Trust lacking between parents
- The father is 46 years old. The mother is 33 years of age.
- X is the only child of either of the parties.
- The parents had been friends by telephone communication for some six years prior to commencing their relationship in 2012. They initially cohabited New South Wales with the mother moving from Tasmania.
- The parents married on (omitted) 2013.
- X was born on (omitted) 2014.
- In May 2015 the father was convicted in New South Wales of a criminal charge involving sexual assault. I understand the particulars relate to sexual misconduct with a woman in her home during his employment with (employer omitted).
- On 5 June 2015 the mother and X travelled to her home State of Tasmania and effectively separated from the father. In November 2015 the father travelled to Launceston to attempt a reconciliation but with the final separation occurring in February 2016.
- Since the parents’ separation, X has lived with the mother in northern Tasmania. The father has lived in New South Wales. X has since spent sporadic time with the father in Tasmania not including overnight time but involving consecutive days of contact.
- Interim orders were made in this Court on 24 October 2016 by consent providing:
- That the parents have equal shared parental responsibility for X;
- That X live with the mother;
- That X spend time with the father as follows:-
- from 2.00 p.m. – 6:30 p.m. on three consecutive days in the month of (omitted) 2016 with the mother to be present during such time on days one and two;
- from 1.00 p.m. to 7:30 p.m. on three consecutive days in the month of December 2016, with the mother to be present for the first hour during the visit on day one;
- for four consecutive days in January 2017 and continuing each month thereafter pending trial; and
- for such other times as agreed between the parties from time to time.
The Father’s Case
- Mr Lamont argues that he has the capacity to provide for X’s needs but says that he is willing to graduate his time with X leading to equal time in (omitted) 2019 when X turns five years of age.
- The father says that he has committed to relocating to Tasmania. He is in the process of obtaining rental accommodation suitable for himself and X. He hopes to obtain the employment or self-employment in (employment omitted).
- The father’s extended family live in New South Wales although he says that he has made friendships during his limited time in Tasmania.
- The father argues that the mother is negatively inclined towards him personally by reason of her own and her family’s strict and conservative religious beliefs.
- Mr Lamont says that he is continuing his personal counselling in New South Wales with visits to the counsellor each 4 to 6 weeks and that he has obtained a referral for continuing counselling in Tasmania. That counselling seems to have resulted from his criminal charges and involve general cognitive therapy.
- The father acknowledges that there is not currently a communicative, trusting or co-operative parenting relationship between he and the mother. He expresses a willingness, however, to improve this relationship. He does, nevertheless, acknowledge inherent differences between he and the mother and in particular in respect of religious and social beliefs.
The Mother’s Case
- The mother says that she is in the process of obtaining accommodation independent from her family. She has suffered a degenerative back condition requiring surgery in 2015 and continues to benefit from the physical and emotional support of her extended family in caring for X. She also has ambitions of furthering her education so as to obtain employment to better financially support herself and X. She says that she currently receives only statutory minimum child support for X from the father.
- The mother too has enlisted mental health counselling and apparently to deal with the stresses of the marriage breakdown and her back surgery.
- The mother says that she is generally supportive of X having a meaningful relationship with the father. She questions, however, the father’s experience, skills and insight as to his independent parenting of a young child and therefore seeks the more graduated and slower approach towards overnight time and final orders as opposed to Mr Lamont’s quicker regime.
- The mother acknowledges that there is not good communication and trust between she and the father and that their co-parenting relationship is poor. She says that overnight time should not commence for at least a further 16 months during which time there would be gradual increases in X’s day time with the father.
- I have had the advantage of seeing and hearing both parties give evidence in Court and be cross-examined. I found them each to be generally witnesses of the truth giving responses in line with each of their arguments being the mothers more conservative and the fathers more adventurous approaches.
- The father in his evidence conceded that as recently as March 2016 he was proposing an order for the infant X to live alternating months in Tasmania with the mother and in New South Wales with him. The father properly admits that he was naive in seeking such are orders. As recently as his amended application filed 25 January 2017 he was asking for an order for immediate overnight time for X with him before retreating at the commencement of the evidence to the regime set out above. My observations of the father were of legitimate eagerness to participate in his son’s parenting and upbringing. Nevertheless, such enthusiasm discloses a continuing naiveté consistent with his understandable lack of experience in caring for young children.
- The father remained critical of the mother and blaming of her family in respect of their religious beliefs and what he perceives as their interferences in his relationships with the mother and with X.
- The mother gave evidence consistent with her conservative religious upbringing. She is clearly a cautious and anxious parent for X. She was, however, able to be objective and understanding of X’s need to have a relationship with the father. She impressed me as a young mother dependent to a large degree on both actual and emotional support. Her evidence was honest but guarded.
The Family Report
- I have had the benefit of an insightful and detailed Family Report dated 23 January 2017 authored by Family Consultant, Ms S. The interviews and observations for that report took place on 12 January 2017. Both parties were interviewed. X was observed with both of his parents.
- In the Family Report the mother confirmed that she would like a graduated increase of time between X and his father so as to allow a bond and attachment to mature. At  of the report Ms Lamont says that she would prefer overnight time not commence until X is three years of age being (omitted) 2017 and then only one night per fortnight. She expressed concerns as to Mr Lamont’s skills, experience and facilities for X. At  she is reported as having residual concerns as to the father’s ‘sexually inappropriate conduct’.
- Mr Lamont reports that he is willing to move to Tasmania in order to establish and maximise his relationship with X. At  of her report Ms S opines:
Mr Lamont did not express a high level of insight into parenting expectations and children’s behavioural needs. He stated desire to have X live primarily with him and for overnight time to commence immediately is seen as an example of that, as is Mr Lamont’s original plan to live with X in a backpackers hostel.
- Ms S observed X to be familiar with and comfortable with both his parents. X was observed to respond positively to his father’s presence and play. At  Ms S says:
Mr Lamont demonstrated sound parenting skills and a loving somewhat doting parenting style. He was affirming and positive in his manners towards X, was child focused in his receptivity to X’s needs and attempting to incidentally teach him about his environment. He appeared at times to expect more of X than X developmentally is capable of and showed at times his lack of parenting experience.
- At  and in respect of the mother, Ms S says:
Ms Lamont was observed to relate appropriately and responsively to X. She responded to Mr Lamont’s suggestion that X may have soiled himself. She allowed X to choose activities to play. X was observed to be more verbally responsive to his mother than to his father and appeared more familiar and relaxed when observed with her. This was seen by X chatting more freely with his mother, smiling more frequently and laughing out loud, which is not observed when he was with his father.
Ms Lamont was observed to be warm and interactive with X and X appeared attached and emotionally connected to her. She demonstrated a confident, relaxed parenting style that X responded well too (sic).
- And at  Ms S observes:
X’s ability to apply for some time away from his mother and to not fret for her even when expecting her indicates that X most likely has a secure attachment with his mother. It may also indicated that X and his father have established a stable connection as it is unlikely X would have been so content with someone he was not familiar and secure with.
- Ms S concludes  as follows:
The parenting history indicates that his mother is his primary carer. At this stage of his development the more confident and secure X is the more independent and well-adjusted he is likely to be. He needs to have certainty in his environment so that he can grow by testing his limits in a secure and safe place. It is therefore important that parenting orders continue to provide certainty and predictability for X.
- Ms S opines that X will benefit from maintaining what is an established and secure relationship with his mother but also from building on and developing an equally strong and safe relationship with his father.
- Ms S notes the “poor and distrustful co-parenting relationship”.
- At  Ms S shares some of the mother’s concerns as to the father’s yet to be developed skills and insight. She says:
Ms Lamont’s concerns regarding Mr Lamont’s limited knowledge of X’s physical and emotional needs is considered valid. Mr Lamont whilst zealous regarding his connection with X espoused a somewhat limited understanding around X’s developmental needs and was observed at times to parent X as one would a more mature child.
- And at  Ms S gives her opinion in respect of the major issue between these parties as follows:
It is difficult to see how X would not be confused and conflicted if he were to live in a week about parenting arrangement with two parents with such opposing value systems. Whilst X will eventually come to understand that his mother and father do not agree on some fundamental life choices, the continuous exposure to the opposing views, would possibly place X in constant turmoil and uncertainty, if he were not to live primarily under one value system. Further, Mr Lamont’s position of strong opposition and disapproval of the mother’s chosen life views will need to be modified if he is to place X’s interests above his own and if a respectful co-parenting relationship is to be developed. It is considered X’s well-being and healthy development is best met if he is offered the opportunity to understand and respect both his parent’s belief systems and given an opportunity to eventually decide what he accepts or rejects. Presently it is considered that this is more likely to occur.
- Ms S makes recommendations at  and following thus:
- That X live with the mother;
- That X spend time with the father on a weekly basis for day time only initially and perhaps twice a week and for longer periods on one of those days;
- That overnight time for X with the father not commence until X has had a substantial period of time (one year or more) of regular daytime routine and no problems have emerged and then there be a combination of weekly daytime and fortnightly overnight weekend time;
- That overnight time between X and his father increase by one night per fortnight each year until X is spending no more than five nights per fortnight with his father;
- That X not spend extended school holiday time with his father until overnight time is commenced for more than two nights per fortnight and that initially time each school holiday period be no more than two consecutive days and nights per fortnight and that this increase gradually each calendar year.
- Ms S recommends that both Mr and Ms Lamont individually undertake a counselling or a post-orders parenting course with Relationships Australia.
- Ms S was cross-examined by counsel for each of the parties. She generally emphasised, explained and adhered to her observations and recommendations.
- Ms S did, however, confirm that she was taking a ‘cautious’ approach to her recommendations and that her view that overnight time for X with the father not commence until X is three years of age is based, at least to some extent, on particular ‘research’.
- When challenged as to her recommendations by counsel for the mother, Ms S confirmed that her recommendation at  ‘that overnight time between X and his father increase by one night per fortnight each year until X is spending no more than five nights per fortnight with his father.’ represented five nights as a maximum on her range of recommendations rather than a specific recommendation of five nights each fortnight.
Findings and Considerations
- X is still a very young child. I find that his primary and comfortable attachment is to his mother. I am of the view that X’s attachment and relationship with his father is a developing one by reason of the relative lack of direct quality time yet between X and the father. I place weight on Ms S’s evidence in this respect.
- These parents are of different backgrounds and personalities. The mother by nature is conventional and subdued and comes from a deeply religious background. Her parenting of X is vigilant and by nature she is guarded in being confident that any other person, including the father, can attend to X’s needs.
- The father is a more self-assured individual than the mother. He is eager and dedicated in his quest to share his son’s upbringing. He is confident but in some senses over-confident in his own capacity. I have doubts as to his understanding and insight into the needs of a young child where at times his evidence tended towards obtaining ‘fairness’ between himself and the mother rather than a focus on the child’s best interests.
- The father remains bitter and angry at what he perceives to be the mother’s family and religious influence on the parties relationship. I did not have the benefit of affidavit material or evidence from members of the mother’s family and therefore am unable to make findings in respect of the father’s assertions. Suffice to say that the mother continues to practice her conservative religion whereas the father is agnostic. I am satisfied that this philosophical difference between these parents has permeated their dispute in respect of X with impact on matters of mutual trust, communication and collaboration.
- The father has committed to relocating himself from New South Wales to Launceston in order to establish a more frequent and better relationship with his son. This is an admirable effort by him and demonstrates his willingness to participate in X’s upbringing.
- The evidence is unchallenged that the mother is an excellent and devoted parent of X. The father’s capacity is developing but not developed to the same extent as the mother. This is not a criticism of the father but, rather, a factor of his lack of practical experience.
- The evidence supports the assertion of both the parties that they do not, at this stage, communicate well and do not enjoy a trusting and synergy in their parenting relationship. Both, however, express a willingness to address and improve this situation. I expect that the circumstances of the parent’s separation and including the father’s criminal conviction underpin their lack of trust.
- Whilst the father’s parenting skills and insight are perhaps best described as a ‘work in progress’, there are a number of positive observations from the family reporter in respect of his parenting and also as to X’s relationship with him. For example, at  of the Family Report Ms S observes:
X was initially observed to be playing happily with his father and the waiting area whilst his mother sat in a seat some distance away…. X readily accompanied his father to the observation room, passing his mother with no difficulty, casually looking at her as he walked away. Ms Lamont was heard to verbally encourage X to leave with his father.
- Ms S at  says that Mr Lamont exhibits ‘appropriate and caring parental behaviours’.
- I am satisfied that X is comfortable in his father’s care and the evidence set out above suggests that he transits easily from his mother to his father best evidenced in the Family Report at  as follows:
When Mr Lamont was invited into the observation room, X happily and clearly said ‘hi mum’ …he left his father’s side and moved towards his mother, not appearing to need a cuddle or any physical assurance from his mother.
- I have regard generally to social science research referred to by Ms S as to preferred methods of young children assimilating into the care of non-primary parents. Nevertheless, I place significantly more store on the particulars of each family and my observations of their attitudes and understanding of the needs of children and the responsibilities of parenting. I do not therefore accept that there is any ‘rule’ as to a timeline for children moving between parents and moving towards overnight time based on social theorem.
- Each of the parties seeks an order for equal shared parental responsibility. Prima facie on the mothers case there are matters that argue against such an order and concerns as to the ability of these parents to jointly or equally contribute to important decisions for X. Their communication is currently extremely poor. The father is untrusting of the mother’s motives for the orders that she seeks in respect of his time with X. The mother is critical of the father’s skills and comprehension. There is an underlying difference in religious belief that compounds their mutual lack of trust. Nevertheless, the discharge of parental responsibility duties is, for practical purposes, not a daily event. Both these parents profess a desire to improve their communication and hence their cooperation. The flux of time will inevitably assist them in compartmentalising X’s issues from their own. Save and except a potential for religious practice and perhaps educational institutions, the genesis of the dispute which currently exists between these parents might not manifest in the types of decisions anticipated by parental responsibility orders. Further, the father’s anger and bitterness is aimed primarily at the mother’s parents and what he perceives as their strict religious influences upon the relationship between he and the mother. From the witness box the father candidly expressed an understanding and respect for the mother’s practice of her religion and did not seek any injunctive orders to prevent X’s exposure to that religion. As such, I am satisfied that these parents have the potential to discharge the obligations of equal shared parental responsibility. It will be in X’s interests to grow up understanding his parents to be ‘equal’ in decision-making in respect of matters important for him. In all those circumstances I am satisfied that is in X’s best interests for the parties to have equal shared parental responsibility for X.
- A primary issue for my determination is the regime of final orders that are in X’s best interests. The mother proposes a ‘traditional’ arrangement whereby X live with her and spend each second weekend with the father and time on the off-week, together with block time in school holidays extending for no more than four consecutive nights and five consecutive days. The father proposes an order for equal time on a week about basis from X’s fifth birthday in (omitted) 2019.
- Prima facie, it might be argued that a parent needs the same skills, commitment, insight and facilities to care for a child on two, three or four consecutive nights as he or she does for a seven night period. Similarly, it could be argued that the degrees of communication, cooperation, trust and respect required to discharge an order for equal shared parental responsibility are those also applicable to parents having equal time for a child. Nevertheless, on consideration, and whilst these arguments have merit, there are additional considerations that come to the fore in respect of it being in a child’s best interests to live effectively in two households for equal time. Firstly, any differences in parenting styles, philosophies and models will impact of the child and probably more so for a younger child. Further, issues of communication, trust, respect and cooperation whilst desirable in discharging an equal parental responsibility order, have a more day to day pragmatic impact as a necessary requirement for equal shared time. Matters of communication and cooperation will be at play on a daily basis. Whilst parenting styles will inevitably vary, to a degree, some consistency is necessary for children in moving between homes and particularly where it is anticipated they will have two ‘primary’ home bases. This is particularly so with younger children who still have a high degree of dependency. At  of her report Ms S considers this issue and says:
It is difficult to see how X would not be confused and conflicted if he were to live in a week about parenting arrangement with two parents with such opposing value systems. Whilst X will eventually come to understand that his mother and father do not agree on some fundamental life choices, the continuous exposure to the opposing views, would possibly place X in constant turmoil and uncertainty, if he were not to live primarily under one value system. Further, Mr Lamont’s position of strong opposition and disapproval of the mother’s chosen life views will need to be modified if he is to place X’s interests above his own and if a respectful co-parenting relationship is to be developed. It is considered X’s wellbeing and healthy development is best met if he is offered the opportunity to understand and respect both his parents belief systems and given an opportunity to eventually decide what he accepts or rejects. Presently it is considered this is more likely to occur in the home of his mother.
- After having the advantage of seeing the parents give evidence and considering their affidavit material, I am not persuaded that they have levels of dialogue, co-ordination and respect necessary to allow X to live successfully in two households. I am of the view that X’s best interests are served by continuing to live primarily with his mother with whom he has already established a primary attachment.
- Nevertheless, and turning to the second statutory consideration of whether it be in X’s best interests to live between his parents on a regime of ‘substantial and significant time’, I find the mother’s proposal to be unnecessarily limited and constrained. I am of the view that X will benefit by his father having an opportunity to be involved in his schooling and extracurricular activities. My observations accord with those of the family reporter that Mr Lamont is an extremely keen and committed parent. He will want to be involved in X’s life and the indications thus far are that X will be happy for him to be so involved. In any event, the relationship between X and his father will benefit by there eventually being longer blocks of time so as to allow X to settle into his father’s home and adjust to his father’s particular parenting style. Balancing these considerations, together with the need for X to a primary home base, I am of the view that a final order should have X spending each second weekend with his father from Thursday at the conclusion of school until Monday at the commencement of school. This will allow the father ample opportunity to be involved in X’s schooling and other interests. Whilst the block period of time is longer than anticipated by the mother, I am comfortable in there being a visit on the ‘off week’, but not overnight, and so as to minimise the gap for X in seeing his father. In the context of these proposed orders, I suggest the Thursday night would be appropriate but subject to agreement otherwise by the parents.
- Finally, I am to determine the rate and stages of X’s spending gradually increased periods of time with the father leading to the orders above. The mother urges discretion and a slow approach whereas the father is more bold in his plan but not so audacious as was his position until the commencement of the evidence.
- X will be five years of age in (omitted) 2019. By that time it is hoped that the father’s skills and understanding of parenting will have fully evolved. That two and a half year period should also be sufficient for the mother to develop confidence that X can be cared for by persons other than herself. Such a time span should also coincide with X’s socialisation generally through pre-school and school attendance. As such I prefer the father’s option of final orders coming into place on X’s fifth birthday in (omitted) 2019 as appropriate and in X’s best interests.
- There should be some graduation of X’s time with the father leading to final orders. I am satisfied that the following regime is appropriate:
- Until X’s 3rd birthday on (omitted) 2017 on each Tuesday, Thursday and Saturday from 9.00 a.m. until 3.00 p.m.;
- As from (omitted) 2017 until (omitted) 2018 each Tuesday between 9.00 a.m. until 3.00 p.m. and from 5.00 p.m. Saturday until 5.00 p.m. Sunday in the first week of each fortnightly cycle and between 5.00 p.m. Friday until 5.00 p.m. Saturday in the second week of the fortnightly cycle;
- As from (omitted) 2018 until (omitted) 2019 each Tuesday between 9.00 a.m. and 3.00 p.m. (or such other day as agreed between the parties if X is at school or kindergarten on that day) and each second weekend from Friday at 3.00 p.m. until Sunday at 5.00 p.m.; and
- As from (omitted) 2019 each alternate Thursday from 3.00 p.m. (or the conclusion of school) until 7.00 p.m. and each second weekend from Thursday at the conclusion of school until Monday at the start of school or 5.00 p.m. if a student free day or public holiday.
- I will also make orders for time between the parents on special days.