BAHL & BRANDON
[2010] FMCAfam 630
•20 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAHL & BRANDON | [2010] FMCAfam 630 |
| FAMILY LAW – Parenting orders – whether a week about shared care arrangement is in best interests of a child whose parents have a highly conflicted relationship to which the child has been exposed – ordered child continue to live with the wife and spend significant and substantial time with the husband. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| MRR v GR [2010] HCA 4 |
| Applicant: | MS BAHL |
| Respondent: | MR BRANDON |
| File Number: | MLC 8660 of 2009 |
| Judgment of: | Bender FM |
| Hearing date: | 21 June 2010 |
| Date of Last Submission: | 21 June 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 20 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Hannan |
| Solicitors for the Applicant: | Kenna Teasdale Lawyers |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Auditore Pty Ltd |
ORDERS
The parties have equal shared parental responsibility for their son [X] born [in] 2000 (“[X]”).
[X] live with the husband from after school Wednesday (or 3.30 pm if a non-school day) until before school Monday (or before school Tuesday if Monday is a public holiday) each alternate week.
In addition to order 2 herein, [X] shall live with the husband as follows:
(a)for one half of all school holidays at times to be agreed, and failing agreement for the second half, to commence at 12.00 noon on the day which marks the middle point of those holidays and to conclude at the commencement of the first day of the school term;
(b)in the event that Father’s Day falls on a weekend where [X] is not in the husband’s care, from 6.00 pm Saturday until the commencement of school on Monday;
(c)on [X]’s birthday for no less than two hours should the birthday fall on a weekday or no less than four hours should the birthday fall on a weekend;
(d)in the event Eid Fitr or Eid Adha falls on a day when [X] is not in the husband’s care, from 3.30 pm to 6.30 pm; and
(e)at such other times as agreed between the parties.
[X] otherwise live with the wife.
[X]’s living arrangements pursuant to order 2 herein shall be suspended during the school holiday periods and upon the resumption of the school term, [X] shall recommence living with the husband on the Wednesday of the first week of term following the holidays where the husband has had [X] in the first half of the holidays, and recommence on the second Wednesday of term where the husband has had [X] in the second half of the holidays.
[X]’s time with the husband pursuant to orders 2 & 3 herein be suspended as follows:
(a)in the event that Mother’s Day falls on a weekend when [X] is not in the wife’s care, from 6.00 pm Saturday until the commencement of school on Monday;
(b)on [X]’s birthday and on the wife’s birthday for no less than two hours should the said birthdays fall on a weekday or no less than four hours should the said birthdays fall on a weekend and on a day when [X] is in the husband’s care; and
(c)in the event Eid Fitr or Eid Adha falls on a day when [X] is not in the wife’s care, from 3.30 pm to 6.30 pm.
Whichever of the parties [X] is living with on Eid Fitr and Eid Adha shall take [X] to a mosque for morning prayers.
All changeovers shall take place at [X]’s school on school days and in the event changeover is on a non-school day, the parent who is to have the care of [X] will collect him from the other parent’s home.
The orders made on 21 June 2010 remain in full force and effect.
IT IS NOTED that publication of this judgment under the pseudonym Bahl & Brandon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Melbourne |
MLC 8660 of 2009
| MS BAHL |
Applicant
And
| MR BRANDON |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves the parties’ competing applications in relation to the living arrangements for their son [X] born [in] 2000 (“[X]”).
Currently [X] lives with the wife from after school Monday to before school Wednesday in the following week and with the husband from after school Wednesday to before school Monday in each alternate week. Thus in each fortnight [X] lives with his mother for nine nights and with his father for five nights.
The wife is seeking orders that this current living arrangement for [X] continue.
The husband is seeking orders that [X] live with each of his parents on a week about basis with changeovers to occur on Monday.
When the matter first came before the court, there was an issue between the parties in relation to the husband wishing to travel with [X] to Malaysia in September/October this year and in relation to overseas travel generally. To their credit, the parties resolved those issues and I made orders by consent that finalised that aspect of parenting matters between the parties.
I was also advised at the conclusion of the hearing that the parties had resolved arrangements for [X] in relation to holidays and special occasions. The orders pronounced by me include the agreement reached between the parties in that regard.
Background
The wife was born in Singapore [in] 1968 and is 42 years old. She came to Australia in 1990 upon her marriage to the husband. She is a [occupation omitted] by trade and currently employed on a full-time basis as a [omitted]. The wife is in a long-term relationship with Mr O. Mr O has three adult children who live with him. The wife and Mr O do not live together.
The husband was born in Singapore [in] 1962 and is 48 years old.
He immigrated to Australia in 1986. He is an [occupation omitted] employed [omitted] and works Monday to Friday from 3.30 pm to
1.30 am. The husband has remarried and he and his current wife have two children, a daughter [Y] aged almost two years and a son [Z] aged four months.
The parties married [in] 1990 in Singapore and commenced their married life in Australia thereafter. The parties separated under the one roof in 2005 and divorced in 2006. Final property orders were made by consent on 1 February 2006.
The parties continued to reside under the one roof until 2008.
In December 2007 the husband married Ms T (“Ms T”) who he met through the website “Muslim Marriage Link” in July 2007. Ms T is Malaysian. The wife, members of her family and [X] attended the wedding of the husband and Ms T in Malaysia.
When the husband and Ms T initially returned to Australia, they lived with the wife and [X] before moving into their own home in or around March 2008.
After the husband and Ms T moved to their own home, [X] initially spent alternate weekends with them. On 30 July 2008 the husband “took” [X] from his school without the wife’s knowledge or consent. The wife attended the husband’s home seeking [X]’s return and when this was not agreed, the Police become involved.
The relations between the wife, the husband and Ms T which, until that time, had been cordial began to deteriorate following this incident.
In an endeavour to reach agreement as to [X]’s living arrangements, the parties attended [S] Family Care Centre to engage in mediation. After two interim Parenting Plans, the parties entered a final Parenting Plan in December 2008 which provided for [X] to live with the wife and spend from after school Thursday to before school Monday in Week One and from 9.00 am Saturday to 10.00 am Sunday in Week Two with the husband. These arrangements were in place from October 2008 to September 2009.
On 16 September 2009, the parties again attended mediation at [S] Family Care Centre to discuss [X]’s living arrangements. The husband was seeking to implement a week about arrangement which the wife opposed.
It is the wife’s evidence that the husband again “took” [X] from school on 18 September 2009 and told her [X] would be living with him week about thereafter. It was the husband’s evidence that this date marked the commencement of the holidays which the parties shared and that he returned [X] to the wife on Monday 28 September 2009.
The wife commenced the current proceedings on 28 September 2009.
The matter came before the court on 2 October 2009 and the parties entered into interim consent orders in the terms as set out in paragraph 2 of this judgment. In addition, the orders provided for [X] to spend half of school holidays with each of his parents, for the wife to take [X] to [B] on Sundays for religious education and for the husband to continue to take [X] to karate and Kumon when [X] is in his care.
Evidence
The wife’s proposal
As set out earlier in this judgment, the wife is seeking that the current living arrangements for [X] continue into the future so that he spends five nights in each fortnight with his father and the balance of time with her.
It was the wife’s evidence that because of the husband’s work commitments and in particular because he works from 3.30 pm to
1.30 am for five days of the week, an additional two nights in his father’s care would not give [X] a great deal more time with his father.
The wife conceded that [X] had told the Family Report Writer that he wanted to spend more time with his father, but she was of the opinion that that reflected [X]’s desire that when he was at his father’s home his father be at home to spend time with him rather than at work.
The wife described [X]’s routine when living with her. They get up at about 7.00 am, have breakfast and dress for school and then she drops him to a friend’s home on her way to work. The friend takes [X], as well as her own children, to school. [X] goes to after school care and is collected by his mother at 5.00 pm. On Mondays [X] has gymnastics, on Wednesdays he has karate (as well as on Saturdays when with her), on Tuesdays and Fridays he has Kumon and in accordance with the current orders on Sundays he undertakes religious education at [B]. In practical terms this means that when [X] is with the wife the only day he does not have some kind of structured activity is on a Thursday.
The extent of [X]’s extra-curricular activities, and what those activities are, is a major bone of contention between the parties.
In relation to his schooling, it would appear that [X] has struggled with English and Mathematics and the wife enrolled him in Kumon some two years ago to assist him with those difficulties. It was the wife’s evidence that she had done that at the suggestion of [X]’s teacher who had indicated that some private tutoring would be of assistance to him.
The husband, whilst acknowledging that [X] needs assistance, does not believe that Kumon is the best intervention for [X] as he believes it does not challenge him enough and is not offering the assistance that [X] needs. He is of the view that [X] is better assisted by following the books and curriculum suggested by the Victorian Education Department.
It is the wife’s evidence that [X] really enjoys both gymnastics and karate, and that he has progressed with his karate to the blue belt level.
In the Family Report prepared by Ms R in this matter, she identified that she felt that the wife was very threatened by Ms T for her son’s affections and that this underpinned a lot of her objections to [X] spending further time with his father, particularly in the circumstances where during the school week after school [X] is effectively spending time with Ms T and his siblings rather than with his father.
Ms R recommended that the wife would benefit from some personal counselling to assist her in addressing this issue.
The wife was cross-examined in relation to those recommendations and it was her evidence that she did not believe she had personal issues that required counselling and denied that she had issues with or was threatened by [X]’s relationship with his stepmother. It was her evidence that she supports [X]’s relationship with his father, stepmother and siblings. She gave evidence that [X] has a picture of his father, stepmother and siblings in his bedroom. When on a recent holiday in Queensland with [X], she bought presents for [X] to give to [Y] and [Z]. The wife compared this to the husband’s home where, it was her evidence, [X] is not allowed to display a photograph of her.
However, the wife had to concede that she had specifically instructed [X] that he was not allowed to call Ms T “Mum” and that if he had any worries or concerns he should raise them with either his father or herself rather than with his stepmother.
The wife’s demeanour and responses to questions put to her at the final hearing does not support her evidence that she is supportive of [X]’s relationship with his stepmother. I found her to be defensive, to be dismissive of Ms T’s role in [X]’s life and to exhibit little insight of the impact on [X] of her negative views of his stepmother.
It was the wife’s evidence that since the July 2008 overholding, communication between herself and the husband had become extremely poor and that the husband would only communicate with her by way of SMS text message.
It was the wife’s evidence that she and Ms T do not communicate either or at least that they have not done so since the July 2008 incident.
It was the wife’s evidence that the current arrangements give [X] a secure home base while at the same time ensuring that he has an ongoing meaningful and loving relationship with his father and new siblings.
The husband’s proposal
It is, and has been for some time, the husband’s wish that [X] live week about with each of his parents.
It was the husband’s evidence that when with him, he and [X] get up just before sunrise to say morning prayers and that they spend the rest of the morning together until he drops [X] to school. It was the husband’s evidence that for most of this year, he has collected [X] from school and dropped him home before heading off to work.
It was also the husband’s evidence that in relation to his employment, he often has days off if there are [details of occupation omitted] and that this occurs on average one day per week. He had to concede however that he had made no reference to this time off in any of his affidavit material, nor did he have any confirmation of that from his employer.
In relation to the different approaches that the parties have in relation to [X]’s education, the husband confirmed that he did not believe that Kumon was the best way to assist [X] with his education. His evidence was that his wife, Ms T, had downloaded the relevant information from the Victorian Education website as to the appropriate source material that [X] should be working from to assist him in his progress and that this was the best way forward for [X].
It was the husband’s evidence that his wife assists [X] with his homework, though not his Kumon work because he does not need assistance as it is too easy for him.
In relation to [X]’s extra-curricular activities, it was the husband’s evidence that he does not believe that [X] enjoys either karate or gymnastics, as on the few occasions that he had attended with [X] at those activities he had not appeared to be particularly enthusiastic. In relation to his karate, it was the husband’s evidence that [X] had only reached the blue belt level because it had been convenient for [X]’s karate school to keep promoting him. He exhibited no insight as to how dismissive this comment was of [X]’s achievements in progressing with his karate or that [X] may have been unwilling to show enthusiasm in front of his father in circumstances where [X] is aware of his father’s disapproval of these activities.
It was the husband’s evidence that he had considered [X] engaging in soccer and in swimming as alternate activities to karate and gymnastics, and that a possible solution would be for [X] to partake in the extra-curricular activities chosen by the wife when he was with her and in activities chosen by him when [X] was living with him.
In the Family Report process, Ms R indicated that when she asked the husband about his willingness to facilitate [X]’s participation in extra-curricular activities, he responded:
“If his activities gave him a future, I’d be supportive.”
In relation to his current activities, the husband told Ms R that he supported karate but not gymnastics because [X] was not:
“a gay guy.”
When [X] spoke to Ms R, he told her that he enjoyed school and that he would like to join the choir but:
“maybe there is no future in it.”
When cross-examined in relation to these comments, the husband conceded that they reflect his attitude towards [X]’s extra-curricular activities and that [X] is aware of how he feels in this regard.
The husband agreed that he and the wife have difficulty in communicating and that their discussions can become very heated. It was his evidence that he does not like to argue and that he withdraws from any situation that may become confrontational. The husband conceded this can be very frustrating for those who are trying to deal with him. It was on this basis that the husband indicated he preferred to communicate with the wife by way of text messaging so that verbal conflict was avoided and there would be no arguments.
In relation to the two incidences where the husband unilaterally “took” [X], firstly in July 2008 and in September 2009, it was the husband’s evidence that there were no court orders in place and that it was “his time” with [X].
The husband described [X] as having a very good relationship with
Ms T and his siblings.
Ms T
Ms T is the husband’s now wife who swore an affidavit in these proceedings and also gave viva voce evidence at the final hearing. It was Ms T’s evidence that she and [X] have a good relationship and that [X] is close to his siblings, particularly his sister [Y].
It was her evidence that she assists [X] with his homework and his reading. She expressed concern that the Kumon work was far too easy for [X] and she did not believe that it was assisting him.
In relation to her relationship with the wife in these proceedings, Ms T indicated that when she and the husband first married it was cordial but after the incident in July 2008 it had become non-existent. It was her evidence that she had attempted to politely greet the wife but the wife had completely ignored her and that because of the wife’s attitude to her she no longer attempts to interact with the wife in any way. When the wife comes to their home to collect [X] she just lets [X] go to the door.
When asked what she thought of the wife in her role as [X]’s mother, it was Ms T’s reply that:
“She is trying her best to be a good mother.”
When asked to expand what she had meant by that comment, it was her evidence that she too is a mother who is trying her best to be a good mother as well.
Ms T expressed some sorrow that the wife saw her as a competitor for [X]’s affections rather than another adult in [X]’s life who could contribute to his life and well-being.
Ms C
Ms C is [X]’s 5th Grade teacher. At my request, Counsel for both parties telephoned Ms C in relation to [X]’s current educational needs, as neither party had provided any independent evidence in that regard and it was an issue of real dispute between them.
Counsel reported that Ms C confirmed [X] was still having some problems with reading and writing and that his reading and writing was:
“of an early Grade 5 standard.”
In relation to Kumon, she confirmed that the Kumon process started children at an easier level and then moves forward.
Counsel advised that Ms C confirmed that the husband had approached her and asked what he could do to assist [X] at home and that she had advised him that [X] would benefit from some form of external assistance. She made no specific recommendation for Kumon and indicated that any “professional” assistance would help [X].
Ms C indicated that they had recently developed a specific Plan to be put in place that details what the school and parents can do to assist [X] and that the Plan had been made available to both of the parties.
Neither party gave any evidence as to this Plan or as to what their understanding of the Plan was.
Ms R
Ms R is a psychologist and Regulation 7 Family Consultant with the Federal Magistrates Court of Australia who prepared a Family Report in this matter dated 25 January 2010. Ms R also provided oral evidence at the final hearing of this matter.
In paragraph 59 of her Report, Ms R recommended as follows:
59. It is respectfully recommended:
·That the parents participate in a Post-Separation Parenting Program
·That [X]’s living arrangements remain as they are until both parents can demonstrate they have completed the Program at which time [X]’s time with his father be increased to 50/50 on a week about basis
·That neither the mother nor the father be permitted to remove the child from the Commonwealth of Australia without the written consent of the other parent
When cross-examined, Ms R was asked as to why she had recommended a week about arrangement. It was Ms R’s evidence that it was [X]’s wish to spend equal time with his father. She indicated that [X] had:
“impressed her beyond belief.”
Ms R described [X] as an incredibly mature, thoughtful little fellow who was too aware of what was going on in relation to the parental dispute and who was trying to balance his parent’s needs and wishes with his own needs and wishes.
Ms R also gave evidence that another factor that informed the recommendation in her Report was that the parents, by all accounts:
“had gotten along very well and had positive feelings towards each other.”
It was her evidence she did not observe a lot of hostility between the parents which meant that a shared care arrangement would work.
The parties’ evidence, their demeanour in the witness box and the attitude that they showed one toward the other when giving their evidence was the antithesis of Ms R’s stated understanding that the parents got along very well and had positive feelings towards each other.
The reality is that the parents have almost no capacity to communicate with each other and have not done so in any real way for nearly two years. The husband was quite dismissive of the wife and of the choices that she had made and was making in the context of [X] in relation to his education, his extra-curricular activities and other lifestyle choices.
The wife was clearly, despite her denials, threatened by the presence of Ms T in [X]’s life as well as the different home environment that the husband’s household offers including his new younger sister and brother, a circumstance that is not going to happen in the wife’s household. This clearly impacts on her ability to fully support [X]’s relationships in that household.
Ms R was asked whether the almost complete lack of communication between the households, together with the lack of respect of one parent toward the other would cause her any concerns in relation to the recommendations of her Report. It was Ms R’s evidence that that changed her recommendation completely.
When asked to expand upon that, Ms R explained that for a shared care arrangement to work, it requires a lot of cooperation and goodwill. It was her evidence that an equal shared care arrangement would probably be an untenable, unworkable and unviable situation for [X] where there is hostility, conflict and lack of cooperation and communication between the parents.
It was Ms R’s evidence that where the parents have a conflicted relationship to which the child is exposed, then what works best for the child in that circumstance is for him to have a “base” that will enable a child to feel a little bit less torn. When asked to expand upon this,
Ms R explained that where a child doesn’t have one dominant place of being, that is, a home where he spends a greater proportion of his time, then he loses a sense of security, is constantly torn and is pulled further apart.
Ms R therefore indicated that if the evidence indicated that the parental relationship was highly conflicted and there was an absence of respect from one parent to the other, then her recommendation would be that the current arrangements for [X] continue.
Ms R confirmed that she believed very strongly that the wife’s attitude towards Ms T was inhibiting [X]’s spontaneity and ability to interact and develop a positive relationship with his stepmother. Ms R was also concerned that the wife’s attitude in this regard could also impact on [X]’s relationships with his younger siblings.
In light of this evidence, Counsel for the husband put to Ms R that the best way to counter the impact of the wife’s negative attitude towards Ms T on [X] and to better support his relationship with his stepmother would be to increase the amount of time that [X] spent in his father and stepmother’s household. Ms R did not agree. It was her evidence that this would have the opposite affect, in that it would only increase the level of conflict for [X] because the wife would feel more threatened. Therefore, rather than ameliorating the situation, it could in fact exacerbate it so that the levels of conflict would increase and the necessity for [X] to have a home base would be increased rather than reduced.
It was Ms R’s evidence that changing the number of days that [X] spends with his parents would in no way affect the parents’ conflicted relationship and that that was something that the parents themselves needed to address independently of whatever [X]’s living arrangements may be.
Ms R gave evidence that the continuation of the current arrangement would enable [X] to maintain the meaningful relationship he has with his father.
Best interests of the child
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(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; and
(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.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(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 (such as grandparents and other relatives); and
(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 (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
1. When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
2. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
Both parties agree that an order should be made that they have equal shared parental responsibility for [X]. This is supported by Ms R.
Whilst the parties themselves acknowledge their ongoing difficulties in communicating with each other, perhaps best highlighted by the fact that at the time of the hearing of this matter they had not discussed, nor was there any agreement between them as to where [X] will be going to high school in 18 months time, I am satisfied that he needs both his parents to be involved in making the decisions necessary for him now and into the future. In those circumstances, I am satisfied that this is a matter where an order for equal shared parental responsibility should be made.
Where parents have equal responsibility for their child, section 65daa of the Act requires the court to consider that child spending equal time, or substantial and significant time, with each of his parents.
Section 65daa provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Quite clearly, in this case the husband is seeking an order that [X] spend equal time with each of his parents whilst the wife is seeking an order that [X] live with her and spend significant and substantial time with the husband.
When considering whether to make an order for equal time or significant and substantial time, the High Court in MRR v GR [2010] HCA 4 held that the Act requires not only a consideration of whether such an order would be in the best interests of the child but quite separately whether such an order is reasonably practicable. In this matter both parties live in [W] so there are no practical difficulties in relation to making an order in terms of either of their respective proposals.
That means the court will have to determine which of the parties’ proposals, or such other proposal as the court might determine, will be in [X]’s best interests.
In order to determine what is in [X]’s best interests, the court must consider the matters set out in sections 60cc(2) and (3) of the Act.
Each of the matters that are set out in subsections 2 and 3 of section 60cc of the Act, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals, and then a decision made as to which of those proposals are in [X]’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[X] does have a close, loving and meaningful relationship with both of his parents.
Whilst both parties raised concerns about aspects of [X]’s care with the other including commitment to education, choice of extra-curricular activities, adherence to religious beliefs and lifestyle, the reality is that neither parent had any real concerns about the quality of care that [X] receives when he is living with the other.
Section 60cc(3) of the Act sets out the additional considerations to be taken into account and I will look at each of those considerations where relevant.
Section 60cc 3(a) 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
[X], who is described by the Report Writer as a lovely, gentle child who was mature in his manner and thinking told Ms R that:
“I think it would be good to spend more time with my Dad because I want to see them the same amount of time.”
Ms R also described [X] as being a very confused young boy, something that he told her more than once. Ms R, in her viva voce evidence, expressed the opinion that [X] was wanting to be fair to both his parents and that his wish for more time with his father was genuine. At the same time, [X] was conscious this was not something his mother wanted and he was concerned to not upset her as well.
It was argued on behalf of the wife that [X] does want to spend more time with the husband, but that does not necessarily mean more days but rather that when [X] is in his father’s household that his father be there rather than at work which is the current situation.
Ms R also describes [X] as a young boy who is far too aware of the issues between his parents, as someone particularly vulnerable to parental influence and a sensitive child strongly driven to be:
“a good boy”
which places him in the untenable position of trying to please both his parents.
In these circumstances, whilst the court will take note of [X]’s views, it will do so in the context of the real tensions he is experiencing whilst exposed to and enmeshed in his parents’ conflictual relationship.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
As noted earlier in this judgment, [X] has a close and loving relationship with both of the parties.
However, [X] has not been shielded by either of his parents from their attitudes and issues that each of the parents have with the other and the other’s household.
[X] is very much aware that his mother is uncomfortable with him having a close and loving relationship with his stepmother Ms T, though I am satisfied that he does have such a relationship with Ms T when not observed by his mother.
Similarly, [X] is aware that his father does not approve of the choices he or his mother have made in relation to his extra-curricular activities and the choices made by her to assist him in improving his educational standards.
These attitudes from both his parents are impacting on [X]’s ability to sustain and develop appropriate relationships.
It is noted with some pleasure however that [X] is described as having a very positive relationship with his new siblings and I accept Ms T’s evidence that they, particularly [Y], absolutely adore him. These sibling relationships must be allowed to continue to grow and develop, especially in light of Ms R’s concerns for the potential for that relationship to be undermined if the wife does not overcome her insecurities about [X]’s relationship with Ms T.
In her Report, Ms R commented that [X] spoke positively of his mother’s partner Mr O and of Mr O’s children.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The tensions and difficulties that [X] is facing because of the parental conflict have already been well documented in this judgment.
However, despite the parental conflict, [X] does have a close and meaningful relationship with both his parents. Since the parties separated, and in particular since the husband vacated the matrimonial home, [X] has spent significant and substantial time in the husband’s household and the wife has at no time prevented [X] from spending considerable time with his father and his father’s new family.
Similarly, other than the two occasions when the husband “overheld” [X] when a mediated outcome could not be achieved in the terms that he sought, [X] has lived with his mother without interruption.
It is of concern however that neither parent exhibited any insight into how their behaviours are impacting on [X], or the necessity for both of them to take on board the need to address those issues to enable them to better parent their son.
In her Family Report Ms R recommended both parents undergo a Post Separation Parenting Program so that such Program could assist them in developing some insight as to the necessity of moderating their behaviour, and in particular their negativity towards [X]’s time in the household of the other. When the matter came before the court, both parents had completed their Post Separation Parenting Programs. Unfortunately, it was very apparent that Ms R’s hoped outcome that the parties would develop greater insight into the need to better communicate as separated parents had, regrettably, not been realised.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Both parents live in [W] and neither is intending to change residence. This enables [X] to easily attend his school from either of his parents’ households as well as attend other social and extra-curricular activities.
Neither parent is proposing any change in their living circumstances.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
As noted earlier in this judgment, there are no practical difficulties in relation to [X] spending time with either of his parents.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
In paragraph 57 of her Report, Ms R makes the following observation:
“[X]’s engaging personality and warm manner is a credit to both his parents and there is no question that Ms. Bahl and
Mr. Brandon want their son to reach his full potential. However, [X] is feeling the burden of their expectations, ambitions and persuasions.”
Further, in paragraph 52 of her Report, Ms R notes that [X]:
“is very aware of his mother’s negative attitude towards his step-mother and of his father’s negative attitude towards his extra-curriculum activities.”
Further, in paragraphs 54, 55 and 56 of her Report, Ms R sets out the following:
54.In the opinion of the writer, Ms. Bahl fears losing her son to his father’s family and has not accepted that the child can have an equally loving and close bond with both sides of his family. Ms. Bahl has come a long way from her beginnings and has worked hard to get where she is today. She impressed as some one who will defend her gains vigorously and who aspires that her son furthers those gains.
55.Mr. Brandon also has aspirations for his son but takes a rather narrow view of what the child should or shouldn’t do to achieve them. It is likely that part of Mr. Brandon’s resistance to facilitating [X]’s activities is the fact that he doesn’t feel involved in choosing them.
56.While Ms. Bahl appears to not to have come to terms with [X]’s relationship with his father’s new family, Mr. Brandon appears not to have accepted that he can not control the part of [X]’s life which is spent with his mother. The impression was gained that he expects [X] to follow the life-style and behaviours of his household while the child is in his mother’s home.
Ms R was asked in cross-examination as to the impact on [X] in the event that his parents do not address those issues identified by her that are impacting on their capacity to properly parent their son as set out in the above paragraphs. It was Ms R’s evidence that:
“I suspect that what will happen with this little guy is he is going to just wind up having to repress a lot and become more anxious. He probably will somatise: that means he'll develop physical expressions of this conflict and the confusion, and all the rage - the emotions.”
It was put to Ms R that:
“On a hierarchy of concerns, someone who is undermining a relationship with a person, like a parent or a step-parent, is at a higher level of concern than a parent who's adverse to extracurricular activities.”
Ms R responded she didn’t think there was a hierarchy because she didn’t actually see them as separate. It was her evidence that in undermining the things that the wife does, the husband is in fact undermining the wife.
It was Ms R’s evidence that the wife would benefit from some professional assistance in dealing with her fears and insecurities that [X]’s relationship with his father and stepmother engender. Ms R also observed that the husband has to recognise that [X] does have a life with his mother that is completely separate from his own and that he cannot control it. Ms R noted that it is not up to the husband to make judgment or pass comments on the wife’s lifestyle.
It is therefore apparent that whilst both these parents love their son and want what is best for him, they both need to accept responsibility for those aspects of their behaviours, and in particular their attitudes to the life that [X] leads in the household of the other, such that they allow [X] to fully engage in the lifestyles and relationships that each of those homes provide. A failure by them to do so is going to have
long-term impacts on their son in the context of his health, his development and his capacity to generate satisfactory adult relationships into the future.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
Both parents are from a Muslim background, though it would appear that the husband more strictly follows the religious tenants associated with those beliefs.
It will be important that [X] is permitted to fully embrace his Muslim culture, but at the same time be able to enjoy the lifestyle and values that are experienced in the wife’s household.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
As noted previously in this judgment, both parents are loving, committed, caring parents who only want what they think is best for their son.
However, both of them need to address the issues that are currently impacting on their capacity to encourage and allow [X] to fully embrace what both parents and their households have to offer him.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
Not relevant.
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
Despite their difficulties, the parties were for some years after separation able to mediate and reach agreement as to what the living arrangements for [X] should be.
The impasse as to whether [X] should spend equal time with his parents seems to have been bubbling under the surface for some time and is what has caused this matter to come before this court.
It can only be hoped that the determination of this matter will enable the parents to focus on better parenting their son and not require further court intervention into the future.
It is noted that at this time the parties haven’t reached agreement as to which high school [X] will attend. It is hoped that they will take on board the issues raised in the Family Report and this judgment and be able to reach agreement between themselves as to this issue without further recourse to the court.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
A matter that is causing considerable conflict for the parties, and therefore [X], is his involvement in extra-curricular activities.
It would appear that when he is with his mother, [X] has structured activities on six days out of seven. The level of activities parents engage their children in is a matter of some debate in current times, however it is important for all children to have an opportunity to have some downtime and the space in which they can just be children.
Whatever activities [X] is involved in, it will be important that his choices are respected by both his parents and fully supported by them.
The husband’s suggestion that [X] engage in different extra-curricular activities depending on which household he is living in is not workable and cannot be seen to be in [X]’s best interests. When this proposal was put to Ms R, she strongly advocated that such an arrangement was not recommended for [X] as he should be allowed to pursue his chosen activities in both households.
Ms R quite succinctly summarised that the central tenant of any extra-curricular activity, particularly for someone who is only ten years of age, is that whatever they do it should be “fun”.
Conclusion
The issue to be determined in this matter is whether it is in [X]’s best interests that he live equally with both his parents, as is sought by the husband, or whether the existing arrangements whereby he lives with the wife and spends five nights with the husband in each fortnight remain in place, as is sought by the wife.
In her Family Report, Ms R initially recommended that once the parents had completed a Post Separation Parenting Program, the arrangements for [X] alter so that he spends equal time with both of his parents.
However, what became apparent in the running of this matter is that [X]’s parents have a highly conflicted relationship, have limited capacity to communicate with each other in relation to [X]’s arrangements and both are critical of and undermine the time that [X] spends in the household of the other, the wife because of her insecurities about [X]’s relationship with his stepmother and the husband because of his disapproval of the wife’s decisions in relation to the activities and educational choices that the wife makes for [X] when he is in her care.
It was also apparent that both parties, having completed their Post Separation Parenting Program, had not in any way developed any insights into the necessity for them to ameliorate their behaviour in order to better parent their son.
When the evidence of the conflicted parental relationship was put to Ms R, she changed the recommendation in her Family Report for shared care without hesitation. She indicated that in such a circumstance a shared care arrangement would not be in [X]’s best interests as, firstly the requisite level of communication to make shared care work would be absent and secondly because of the high level of conflict, [X] would be better supported by having a home base which would enable him to be more centred and less torn by the conflict to which he is exposed.
It is apparent that [X], who is described as a delightful, insightful and quite mature young lad, is also a very confused and conflicted child who is currently in an untenable position because of his parents’ behaviour.
In these circumstances I have determined that it is in [X]’s best interests that his current living arrangements continue and that he live with the husband from after school Wednesday to before school Monday in each alternate week. There will be one slight alteration to the existing orders in that if the Monday that [X] is living with the husband is a public holiday then [X] will remain with his father until the commencement of school on Tuesday.
However, that is not going to solve the overriding issues for [X] in the long term. [X] needs both his parents to take on responsibility for the issues that are currently impacting how they are parenting their son and to do everything within their power to address those issues so that they can better look after [X] into the future.
Whilst I will make no specific order that the parties attend individual counselling, it is strongly recommended that they do so. In that regard, the parties should make the Family Report of Ms R available to their respective counsellors to better assist them to help the parties address the issues that are currently impacting on their ability to allow their son to have a loving relationship with the important adults in his life.
I certify that the preceding one-hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Bender FM
Date:
0