The only evidence is that all such tests have been ‘passed’ by the father.

Primary Considerations: s.60CC(2)

88. The Court is faced with the task of balancing the competing primary considerations set out in s.60CC(2) of the Act.
89. In applying the primary considerations, the Court must give greater weight to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit of the child having a meaningful relationship with both of the parents.
90. The test to be applied in striking that balance is whether the parenting orders that are ultimately made will expose the children to an unacceptable risk of physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.^[13]
91. It has been held that a meaningful relationship is one which is important, significant and valuable to the child^[14]. The focus is not on the relationship as such, but on the benefit the relationship might have for the child.
92. The Court has already found that there is a benefit to the child of having a relationship with both of her parents. Such relationships ought be supported by both of her parents. They need to put their personal dislikes for each other aside and focus on acting like adults for the sake of their child.
93. As she gets older, the child will notice more and more any poor behaviours by her parents and the parental conflict which currently exists. She will develop her own way of dealing with such behaviours, and it might be that the only way she can deal with such behaviours and parental conflict is to remove herself from the conflict by choosing one of her parents over the other. Hopefully this will not happen. It would be a loss to her.

Parental Responsibility

94. The parents are not capable of communicating with each other in any meaningful way. There is little trust between them.
95. There existed at the time of final hearing a final apprehended violence order and the father was subsequently charged with breaches of that order.
96. The Court is of the view that the presumption of equal shared parental responsibility has been rebutted in all of the circumstances of this case, particularly having regard to the child’s best interests: s.61DA(4).

Conclusion

97. In all of the circumstances and for all of the reasons set out above, it is in the children’s best interest for orders to be made as set out in the forefront of these Reasons.