Supervision request and recommendation rejected
Findings and Considerations
- X is yet an infant. I am easily able to find that his primary and important attachment at this stage is to his mother. I am satisfied that his attachment to his father is developing but not yet a firm bond. This is not a criticism of the father. Rather X’s time with the father has been limited to short periods of daytime contact. The mother’s personal dislike of the father and suspicious nature together with her conservative approach to X’s relationship developing with his father have contributed to this state of affairs. The evidence of Ms S, however, is positive and optimistic in respect of the development of this important relationship for X. I place some considerable weight on her evidence.
- I am satisfied that there has been family violence in this relationship and within the broad definition of Family Law Act 1975. I am satisfied that there have been instances of physical altercation. I am satisfied that X has been used as a tool of control and coersion on occasions. As such, I am persuaded that the presumption of equal shared parental responsibility pursuant to s61DA of the Act does not to apply. In any event, I am equally satisfied that X’s best interests would not be served by his parents having equal shared parental responsibility. My observations of these two parents are that their conflict is entrenched and caustic. They are overly critical of each other and unable or reluctant to identify any positives in the other. They are each assertive and entrenched in their positions in respect of X. They are each suspicious of the other’s motives and agenda. This is best exampled by the mother’s response (or lack of response) to the father’s reasonable requests during an adjournment of this trial over the recent festive period for time with X on some important religious or cultural festival dates. The mother is entitled and jealous of her primary parenting role. The father is yet suspicious and misunderstanding of the mother’s primary parenting role. They are unable to agree on day-to-day issues in respect of their young son. I find the credit of each of them in this Court to be impeached. To my mind, matters involving parental responsibility and therefore important decisions in respect of their son will simply ignite further argument. Put simply, they are not able to compartmentalise their own personal relationship in favour of their son’s needs. They do not show a modicum of co-operation or civil communication. As such, the mother is undoubtedly the primary parent for X. It follows in my view that she should exercise sole parental responsibility for him but I will impose obligations on her to notify and give notice to the father of such decisions.
- The mother continues to seek a condition that X’s time with the father be supervised at least in the immediate short-term. She says that he has a propensity for violence and lacks control of his anger. X, of course, is not of an age where he can self-protect. Nevertheless, I found Ms S’s evidence to be impressive in respect of the father and prefer that the father’s tendencies are more a result of his frustrations and personal animosity towards the mother. He undoubtedly feels repressed in his parenting of X because of the mother’ perceived ‘ownership’ of the child and her gatekeeping of his relationship with X. Whilst it does him no credit to react violently towards the mother, I am not of the view that he presents any physical danger to X. X has enjoyed unsupervised time with the father twice-weekly since May 2016 without incident. He has complied with Court orders.
- The mother, of course, comes to Court armed with the report of Mr J which supports a period of supervision. I am not persuaded that this is the right course. I prefer that these parties will benefit from an end to litigation and that this benefit will accrue to X. Interim orders and reviews by Courts will, in in my view, likely lead to further suspicions, evidence gathering, vigilance and dispute on the part of both parents. I am satisfied that X will be safe in the care of the father. I am satisfied that the father has the capacity to care for X on a graduated process leading to overnight time. As such, I do not accept the recommendations of Mr J. There is no evidence that X has come to any harm, physically or emotionally in the short periods of time that he has spent unsupervised with the father. Supervision brings with it certain connotations which should not, in my view, be imposed in this matter. I will not place any condition of supervision on X’s time with the father.
- I intend to make orders which graduate the father’s time with X to spending overnight time after X’s second birthday and continuing to a final regime by the time of X starting grade 1 at school. This will allow the father to develop his skills and to assist the process of attachment. It should also serve to give the mother objective confidence that her son is safe and cared for when with the father. Whilst the acrimonious relationship does not allow me to find that they come anywhere near the levels of respect, trust, co-operation and communication needed for X to live in an equal time arrangement between the parents, I am satisfied that upon a sympathetically graduated regime then X can spend substantial and significant time with his father which allows both father and child the opportunity to fully participate in each other’s lives but also for this father to discharge the responsibilities of parenthood which he says he craves. That regime will culminate in X spending each second weekend with his father from Thursday after school until Monday at the start of school and a night on the off-week resulting in him being with his mother for nine nights per fortnight and with his father for five nights. I am of the view that school holidays should take place on a week-about basis as from the time that X commences grade 1 at school. The initial daytimes between X and his father are intended to coincide with the mother’s work commitments on three afternoons each week. Finally, the father’s case summary lists a number of special days of religion and cultural significance. I prefer that some discretion be left to the parents rather than having the Court dictate every discrete time of X’s life but with the intention that X spend time with each parent on such important days.
- Finally, there is a specific issue for my determination in respect of X’s passport. There is a current Airport Watch List order valid until 11 May, 2017. I intend to make a further order to remain in force until X turns 13 years of age. I accept that this is lengthy period. I am not confident however, that these parents are yet near any level of cooperation and communication so as to allow X’s international travel to be solely a matter of parental discretion and agreement. Both parties are from India. Their connections to Australia are tenuous. Their extended families on both sides remain in India. Their personal dislike and suspicions remain at a high level. It is in X’s best interests that he is secured in Australia unless the parents or a Court decides otherwise.
- I propose to make an order that the parties both sign all documents necessary for the obtaining of an Australian passport and that the passport be lodged with the Registrar of the Federal Circuit Court at Hobart and not to be released to either party without Court order. I intend to have the issue of the child’s passport made an exception to the mother’s otherwise sole parental responsibility and in this respect the parties will have joint parental responsibility.