Aaron and Aaron
[2009] FMCAfam 1192
•23 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AARON & AARON | [2009] FMCAfam 1192 |
| FAMILY LAW – Parenting – interim hearing – de facto same-sex couple – significant dispute as to facts – minimal change to care arrangements– best interests of children. |
| Family Law Act 1975, Part VII, ss.60CC, 60CC (3), (3)(b), (c), (i), 61DA (3), 65DAA |
| Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 Mazorski v Albright (2007) 37 Fam LR 518 |
| Applicant: | MS B AARON |
| Respondent: | MS M AARON |
| File Number: | CAC 1160 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 21 October 2009 |
| Date of Last Submission: | 21 October 2009 |
| Delivered at: | Canberra |
| Delivered on: | 23 October 2009 |
REPRESENTATION
| Advocate for the Applicant: | Ms Pope |
| Solicitors for the Applicant: | Pappas, j.- attorney |
| Counsel for the Respondent: | Mr Howard |
| Advocate for the Respondent: | Farrar, Gesini & Dunn |
ORDERS
That the parties have equal shared parental responsibility of the children [X], born [in] 2003, and [Y], born [in] 2005.
That the children spend time with the Applicant, Ms B Aaaron, in each 2 week cycle during school term time as follows:-
(a)In week 1-
(i)From after school Friday until the commencement of school on the following Monday; and
(ii)Tuesday, Wednesday and Thursday from after school or 3:15pm until 6:00pm; and
(b)In week 2-
(i)From after school Monday until the commencement of school Tuesday;
(ii)Tuesday, Wednesday and Thursday from after school or 3:15pm until 6:00pm.
That during school holidays Order 2 be suspended and, in lieu of time pursuant to that Order, the children spend time with the Applicant as follows:-
(a)During term holidays, for the first and third weekends from 3pm Friday to 9am the following Monday; and
(b)
During the Christmas school holiday period for 4 periods of
3 nights from 9am on the first day to 9am on the day after the 3rd night, with these dates to be nominated by the Applicant at least 21 days prior to the commencement of the relevant school holiday period.
That changeover to be at the school and, at any time that the school is not open, then either at Marymead or another public place to be agreed.
That notwithstanding these Orders the parties shall share Christmas Day so that each parent has the children for one period of 24 hours in the period from 3pm on 24 December to 3pm on 26 December. The Applicant may choose to have the first or second half of this 48 hour period.
That the children communicate with the Applicant on Saturday night when they are not in her care at 6.45pm. The Applicant shall initiate this call.
That the children communicate with the Respondent when they are in the Applicant’s care on Saturday night at 6.45pm. The Respondent shall initiate this call.
That the Respondent be at liberty to organise for either or both of the children to attend at counselling with Ms W. That the Applicant be restrained from attending at the offices of Ms. W during any of either child’s sessions with Ms. W.
That the parties do all things necessary for them to participate in the ARCK programme through Marymead.
IT IS NOTED that publication of this judgment under the pseudonym Aaron & Aaron is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1160 of 2009
| MS B AARON |
Applicant
And
| MS M AARON |
Respondent
REASONS FOR JUDGMENT
A. Introduction
The following reasons were delivered in an ex tempore judgment. They have been slightly revised from the Transcript.
The Initiating Application in this matter was filed only on 17th July this year. With it, and since, there have been no less than 8 affidavits filed. All of them attest to the level of distrust and acrimony between the parents of two young girls, [X] (who is 6 years old) and [Y] (who is 4).
By and large, in order to expedite the delivery of orders, I will not rehearse the detail of those affidavits. Broadly, of course, they may be taken to present the competing versions of various events concerning the parenting skills and related capacities of each parent, and the competing contentions concerning the relationship (e.g. the reasons for its breakdown, the consequences thereof for the children, some allegations of violence, the alleged need for medication and such matters). Of course, at an interim hearing I am in no position to make any findings of fact on any of these matters.[1]
[1] Cf. the Full Court’s observations in Goode v Goode (2007) 36 Fam LR 422 at [74] & [82].
For my part, I have no particular difficulty with parties narrating such history. To the degree possible, such things not only give some background (sometimes rather jaundiced, sometimes not) but they also indicate, to some degree at least, something about the person telling their story. This is to say that, in seeking to tell the Court about the other party and all their faults, the narrator often tells the Court more about themselves than their former partner. As well, in getting the history of the relationship `off their chest’, so to speak, it is hopefully somewhat cathartic – at least for them. It may be, perhaps optimistically, the beginning of some sort of therapeutic process by which they can start to move on from the trauma and other legacies of the broken relationship.
B. Orders Sought
Both parties filed a Minute of Interim Orders sought on 21st October 2009.
The Applicant, Ms B Aaron sought:
1.That the parties have equal shared parental responsibility of the children, [X] born [in] 2003 and [Y] born [in] 2005.
2.That the children live with the parties in the following manner:
With the applicant:
In Week 1 – On Monday from after school until the commencement of school Tuesday, on Friday from after school until the commencement of school the following Monday;
In Week 2 – on Tuesday from after school until the commencement of school on Friday.
With the respondent:
In Week 1 - on Tuesday from after school until the commencement of school on Friday;
In Week 2 - On Monday from after school until the commencement of school Tuesday, on Friday from after school until the commencement of school the following Monday.
3.Changeover to be at the school and at anytime that the school is not open, then at Marymead.
4.That each party be at liberty to initiate a telephone call to the children at 6.45pm on any evening the children are not in that parties’ care.
5.That the parties be guided by school counsellors as to the need for one or either of the children to be engaged in therapeutic counselling.
6.That the parties undertake the ARCK programme offered by Marymead at the earliest opportunity.
The respondent, Ms M Aaron sought:
1.That the children [X] born [in] 2003 and [Y] born [in] 2005 live with the Respondent, [Ms M Aaron].
2.That the children spend time with the Applicant, [Ms B Aaron] in each 2 week cycle during school term time as follows:-
a.In week 1 –
i. from after school Friday until the commencement of school on the following Monday; and
ii. Tuesday, Wednesday and Thursday from after school or 3.15pm until 6.00pm; and
b.In week 2 –
i. From after school Monday until the commencement of school Tuesday;
ii. Tuesday, Wednesday and Thursday from after school or 3.15pm until 6.00pm.
3.That during school holidays Order 2 be suspended and, in lieu of time pursuant to that Order, the children spend time with the Applicant [Ms B Aaron] as follows:-
a.During term holidays, for the first and third weekends from 3pm Friday to 9am the following Monday; and
b.During the Christmas school holiday period for 4 periods of 3 nights from 9am on the first day to 9am on the day after the 3rd night, with these dates to be nominated by the Applicant at least 21 days prior to the commencement of the relevant school holiday period.
4.That, except for Thursday nights, handover for the purposes of Orders 1 - 3 above occur at [omitted] store or at such other location as is agreed in writing between the parties. Handover on Thursday nights occur at the children’s swim school.
5.That notwithstanding these Orders the parties shall share Christmas Day so that each parent has the children for one period of 24 hours in the period from 3pm on 24 December to 3pm on 26 December. The Applicant may choose to have the first or second half of this 48 hour period.
6.That the children communicate with the Applicant on Saturday night when they are not in her care at 6.45pm. The Applicant shall initiate this call.
7.That the children communicate with the Respondent when they are in the Applicant’s care on Saturday night at 6.45pm. The Respondent shall initiate this call.
8.That the Respondent be at liberty to organise for either or both of the children to attend at counselling with Ms W. That the Applicant be restrained from attending at the offices of Ms. W during any of either child’s sessions with Ms. W.
9.That the parties do all things necessary for them to participate in the ARCK programme through Marymead.
C. Family Report & Jurisprudential Considerations
In addition to the multiple affidavits to which I have referred – which also attest to the relatively recent and still obviously quite raw wounds from the shattered relationship between the parties – the Court has the benefit of a Report (dated 19th October 2009) from Ms Lang, a highly experienced Family Consultant. In large measure, and unsurprisingly so, I am guided very much by the independent and expert assessment of Ms Lang. On the basis of Warnick J’s comments in SPS & PLS,[2]
Ms Lang’s Report will be taken as being incorporated into the evidence before the Court.
[2] (2008) FLC ¶93-363 at [7] – [22].
Unsurprisingly, my focus is predominantly on Ms Lang’s recommendations, as they should be comprehended and applied in the light of the statutory and judicial jurisprudence that seeks to light our way.
To state the areas of relatively uncontested evidence that are immediately material: according to the affidavits, and according to
Ms Lang, the girls are clearly well loved and have a close relationship with the Mothers (i.e. the Applicant and the Respondent). It is unnecessary to retail here the different circumstances of the conceptions of each of the children. That may be relevant at a final hearing, more particularly in relation to the girls knowing details of their biological Fathers, as well as whether the donors are now or are likely to be persons who might otherwise be the subject of matters to be addressed by s.60CC(3)(b).
I accept, of course, the principles set out in the consistently cited judicial lodestars of the Full Court decisions in Goode & Goode and Keach & Keach.[3] Formally I incorporate, by notation below, the sections of those judgments that relate specifically to the prescribed legislative pathway and related areas.[4]
[3] (2007) 36 Fam LR 422 and (2007) FLC ¶93-353 respectively.
[4] (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and (2007) FLC ¶93-353 at [24] ff respectively.
For the purposes of context, principle and legislative framework, it is helpful to note, as I have done in other judgments, the utility of Brown J’s observations in Mazorski v Albright,[5] which provide a convenient summary of the Court’s responsibilities under Part VII of the Act. Her Honour’s not infrequently cited “twin pillars” description, of children having a meaningful relationship with both parents (as well as other family members), and the need to protect children from physical and psychological harm, neatly summarises the general principles that are in tension in these proceedings. Her Honour’s “twin pillars” is a more than convenient “short-hand” expression, for current purposes, for the “legislative pathway” prescribed by the relevant jurisprudence.
[5] (2007) 37 Fam LR 518 at [3] – [6].
Formally, I incorporate into these remarks, also by reference only, pars.19-22 of Ms Lang’s Report. Those paragraphs neatly highlight the matters in tension. They are (a) the strained relationship between the parties and the consequent impact that has, and will likely continue to have, on the children; (b) if the parents could resolve or ameliorate their parental relationship difficulties, the girls would benefit not only from the decrease in tensions but also because a form of shared-care regime could be implemented; (c) most critically, Ms Lang notes how much the children would benefit from spending substantial time with both parents, but that such an arrangement is “a demanding task for young children especially where there is little co-operation between their parents.” Such is clearly the present situation between the parties.
From my perspective, this important qualification of Ms Lang is a central consideration. This is to say that, while-ever there remains the level of discord currently being ventilated – evidenced, for example, by the volume of documents and their content – the prospect of a shared care arrangement of any form, and anytime soon, will likely need to be rather qualified.
In saying this, I am conscious of the strong, and ongoing, contest about who was the primary carer of the children at various times in the course of the relationship. At an interim hearing, I am in no position to assess such matters, still less to make any formal ruling on them.
In making this observation I am, of course, conscious that the legal advisers involved would have informed their clients of the statutory requirements of the Court to consider, among the range of primary and additional considerations in Part VII of the Act, the willingness and capacity of each parent to promote the children’s relationship with the other parent, the attitude to the children and to the responsibilities of parenthood demonstrated by each parent, and the extent to which each parent has fulfilled, or failed to do so, their respective parental responsibilities in relation to, among other things, communication with the other parent, and facilitating the other parent communicating with the children and participating in making decisions about major long-term issues.
Indeed, the level of discord is such at the moment that a number of the sub-paragraphs of s.60CC(3) are clearly not being fulfilled – notably those that relate to the willingness and ability to promote the relationship of the children with the other parent, and the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents.[6] Having said this, and as already noted, having regard to the ages of the children, the state of the evidence, and the early stage of the proceedings, formal findings on most of the s.60CC primary and additional considerations are not possible at this time.
[6] See s.60CC(3)(c) and (i), as well as s.60CC(4), all of which seem to be very much “in play” in these proceedings at this time.
As I read Ms Lang’s Report in the paragraphs mentioned, her concern relates particularly to ensuring that the girls develop their relationship with both parents. I also read her as cautioning strongly against changing the girls’ current arrangements too radically and or too quickly because (a) of their young ages, and (b) because of the obvious and strong tensions between their parents.
Put another way, in my view, changes to the current arrangements should be incremental so as to give the girls the chance to adapt gradually.
Because of (a) the protective responsibility of the Court, (b) the strongly contested factual and other claims made by each parent, and (c) readily accepting that my comments and orders are only interim and therefore could change considerably at a final hearing, there will be a modest change, a this stage of the proceedings. The orders will reflect, in large measure, those sought by the Respondent, save for the following.
Changeovers are to be at school, or if the school is not open, then at Marymead or another public venue to be agreed between the parties.
Notwithstanding the competing allegations raised thus far in the proceedings, in my view the presumption in s.61DA(3) should apply. Among other things, it will give the parties the opportunity to engage in civil, business-like discussions regarding the welfare of the children. Thus, there will be an order for equal shared parental responsibility.
In my view, the orders proposed satisfy the requirements of s.65DAA.
Formally, I make orders as sought by the Respondent but amended in the way I have indicated as essentially sought by the Applicant. In my view, at this interim stage of proceedings, they are in the best interests of the children.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: J. Curtis
Date: 17th November 2009
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