Abrams and Demars
[2008] FMCAfam 797
•31 July 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABRAMS & DEMARS | [2008] FMCAfam 797 |
| FAMILY LAW – Child aged 3 years and 9 months – interim parenting arrangements – allegations of family violence – whether presumption of equal shared parental responsibility applies – whether presumption rebutted by allegations of family violence – whether reasonable grounds for court to believe family violence has occurred – whether appropriate to apply presumption at interim stage – best interests – consideration of entitlement of child to have meaningful relationship with both parents – equal time – substantial and significant time. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 92-286 In the Marriage of Patsalou (1994) 18 Fam LR 426 Cowling v Cowling (1998) FLC 92-801 JG & BG (1994) 18 Fam LR 255 |
| Applicant: | MR ABRAMS |
| Respondent: | MS DEMARS |
| File Number: | ADC 2715 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 28 July 2008 |
| Date of Last Submission: | 28 July 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 31 July 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Charman |
| Solicitors for the Applicant: | Boltons Lawyers |
| Counsel for the Respondent: | Mrs West |
| Solicitors for the Respondent: | Donlan Lawyers |
UNTIL FURTHER OR OTHER ORDERS
The parties have equal shared parental responsibility for the child of the relationship [X] born in 2004 (hereinafter referred to as “the child”).
The child live with each of his parents on an equal time basis moving between his parents respective homes at 5:00pm on Friday of each week provided that the child spends from 5:00pm on Tuesday until 9:00am the following morning with the parent other than whom he is living with during the week concerned.
The parties exchange the child between them for the purpose of implementing these orders at a location to be agreed between them and failing agreement to be at the paternal grandparents’ home.
The parties be restrained and an injunction granted retraining either of them from consuming alcoholic beverages during any period of time the child is in his or her respective care.
In the event that Father’s Day falls on a weekend when the child would be otherwise in the care of the mother, the father shall spend time with the child on Father’s Day between 10:00am and 5:00pm.
The party not providing a residence for the child on the occasion of his birthday shall be entitled to spend time with the child on his birthday for a period of four (4) hours, the hours to be agreed between the parties and failing agreement to be between 3:30pm and 7:30pm.
In order to give effect to these orders the mother will deliver the child to the father at 5:00pm on 1 August 2008 and the week about arrangement as ordered by order (2) hereof shall continue thereafter unless otherwise agreed by the parties or varied by further order of the court.
The parties do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court to be undertaken by a psychologist or counsellor to be agreed between the parties within fourteen (14) days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time.
The costs of such assessment and the report arising from such assessment to be borne equally by the parties.
Further consideration of the matter is adjourned to 3 November 2008 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Abrams & Demars is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2715 of 2008
| MR ABRAMS |
Applicant
And
| MS DEMARS |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Abrams “the father” and Ms Demars “the mother” are the parents of [X] born in 2004. These proceedings relate to interim parenting arrangements for [X].
The parties are not married. They lived together from June 2001 until September 2007. They attempted a reconciliation from Christmas time in 2007 until early June of 2008, when they finally separated.
It is the father’s position that both before the parties’ first separation and during the period of their reconciliation, he was intimately involved in every aspect of [X]’s care.
It is also his position that members of his family, particularly [X]’s paternal grandparents, have also been closely concerned with caring for [X], particularly when the parties themselves have been involved in their regular employment activities.
The father alleges that, since 3 June 2008, the date of the parties’ final separation, the mother has made it increasingly difficult for him to spend any meaningful time with [X], other than on terms of her own dictation, which have been capricious and unreasonable.
More recently, from early July onwards, he asserts that the mother has effectively unilaterally determined to cease [X]’s relationship with him. Things came to a head, when she removed [X] from his childcare centre, in [G], on 4 July. This was earlier than had been previously arranged with the father, whose understanding was that he was due to spend time with [X] later on the day in question. The father has not spent any time with [X] since.
Given his close relationship with [X], the father asserts that [X] should be cared for, by both his parents, in an equal time arrangement.
As such, he seeks that the court should apply the presumption of equal shared parental responsibility created by section 61DA of the Family Law Act.
The mother disputes the father’s account of his previous involvement in [X]’s care. She alleges that the father is a violent, aggressive and domineering person, with serious issues to do with the over consumption of alcohol and the control of anger.
She asserts that, since the parties’ separation, the father has been harassing and stalking her. She also asserts that the father has threatened to remove [X] from her care. As such, she acted appropriately on 4 July.
On this basis, it is the mother’s position that the presumption of equal shared parental responsibility is clearly rebutted, primarily because of family violence issues but also because such an arrangement could not be said to be in [X]’s best interests.
Accordingly, she proposes that [X] should live predominantly with her and spend limited time with his father, which should be subject to supervision by the paternal grandparents. She is reluctant to agree to any overnight time at this juncture.
The father was born in 1979. He is a [omitted] by occupation. It is his position that he will shortly become an independent [omitted] to his long term employer and this will provide him with flexible hours of work, which he can fashion around his responsibilities to care for [X].
He is currently living in the parties’ former family home in the [G] area. He is resentful that the mother unilaterally removed [X] from the [G] Chilcare Centre, which he had been attending for many years.
The mother was born in 1981. Currently she is studying hairdressing at an academy in Adelaide. On separation, she moved in with friends at [omitted] Farm. The father was very critical of the standard of cleanliness of this property and the background of the other occupants of the house concerned.
More recently, the mother has moved to an undisclosed location in the northern suburbs of Adelaide. She is not prepared to provide the address to either the father or the court. She says she is frightened the father will stalk her again and may abduct [X], if he knows where she lives.
The mother has taken a temporary leave of absence from her hairdressing studies. She intends to resume the studies in about a fortnight’s time. She has enrolled [X] at an alternative childcare centre. The father does not know where this child care centre is and the mother is not prepared to tell him.
It is my apprehension that the parties’ separation precipitated powerful emotions in each of the parties. It is the father’s position that, in mid-June, the mother was hopeful of a reconciliation, a prospect in which he was disinterested.
Things are complicated by the fact that the father has commenced a relationship with one of the workers at [X]’s previous childcare centre in [G], although the father says the two are merely friends. It was this person who advised the father that the mother had removed [X] from the childcare centre on 4 July 2008.
The mother also appears resentful that this friend of the father’s had purchased a video for [X]. The implication being that the father is not perfectly frank about his and [X]’s interactions with the woman concerned.
The father has attempted to negotiate arrangements with the mother with a view to him spending time with [X], on a regular basis.
His parents have also pressed the mother in this regard. An informal agreement was apparently executed by each of the parties in early July, pursuant to which [X] was to live with each of them on a day about basis.
This arrangement was never implemented. It is the mother’s position that she was bullied by the father into signing it. Later she was advised that it had no legal consequence and accordingly she could disregard it if she believed it was not in [X]’s interest.
From the father’s point of view, this is further evidence of the mother’s bad faith. When it was obvious to him that the agreement would not be followed, he commenced proceedings in this court on 8 July 2008. From the father’s perspective, given what had occurred at the childcare centre and afterwards, the matter was urgent.
The parties have not gone through any process of compulsory family dispute resolution. It is the father’s position that any such process, given the highly polarised positions of the parties, would be pointless. The mother does not disagree.
On 11 July 2008, the mother applied for a domestic violence restraining order against the father. Such an order was granted, on 11 July 2008, for a period of three years. The order includes [X]. It is common ground that the order was made in the father’s absence.
He wishes to contest the order, asserting that there was no proper basis for its making.
The documents relied upon
The father relies on the following documents:
i)His application filed 8 July 2008;
ii)An affidavit of himself filed 8 July 2008; and
iii)A further affidavit of himself filed in court on 28 July 2008.
To the father’s affidavit are attached several documents. These documents include the following:
i)Incident report from the [G] Chilcare Centre regarding the incident of 4 July 2008;
ii)The informal agreement between the parties executed in early July;
iii)The mother’s affidavit sworn 11 July 2008 in support of her application for a domestic violence order;
iv)The medical records of his attendances at his general medical practitioner between March 2000 and July 2007;
v)A medical report of Dr T dated 22 July 2008;
vi)A letter from his employer dated 22 July 2008;
vii)A psychological report of Mr F dated 21 July 2008;
viii)A letter from the father’s parents to the mother dated 15 July 2008;
ix)A letter dated 23 July 2008 from [G] Chilcare Centre indicating [X]’s attendances at the childcare centre; and
x)A further report dated 22 July 2008 from the [G] Chilcare Centre.
The mother relies on the following documents:
i)Her response filed 25 July 2008; and
ii)An affidavit of herself filed 25 July 2008.
The mother was not able to respond to the father’s second affidavit as she only received a copy of it shortly prior to the court hearing. As is clear from the number of documents attached to the father’s affidavit material, he has gone to considerable trouble (and I suspect expense) to prepare his case. The mother is critical of him for providing her with this answering affidavit at short notice.
The interim hearing
The proceedings before me were bitterly contested. The purpose of the vast majority of the documents submitted by the father being to persuade the court that there was no basis to the mother’s assertion that he was a problem drinker or suffered from any serious psychological disorder, which should preclude him from being involved in providing a significant component of [X]’s care. Essentially, the father alleges that the mother has concocted her allegations of family violence against him for tactical reasons, related to these proceedings.
In particular, it is the father’s assertion that it can be no coincidence that the mother sought the domestic violence order against him, on 11 July 2008, only a few days after the incident at [X]’s childcare centre, and after he had commenced the proceedings in this court.
The mother vigorously refutes the suggestion that she has raised the allegations of family violence for such tactical reasons. She also resists any suggestion that she is motivated by the parties’ post-separation politics, particularly the issue of whether the father has or has not commenced a new relationship rather than considerations of [X]’s best interests. To the contrary, it is her position that she is genuinely fearful of the father because of his aggressive and domineering personality and is concerned at the implications for this for [X].
She further vehemently refutes any suggestion that she is intent in making the parties’ parenting relationship as fraught with as many difficulties as possible, so she may resist any possibility of the father spending either equal periods of time or substantial and significant periods of time with [X], on the basis that such an arrangement would be practically impossible to implement because of her intransigence in the face of it.
The father’s position is clear. He implicitly asserts that the mother has all manner of ulterior motives for wishing to attack his reputation, none of which relate to [X]’s best interests. As such he contends that the mother is attempting to manipulate the applicable legislation to serve her own emotional ends.
The hearing at the interim stage does not allow for the hearing of oral evidence from the parties concerned nor any cross-examination. Necessarily the hearing has to be brief. As a result, I cannot make findings of fact, where there is a dispute between the parties concerned what previously happened between them. There are many such disputes between the parties. The chief of which are the nature of the parties’ relationship with one another and their respective level of involvement in [X]’s care.
In addition, at this stage, I do not have any report from a suitably qualified expert regarding [X]’s level of attachment with either of his parents. In particular, I have no assessment of the possible psychological implications for [X] of his parents’ currently difficult and acrimonious relationship with one another. Such a report is likely to be helpful in the final disposition of this case.
The parties have agreed to commission such a report, at their joint expense. The report is likely to take at least two or three months to be completed.
Legal principles to be applied
The service of [X]’s best interests is the most important consideration in this case [Family Law Act s.60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The court has a discretion not to apply the presumption at the interim stage, if circumstances exist which make it inappropriate for it to be applied [Section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [see Goode & Goode (2006) FLC 93-286 at 80,903].
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible [section 61DB].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA. If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time and if this is considered to be neither to be in the child’s best interest nor reasonably practical, the court is then required to consider the child living with each of his or her parents “substantial and significant” periods of time.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. [see Goode & Goode (supra) at 80,903].
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[1]
[1] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In Goode & Goode the Full Court directed that in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children [see In the Marriage of Patsalou (1994) 18 Fam LR 426].
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned [see JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging, so far as children are concerned.
Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.
The fundamental task for the court is to assess prospective dangers for the child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.
Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4]. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.
Primary considerations
In her principle affidavit, the mother alleges that the father slapped her with an open hand, when [X] was aged approximately two years.
The father points to the fact that the mother did not depose to this incident in her affidavit in support of her application for a domestic violence order. Although, in the document concerned, she does raise many incidents which occurred between December 2001 and the end of 2004, a period which was largely before [X] was born.
The implication of the father’s criticisms being that the incident of 2006 cannot be as significant as the mother contends and many of her complaints must be regarded as historical. In any event, the father disputes any allegations of improper behaviour, on his behalf, in this period.
He confirms that he consulted his general medical practitioner, in late 2003, when he began to feel anxious. He was subsequently diagnosed with a generalised anxiety disorder and placed on medication.
It is the father’s position that he has a personality which pre-disposes him to worry and at times he finds his occupation stressful. However, it is his position that his condition is now well managed and poses no risk to [X].
It was Mr F’s opinion, provided in July of 2008, that the father’s previously diagnosed generalised anxiety disorder was not of sufficient magnitude to render the father unfit or unsuitable to provide safe and stable care for [X].
Rather, it was Mr F’s opinion that Mr Abrams had no issues in respect of anger management or dependency on drugs and alcohol. This opinion was based on both an interview with the father and some psychometric testing. I acknowledge that the report was obviously obtained in an attempt by the father to undermine what he anticipated would be the mother’s line of attack against him.
The mother is critical of Mr F’s conclusions, particularly that he has been too reliant on the self-serving history provided to him by the father. Clearly Mr F did not speak with the mother and no doubt the father was at pains to present well to Mr F. In support of her position, she points to one of the entries in the father’s medical records. This record was made on 28 June 2006.
Under the heading “history” in the medical note concerned, is recorded the comment “binge drinking [at weekends]”. The reason for the consultation is given as “alcohol abuse”. When the father was apparently questioned by the doctor about what is termed D.V. (presumably domestic violence) is noted “pushing but nil else, child safe.” It is the mother’s position, that if Mr F had known of this entry, it is highly likely that he would not have reached the conclusions which he did about the father.
The father concedes that he consultation concerned took place. However, he questions the basis of the consultation as noted claiming that he saw the doctor involved because he was concerned about the possible adverse effects of combining his anti-anxiety medication with alcohol, rather than that the consultation was one directed towards alcohol abuse per se.
He acknowledges that the mother was present during the consultation and the issue of domestic violence was raised. It is his position that he acknowledged having pushed the mother, when in an irritated mood but he denied ever having hit the mother. It is also the father’s position that, since consulting the doctor concerned, he no longer drinks alcohol to excess.
It is now his position that he now drinks only occasionally and never to excess. In support of his position he points to the fact that he has consulted his doctor on two subsequent occasions and no problems with alcohol have been noted. In addition, Dr T, who has known the father all of his life deposes that he knows of the father having no problems with alcohol abuse or of anger and aggression.
Apart from the note, in his medical record of 28 June 2006, there is no independent verification of the mother’s claim that the father is an alcoholic and abusive person. The note concerned is brief and not particularly clear. The doctor who wrote it is not available to interpret it. In addition, the following entry for 2 August 2006, contains the note that the father has not drunk since his last consultation and has not been out.
The father’s position is that it would be imprudent for the court to take one note, out of context, and place too much emphasis upon it, particularly as there is no other cogent evidence to sustain the mother’s complaints against him. He was also willing to abide by an order that he not consume alcohol when [X] is in his care.
The presumption contained in section 61DA(2) is negated by reasonable grounds to believe a parent has engaged in family violence. In addition, section 60CC(2)(b) speaks of the need to protect a child from being exposed to family violence. The court’s fundamental task is a protective one for any child concerned. Family violence is one factor, amongst others, which the court must consider to secure a child’s best interests.
On the basis of the evidence before me, I am not persuaded to believe that there are reasonable grounds to believe that the father has engaged in family violence against the mother, certainly not on a regular or protracted basis. It also seems to me that, if the parties do not come into direct contact with one another, [X] will be protected from the possibility of being exposed to family violence. It is not suggested the father has abused or neglected [X] himself.
At this stage, it is impossible for me to determine whether the mother has made her allegations of family violence, against the father, for tactical reasons. The father vociferously refutes the allegations against him. One would not expect him to do otherwise.
I also acknowledge that it is frequently the case that the independent verification of family violence is problematic because such violence frequently occurs in private. Just because there are no complaints to police or records of injury does not mean family violence, as defined by the Act, did not occur.
However, notwithstanding these evidentiary issues, I must make some assessment, on all the evidence currently available to me and determine, from that evidence, the level of risk the father’s alleged behaviour poses to the child concerned and make orders commensurate with that risk.
In carrying out this balancing exercise, I must also bear in mind that there may be risks to [X], in terms of him having an ongoing and meaningful relationship with his father, if I allow him to spend only brief periods of time with his father, possibly subject to onerous conditions.
There are two primary considerations contained in section 60CC(2), one is not expressed as being subsidiary to the other. Both draw their import from the objects and principles of the children’s section of the Family Law Act. Which consideration is to be given pre-eminence must depend on the overall circumstances of the case concerned.
Once issues of family violence have been raised, which is a common occurrence in cases of this kind, I must be careful not to overlook a child’s entitlement to have a meaningful relationship with both of his or her parents. In all the circumstances of this case, I consider that significant emphasis should be given to the benefits [X] is likely to gain from having a meaningful relationship with not only his mother but also his father.
I reach this conclusion because [X] is of tender years. His relationship with both his parents is not fully formed. The years of early childhood are important for a child developing meaningful parental relationships.
I am particularly concerned that, if the court adopts the mother’s proposals for [X] to spend time with his father, it may result in either the retardation of [X]’s paternal relationship or not allow that relationship to reach its full potential.
In all the circumstances of this case, I consider that these developmental issues outweigh any protective concerns arising from the possibility of [X] being exposed to any further incidents of family violence involving his father.
Additional considerations
[X] is not yet four years of age. He is too young to express any view about the difficult issues which currently confront the court. The parties’ vitriolic dispute with one another is not his dispute. [section 60CC(3)(a)]
Both parties assert that he or she has been more fully involved in providing for [X]’s needs up to this stage of his development.
In particular, the father asserts that he prepared [X]’s meals, fed and bathed him, played with him and put him to bed.[2]
[2] see father’s affidavit filed 8 July 2008 at paragraph 5
The mother asserts that the father is incapable of looking after [X] “independently”. She is also critical of the long hours which the father worked and asserts that, from time to time, the father’s capacity to parent [X] was adversely affected by either his use of alcohol or his ingestion of anti-anxiety medication.[3]
[3] See mother’s affidavit filed 25 July 2008 at paragraph 13
These issues are difficult to determine. It seems to me that, from time to time, both parties were busy people, who had employment and educational responsibility outside of the home. What is clear however is that, for the vast majority of [X]’s life, the parties lived together, with [X], as a family.
In addition, the records provided by the [G] Chilcare Centre indicate that the father delivered and collected [X], from childcare on numerous occasions. As far as the centre was concerned, the father was a parent, who was intimately involved with [X].
The mother, somewhat dismissively, asserts that the father was merely delivering and collecting [X] because the childcare centre was convenient to his place of work, whereas she had to travel further.
Regardless of these disputes, I do not think that it can be said that the father has been an absent parent. Until recently, he shared a household with [X]. Accordingly, I would expect that [X] has a significant relationship with his father. Certainly, it cannot be said that the two are strangers to one another.
The mother asserts that she took time out from the paid workforce, after [X] was born. As such, it is the thrust of her case that she must be regarded as [X]’s primary carer and this must give her relationship with him some level of primacy, so far as [X] is concerned. This may be so. I do not know. I do not have any independent expert assessment.
In any event, it seems that, from a fairly early age, [X] has
become familiar with childcare. It also seems to be the case that
Mr and Mrs A Senior have also assisted the parties, from time to time, in caring for [X].
In all the circumstances of this case, I am satisfied that [X] has a significant relationship with both his parents and indeed with his paternal grandparents. It would seem to me to be in [X]’s best interests that these relationships be maintained. [section 60CC(3)(b)]
The import of much of the father’s case is that the mother is incapable of supporting [X] to have a proper paternal relationship with him because of her own emotional needs. Again, this is a difficult issue to resolve definitively at this stage.
However, there are indications that the mother has acted unilaterally, so far as arrangements for [X]’s care are concerned. Certainly, in the period since 4 July 2008, the mother has made no proposals for the father to spend any time whatsoever with [X]. [section 60CC(3)(c)]
[X]’s life has been subjected to a great deal of change since June of 2008. The mother has changed his childcare centre. In addition, she has changed her address. [X] has not spent any time with his father or paternal grandparents. In my view, these are potentially significant changes.
It may be the case that [X] is anxious about why these people have apparently disappeared from his life. The mother asserts that they are not important to [X]. I am not persuaded that this is the case, on the basis of the evidence before me.
Even if I accept the mother’s position that she has been [X]’s predominant carer, up to this stage. The applicable legislation no longer enshrines any principal that the court should perpetuate any status quo in respect of care arrangements, for a child, at the interim stage.[4]
[4] See Goode & Goode (supra) at paragraph 80
It is difficult to assess the capacity of each of the parties to provide for [X]’s needs, at this stage and the attitude of each of them towards the responsibilities of being a parent [section 60CC(3)(f)&(i)]. Sadly allegations that one party is a negligent and incompetent parent often arise in proceedings of this kind. It is trite but true nonetheless that parties do not come to court to say good things about one another.
However, in this case, there is no independent verification of either parties’ complaints against the other. There is nothing to suggest that [X] is anything other than a child who is properly fed, clothed and cared for. Above all, I have no reason to think that he is not a much loved child by all who come into contact with him.
[X] is approaching his fourth birthday. His tender years are of great concern to me. Ordinarily, children of [X]’s age benefit from having stable and predictable regimes in respect of their care. It may be the case that frequent changes in [X]’s care arrangements will be disruptive to his parental attachments and may render him an emotionally insecure child.
It seems to be the mother’s case that, as she is and has been [X]’s primary carer, it is likely to be difficult for him to be away from her for extended periods of time and accordingly the father’s proposals are inappropriate. Essentially, [X] is too young to live in a shared care arrangement.
In the absence of an expert’s report, these are difficult issues to determine. No doubt it is the father’s position that [X] is sufficiently robust, both emotionally and physically, to be away from one or other of his parents for extended periods of time, including overnight time. [section 60CC(3)(g)]
The mother has obtained a family violence order against the father. It is not a final order nor was it contested by the father, who asserts the mother obtained it, in his absence, for tactical reasons. In these circumstances, I do not believe that the order can be taken into account by me. [section 60CC(3)(k)]
Application of the presumption contained in section 61DA
I do not think that that presumption is rebutted by the court having “reasonable grounds” to believe that the father has engaged in either abuse of [X] or family violence. At this stage, I am not in a position to form a concluded belief, one way or other, regarding such allegations of violence certainly not one based on reason or logic, particularly in the absence of any independent verification of the mother’s complaints against the father.
In this regard, I do not regard the medical note of June 2006, involving admissions on the father’s part of “pushing” as being determinative, particularly when I consider the definition of family violence contained in section 4.
The question which remains is whether, at this interim stage, the parties’ poor and mistrustful relationship with one another and the many evidentiary disputes between them render it inappropriate for the presumption to be applied.
The Full Court has indicated that the discretion, provided by section 61DA(3), is not to be exercised in a manner which is broadly exclusionary. Accordingly, it seems to me that the discretion must be exercised within the overall intent of the Act, which is to encourage both a child’s parents to have a meaningful relationship with the child concerned, commensurate with the need to protect the child from harm.
In all the circumstances of this case, I am not persuaded that it would be obviously inappropriate for the presumption to be applied at this interim stage. In my view, the discretion is to be engaged when potentially very serious matters of family violence or child abuse are raised, in the material before the court, which can be neither definitively established nor definitively negated, within the context of an interim hearing. In the circumstances of this case, I do not think that the discretion should be engaged because of the pre-eminence required to be given, by the court, to issues of child protection.
Having considered all the various section 60CC factors applicable and having analysed the evidence, as best I can, I have come to the view that it is likely to be in [X]’s best interests for the presumption of equal shared parental responsibility to be applied. I reach this conclusion because of the likely significance, to [X], of his paternal relationship and the likely benefits he will gain from having a meaningful relationship with his father.
Practical considerations
As the mother is unwilling to disclose precisely where she lives, I am unable to ascertain how far apart the parties’ respective households are. It does however appear to be the case that both parties have access to motor vehicles and both live within the northern area of Adelaide.
The mother has no practical suggestions regarding where [X] should be exchanged between the parties. She wishes orders to be made preventing the father coming to [X]’s childcare centre. The father asserts that these are self-serving obstructions. The mother says that they are justifiable conditions.
The recent separation between the parties was undoubtedly difficult. Both are coming to terms with their change of circumstances. There are many unresolved issues between them. I am concerned that these proceedings have already and will continue to have detrimental consequences for the parties’ respective ability to trust one another and implement a shared care regime for [X].
How could it be otherwise? The parties are each extremely critical of the other. The father categorises the mother as a vengeful and a manipulative person, who would put her own emotional needs before [X]’s need to have a proper and fulfilling relationship with his father.
For her part, the mother categorises the father as a violent and domineering bully, who is intent on getting his own way, so far as arrangements for [X]’s care are concerned, without any proper regard for the child’s best interests. The parties’ relationship is accordingly poor and mistrustful.
Certainly, since June of this year, they have demonstrated no capacity to communicate effectively with one another, nor any facility to resolve issues in dispute between them. The mother is unwilling to disclose fundamental information to the father about [X].
I must make orders in this case because the parties themselves are incapable of agreeing on arrangements for the care of their child. This does not bode well for any parenting arrangement predicated on cooperation and the free flow of information.
It is, I think the case, in the present matter that the parties do not trust one another and there is a high level of tension between them. Whether this state of affairs is transitory or entrenched between them is difficult, if impossible to ascertain at the present time.
Although I am uncertain whether it is a situation which applies in the present case, I am concerned that the emotional topography, which often prevails in children’s cases, may encourage the party, who is vehemently opposed to either a shared care regime or one whereby the child involved spend substantial time with both his or her parents, to act in a way which is fundamentally contrary to the principles and objects of the amending legislation.
He or she may be prone to perpetuate parental conflict; may magnify the practical difficulties which exist; and intensify the level of disputation about various parenting issues; in order to defeat the application of the mechanisms provided by section 65DAA. Whether such ulterior motives are present in any given case may be difficult to ascertain, particularly at the interim stage.
It is clear from the legislation that such an approach to parenting is contrary to its intention. The optimal outcome for a child, in the making of any parenting order concerning that child, is for his or her parents to have the maximum degree of involvement possible in that child’s life.
In determining issues to do with the parties’ current and future capacity to communicate with one another and resolve difficulties which may arise from a shared parenting regime, the court is required to consider the matters which arise under s.60CC(3)(c) & (i).[5] Accordingly it is the duty of the parents concerned to facilitate close and continuing relationships between the child concerned and each of his or her parents.
[5] See note 1 to section 65DAA(5)
It is clear from what was said by the Full Court in Goode that the court, at the interim stage, is required to take a different approach to the making of parenting orders to that previously propounded in cases such as Cowling.[6] In Cowling the emphasis was on the desirability of the court making orders which resulted in the maintenance of pre-existing care arrangements.
[6] see Cowling v Cowling (1998) FLC 92-801
Since Goode it has become clear that the court must be more pro-active, at the interim stage, in bringing about a care situation for the child concerned as much in accord with the optimal one prescribed by the relevant legislation as possible, provided it is in the child’s best interests.
A more problematic consideration is the likely impact, upon [X], of either a shared care arrangement or a substantial and significant time arrangement, given the parties’ acrimonious relationship with one another. The mother is clearly vehemently opposed to either outcome. In such circumstances, I am concerned that she may either consciously or unconsciously have a motive for derailing such an outcome, particularly at this early stage.
Obviously, in these circumstances, the parties’ present relationship is not an optimal one for the father’s preferred outcome nor is the mother likely to be proactive in sustaining it. These are very pressing concerns, in this particular case, especially given [X]’s tender years. [X] is not to be penalised for his parents’ dysfunctional relationship.
Again, at this interim stage, I am somewhat hamstrung by the absence of a detailed family assessment. I do not know, in any comprehensive way, what will be the implications for [X] of a shared care arrangement or indeed the consequences for him of only being able to spend curtailed periods of time with his father, as the mother proposes.
From the father’s perspective, I can understand why he would be critical of the court sustaining an arrangement for [X]’s care, which he believes the mother has unilaterally imposed upon him by her actions on 4 July 2008 and afterwards and which results in him spending only limited time with [X].
Conclusions
I regard this as a difficult case, at the interim stage. The intention of the Family Law Amendment (Shared Parental Responsibility) Act2006 is to favour the substantial involvement of both a child’s parents in their child’s life, both in regards to parental responsibility and the time they each spend with the child concerned.[7] However, one size does not necessary fit every family, particularly where young children are involved and the concerned parties’ parenting relationship is one which is compromised.
[7] See Goode & Goode (supra) at paragraph 72
On balance, I have come to the conclusion that the presumption of equal shared parental responsibility should be applied in this case at this stage. In the interim, pending the production of a family assessment, I have also come to the conclusion that there should be an equal time arrangement put in place for [X].
I reach this conclusion because of the benefits he is likely to gain from having a relationship with not one but both of his parents. For the reasons already provided, I do not think that protective concerns, arising from the mother’s allegations of family violence, should be given pre-eminence.
The evidence of the parties is highly conflicted. I cannot resolve who of the parties has been more intimately involved in providing care for [X], particularly in the period from September 2007 to June of 2008.
In such circumstances, I do not think that one parent should be given some form of priority over the other, particularly where there are grounds to suggest that one parent has acted unilaterally.
Whatever orders are made, there will be practical implications as to how those orders are to be implemented. The solution to these problems lies in the hands of the parties themselves. They have mutual responsibilities to ensure that [X] has a close and loving relationship with the other of his parents.
What impact such an arrangement will have on [X] is unclear to me. However, [X] is described as a child whose demeanour is “mostly happy” and who is confident, certainly in the childcare context.[8]
In particular, it is not suggested that [X] is a particularly insecure or emotionally needy child.
[8] See annexure H to the father’s affidavit filed 28 July 2008
In my view, it is premature to fix the matter for final hearing. It may be necessary to recalibrate the interim arrangements, once the family assessment report is to hand. I am hopeful that that can be done within the next two to three months.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 31 July 2008
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