Alton and Alton
[2014] FCCA 2252
•3 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALTON & ALTON | [2014] FCCA 2252 |
| Catchwords: FAMILY LAW – Children – Parenting Orders – parental responsibility – equal shared parental responsibility – best interests of the child – one child aged seven years – whether equal time with each parent is in child’s best interests – whether equal time with each parent is reasonably practicable – substantial and significant time – whether substantial and significant time is in child’s best interest – whether substantial and significant time is reasonably practicable – events that have occurred after interim orders made on 5 November 2013 – child’s school – whether injunctive order should be made restraining change of school – overseas travel – conditions attached to overseas travel – passport – arrangements about child’s passport – whether proposed orders are “micro-managing parenting” – courts should take a minimalist approach in making parenting orders – courts should only intervene when the welfare of the child will be advanced by making an order. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 65Y |
| Cases cited: Alton & Alton [2013] FCCA 1744 Chan & Phu [2013] FCCA 556; Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025 In the Marriage of Hall (1979) 5 Fam LR 609; FLC 90-713 In the Marriage of Jaeger (1994) 18 Fam LR 126; FLC 92-492 Nash & Reis [2013] FMCAfam 11 Scott & Kent [2013] FCCA 127 VR & RR [2002] FamCA 320; (2002) 29 Fam LR 39; FLKC 93-099 |
| Applicant: | MS ALTON |
| Respondent: | MR ALTON |
| File Number: | SYC 85 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 17-19, 26 September 2014 |
| Date of Last Submission: | 26 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 3 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | Christopher Mackay |
| The Respondent: | In person |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child X born (omitted) 2007.
The Father is to have responsibility for making decisions concerning the day to day issues of the child X when she spends time with him and the Mother is to have responsibility for making decisions concerning the day to day issues of the child when she lives with her.
The child X is to live with Mother.
The child X is to spend time with the Father:
(a)During school term time each alternate week from immediately after school on Thursday until the commencement of school on the following Monday PROVIDED THAT if the Monday is a public holiday then until the commencement of school on the Tuesday AND FURTHER PROVIDED THAT the child’s time with the Father is to occur when the child A is ordinarily with his mother Ms S so far as reasonably possible;
(b)During the Christmas/January school holidays commencing in December 2014:
(i)with the Mother from the last day of the fourth school term until 12:00 noon on Christmas Day;
(ii)with the Father from 12:00 noon on Christmas Day until 12:00 noon on Boxing Day;
(iii)with the Mother from 12:00 noon on Boxing Day until 9:00am on 6 January 2015;
(iv)with the Father from 9:00am on 6 January 2015 until 9:00am on 22 January 2015; and
(v)with the Mother from 9:00am on 22 January 2015 until the commencement of the first school term in 2015.
(c)During the Christmas/January school holidays commencing in December 2015:
(i)with the Father from the last day of the fourth school term until 1:00pm on Christmas Day;
(ii)with the Mother from 1:00 pm on Christmas Day until 9:00am on 6 January 2016;
(iii)with the Father from 9:00am on 6 January 2016 until 9:00am on 15 January 2016; and
(iv)with the Mother from 9:00am on 15 January 2016 until the commencement of the first school term in 2016; and
(d)During the Christmas/January school holidays commencing in December 2016:
(i)with the Mother from the end of the last school term until 1:00pm on Christmas Day;
(ii)with the Father from 1:00pm on Christmas Day until 9:00am on 6 January 2017;
(iii)with the Mother from 9:00am on 6 January 2017 until 9:00am on 15 January 2017; and
(iv)with the Father from 9:00am on 15 January 2017 until the commencement of the first school term in 2017.
(e)in subsequent years, rotating according to the pattern set out in sub-paragraphs (c) and (d) above.
During the school holidays at the conclusion of Terms 1, 2 and 3 in each year, the child X is to spend time with her parents as follows:
(a)in 2015 and all subsequent odd numbered years:
(i)with her mother for the first half of each school holiday period; and
(ii)with her father for the second half of each school holiday period; and
(b)in 2016 and all subsequent even numbered years:
(i)with her father for the first half of each school holiday period; and
(ii)with her mother for the second half of each school holiday period.
(c)Unless otherwise agreed between the parties, the changeover day in the school holiday period is to be 9:00am on the day falling most closely to the middle day of the school holiday period.
If Easter should fall on a weekend outside of the school holidays at the end of the first school term then the child X is to spend time with the parties as follows:
(a)with her mother in all even numbered years from 9:00am on Good Friday until 5:00pm on Easter Monday; and
(b)with her father in all odd numbered years from 9:00am on Good Friday until 5:00pm on Easter Monday.
In the event that (religion omitted) Easter falls on a different date to Easter and the child X is due to spend the Sunday of (religion omitted) Easter with her father, then the father is to make the child available to attend the Mother’s family (religion omitted) Easter celebration with the Mother from 12:00 noon on the Sunday until the following Monday morning at 9:00am and in the event that the Monday is a day on which the child would normally attend school then the Mother is to deliver the child to school UNLESS the Sunday of (religion omitted) Easter should fall at a time during the school holidays when the child would be spending time with the Father according to these Orders.
Notwithstanding the provisions of any other Order the child X is to spend time with her mother from 5:00pm on the Saturday immediately before Mother’s Day until 9:00am on the following Monday.
Notwithstanding the provisions of any other Order the child X is to spend time with her father from 5:00pm on the Saturday immediately before Father’s Day until 9:00am on the following Monday.
Notwithstanding the provisions of any other Order the child X is to spend time on her birthday being (omitted) in each year with the parent with whom she is not otherwise spending time as follows:
(a)from immediately after school until 6:30pm if the birthday falls on a school day; and
(b)from 9:00am until 12:00noon if the birthday falls on a day when she is not required to attend school.
The child X is to spend time with her father on his birthday being (omitted) if the birthday should fall on a day when the child would not otherwise be spending time with her father as follows:
(a)from immediately after school until 6:30pm if the birthday falls on a school day; and
(b)from 9:00am until 12:00 noon if the birthday falls on a day when she is not required to attend school.
The child X is to spend time with her mother on the Mother’s birthday being (omitted) if the birthday should fall on a day when the child would not otherwise be spending time with her mother as follows:
(a)from immediately after school until 6:30pm if the birthday falls on a school day; and
(b)from 9:00am until 12:00 noon if the birthday falls on a day when the child is not required to attend school.
For the purpose of changeover between the parties the father or his nominee is to collect the child from school or the Mother’s residence as the case may be at the commencement of the child’s time with the Father and the Mother or her nominee is to collect the child from school or the Father’s residence as the case may be at the commencement of the child’s time with the Mother.
Each party must do all things necessary to facilitate telephone contact between the child X and the other parent at all reasonable times when the child wishes to speak to the other parent on the telephone.
The parties are restrained from interrupting or restricting telephone calls, emails and other forms of electronic communication between the child and the other parent.
Each party must allow the child to speak to the other party by telephone in privacy without interruption so far as is reasonably possible.
The Applicant Mother and the Respondent Father are both permitted to take the child X born (omitted) 2007 out of Australia to a place outside Australia for the purposes of a holiday during the time when the child would ordinarily be in the care of that parent in accordance with these Orders subject to the following conditions:
(a)the party proposing to travel out of Australia with the child must notify the other party one month prior to the proposed date of departure from Australia of the following matters:
(i)the proposed destination or destinations;
(ii)a written itinerary including dates of travel, mode of travel, flight numbers and times;
(iii)contact details of all places where the child will be staying including telephone numbers, email and postal addresses; and
(b)the party proposing to travel with the child must confirm to the other party the details of the arrangements referred to in the immediately preceding Order one week prior to the date of proposed travel.
The Respondent Father is permitted to take the child X out of Australia for the purposes of a holiday in (country omitted) between 7 January and 21 January 2015 PROVIDED THAT he complies with the conditions contained in Order (18) above.
The Applicant Mother is to retain the child’s passport in her possession but must provide the passport to the Respondent Father no later than one week prior to the confirmed date of the child’s departure from Australia with the father PROVIDED THAT the Mother is to make the child’s passport available to the Father at an earlier time for the purpose of obtaining any necessary visa for the child if the Father should so request.
The Father is to return the child’s passport to the Mother within seven (7) days of returning to Australia with the child.
The parties must each do all acts and things and sign all necessary documents to allow the issue of a new or replacement passport for the child.
The parties are restrained by injunction from criticising or denigrating the other party or members of the other party’s immediate family in the presence or hearing of the child or from permitting any third person to do so.
Each party must advise the other party and keep the other party informed of their current residential address and advise the other party of any proposed change to their residential address at least one month prior to that change.
Each party must advise the other as soon as reasonably possible of:
(a)any medical emergency involving the child X;
(b)any medical or dental appointments for the child; and
(c)any medication prescribed for the child or any necessary medical treatment for the child.
Each party will be at liberty to attend any school function, parent/teacher interview or sporting event involving the child to which parents are normally invited to attend.
Each party is at liberty to receive all copies of any school reports relating to the child and school bulletins, newsletters, information about school photographs or other material normally sent to parents of children attending the child’s school.
Each party must ensure that his or her name and contact details are placed on file at the child’s school for use in case of emergency.
Unless otherwise agreed between the parties, they and each of them are to do all acts and things necessary to ensure that the child X continues to attend the (omitted) School until the completion of Year 4.
IT IS NOTED that publication of this judgment under the pseudonym Alton & Alton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 85 of 2013
| MS ALTON |
Applicant
And
| MR ALTON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Mother of a little girl named X for orders that X should live with her and spend time with her father. X has recently turned seven years of age. She lives with her mother and spends time with her father in accordance with interim parenting orders made by this Court on 5th November 2013.[1]
[1] Alton & Alton [2013] FCCA 1744
Whilst some circumstances have changed, the parties have been unable to resolve their differences over parenting arrangements for their daughter. The Father seeks an order, as he did previously, that the child should live with each parent for an equal amount of time on a week about basis.
Background
The background facts to these proceedings were set out in some detail at paragraphs [4] to [14] of the earlier decision, and do not need to be repeated in any great detail.
The parties were married on (omitted) 2006 and separated on 14th April 2012. They were divorced by Order of this Court on 13th June 2013.
There is one child of the marriage, X, who was born on (omitted) 2007. She lives with her mother and spends time with her father in accordance with interim Orders made on 5th November 2013.
The Father has, since the orders were made on 5th November 2013, married his fiancée, Ms S, who is now known as Ms S. Ms S is the mother of a boy named A, who was born on (omitted) 2005. He is now 9 years old. A lives with his mother “on a week on week off basis”.[2]
[2] Affidavit of Ms S 29.8.2014 at paragraph [3]
The Mother and Father and the child attended interviews with a Family Consultant, Ms T, for the purposes of a Family Report, in July 2013. The Family Report was released to the parties on 3rd September 2013.
The Family Consultant provided an Addendum to the Family Report on 21st October 2013, clarifying an error in her recommendations.
The parties attended a further interview with the Family Consultant on 20th August 2014 for the purpose of an updated Family Report. Ms S and the child A also attended on this occasion. The Family Consultant also spoke on the telephone to a psychologist, Ms K. The updated Family Report was completed on 15th September 2014 and released to the parties’ solicitors the following day.
The Father was legally represented until shortly before the final hearing but appeared without representation at the final hearing.
Evidence
The Mother relied upon her affidavit of 27 August 2014.
The Father relied on the following affidavits:
a)his affidavit of 29th August 2014; and
b)the affidavit of Ms S of 29th August 2014.
He also sought to rely on a further affidavit of 9th September 2014, which he had prepared in reply to the Mother’s affidavit of 27th August 2014, but the Mother’s counsel objected to this affidavit being read, as it had been filed outside the time stipulated by the Court for the filing of affidavit material and, more importantly, it would deny the Mother procedural fairness if the Father were permitted to rely on an affidavit in reply to her trial affidavit and she were not so permitted.
I read the affidavit in order to decide whether it should be admitted or not and formed the view that the contents were not of such importance that the affidavit should be permitted to be read (see In the Marriage of Jaeger[3] per Fogarty J at 131).
[3] (1994) 18 Fam LR 126; FLC 92-492
The Mother gave oral evidence and was cross-examined by the Father. Both the Father and Ms S gave oral evidence and were cross-examined by Mr Millar of Counsel, who appeared for the Mother.
Both parties wished to cross-examine the Family Consultant. As she was only available for oral evidence on the first day, she gave her evidence first.
The Family Reports
For the purposes of the initial Family Report, completed on 26th August 2013, the Family Consultant interviewed the Mother, the Father and the child. As I noted in the earlier hearing, the Father’s then fiancée, Ms S, did not attend the interview and the Family Consultant commented that the Report was limited by her non-attendance.[4]
[4] Alton & Alton [2013] FCCA 1744 at [34]
In that Report, the Family Consultant noted that the issue in dispute was:
Whether an equal time arrangement is suitable for X.[5]
[5] Family Report 26.8.2013 page 5 at [12]
At paragraph [13] of the Family Report, the Family Consultant identified four issues during the assessment, being:
a)Family violence;
b)Parental conflict;
c)Poor parental relationship; and
d)Cultural issues.
At paragraph [46] of the Family Report, Ms T expressed the view that:
On the information available to the family consultant, it is the tension and mutual mistrust in the parental relationship that appears to be the central issue in this dispute. Ultimately, the parents need to be aware that it is not the apportion of time that X spends in each household over a fortnightly period that will ensure that she is emotionally and psychologically healthy and help her to develop and maintain positive relationships, but the way in which they (i.e. the parents) manage their conflict and disagreements that potentially will have the biggest influence.[6]
[6] Family Report 26.8.2013 at page 17 [46]
The Family Consultant made some recommendations, which were corrected in the Addendum to Family Report of 21st October 2013. Those recommendations were:
1. It is recommended that the parents have equal shared parental responsibility of X.
2. It is recommended that X live with the mother.
3. It is recommended that X spend time with the father as follows:
(a)To commence in January 2014 and once Ms S is based in Sydney on a full time basis,
in week one from after school Friday to before school Monday; and in week two from after school Thursday to Friday 6.30 pm.
(b) To commence once X’s attains the age of seven,
in week one from after school Friday to before school Monday; and in week two from after school Wednesday to Friday 6.30 pm.
4. It is recommended that Ms S attend and complete an anger management course (eight sessions) prior to any changes in the parenting arrangement.
5. It is recommended that Mr Alton and Ms S complete a parenting after separation course.[7]
[7] Addendum to Family Report 21.10.2013 page 1
For the updated Family Report, the Family Consultant interviewed the following:
a)the Mother;
b)the Father;
c)X; and
d)The child A.
The Family Consultant observed X with each of her parents and also with her father, Ms S and A.
The Family Consultant noted the parties’ proposals, which were:
8. Ms S proposes that X live with her and that the time that X spends with her father is not increased until X is in better mental health.
9. Ms S proposes that X live with each parent in a week about arrangement.
The Family Consultant identified the issue in dispute between the parties as:
How much time X should spend with each parent.[8]
[8] Family Report 15.9.2014 page 5 [10]
She also identified the following issues during the assessment:
a)X’s views and the weight that should be given to them
b)X’s mental health; and
c)The nature of the parental relationship and their ability to effectively communicate and co-parent.[9]
[9] Family Report 15.9.2014 page 5 [11]
The Family Consultant reported that the Mother said that the child had been exhibiting signs of anxiety since the implementation of the week on/week off arrangement during the 2013/2014 Christmas school holidays. The Mother said that she had “welcomed” Ms S and was happy that X gets on well with her step brother A. She expressed the view that the hostility in the parental relationship came from the father.
Surprisingly, the Family Consultant reported:
Ms S[10] said that she contacted Mr T (Ms S’s former husband and father to A) on LinkedIn. Although she regards this as inappropriate, she said that she did so because she wanted to “know about X’s living arrangements”. She said that Mr T, A and X had a play date in April 2014 and believes that A and X have a good relationship.[11]
[10] i.e. the mother
[11] Family Report 15.9.2014 page 7 [15]
The Family Consultant recorded the Father as saying:
…that it is in X’s best interests that she have an equal time arrangement as this would benefit X and because X has indicated that she wants more time with him…He also believes that the week about arrangement will promote stability for X as there will be less handovers and less anxiety about who will be picking her up from school when she is in her mother’s care.[12]
[12] Ibid page 7 [16]
The Father was also reported as saying that X’s anxiety related to the continuing underlying parental discord and that she experiences anxiety about the Court process and worries that she will spend less time with him.
Ms S said that she and the Father get on well as a couple and that they put the children’s needs first. Interestingly, she said that her former husband, Mr T, had pleaded guilty to assaulting her and that he made her nervous. Conflict arises when she does not agree to his demands.
Ms S was also recorded as saying that:
She believes that the relationship between Mr T and Ms S is “unusual” and that it is not healthy for the children.
…She does not believe her relationship with Ms S would be “genuine” at this point given Ms S’s contact with Mr T.[13]
[13] Family Report page 9 [23]-[24]
X told the Family Consultant that she was enjoying spending more time with her father and A:
She stated that she wants the arrangement to stay “the same, what I’m spending now” as she gets to see her parents “kind of the same amount”.[14]
[14] Ibid page 9 [26]
Ms S’s son A said that he had a week on/week off arrangement with his parents and that it was going “pretty good”. He said he got on well with his parents, step parents, X and X’s mother:
He said that he feels that he sees X “enough” because he also gets to spend time with X when she is with her mother, which he enjoys..
32.A said that his father has called Ms S an “idiot”.[15]
[15] Ibid page 10 [31]-[32]
The Family Consultant observed X to be “affectionate toward her father and excited to see him” and noted that she “interacted with Ms S in a positive and engaging manner”.[16] X was “excited” to see A.[17]
[16] Ibid page 11 [34]
[17] Ibid
With her mother, “X was engaging, conversational and playful in her interactions”.[18] The Family Consultant noted that X and her mother “conversed about their recent trip to (country omitted), which they both enjoyed”.[19]
[18] Ibid [35]
[19] Family Report 15.9.2014 page 11 [35]
The Family Consultant spoke on the telephone to Ms K, the psychologist who had been seeing X in a therapeutic context for anxiety. Ms K expressed the view that the Mother and Father had difficulties with each other, “but not in their roles as parents, as they are both competent parents”.[20]
[20] Ibid [36]
Concerningly, Ms T expressed the view that the parental conflict remains a salient issue, which has had a negative impact on X’s mental health. She said that this view “is also supported by Ms K”.[21]
[21] Ibid page 12 [38]
The Family Consultant expressed the opinion that X was “more aware than ever that her parents are in a tug of war about her and this has had a detrimental effect on her emotional well-being…
In interview, X presented as immensely anxious and she is likely to be worried about the outcome of these Court proceedings. It will be in X’s interest for this litigation about her to end.[22]
[22] Ibid [39]-[40]
The Family Consultant expressed some very firm views about whether an equal time arrangement would be in the child’s best interests. For it to be so, it would require the parents to share all tasks of parenting without conflict and to have an open line of communication.
The views of the child were squarely set out by the Family Consultant. X and A both reported that they felt content with the current arrangement. X’s views have changed, and she no longer expressed a wish for a week on/week off arrangement, as had been the case when she was interviewed for the first report.
Ms T stated at [44] and [45]:
44. Given X’s anxiety and the difficulties in the parental relationship, there are reservations about any further increase in the time that X currently spends with her father until there has been a marked improvement in the parental relationship, and in X’s anxiety. Given these reservations, it would appear that the implementation of an equal time arrangement is further contra-indicated.
44.It would be beneficial to reduce the number of changeovers that X is required to endure and, as such, consideration may need to be given to the time that X spends with each parent occurring in one block over the fortnight. This will also have the benefit of A and X spending more time together. It is further suggested that the parents continue to focus on the parental relationship and supporting X with the assistance of Ms K.[23]
[23] Family Report 15.9.2014 page 14 [44]-[45]
The Family Consultant’s recommendations are:
a)That the parents have equal shared parental responsibility for the child; and
b)That X should live with her mother and spend time with her father for four nights per fortnight in a block period.
Ms T was cross-examined first by Mr Millar of Counsel, who appeared for the Mother, and then by the Father. She was unshaken in her evidence. She was not supportive of the Father’s week about proposal, noting that there was a significant lack of trust between the parties and an escalation in the conflict between them.
The Family Consultant also said that the difference in the parents’ parenting styles was a contrary indication for equal shared time. She was also not recommending that X’s time with her father should be increased. As for the Christmas school holidays, they should not be in two large blocks but for smaller periods.
In cross-examination by the Father, Ms T reaffirmed that X was very cognisant of the dispute between her parents. Children do not need to be directly exposed to parental conflict to be aware of the conflict.
The Family Consultant supported the proposal for the parents to have equal shared parental responsibility for X, saying that it was important for both parents to be involved with her. They are both committed to X and devoted to her.
The Orders Sought by the Parties
The Orders sought by the Mother are set out in a Minute of Orders tendered to the Court on the first day of the hearing. There are 32 of them in all, and I do not propose to set them all out in detail.
The Mother has amended the Orders she previously sought to a position that is in accord with the Family Consultant’s recommendations in the Family Report. Essentially, she seeks orders that:
a)The parties should have equal shared parental responsibility for the child;
b)The child should live with the Mother and spend time with the Father during the school term in a block period from after school on Thursday until the commencement of school on the following Monday morning, or to the commencement of school on Tuesday if the Monday is a public holiday, providing that the child’s time with her father should coincide with the time that Ms S’s son A spends with his mother in the Father’s household;
c)The child should spend alternating blocks of a week at a time with each parent during the Christmas/January school holidays each year;
d)The child would spend half of each of the Term 1, Term 2 and Term 3 school holidays with each parent, alternating between the first half and the second half in each year;
e)Easter would alternate between the parties if it were to fall outside the school holidays;
f)(religion omitted) Easter, being a special time for the Mother and her family, would see the child spend the Easter Sunday with the mother so that she could take part in the mother’s family (religion omitted) Easter celebrations, although the Mother conceded that if that Sunday should fall during the school holidays when the child was spending time with her father then she would not expect the child to be brought back from a holiday for that purpose;
g)The child would spend Mother’s Day with her mother and Father’s Day with her father;
h)The child would spend time on her birthday and on the parents’ birthdays with the other parent;
i)There was a specific order sought about the child’s birthday party each year;
j)Changeovers would be at school or the parents’ residences as the case may be;
k)The parties would be permitted to take the child outside Australia for a holiday, although the Mother proposed a number of conditions to which the Father did not agree;
l)The Mother would hold the child’s passport and make it available when necessary;
m)The Mother sought an order placing restrictions on the child sharing a bedroom with another child from the age of ten onwards;
n)The Mother proposed a variety of injunctive orders restricting denigration of the other parent or discussing family law proceedings; and
o)The Mother specifically sought an order requiring the parties to keep the child at the (omitted) school until she completes Year 6.
The Father seeks orders that:
a)The child should live with each parent in a week on/week of arrangement during the school term and the Term 1, Term 2 and Term 3 school holidays;
b)The child should spend the Christmas/January school holidays in a block format so that she would be with each parent for half of the holidays.
The Father raised during the submissions the fact that he proposed to take the child to the (country omitted), along with Ms S and A, for a two week period in January 2015.
The Father opposes a number of the mother’s proposed orders.
Submissions
Counsel for the Mother submitted that the parties both sought an order for equal shared parental responsibility.
Mr Millar submitted that the Court would find that the Mother was a good witness but would not make the same finding about the Father. He said that the Father had been evasive and obfuscatory in his evidence and had not confronted the issue of the child’s anxiety. He described the Father as conveying the impression of being very reasonable but really being determined to get his own way.
It was submitted that the child’s expressed wish was that she wanted the arrangements to stay the same as they currently are, and he pointed out that the Father’s proposal would lead to a significant reduction in the amount of time that the child would spend with her mother, which was contrary to the recommendations in the Family Report.
The Father submitted that the Court should not follow the recommendations in the Family Report, referring to the decision of the Full Court of the Family Court In the Marriage of Hall[24], to which I had referred in the earlier decision at [78]. The particular passage in the judgment is well-known, but an edited version is worth repeating.
[24] (1979) 5 Fam LR 609; FLC 90-713
Their Honours said at 614-616:
In view of the comments in this case as to the weight to be given to a family report, we feel it may be helpful to make certain observations which we stress are of a general nature –
(a)There is no magic in a family report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities…
(b)Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial judge to weight the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence, the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character than that which the counsellor has accepted.
(e) Sometimes the family report will necessarily be neutral…
(f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the judge or whether it is not; the report will still serve the court well and assist the court’s investigation…
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations…
(h)Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions…
(i)Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied.[25]
[25] (1979) 5 Fam LR 609 at 614-616; FLC 90-713 at 78,819-78,820 per Evatt CJ, Ashe SJ and Hogan J
The Father submits that parts of the Family Report are not consistent with opinions expressed by the psychologist Ms K, who reported that the child “finds it hard not seeing her father as often as she would like to”.[26]
[26] Treatment Summary, (omitted) Child Psychology Centre, 30 April 2014, Annexure 3 to affidavit of X 29.8.2014
It is the Father’s view that the Court should prefer the views expressed by Ms K where they differ from the views of Ms T expressed in the Family Report.
The Father also submitted that it was not in the child’s best interests to spend four nights per fortnight in a block format as it would mean that she would not then see him for another ten nights at a time.
The Father also submitted that the Mother was a misleading witness who has shown that she wished to control and “micro-manage” his parenting of X. I had used the phrase “micro-managing” in a question I had put to the mother in her oral evidence.
The Father submitted that the evidence showed that both he and the mother are very capable parents.
The Relevant Law in regard to Parenting Applications
When the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to various sections of the Family Law Act 1975 (Cth) that are to be found in Part VII of the Act. In particular, it should have regard to the provisions of:
a)Section 60B;
b)Section 60CA;
c)Section 60CC;
d)Section 61DA; and
e)Section 61DA.
The Objects and Principles of Part VII
The Court must have regard to the objects of Part VII of the Act and the principles underlying those objects.
The objects of Part VII are set out in subsection 60B(1) and include:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
These two objects are reflected in subsection 60CC(2) of the Act.
The other objects are to be found at paragraphs (c) and (d) of s.60B(1):
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the objects of Part VII are set out in s.60B(2) of the Act. These principles include:
a)children have a right to know and be cared for by both their parents;
b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development;
c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children; and
e)children have a right to enjoy their culture.
The Best Interests of the Child
Section 60CA of the Act requires the Court, when deciding whether to make a parenting order, to regard the best interests of the child as the paramount consideration.
Section 60CC sets out the way that the Court determines what is in a child’s best interests. The primary considerations are set out in subsection 60CC(2). They are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court is required by s.60CC(2A) to give greater weight to the consideration set out in paragraph (b).
The additional considerations are set out in subsection 60CC(3). They are contained in paragraphs (a) to (m) of the section, although they will not all necessarily be relevant.
One relevant consideration in this case is that set out paragraph (a) of the subsection:
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The presumption of Equal Shared Parental Responsibility
Section 61DA requires the Court to apply the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. This presumption does not apply in cases of child abuse or family violence and it may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests to apply the presumption.
Consideration of Equal Time or Substantial and Significant Time
Section 65DAA applies when the Court has made an order that the child’s parents are to have equal shared parental responsibility for the child. If that is the case, the Court is required by s.65DAA(1) to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent. If the Court does not make an order to that effect, s.65DAA(2) requires the Court to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.
Reasonably Practicable
The meaning of this concept is sometimes imperfectly understood. It is not just a question of geographical distance or the availability of transport, but a variety of factors relating to the parents themselves.
Subsection 65DAA(5) provides:
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
All of the above matters have been considered, insofar as they are relevant.
Conclusions
There is no issue about equal shared parental responsibility. Notwithstanding the allegations of previous family violence up to the parties’ separation, each parent contends that the proper order in this case is that the parents should have equal shared parental responsibility for the child. It was also a recommendation of the Family Consultant, both in the Family Report and in her oral evidence.
I propose to make that order.
Having reached that conclusion, the Court must consider the matters in s.65DAA, especially whether it is in this child’s best interests and reasonably practicable to spend equal time with each of her parents.
The Mother opposes such an order but the Father submits that it is both reasonably practicable and in X’s best interests to spend equal time with each of her parents.
After due consideration, I am not of the view that it is either reasonably practicable and in this little girl’s best interests to spend equal time with each of her parents.
It is true that the parents only live a few kilometres from each other, but there are doubts about at least their current capacity to implement an arrangement for the child to spend equal time with each of them. The Father has always pressed this arrangement, but the Mother has always been implacably opposed to it.
There are also doubts about the parties’ capacity to communicate with each other and resolve difficulties that might arise. It was the Father’s proposal at one stage to require the Mother to communicate with him only by email, which he would read once a week.
Again, the parties had discussions about the child’s school. Exhibit 4 is a chain of emails between the parties on 16 June this year. They had attended a meeting with Ms K and discussed certain issues, including proposals for the child’s future schooling. After the meeting, the father emailed the mother and Ms K, saying:
Following our discussion, I would like to make sure that we are on the same page with respect to the outcomes from today’s meeting. As I understand it:
…
4) Ms Alton and I will start to jointly consider future schooling options for X post year 2/3. The schools that we will look at include (omitted), (omitted) and (omitted) School. I will contact Ms Alton to coordinate arranging school meetings etc.
The Mother replied that same day:
My interpretation of the meeting today was a little (different) to yours. My recollection is:
- We (all adults in all households) should put any idea of a working/cooperative relationship aside for the time being in the hope that with the passing of time the situation may improve.
…
We each look into high school options for X which may include (omitted), (omitted), (omitted) School (and I would also like to see (omitted) School). I see no need to attend appointments together at this early stage and did certainly not mention any possibility of moving schools before X is in Year 5 – unless we find that (omitted) does not meet her academic and social needs.
My position is again that I find it increasingly difficult to be in a room with you Mr Alton so ‘hopefully’ when the dust settles and with the passing of time this may be possible.
The Father replied that same evening:
I guess we will always have different accounts of things!
…
I would like to consider the options of X moving in year 4 vs year 7 based on what would be best for her.
This exchange, on 16th June this year, does not say much about the parties’ current capacity to communicate with each other. Only three months later, on 17th September, the Mother’s Counsel tendered a Minute of proposed Orders seeking an order that:
Unless otherwise agreed between the parties, they and each of them are to do all acts and things to ensure X attends (omitted) School until the completion of Year 6.
Further, the Court must consider the impact that an equal time arrangement would have on the child (s.65DAA(5)(d)). It is clear from the Family Report and from the evidence of the Family Consultant that an equal time arrangement was not supported, due to the mutual degree of mistrust and the conflict between the parties. The symptoms of anxiety shown by the child would not be alleviated by the implementation of an equal time arrangement.
I am satisfied that an equal time arrangement between the parents would not be reasonably practicable.
The Court must be satisfied that it would be both reasonably practicable and in the best interests of the child before an equal time arrangement could be implemented.
I am not of the view that such an arrangement would be in the best interests of the child.
I note that the Father submits that the Court should not follow the recommendations contained in the Family Report. However, the Family Report appears to me to be consistent with the earlier Family Report and the evidence of the Family Consultant has been tested by cross-examination. As I mentioned earlier, the Family Consultant’s evidence was not shaken in cross-examination.
I propose to follow the recommendations in the Family Report.
There is a degree of mistrust between the parents that is inimical to the concept of an equal time arrangement. It is not all from the father; the mother’s evidence and the facts show clearly that the mother does not trust the father’s parenting ability very much at all. The very orders that she seeks make this clear.
However, what is a clear indication of the Mother’s mistrust of the Father is the extraordinary step that she took in deciding to contact the ex-husband of Ms S, Mr T, in order to find out about X’s living arrangements. The Mother agreed with the Family Consultant’s description of this action as “inappropriate”, which is rather an understatement., to say the least.
It is hard to understand what could have possessed the Mother to make a deliberate decision to contact Ms S’s ex-husband. This was an act that could only have caused concern and unhappiness in the Father’s household, especially as the relationship between Ms S and her ex-husband has not been a good one. The Father and his current wife could be excused for having little if any trust in the mother once it became clear that she was, in effect, spying on them.
It is noteworthy that the Mother, although agreeing that her behaviour was inappropriate, did not express any remorse for her actions. In her email to the Father of 16th June this year contained in Exhibit 4, she stated:
I did not commit to cutting ties with Mr T, Ms C[27] & A, however as it is obviously not encouraged by either yourself or Ms S, I will be mindful of the impact this may have on X.
[27] Mr T’s new partner
This was hardly an apology for what was quite reprehensible behaviour on her part, as the mother appears to be quite unrepentant about acting in a way that appears to me to be quite destructive of a relationship of mutual trust between the Father and herself, not to mention Ms S.
In my view, the Mother needs to do as much to build up the relationship of trust as the father needs to do.
In my view, the lack of trust between the parents, the poor communication and the difference in parenting styles between the parents, all indicate that equal time for the child between the parents will not be a workable arrangement and, therefore, not in this child’s best interests.
The Court must also consider whether it is in the child’s best interests and reasonably practicable for each parent to have substantial and significant time with her. For the reasons that I will set out, the answer to this question is clearly in the affirmative.
Despite their differences, the parents are each clearly committed to their daughter and obviously love her dearly. They each have a lot to offer her and I am left in no doubt that there is a significant benefit to X in having a meaningful relationship with both of her parents.
Whilst the Court must consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, I am inclined to agree with counsel for the Mother, who referred to the violence as “historical”. There was an incident in April 2012 whilst the parties were living at (omitted), which led to the parties separating on 14 April. There were proceedings for a family violence order at the Frankston Magistrates’ Court, but the matter was resolved by means of undertakings.
There are no family violence orders in force. The Mother makes no allegations about the Father in this regard. I am satisfied that there is no unacceptable risk to the child whilst in the care of either parent.
The views of the child have been established by the Family Consultant. The child told her that she was enjoying spending more time with her father, as a result of the interim Orders made by the Court on 5th November 2013. She told the Family Consultant that she wanted the arrangement to stay “the same, what I’m spending now”.[28]
[28] Family Report 15.9.2014 page 10 [31]
X is a year older than she was when the previous Family Report was prepared, and her views will be given more weight than previously.
The evidence is that the child has a good and positive relationship with both of her parents. She also appears to have developed a good relationship with her step brother A and with his mother, Ms S. Ms S impressed as a witness of truth. I told the Father during the submissions that I thought Ms S was “nice” and I recorded during her evidence that she appeared to be intelligent, articulate and sensible.
The parents have taken every opportunity to participate in making decisions about major long-term issues in relation to X, and they wish to spend as much time with her as they can. Neither party wishes to spend less time with her than they are doing now, and the Father wishes to increase the time the child spends with him.
There is no issue about the parties failing to fulfil their obligations to maintain the child. The Father pays child support and pays the child’s school fees.
The likely effect of a change in circumstances on the child would be significant, in my view, if she were to move to an equal time arrangement, as the Father wishes. By definition, she would spend less time with her mother, by three days a fortnight, and I consider that she would not be happy with that arrangement, even though she would see her father more.
There is no practical difficulty in the child communicating with either or her parents. They live relatively near to each other.
There is no real doubt about the Mother’s capacity to provide for the needs of the child, including her emotional and intellectual needs.
The Mother does not believe that the father has the capacity to provide for the child’s emotional needs, citing his apparent downplaying of X’s anxiety. In my view, as I said during the submissions, the Father’s parenting capacity is not as bad as the Mother appears to believe. He is not a bad father. He has a different parenting style and it may be that the child does not display the same symptoms of anxiety when she is in his care as she does when is with her mother.
X is a child who was born on (omitted) 2007. She has recently attained the age of seven years. On her mother’s side, she has a (country omitted) heritage, which her mother considers to be quite important, and the evidence is that X enjoys taking part in the (religion omitted) Easter celebrations that are a feature of the life of the Mother’s extended family. The Mother seeks an order that would allow X to continue to participate in that activity, even when she would otherwise be spending time with her father. The Father does not disagree, except that he has raised the possibility that (religion omitted) Easter Sunday could fall at a time when the child was not only in his care but actually away on holidays with him. The Mother said in cross-examination that she would not expect him to bring her back if that were the case.
Each parent takes his or her responsibilities as a parent seriously, and they obviously both love their daughter dearly. It appears, however, that they each have difficulty in separating their desire to have their daughter with them from an objective assessment of what is in her best interests. That said, it is hard to blame a parent for wanting their child to live with them and spend time with them.
There is no current family violence order, nor has there been one in force. What family violence there has been is in the past and I see no risk of harm to the child in the care of either parent. The Father has not taken the advice of the Family Consultant to undertake an anger management course, saying that he was not angry, but frustrated.
The Mother has taken a parenting after separation course, the Father has not.
The Court is required by s.60CC(3)(l) to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. It is often difficult for a Court to work out exactly what that is, because a party can choose to bring further parenting proceedings, whether or not there appears to be an objective basis for doing so.
However, the Father has taken exception to some of the orders sought by the Wife, saying that they are unnecessary and will only lead to needless contravention proceedings between the parties. There is some basis for his claim that the Mother is seeking to micro manage his parenting of the child.
Whilst there are many of the Mother’s proposed orders to which the Father agrees, he has objected to some as being unnecessary and impinging on his right, and his ability, to care for his daughter whilst she is in his care. Such orders appear to arise from the Mother’s distrust of the Father’s parenting abilities.
Why, for instance, should it be necessary for the Court to make the Mother’s proposed order 13, which prescribes which parent should hold a birthday party for the child, and when. Is it necessary to make the proposed Order 20(a), requiring the father to inform the Mother of the rooming arrangements for the child whilst she is on holidays?
Is it necessary to restrain the parents from taking the child to a destination designated as unsafe or at high risk by the Department of Foreign Affairs and Trade? Surely the parents have enough responsibility not to take the child to Iraq or Syria in the middle of a war, or to Sierra Leone, Guinea or Liberia whilst they are in the grip of an Ebola epidemic?
There is no evidence that either parent has seriously contemplated such an idea. The Mother took the child to (country omitted) in April this year, as was permitted by Order (10) made on 5th November 2013, and the Father is planning to take the child to (country omitted) in January 2015 for a snowboarding holiday in (omitted) with Ms S and A.
The Mother seeks, in her proposed Order 21, that from the age of ten each parent should ensure that X only shares a bedroom with a child of her own sex whilst travelling. The Father queries why such an order should be necessary. Again, such an order will only impinge upon his parenting ability.
The Father opposes the mother’s proposed Order 25, which requires the parents to give each other at least 48 hours’ notice of any proposed travel away from Sydney for work purposes in order to give the other parent the first opportunity to care for the child during that period. In my view, such an order would be more trouble than it is worth and likely to cause disruption to the child for no appreciable benefit.
Again, is it really necessary for there to be, in the Mother’s proposed order 27(c), a requirement that not only should the parties inform each other of any prescribed medication or medical treatment for the child but they should each “follow the recommendations from a doctor regarding X’s taking such prescribed medication or adhering to any prescribed medical regime”.
Proposed orders of this type provide a strong illustration of the Mother’s lack of trust in the Father’s parenting ability and, indeed, his common sense. Even if he were occasionally remiss or forgetful about something to do with the child, it is likely that his current wife would remind him. She appeared from her evidence to be a sensible person and, as far as can be ascertained, a capable mother to her own son.
These proposed orders come within the category of what has been described by Judge Brewster of this Court[29] as “micromanaging”. In his Honour’s decision of Nash & Reis[30], his Honour held at [52]:
These orders are really nothing more than the court directing a parent to be a good and responsible parent…They would involve the court making orders micromanaging how each party cares for the child…In my view a court should be minimalist in the orders it makes which, in effect, micromanage how parents bring up their children. Further it would be demeaning for a court established under Chapter III of the Constitution to exercise the judicial power of the Commonwealth. In my opinion such orders should very rarely, if ever, be made.[31]
[29] Formerly Brewster FM
[30] [2013] FMCAfam 11
[31] [2013] FMCAfam 11 at [52]
His Honour referred to the decision of the Full Court of the Family Court in VR & RR[32], where the Court held at [29]-[30]:
While the word “proper” connotes a very wide area of discretion, in our view it is clear from the legislative scheme that the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the court is of the view that the welfare of the child will be clearly advanced by that order being made.
[30] In our view it is not the role of the court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The court should only interfere in the way a parent proposes to raise a child to the extent that the welfare of the child requires interference.[33]
[32] [2002] FamCA 320; (2002) 29 Fam LR 39; FLC 93-099
[33] [2002] FamCA 320 at [29]-[30]; (2002) 29 Fam LR 39 at 44 [29]-[40]; FLC 93-099 at 88,940 (per Kay, Coleman and Warnick JJ
I propose to follow those decisions, as I have previously done in Scott & Kent[34] and Chan & Phu.[35]
[34] [2013] FCCA 127
[35] [2013] FCCA 556
The Mother’s proposal that the Father’s time with the child during the school term should remain at the same amount each fortnight but should be combined into one block appears to me to be in the child’s best interests, even though the Father submits that it is not. It is a proposal recommended by the Family Consultant and has the advantage of not only reducing the number of changeovers each fortnight but allowing the child to settle into a routine in each household.
The alternating weeks in the shorter school holidays should continue, in my view.
The Father seeks, but the Mother opposes, an order dividing the long school holidays over Christmas and January into two halves. I am not satisfied that it will necessarily be in X’s best interests, as it involves her spending a considerably longer time away from each parent than she has up to now. It is not supported by the Family Consultant, who said in her oral evidence that the Christmas holidays should not be in two large blocks but smaller periods.
The Mother proposes alternating weeks over that period of time. There is no real difficulty with that proposal at this stage in the child’s life, with the exception of the fact that the father wishes to take her, Ms S and A to (country omitted) for a fortnight from 7th January 2015 to go snowboarding in (omitted). I do not see a difficulty with that proposal. The child has already travelled to (country omitted) with her mother and, according to the Family Consultant appeared to enjoy the experience. Order (10) made on 5th November 2013 permitted the Mother to remove the child from Australia for the purposes of a holiday in (country omitted) between 12th April and 22nd April 2014.
It would be surprising if the child were not to enjoy a trip to (country omitted) for a slightly longer period in company with her father, her stepmother and A, with whom she appears to have a good relationship.
The very last order sought by the Mother, and opposed by the Father, is Order 32, which says:
Unless otherwise agreed between the parties, they and each of them are to do all acts and things to ensure X attends (omitted) School until the completion of Year 6.
It will be recalled that the parties had disagreed about this issue in their emails of 16th June this year. This seems to be a totally unnecessary issue for the parties to have disagreed about at this stage of their child’s education. There is no proposal to change her school at this stage, and it is difficult why the Father thought it necessary to pursue the subject. It illustrates the difficulties the parties have in communicating and cooperating and illustrates, in my view, one reason why an equal time arrangement is unlikely to work at this stage.
The Father was cross-examined about this issue. The child is currently in Year 1 at (omitted) and will proceed to Year 2 in 2015. The Father stated that the current Principal of the school has done a very good job. The Father denied that he had done anything to change the child’s school in year 2 or intended to do so in Year 3.
In the controversial email to which I have previously referred, Exhibit 4, the Father stated his belief that there was an agreement that:
Ms Alton and I will start to jointly consider future schooling options for X post year 2/3.
The Mother denied any such agreement, saying:
I see no need to attend appointments together at this early stage and did certainly not mention any possibility of moving schools before X is in Year 5 – unless we find that (omitted) does not meet her academic and social needs.
The evidence is that the child is thriving at the school at present, but if she were to get wind of any controversy between her parents about removing her from the school in the next year or so this may well contribute to the child’s anxiety. In my view, it would be appropriate to make the order in a modified form, committing the parents to keep the child at (omitted) School until the completion of Year 4 unless they agree otherwise. The parties need to resolve their communication and cooperation about more immediate matters, rather than argue about something that may or may not occur some years in the future.
The evidence is against an equal time arrangement between these two parents who have yet to reduce their current conflict to a level of cooperation that will benefit their daughter, who is, in my view, anxious enough without further controversies being argued.
Although the Father has pursued his aim of an order that would see the child living in an equal time arrangement, and although that is what he would no doubt dearly love, I am not satisfied that it would be in X’s best interests. In the end, after considering all the evidence, the Court must follow the direction set out by the legislature in s.60CA of the Family Law Act 1975 and regard the best interests of the child as the paramount consideration.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 3 October 2014
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