B and B and Anor
[2007] FMCAfam 246
•30 April 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B & ANOR | [2007] FMCAfam 246 |
| FAMILY LAW – Interim parenting – dispute between same sex mothers with father joined as second respondent – overnight time – meaningful relationship. |
| Family Law Act 1975, ss.60CC |
| Cardaklija & Cardaklija [2007] FMCAfam 16 Goode & Goode [2006] FamCA 1346 Matthews and Kennedy [2007] FMCAfam 26 |
| Applicant: | B |
| First Respondent: | B |
| Second Respondent: | D |
| File Number: | SYC108 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 17 April 2007 |
| Date of Last Submission: | 17 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 30 April 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hausman |
| Solicitors for the Applicant: | David Cohen & Associates |
| Counsel for the Respondent: | Ms Christie |
| Solicitors for the Respondent: | Andrea Wilson & Associates |
| Second Respondent: | Self represented |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The Applicant and the First Respondent have equal shared parental responsibility for the Children, F and T.
The Children live with the Applicant and First Respondent as follows:
That F and T live with the Applicant from 12.00pm Sunday to 7.45am Monday each week with the Applicant collecting the Children from the First Respondent on the Sunday and the First Respondent collecting the Children from the Applicant’s residence on the Monday morning.
(a)That F live with the Applicant from 3.00pm Monday to 9.00am Tuesday each week with the applicant collecting F from school at 3.00pm and dropping F back at school on Tuesday mornings at 9.00am.
(b)That F and T live with the Applicant from 2.45pm Thursday to 9.00am Friday each week with the Applicant collecting T from the residence of the First Respondent prior to collecting F from school and returning T to the residence of the First Respondent prior to dropping F at school on the Friday morning.
(c)That F live with the Applicant one half of each school holidays by agreement with the parties but failing agreement the second half of each school holidays with the Applicant.
(d)At other times with the First Respondent.
Each party retain sole responsibility for the day to day care, welfare and development of the Children whilst they are in their respective care.
Each party is permitted to attend any school activity, extracurricular activity or sporting activity in which the children are involved whether or not the children are living with that party at the time.
That neither party change the school or child care attendance by the children without written agreement with the other party.
That each parent shall do all things necessary to ensure the Children are free to contact the other party by telephone or email at any reasonable time.
That each party shall provide to the other party a land line contact telephone number as well as their mobile telephone number and the address where the children shall be living during the periods when the children are in their respective care.
That each party shall advise the other in writing of any change of address or telephone and or mobile numbers within seven days of such change.
The neither party shall unless by Order of the Court or by written consent of the other party remove the Children from the Commonwealth of Australia.
Both parties are restrained from:
(a)Speaking or permitting any person other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing.
(b)Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
(c)Consuming illicit substances within twenty four hours prior to or during time spent with the children.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.
The parties send copies of all their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
The matter be adjourned to 26 September 2006 at 10am for a two day final hearing.
Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4.00pm on 5 September 2006. No further affidavits to be filed after that date without leave of this Court.
The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.
No later than two working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which the party will rely at hearing;
(b)The orders sought at hearing
The parties have liberty to apply on seven days notice.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC108 of 2007
| J |
Applicant
And
| L |
First Respondent
| D |
Second Respondent
REASONS FOR JUDGMENT
This is an application for interim orders relating to two children, F who is currently six years old and T who is currently nineteen months old.
The applicant is one of the children’s mothers, J who is 30 years old. The other mother of the children is L who is 42 years old. The father of the children, D, is joined as the second respondent in these proceedings. In relation to the father, he has been present on each of the occasions when the matter has been before me and has been invited to actively participate in the proceedings, however his role has been a passive one to date.
The applicant and the first respondent started living together in a same sex de facto relationship in about December 1998. When they decided to have a child they invited the second respondent father to donate sperm for insemination purposes. This resulted in the first respondent becoming pregnant with F who was born in England in 2000. The family consisting of the applicant, first respondent and F returned to Australia in January 2001. On the 7th February 2001 the applicant and the first respondent entered into consent orders that were made in the Local Court which provided that F reside with both of them, that they both have joint responsibility for making decisions about the day to day care, welfare and development of F and that they both have joint responsibility for the long term care welfare and development of F. The father was not a party to those orders.
In late 2003 it appears that the relationship between the applicant and the first respondent encountered difficulties, nonetheless they persisted with their relationship and engaged professional services to assist them. In 2004 they commenced donor insemination, again with the second respondent, with a view to a second child. There were some difficulties and tensions associated with how precisely the second child was conceived and this caused tensions in the relationship. In any event the second child, T was born on 7 October 2005.
It is not entirely clear to me when the parties finally separated, but in the context of the present application not much turns on this. When the relationship was in difficulty both mothers actively sought to address their problem and to reconcile. Certainly by October 2006 the relationship had broken down irretrievably, though it’s quite possible that this had occurred a few months earlier. It is clear, however, that right up until the time of the final breakdown of the relationship both the mothers were actively involved in parenting F and T, though it is also apparent that the first Respondent was playing a larger role in terms of time.
I adopt the framework suggested by the Full court in Goode & Goode FamCA 1346 at paragraph 82:
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The competing proposals of the parties
The applicant mother seeks orders the effect of which would be that F and T spend each Sunday and Thursday nights with her, and that F also spend each Monday night with her. The first respondent mother seeks orders that F spends time with the applicant mother each alternate weekend from Friday afternoon to Monday mornings, and each alternate Wednesday night. In relation to T, the first respondent mother proposes that T spends time with the Applicant mother each alternate Sunday night, and each alternate Wednesday night.
The issues in dispute at the interim hearing
The issues in dispute are relatively narrow. The mothers disagree with each other as regards how much time the children should be spending with each of them. The applicant’s proposal provides for frequency and regularity of time between the children and herself but is fragmented in the sense that there is a high degree of movement between parents and other carers, so far as the children are concerned. Nonetheless, on behalf of the applicant it is asserted that this reflects the existing arrangements as regards the children during the relationship and following its conclusion. On behalf of the first respondent, it is asserted that the existing arrangement is fragmented, is not in the best interests of the children and should be discarded in favour of one that provides the continuity of more extended periods of time with each parent, even though there are slightly longer periods during which the children do not spend time with the other parent.
Both proposals distinguish the arrangements as between F and T, but it seems that the distinction made by the first respondent is greater than that made by the applicant. On the first respondent’s proposal, T spends time with the applicant mother once a week, either on a Sunday night, or on a Wednesday night. Specifically in relation to T, on the applicant mother’s proposal, T gets to spend time with her two nights per week, i.e. Sunday and Thursday nights. On the first respondent mother’s proposal, however, T gets to spend time with his other mother each alternate Sunday night and each alternate Wednesday night meaning that, for example, there could be up to nine consecutive nights when T does not see his other mother. I note that after I had made a preliminary observation to counsel about this issue, and invited submissions in relation to it, Ms Christie for the first respondent informed me that her client was now prepared to allow T to spend time with his other mother after school in the alternate Wednesdays but not overnight.
The issue therefore is which of these competing proposals is in the best interests of the children?
Agreed or uncontested relevant facts
In this case a recitation of the agreed or uncontested facts does not assist in determining the issues before me, so I will not set these out other than to note the existing arrangements. Both children live with the applicant from 12 noon Sunday until Monday morning when the first respondent collects them, takes F to school, spends the day with T, and collects F from school. F gives back to the applicant that afternoon, but T stays with the first respondent. On Tuesday morning the Applicant takes F to school, and both children are with the first respondent that evening, and indeed through to Thursday evening when the applicant collects F only and returns her the next day. On Friday evenings, both children spend time with their father through to Saturday lunchtime when they go back to the first respondent.
Section 60 CC considerations
Section 60CC(2)(a) Benefit to the child of having a meaningful relationship with both of the child’s parents. There is no evidence that would lead me to find that the current arrangement for the care of the children has resulted in anything but each parent having a meaningful relationship with both of them.
The issue in the present context is whether, and if so to what extent, either proposal would undermine the meaningful relationship that exists. Specifically, the first Respondent mother’s proposal involves T, who is only 19 months old, only spending two nights a fortnight with his mother on alternating Sunday and Wednesday evenings, with a considerable gap in between, each fortnight. It was only at the last moment that time on Wednesday afternoon was suggested by the first respondent. Is such an arrangement one consistent with the “meaningful relationship” referred to in paragraph A of s.60CC(2)?
I discuss the meaning of “meaningful relationship” in Matthews and Kennedy [2007] FMCAfam 26 at paragraphs 43-48:
In s.60B(1)(a), there is reference to the concept of “meaningful involvement”. In s.60CC(2)(a) the first of the primary considerations, there is reference to the concept of “meaningful relationship.” The concepts are probably the same in substance. In each case there is a strong link between the best interests of a child on the one hand, and meaningful involvement and meaningful relationship on the other hand. It may well be that absent abuse and violence, in order to rebut the presumption under s.61DA(4) some consideration needs to be given as to how a relocation impacts on meaningful involvement and meaningful relationship as these concepts are so clearly linked to the best interests of a child. In other words s.61DA(4) takes one back to s.60CC(2) with its emphasis on meaningful relationship. So what do these terms mean?
Parkinson discusses this in his article at pp184-185:
Section 60CC clearly indicates that the court should so exercise its discretion in relation to post-separation parenting arrangements that meaningful relationship between parents and children are maintained, in the absence of violence or abuse. A child will almost always benefit from a meaningful relationship with both parents in the absence of violence, abuse, or very high conflict. Where there is ongoing violence or intractable conflict, the interests of the child may best be served by restricting the contact with the non-resident parent or preventing it entirely. As a general rule, then, the primary considerations reflect the findings of a very large body of social science research on parenting after separation.
Having said this, courts cannot by order, create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. In an individual case, the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a benefit is incapable of realisation in the circumstances of the case.[1]
[1] Parkinson P. “Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 AJFL 179
It is also instructive to set out a footnote to the above passage:
On what constitutes a meaningful relationship see P Amato and J Gilbreth, “Non-resident Fathers and Children’s Well-being: a Meta-analysis”, (1999) 61 J Marriage & Fam 557. In a meta-analysis of 63 prior studies on parent-child visitation, Amato and Gilbreth confirmed that frequency of contact in itself does not appear to be associated with better outcomes for children. However, emotional closeness, and in particular, authoritative parenting, is highly beneficial to children. Authoritative parenting included helping with homework, talking about problems, providing emotional support to children, praising children’s accomplishments, and disciplining children for misbehaviour. The researchers concluded that “how often fathers see children is less important than what fathers do when they are with their children” (at 569). On authoritative parenting, see D Baumrind, ‘Authoritarian v Authoritative Control’ (1968) 3 Adolescence 255. The term refers to a style of parenting which is neither authoritarian nor permissive.[2]
[2] Ibid
It is interesting in the present context to note that the social science research emphasises emotional closeness and authoritative parenting more than frequency of contact, in terms of better outcomes for children. Arguably though, without frequent time between non-resident parents and their children, the emotional closeness and authoritative parenting cannot be developed. There are certainly shades of what the social scientists call “emotional closeness and authoritative parenting” in the definition of substantial and significant time in s 65DAA(3).
In C & G [2006] Fam CA 994 (6 October 2006) Bennett J considered the meaning of the benefit of a meaningful relationship. At paragraph 48 of Her Honour’s judgment she identified two possible interpretations. On one interpretation the benefit to the child of having a meaningful relationship with both of the child’s parents is taken as a given. On another interpretation, however, the court must evaluate the nature and quality of the relationship to establish whether any benefit or meaningful relationship exists. Bennett J preferred the second interpretation. I respectfully agree with Bennett J, for the reasons she states in her judgment. I add one observation in this regard – on my reading of the social science research, no assumption is made about benefits of meaningful relationships, though there is a strong inclination towards the existence of this in most cases. As Parkinson states: “A child will almost always benefit from a meaningful relationship with both parents.”[3]
Brown FM considered the meaning of “meaningful” in the context of s.60CC(2) in P & P [2006] FMCA Fam 518 at paragraphs 256-258:
In the context of section 60CC(2)(a), the use of the word “meaningful” by the legislature is interesting. The ordinary definition of “meaning” and “meaningful”, when it is attached to an idea or some object, is denoting of the significance or importance of that idea or object. It seems clear that the court is only to consider whether a relationship is “meaningful”, to the child concerned, after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the legislature intends the court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows that parent to be involved in the child’s daily routine and occasions of particular significance, both to parent and child.
The rationale of section 65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from them being exposed to their parents in a variety of settings. These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
His Honour correctly links the concept of “meaningful” to s.65DAA, and points out both the quantitative and qualitative aspects of it. I will add my own observations about the concept of meaningful involvement or meaningful relationship. It is a multi-faceted concept, spanning more than one dimension. For example, as Brown FM correctly points out, it is both quantitative and qualitative in nature. The concept is not a “one size fits all” concept. What is “meaningful” to a baby, toddler, school-age child and teenager may, indeed probably will, be different in each case. The concept needs to not only take into account the capacity, developmentally and otherwise, of a child to receive the benefits of meaningful relationships and involvement, but the capacity of a parent to actually provide the same as well. Accordingly, the concept also takes into account the history and quality of the relationship between parent and child, and the quality of parenting. The past and present are often the only reliable indicators of the future.
[3] Ibid.
Having regard to the above, I believe that the applicant’s proposal is more conducive to the maintenance of the meaningful relationship that exists between the children and herself. This is particularly so in the case of T having regard to his age. The suggestion that allowing time on an afternoon (but not at night) on the other Wednesday goes nowhere near addressing my concerns. For T, especially, overnight time provides the opportunity for very important interaction with the applicant. I refer to and incorporate into these reasons my discussion about the important of overnight time in Cardaklija & Cardaklija [2007] FMCAfam 16 at paragraphs 26-40.
Section 60CC(2)(b) Protecting the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence. I have no concerns about the children in this regard. The competing assertions, denials, and evidence, about each parent’s consumption of narcotic substances, amounts to nothing. There is no evidence to lead me to be concerned in any way about the safety of F or T when in the care of either mother.
Section 60CC 3(a) Views expressed by the children. There are not such relevant views, and in any event having regard to the children’s ages, even if there were views they would carry little weight.
Section 60CC 3(b) The nature of the relationship of the children with each parent and other persons. There is no evidence to indicate anything other than the good relationship that exists between these children, and their father, the second respondent. As regards the second respondent, he indicated at the interim hearing that he sees the children regularly on Fridays and Saturdays, but not necessarily every Friday and Saturday. This appears to be an arrangement that is supported by both mothers. I urged D to consider obtaining legal advice and participating more actively in these proceedings, particularly as they move towards a final hearing. That is a matter entirely for him, of course. It is relevant, however, to know that the applicant’s proposal for the children to spend time with her does not appear to cut across existing arrangements for the father to spend time with the children. By contrast, the first respondent mother’s proposals do have the effect of cutting across the time the father spends with the children. Whilst it is not the Court’s role to advocate on behalf of the father who is playing a passive role in these proceedings, s.60CC(3)(b) clearly requires me to consider the impact of each proposal on the relationships that the children have with their parents. As Ms Christie, counsel for the first Respondent submitted to me, a particular challenge in this case is dividing the children’s time between two mothers and a father, not just a mother and a father. The evidence indicates that the children enjoy a good relationship with each of their parents so it is relevant for me to consider the impact on this relationship of one proposal as opposed to the other.
Accordingly, the Applicant’s proposal not only better facilitates the continued good relationship that exists between the children and their parents, but has the least adverse potential impact on these relationships, particularly with the father. The first respondent’s proposal has a greater potential for detrimental impact on the father’s relationship with the children.
Section 60CC(3)(c) The willingness of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. On behalf of the Applicant it was submitted that I should be concerned about the first Respondent’s conduct in unilaterally changing the arrangements for T to spend time with his other mother. I cannot make findings about this and I believe that it is unnecessary to do so in any event.
Section 60CC(3)(d) The likely effect of any changes in the child’s circumstances including the likely effect on the child of separation form parents. There is a close relationship between the impact of the changes proposed and the impact on the meaningful relationship between the children and the parents which is discussed at paragraph 12 onwards above. On behalf of the applicant it was submitted that her proposal is the one that provides the minimal disruption and change from the existing arrangements. Ms Hausmann submitted that the Full Court’s decision in Goode & Goode [2006] FamCA 1346 did not completely abandon the significance of a child living in a settled environment. Indeed, the Full Court specifically acknowledged this, when it acknowledged it still may be possible for a court to find that what is ultimately in the child’s best interests it to remain in a well-settled environment, but that conclusion can only be arrived at after considering that matters in s.60CC. In short, whilst the result of keeping a child in a stable well-settled environment is still possible, the route to be adopted is a more circuitous one.
In this case I would be very reluctant to implement the first Respondent’s proposals the effect of which would, on the basis of the evidence available to me, create the greatest change in the children’s lives for the reasons I have set out above. It would be most unwise to effect such a change when the final hearing in this matter has been listed for 26 and 27 of September and at which point in time a different arrangement might be entered into.
Section 60CC(3)(e) The practical difficulty and expense of children spending time with a parent. No issues arise in this case.
Section 60CC(3)(f) The capacity of each parent to provide for the needs of the children including emotional and intellectual needs. In this case there is no evidence to indicate that either mother is unable to provide for the needs of the children. On behalf of the first respondent, however, it was strongly argued that both in terms of past and current parenting arrangements she has had the predominant role and she is able to offer availability and stability at a higher and deeper level than can be offered by the applicant. Specifically, whereas the applicant works fulltime, the first respondent does not work on a Monday or Friday. It is submitted on the first respondent’s behalf that is it her proposal that ensures that the parent who has the most capacity to provide for the needs of the children is actually given that opportunity. This is a consideration, but not a weighty one in the context of an interim application, where the final hearing is barely five months away. Notwithstanding the first respondent’s arguments about availability, stability and the extent to which she is better able to provide for the needs of the children because of her flexible work arrangements, it does appear that the current arrangement reflects that which these parents had adopted both before and after the end of their relationship. The use of nannies and alternative carers was a common feature of parenting both before and after separation. Any discussion about the capacity of a parent to provide for the needs of children needs, in my opinion, to consider both context and history. Both mothers were able to adequately provide for the needs of their children, and the history of their parenting is inconsistent with a submission that says, in effect, one parent is better able to provide because they are more available.
Section 66CC(3)(g) The maturity, sex, lifestyle and background of the child or either of the child’s parents. No issues were raised in this regard. Even when Ms Christie made the observation during submissions that there was an added difficulty in dividing the children’s time between two mothers and a father, I did not take this in any way to be a submission to the effect that the fact that the mothers were in a same-sex relationship was in any way relevant to the determination I need to make.
Section 60CC(3)(h) The child is not an Aboriginal or Torres Strait Islander child.
Section 60CC(3)(i) The attitude to the child and the responsibilities of parenthood, demonstrated by each of the child’s parents. There is no evidence that would cause me concern in relation to this consideration that is not otherwise discussed above.
Section 60CC(3)(j) Any family violence involving a child or member of the child’s family. There is no evidence to raise any concerns in this regard.
Section 60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family. There is no such order.
Section 60CC(3)(l) 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. This is an interim order, in the context where a final hearing has been appointed for 26 and 27 September 2007, just over five months into the future.
Section 60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant. I think the relatively short delay between the resolution of this matter on an interim basis, and a final hearing, is a matter that I can take into account under this paragraph. One would trust that five months is a sufficiently long period of time for the parents, and indeed the Court, to ascertain whether the proposed parenting arrangements have in fact worked in the best interests of the children, as is intended. If for any reason the proposed arrangements do not work, the period of time pending a fuller investigation of the case is relatively limited.
I am therefore satisfied that the orders I make on an interim basis reflect what is in the best interests of F and T.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 30 April 2007
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