BARNSLEY & GAYNOR (No.2)
[2019] FCCA 3811
•29 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARNSLEY & GAYNOR (No.2) | [2019] FCCA 3811 |
| Catchwords: FAMILY LAW – PARENTING – One child aged four – where the parents consciously entered into the child’s conception without the intention of being an intact family unit – where the child has lived with the mother since birth – competing proposals – whether a meaningful relationship is best achieved through an immediate or fairly immediate move to equal time or whether it is achieved by way of a more gradual build-up of arrangements – best interests of child – practical difficulties – the child’s history of experience of life to date – where the parents are cooperative – orders made for the child to live with the mother and spend time with the father – order made for the child’s time with the father to increase yearly up to five nights a fortnight and half of school holidays. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZN, 60CA, 60B, 60CC 65DAA, 61DA |
| Cases cited: Harris & Caladine (1991) 172 CLR 84 Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MR BARNSLEY |
| Respondent: | MS GAYNOR |
| File Number: | PAC 2546 of 2016 |
| Judgment of: | Judge Harman |
| Hearing date: | 28 and 29 November 2019 |
| Date of Last Submission: | 29 November 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 29 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conte-Mills |
| Solicitors for the Applicant: | Phillip A Wilkins & Associates |
| Counsel for the Respondent: | Mr Maurice |
| Solicitors for the Respondent: | Watts McCray |
ORDERS
The parents of X born 2015, namely his father Mr Barnsley and his Mother Ms Gaynor shall have equal shared parental responsibility for making major issues decisions for him.
Each of Mr Barnsley and Ms Gaynor shall have parental responsibility for making decisions concerning X which are not major long term issues when X is spending time with them or in their care.
X shall live with his mother, Ms Gaynor.
Until 2 July 2020, X shall spend time with his father Mr Barnsley:
(a)Each alternate weekend from 8:30am Saturday until 5pm the following Tuesday, first such period to commence Saturday 7 December 2019.
(b)Each intervening week from 8:30am Monday until 5pm Tuesday, first such period to commence 2 December 2019.
(c)From 5pm Christmas Eve until 5pm Christmas Day 2019 (and with the intention that X will be in his father’s care from 8:30am Saturday 21 December until 5pm Christmas day)
(d)During school holiday periods and notwithstanding that X will not be attending formal school, the weekend periods that X will spend with his father (Order 4(a)) shall be extended so as to commence 5pm Friday and conclude 5pm Tuesday.
(e)Such further and or other periods as are agreed between Mr Barnsley and Ms Gaynor from time to time.
From 3 July 2020 and until X commences school 2021:
(a)Each alternate weekend from 5pm Friday until 5pm the following Tuesday, first such period to commence in accordance with the pattern of weekend time established by Order 4(a).
(b)Each intervening week from 8:30am Monday until 5pm Tuesday, first such period to commence in accordance with the pattern of weekend time established by Order 4(b).
(c)From 5pm Christmas Day until 5pm 27 December 2020 and in the event that X is scheduled to be in his father’s care for a weekend period in accordance with Order 5(a), then that period shall take precedence such that X would be in his father’s care from 5pm Friday (Christmas Day) until 5pm the following Tuesday.
(d)During school holiday periods and notwithstanding that X will not be attending formal school, the weekend periods that X shall spend with his father (Order 5(a)) shall be extended so as to commence 5pm Friday and conclude 5pm Wednesday.
(e)Such further and or other periods as are agreed between Mr Barnsley and Ms Gaynor from time to time.
Thereafter and from the commencement of term 1, 2021:
(a)Each alternate weekend from 5pm Friday until 5pm the following Tuesday, first such period to commence the first weekend of each school term.
(b)Each intervening week from 8:30am Monday until 5pm Tuesday, first such period to commence on the second Monday of each school term.
(c)For one half of each short school holiday period as agreed between X’s parents or failing agreement from 10am on the first Saturday until 5pm on the middle day of the holidays.
(d)One half of the Christmas/New Year school holiday in each year as agreed between X’s parents or failing agreement from 10am on the first Saturday until 5pm on the middle day of the holidays.
(e)Such further and or other periods as are agreed between Mr Barnsley and Ms Gaynor from time to time.
Notwithstanding the above orders, Mr Barnsley shall spend additional time with X, if X is not already in or to be in Mr Barnsley’s care, for the following special occasions:
(a)The Father’s Day weekend from 5pm Saturday until 5pm Sunday.
(b)X’s and the father’s birthday, from after school until 7pm if a school day or 2pm until 7pm if a non-school day.
(c)From 8:30am Christmas Eve until 5pm Christmas Day in 2021 and each alternate year thereafter and from 5pm Christmas Day until 5pm 27 December in 2022 and each alternative year thereafter.
Notwithstanding the above orders Ms Gaynor shall spend time with X, if X is not already in Ms Gaynor’s care on the following special occasions:
(a)The Mother’s Day weekend from 5pm Saturday until 5pm Sunday.
(b)X’s and the mother’s birthday, from the conclusion of school until 7pm if a school day or 2pm until 7pm if a non-school day.
(c)From 8:30am Christmas Eve until 5pm Christmas Day in 2020 and each alternate year thereafter and from 5pm Christmas Day until 5pm 27 December in 2021 and each alternative year thereafter.
(d)From after school until before school the following day if a school day or from 8:30am until 8:30pm the following day if a non-school day on each of Chinese/New Years’ Eve, Chinese/New Years’ Day, Chinese Moon Festival and to facilitate such periods Mr Barnsley’s time shall, for the duration of each period, be suspended.
That, notwithstanding these Orders, the parties may agree in writing to vary the times at which X lives with and spends time with each of them.
That the Father shall collect X from the Mother's usual place of residence or X's school (whichever applies) at the commencement of X's time with the Father and the Mother shall collect the X from the Father’s usual place of residence or X's school (whichever applies) at the conclusion of X's time with the Father.
That in the event that X should at any time whilst in the care of either parent, express a wish or desire to telephone the other parent then each shall allow X to do so and shall provide such assistance to X as he may require.
That both parties will do all acts and things and sign all documents necessary to ensure X's enrolment in the first of the below schools at which X is accepted for enrolment, and in the following priority:
(a)School B; and
(b)School A.
That the parents shall not enrol or register X in any extracurricular activity in which he is likely to be involved during periods when X would be spending time with the other parent unless other parent also consents to that enrolment or registration.
That each parent is permitted to attend any sporting or cultural activity in which X is participating in at times when X would not otherwise be spending time with that parent.
That the Father sign all documents, give all consents and do all necessary acts and things as requested by the Mother to enable X to be issued with an Australian passport.
That either parent be permitted to take X on holidays out of Australia, during the time that X lives with or spends time with each of them pursuant to these Orders, unless a longer period of time is otherwise agreed between the parents in writing, provided that he or she gives to the other parent written details of the holiday including:
(a)Dates of departure from and return to Australia;
(b)Copy of itinerary provided by travel agent or airline;
(c)Copy of return airline ticket/s;
(d)Places it is intended to visit whilst away from Australia; and
(e)Details of how X can be contacted whilst away from Australia including contact telephone number and address (if known).
That, during each holiday, the parent traveling with X facilitate X telephoning the other parent on not less than 3 occasions each week.
That each party notify the other as soon as reasonably practicable of any accident or emergency involving X which involves medical treatment or hospitalisation whilst X is in their respective care
That each party inform the other, in writing, of any change to his or her residential address not less than two days prior to such change occurring and of any change to his or her contact telephone within 24 hours of such change occurring.
That neither party denigrate the other party or members of the other party’s family to X or in the presence or hearing of the X or permit any other person to do so.
That the parents shall use the following process for resolving disputes about the terms or operation of these orders:
(a)If either parent believes that there is a disagreement about the terms or operation of these orders then he or she shall, in the first instance, advise the other parent by phone/in writing/by email of such belief together with as much information as is possible to enable that parent to consider whether there is in fact a disagreement.
(b)The parents shall then communicate in relation to options for resolving the dispute, in writing/by email/ by meeting at a neutral venue to facilitate such communication.
(c)In the event that this process does not lead to the parents making a joint decision in respect of the particular issue, then they shall each do all things necessary:
(i)To engage and consult with Relationships Australia or such other professional as agreed between the parties in writing to be the professional for the purposes of this order (“the Professional”); and
(ii)Such consultation to be for the purposes of mediating and trying to reach a resolution between the parties of the issue then in dispute; and
(iii)Such process to involve the child to the extent and in the manner recommended by the Professional (which may involve recommendation the child not be involved); and
(iv)Such process may incorporate assistance of other child or dispute resolution experts as recommended by the Professional and/or agreed by the parties.
Both parties shall do all things and sign all documents necessary to authorise or enable the Principal of any school the child may attend from time to time, to provide to the other party at the requesting parties expense, copies of all school reports, photographs, notifications of school events to which parents may be ordinarily invited.
Each party shall be permitted to contact the child’s school/child-care for the purposes of discussing the child’s progress and these orders shall be sufficient authority for him to do so.
Each party shall keep the other informed and provide details and an authority to the other of the child’s General Practitioner and any other medical specialist including counsellor or psychologist the child may attend upon from time to time so that the other party shall be permitted to contact any medical practitioner/specialist/counsellor to discuss the child’s condition or treatment if any and these orders shall be sufficient authority for each party to do so.
Remove all issues from the list of cases awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Barnsley & Gaynor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2546 of 2016
| MR BARNSLEY |
Applicant
And
| MS GAYNOR |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to future care arrangements for a young child, X, born 2015. As would be apparent, X is presently four years of age.
X is the very much loved and cherished child of his parents Mr Barnsley, his father and the applicant and Ms Gaynor, the respondent, his mother.
The parties are in dispute with respect to certain aspects of X’s future parenting arrangements. Other aspects are agreed.
It should be observed that the majority of orders that each proposes are very much agreed, perhaps subject to issues of semantics, although the significant issues which remain are important and determined by these reasons.
The issues that remain are fundamentally important to each of these parents and to X’s future relationship with each of his parents relating, as they do, to the time that he will spend with each.
Material Considered
In dealing with the proceedings, I have read and considered each of the documents that have been identified by Counsel for the parties. In the father’s case, that is comprised of:
a)An Amended Initiating Application filed 31 October 2019;
b)A Notice of Risk filed 3 June 2016;
c)An Affidavit by Mr Barnsley filed 30 October 2019; and,
d)Exhibit A, a Minute of Orders proposed. The Minute of Order does not dramatically vary the relief that is sought by Mr Barnsley and might best be described as returning to an earlier iteration of the relief that he had sought in the proceedings, that is, an equal time arrangement.
The further Amended Application was filed some weeks prior to hearing. The Amended Application sought to change the parameters of this dispute to some extent, although a significant extent, that being to seek that a preponderance of young X’s time be spent in his father’s care, whereas, to date, X has spent the preponderance of time in his mother’s care.
In the case of Ms Gaynor, I have read and considered each of the documents identified in the case outline documents provided by her Counsel and comprising:
a)A Response filed 12 April 2018;
b)A Minute of Orders incorporated within the case outline document and thus not separately exhibited;
c)An Affidavit filed 26 November 2019. Whilst it is filed proximate to the hearing, no objection has been raised to it. To a large extent it repeats that contained in an earlier trial affidavit. This matter having been not reached on two occasions and the affidavit updates matters somewhat, particularly responsive to the further Amended Application referred to above.
There is also a report prepared by Dr B dated 28 November 2018. That Report is not allocated an exhibit number as it is attached to an Affidavit filed in the father’s case. It is relied upon by both parties. Indeed, the report is admitted without challenge, its author having not been required for cross-examination. I will deal with that issue briefly within these reasons.
There is, finally, Exhibit B, what I take as a joint tender by the parties, a compendium of photographs, not only of young X, but of his parents, often together. That is an extraordinary aspect of this case which deserves some comment in due course. The photographs all depict, as one might well expect, a happy, healthy child. Very much the apple of his parents’ eye, as it were. In the photos X is engaged with one or other or both of his parents, somewhat joyously, and to his benefit and advantage.
History of Proceedings
It must be observed, from the outset, that this matter has taken an inordinate length of time to reach a conclusion. That is through no fault of the parties by and large.
The matter was commenced by an Application Initiating Proceedings filed in the Family Court of Australia. The application had been subject to an unsuccessful application for consent to abridgement of time.
The Initiating Application was filed on 3 June 2016, being shortly before young X’s first birthday. Thus, it is readily apparent that the majority of young X’s life, more than three quarters of it, has occurred during the existence of these proceedings.
On the first return date of the proceedings before the Family Court the matter was transferred to this Court.
On the first return date of the proceedings before this Court the matter came before a Judge who conducted an interim hearing. Certain orders were made at the conclusion of the interim hearing. Those orders were the subject of appeal, successfully so.
The Full Court re-exercised discretion and imposed a different regime of practice of relationship for young X with each of his parents, as was observed by Counsel for Ms Gaynor. I need not seek to go behind those orders. Those orders, as imposed by the appellant Court, represent the arrangement that these parties have, by and large, practiced since those orders were made on 21 December 2016, only a few weeks short of three years ago.
Following the appeal, the matter was then remitted to this Court but without the need for further interim hearing in light of the re-exercise of discretion that their Honours undertook.
The matter, sadly, could not be accommodated for hearing upon its return as there were no dates available. That is, very much, as a consequence, directly and solely so, of an absence of resources. As was observed by Brennan J in Harris & Caladine (1991) 172 CLR 84 in 1991:
It seems the pressures on the Family Court [and since its creation in 2000, the Federal Circuit Court] are such that there is no time to pay more than lip service to the lofty rhetoric of s. 43 of the Act … It is a matter of public notoriety that the Family Court has frequently been embarrassed by a failure of government to provide the resources needed to perform the vast functions expected of the Court under the Act. But the Constitution does not bend to the exigencies of a budget and, if the humanly familial relations create a mass of controversies justiciable before the Family Court, Justices must be found to hear and determine them.
Nothing has changed from the time that Brennan J made such statements to the present. That is so notwithstanding, the passage of some 28 years and the undertaking of myriad enquiries and reports, all of which have commented upon and highlighted the absence of resources so as to permit matters to be heard more quickly. This case is emblematic of the consequence of such absence of resources. This family, these parents, and this child’s life, have been on hold for the best part of four years whilst their case winds its way towards a conclusion.
The matter was ultimately, and after both parties had filed their material, listed for a trial, that being in August 2018. At that time, the matter was not heard. The proceedings were adjourned. It is unclear whether that was due to the matter being not reached, other considerations or a combination of the two. Irrespective, the opportunity was taken, or application made and successfully prosecuted, for the preparation of a report. A report had not previously been apprehended as necessary nor ordered. The parties engaged a private Report Writer, Dr B. The parties met the cost of the report from their own resources. That report was released to the parties on 3 December 2018, few days short of a year ago.
The matter was then listed for a trial which could not proceed due to illness of Ms Gaynor. There is no criticism whatsoever of Ms Gaynor. Such things happen. However, the matter was then adjourned to further dates which ultimately were vacated due to changes in listing arrangements. Judges of this Registry were required to provide assistance to another Registry and, thus, a number of hearings, including, regrettably, this case, were vacated.
The proceedings have now been heard and determined.
The matter has been dealt with eruditely by Counsel for each of the parties. The matter has been conducted in a fashion that has been entirely consistent with the section 69ZN principles.[1] Cross-examination by Counsel for each of the parties has been directed at entirely relevant areas but the matter was conducted with sensitivity and respect for these litigants and each of them. It is to be commended although it is regrettable that such commendation should even be remarkable. Each case should be conducted in such a fashion. Not each case is. But Counsel have made the address of this case far easier, certainly for the Court and, one would think, the parties, and each of them. It has, no doubt, enabled each of these parties to preserve their parental alliance with each other. A parental alliance which in light of the history of their relationship, to which I will now turn, is an abundant credit to them and each of them.
[1] Family Law Act 1975 (Cth)
The party’s relationship and young X’s conception
I do not raise these matters to cause embarrassment to these parties. There is nothing for them to be embarrassed about.
The Report Writer has described their relationship and the circumstances leading to young X’s conception as “unusual”. If one views this relationship in a normative sense then, perhaps, it does not accord with the majority of relationships in the community and then it is an accurate description.
I propose to adopt the term “unusual” for no other reason than convenience and its use by Counsel for each of the parties. However, a better term might be that their relationship is “unique”. Indeed, each relationship between adults is, as each relationship between an adult and their child is unique. This Court makes decisions based on individualised decision-making. The circumstances of this child are what are important for the Court, not the circumstances of some statistical cohort of children.
Young X’s parents, Mr Barnsley and Ms Gaynor, met each other and dated for a period of time. The relationship was not entirely unsatisfactory to each of them but they determined, at a fairly early stage, that rather than it being a long term romantic and committed relationship that they would best be friends and co-parents. That is far from embarrassing. It is remarkably mature and insightful for each of them. As commented by the Report Writer, (although I am sure not intended in any fashion to be pejorative), these are two people who have, at a much older age than many, come to parenthood (see paragraph 67).
What this means is that the dialogue that occurred between these parents, and the incredibly sensitive, sensible, and mature arrangement they came to, to co-parent a child, (albeit whilst maintaining separate lives), is something which has brought great benefit to them. It has given them young X. A child they both so desperately desired and whom they may not otherwise have had the experience of.
These parents have, however, maintained separate residences, by and large, for all of X’s life.
Shortly before X’s birth, Mr Barnsley moved into Ms Gaynor’s home. There is some contention as to how consensual or completely consensual that may have been. Other aspects of that brief co-habitation are also, in some aspects of the evidence, controversial. But the controversy need not be considered. It is not relevant to the prospective decision this Court must make.
When X was only a few months of age the parties, again, commenced to reside in separate accommodation.
What is remarkable, and as I had commented to these parents and each of them at the conclusion of evidence yesterday, is how well they have made that arrangement work. Not only for them, but for X. It is remarkable that for two parents, who have no common, lived experience of each other as partners in any meaningful way, that they can be so friendly towards each other, (by and large, and with some exceptions as each has pointed to in their evidence, although I do not intend to dwell upon them to any large extent). Thus, the combined tender of photographs comprising Exhibit B - young X not only engaged with his parents singular but his parent’s plural and engaged in many happy activities, cultural or otherwise, which have brought X great happiness as is apparent from the photos with his beaming smiles towards the camera.
Sometimes, the photos are taken of X with one parent, by the other. On other occasions, a bystander or other person accompanying them has been co-opted to take the photograph of both parents together with X. Hence, I commence by my description as the Report Writer has, with the terminology adopted, appropriately so, that the relationship is, in a normative sense, “unusual”.
The parental relationship is also “unusual”, as regards the normative, statistical cohort of litigants before this Court, who ordinarily have nothing but disdain and antagonism for each other. Certainly, Mr Barnsley and Ms Gaynor, perhaps, Mr Barnsley somewhat more so than Ms Gaynor, have criticisms to raise each of the other. But in the context of their co-parenting alliance they are fairly minor issues. Even when they have been significant issues, such as two reports to police made by Mr Barnsley, they have not led to a breakdown in the focus and commitment that these parents have, each to the other, and each to their child, in providing X with as happy a childhood experience as is possible.
That relationship continues. These are parents. These are two parents within a family comprising themselves, X and several others, (particularly Ms Gaynor’s mother, who resides with her), who meet X’s needs to a high level. They are each well-educated professionals. They each provide for X’s practical, emotional, and financial needs. They each have a joint desire and aspiration, an ambition as it were, for young X, that he will be as well-educated as possible and achieve as much in his life as he can.
There is some real comfort and optimism that it will be so because X’s parents desire that it be so, and they have demonstrated, through their conduct, notwithstanding that for three quarters of X’s life they have been before this Court, that they are able to put aside other considerations to focus upon those matters.
It is also commented by Counsel for Mr Barnsley that the adversarial process does little for these parties. That is, indeed so. As has been commented in academic writing, (albeit in the dispute resolution field rather than being specifically a focus upon the mechanisms of the adversarial system),[2] the adversarial system causes parents to focus on the fight, their dispute with each other, each advocating that which they believe is the best arrangement for their child, when, sadly, they do not have a joint vision of what that might be.
[2] Thomas Luchs, 'Is Your Client a Good Candidate for Mediation: Screen Early, Screen Often, and Screen for Domestic Violence' (2016) 28 Journal of the American Academy of Matrimonial Lawyers 455
Ordinarily, one might be more critical of parents who are unable to have a shared, common vision of their child’s future than one would be in this case. These parents have not had a lived experience of each other as a couple living together in a relationship, with X, to reflect upon. They have not had the opportunity to have that lengthy, detailed and nuanced discussion as to their mutual hopes, dreams and aspirations for their child. They are discussions which they have begun to have, and which they will need to continue to have, very much into the future.
One might well leave that subject, however, on the basis of observing how lucky X is to have two parents so committed to him. He is also lucky on a number of levels, leaving aside broad philosophical considerations, such as living in a country where he has a right of citizenship and access to matters such as free healthcare, (sadly deprived of the majority of the world’s children).
X is a lucky little boy because he is, by and large, in good health. He has had a scare in relation to a seizure, but that is well-addressed through a paediatrician, and both parents are engaged in and committed to ensuring that he receives what he needs by way of investigation and, if necessary, treatment.
X is a lucky little boy, because he has two parents who are competent. They both are fully capable of meeting his needs, and neither raises any criticism in that regard. They can both cook for him, clean, feed him, tend to his every need.
There are certainly criticisms in that regard, but they are largely historical, although, the evidence did not always disclose that reality. Complaints, for example, about a period when this young lad was less than immured with eating vegetables, and the suggestion that the culpability for that fell at the feet of Ms Gaynor for feeding him “…junk food”.
Certainly, it would seem from the evidence that X’s rejection of vegetables has passed and whilst, perhaps common with many children, (although the Court is only concerned with young X), he would now appear to have returned to a healthier, balanced diet.
X is a lucky little boy because his parents love him a great deal. Perhaps, that is one of the things that causes the difficulties in this case, as is submitted by Counsel for Ms Gaynor. There are hopes, dreams and aspirations that each of these parents have for young X and, sadly, when they come into conflict, each with the other, that causes disputes.
But that leads to the fundamentally significant basis upon which one can accept that X is a lucky little boy. He has parents who do not ill treat each other to any significant extent. Certainly, there are complaints that there have been harsh and unnecessary comments made, possibly racist comments. They are, of course, denied. I am not satisfied that I need, nor that it is relevant to the determination of this prospective decision, to make any finding in that regard. There have been harsh words exchanged from time to time, as described by Mr Barnsley in his cross-examination. And to paraphrase the evidence, rather than suggesting that it is a direct quote, things have been said on occasions which are regretted with the wonderful wisdom of hindsight.
Similar concessions are made by Ms Gaynor. Each of the parents has, at times, perhaps “lost their cool”. Each with respect to the other has felt that their parental authority or time with young X has been impinged upon by the other. Certainly, the concession is made that arguments and disputes have largely arisen on occasions when Ms Gaynor has been present when Mr Barnsley was to have young X in his care. But that presence has not been inflicted upon Mr Barnsley. It has been agreed between the parents. But as a consequence of both parents, with no lived experience of each other as parents, both being present at the same time, there have been some conflicts.
But there is, in this case, no allegation of family violence of substance. That is not to dismiss or disregard Mr Barnsley’s evidence that at a much earlier point in time, 2016, he had made a complaint to police and, briefly, apprehended domestic violence proceedings had been on foot. Certainly, Mr Barnsley indicates that he gave instruction for those proceedings to be discontinued, but that at the time that they were commenced, he had felt a degree of fear, anxiety or apprehension. That is very much ancient history for these parties. Is it very much something that arose in the specific situation, again denied by Ms Gaynor, and as to which I need make no finding.
Neither of these parties suggests that X has been or is, in the future, at risk of abuse.
Neither party suggests in any meaningful sense that the other has any difficulty with mental health disorders. There is what might be taken as a throwaway line, possibly intended with more malice at the time of its utterance, the suggestion that Ms Gaynor experiences something relating to “narcissism”. It is not pressed at hearing, although I accept the submission put on Ms Gaynor’s behalf that the utterance of the comment would have caused some degree of distress or distrust between these parents. But it certainly is not a reality.
Neither of these parents has any diagnosable mental illness that would impact upon their parenting. Although, it must be observed that even such a diagnosis, of itself, does not necessarily lead to a finding that a parent has an incapacity, merely that they are experiencing a health issue which, whilst treated, and whilst insight is demonstrated towards it, is not any disadvantage to a child. Accordingly, the Court is left to focus, even if the parents have not always done so, on the positives.
Evidence
There is, in this case, no invocation of the Court’s protective jurisdiction. There is no need to focus upon or prioritise the need for protection of young X from subjection or exposure to family violence, abuse or neglect above all else, because those allegations simply are not before the Court.
I do not propose to canvass the evidence of the parties in any great detail. There is very little to be gained from doing so. That arises on a number of bases.
Firstly, to the extent that criticisms are raised, (again, perhaps slightly more by Mr Barnsley than Ms Gaynor), those criticisms are not pressed as any disentitling factor. Neither party suggests that the other should have limited or supervised time. Each proposes that the other should have, although it is not, I accept, how the parties each might perceive the other’s proposals, abundant time, aimed towards permitting young X to have as meaningful of a relationship with each parent as is possible, (bearing in mind he has never, for any significant period, lived with both of his parents together).
It is always extraordinarily difficult when parents separate at a very early age, to produce arrangements that will allow and permit a meaningful relationship to develop. The period or a significant portion thereof, that has passed from X’s birth to the present, is often referred to as the phase of bonding and attachment. Indeed, it is touched upon by the Report Writer. During that period, X has had the great benefit in life, (not only to date, but for the rest of his life, as these have been formative years), of having two parents who are well-adjusted, stable, focused upon his needs, committed to meeting those needs and committed to working with each other to ensure that it is so.
I accept and appreciate that Mr Barnsley perceives that Ms Gaynor has been unnecessarily restrictive in the time that she has permitted young X to spend with him. It has been far more limited time than Mr Barnsley desires. It is, perhaps, more limited time than was desirable in all of the circumstances. But what is entirely absent in the evidence is any complaint that Ms Gaynor has ever failed to provide what orders have required her to provide. That is not to suggest that parties and parents should be focused upon Court orders as governing their life in every material sense. But what it means is that these parents are compliant with arrangements, once in place. The evidence makes clear that those orders have been very much the minimum arrangement provided, and that they have provided to each other great assistance and support, including additional periods of time.
It could not be asserted that Ms Gaynor has simply pointed to the order and said, “That’s your lot.” These parties invite each other into their homes. Ms Gaynor was very clear and generous in her acknowledging that Mr Barnsley has done a great deal for her, and for X. He came to her home on at least one occasion and mowed the lawn and fixed the screen door. He comes and provides care and supervision for X if his mother needs that assistance because of her work. All of those things temper, if not obviate, a criticism that Ms Gaynor is being unduly restrictive.
Ms Gaynor certainly has not acceded to the time arrangements that Mr Barnsley has desired. There is a degree of protectiveness on the part of Ms Gaynor. As is submitted, Ms Gaynor has been protective but not overly protective. Ms Gaynor is, again, as submitted by her Counsel, very conservative in the manner in which she sees the building and development of a relationship between X and Mr Barnsley. There are two matters, however, that are fundamental, indeed, the fulcrum upon which this decision balances, relating to that dispute and the parties’ different perceptions as to what might be the best way forward.
Again, these matters are not raised to cause any distress or embarrassment to either party. However, the Report Writer points to what might be described as a pre-morbidity on behalf of Mr Barnsley to feel that restriction of his time, as he has perceived it, or more limited time occurring than he desires, the reality of what has occurred since 2016, is an attempt by Ms Gaynor to either not facilitate his relationship fully with X or to restrict it.
Firstly, commencing at paragraph 43 of the Report, Mr Barnsley’s childhood history is given and reported. I do not incorporate it within these reasons. It is within that paragraph of the document, together with the following two paragraphs. It suggests that Mr Barnsley has had a disrupted experience of his childhood, with his mother having left the family when he was two years of age, and other difficulties then arising for him and his siblings. They are difficulties that would form and very much inform the views, perceptions, and attitudes of Mr Barnsley. They are not criticised. They are real, valid and based in his experience of his own life. However, they give sense and meaning to the conflict that thus arises between these two parents. Firstly, Ms Gaynor, conservative and perhaps very slow in the steps that she sees X taking in moving away from her fulltime care and spending more time, whether equal and shared or anything else, with his father. Secondly, it speaks volumes to Mr Barnsley’s strength as a parent. He would fully appreciate, accept and understand the importance of his role in his little boy’s life in the way that he may well perceive he was denied such benefit. That is a strength, not a weakness.
Secondly, the discussion and evaluation portion of the Report speaks to the same issue. Certain recommendations were raised and certain observations made by the Report Writer as to young X’s degree of clinginess. Whilst certainly it is often described that children should be egocentric and their parents focused entirely on their child’s needs and children fully aware and conscious that they are the centre of their parents’ universe, there is some suggestion, in the evaluation portion of the Report, that young X, perhaps, is not sufficiently socialised, (or was not at the time that the Report was written), with other children.
Hence the Report Writer – and, again, it is no criticism of either parent – opines that X would benefit from spending time with other children and being in an environment where he is not the sole focus of adult attention. He is described as a little boy who struggles to occupy himself for any length of time without individual, adult attention. It is described that the transition, so that he is, perhaps, a little more independent, is very important for him socially and particularly prior to commencing school.
That must be unbundled. It is not a criticism of the parents. It is a reflection of the degree of love and affection they hold for X. Thus, each has been very reluctant to not practice every moment of time with him that they can. In those circumstances, one can well see that Ms Gaynor is, indeed, a far more conservative parent when it comes to the child being absent her presence or her parenting.
Both of these parents parent quite differently, if one might conflate the noun and the verb. And there are certain aspects of parenting that cause these parents to come into conflict from time to time and as described in the evidence such as some dispute as to the prescription of antibiotics for young X at a much earlier age, which caused Mr Barnsley some concern, described in his material as “shock”. In any event, that is historical. It has passed, and there would not appear to have been any repetition of those events.
The parties have had some disputes as to settling the child, who might care for him if the other is not available, and such trifling matters. I do not refer to them in those terms to be offensive to the parties. They are not matters that have caused any real or significant disadvantage for young X, nor will they in the future. They are simply different ways that these parents parent.
The most important aspect of the evidence is found in the Report but corroborated very much by these parents. At paragraph 54 of the Report, X is described as a chatty and inquisitive little boy, very much consistent with the photos now tendered of him. A “delightful” little boy who seems to be very happy and comfortable with both of his parents. He presented as confident in unfamiliar environments, what one might take as being a child who is, indeed, well-parented, has secure attachments with his parents, and thus is able to experience such changes without them being distressing for him.
He is described as a child who is used to getting his needs met from the adults around him. That is not to suggest that he is in any way brattish or spoilt, merely that he is so used to being the focus of the attention of his parents and each of them. They love him a very great deal.
At paragraph 63, the most pleasing statement is made, that X presents as having a warm and affectionate relationship with both his father and his mother, that he transitioned between them without any evident distress, his play appeared similar with each of them and that he sought physical contact with both them. This is a child who is born of parents who have never really had a shared lived experience of each other as partners. That is a child who has been raised by two parents who have, with a very brief period of exception in the early months of X’s life, lived in separate households.
“How could that be so?”, the question might be rhetorically posed, Julius Sumner-Miller like. It is so because this family is absent the level of conflict that many families present with before this Court.
These are parents who, whilst focused within this litigation, perhaps caused by the very nature of the adversarial process to be so, upon the dispute that they have with each other are, away from the confines of the four walls of this building, very focused on meeting little X’s needs. And they do so to a very high standard.
At paragraph 66, the Report Writer describes that what is unusual about the matter is that Mr Barnsley and Ms Gaynor appear to actually be on reasonably good terms, that they are able to interact in a civil manner with each other, and they report that they spend extended periods with each other during handovers to help X manage his transitions.
Mr Barnsley regularly goes to Ms Gaynor’s home to look after X and, at times, complete household tasks and appears to be on good terms with Ms Gaynor’s mother. The question might be posed how often such a paragraph is contained within a Report produced in proceedings before this Court. I have never seen it before. That is why X is such a lucky little boy.
One might well focus upon the unusual nature by which X has been brought into this world between two parents who clearly had committed that they would be friends, but not partners. Why such an arrangement could be seen as criticised escapes me completely. It suggests that these two parents are loving, decent, mature people. Their family may look different to others, but the family structure has moved beyond the Anglo, gender normative perception, one would hope, of mother, father, and child within a marriage. There are many forms of family. This is but one. It is “unusual” when compared to the statistical norm, but from X’s perspective, let alone a general philosophical basis, who cares for norms? They have nothing to do with X’s experience of life.
X will be much better placed in life to achieve his full potential, as the objects of the Act require, as a consequence of these two decent, intelligent parents who, by and large, treat each other well and focus on their child, and more so than many children who come from those Anglo, gender normative family structures.
Paragraph 67 of the report continues a similar theme - that whilst both Ms Gaynor and Mr Barnsley very consciously entered into X’s conception without the intention of being an intact family unit, that this little boy is very much the object of delight for each of his parents. They both see him as a precious little boy, because he is. They are both more solicitous of his needs than many other parents. The Report Writer, no doubt intending to suggest, that each desire that they could be far more actively involved in this little boy’s life than the circumstances of their relationship with each other could permit.
Indeed, that is one of the matters that I had commented upon during the course of the hearing, that the degree of mutual engagement with activities, particularly matters such as day to day decisions for the child, are perhaps an unrealistic expectation in those circumstances. The desire, however, is far from unreasonable. It is perfectly explicable.
The report continues at paragraph 72 to indicate that Ms Gaynor is keen to make sure that increases in time between X and his father are done with X’s developmental needs in mind. It comments that Ms Gaynor clearly has anxieties over any additional overnight time. That is spoken to by aspects of Ms Gaynor’s evidence. She has not simply formed an irrational or unreasonable anxiety around the issue. She has sought to inform herself. She has made appointments with others, although those appointments would appear to have been limited for whatever reason, to seek out some advice as to what might best meet this little boy’s needs at any given age and in his circumstances.
The criticisms that are raised in relation to young X returning from Mr Barnsley’s care a little clingier to his mother are described by the Report Writer as:
not unusual and on balance he [X] appears to be coping very well and I could see no indication of any emotional or behavioural disturbance or distress resulting from [the then current and still current] arrangement.
The Report Writer then opines:
It is likely that the time he [X] spends with his father could be increased to two nights without this causing him any untoward challenges. In my opinion, this would not place him at any increased risk of having a seizure [that being one of the bases advanced by Ms Gaynor as to why time should progress and develop far more slowly than Mr Barnsley desires].
It is also to be remembered that the Report was written over a year ago and released to the parties nearly a year ago. Accordingly, the recommendation that time might increase to two nights without causing challenges for the child, whilst it remains current, is now somewhat aged. That was the Report Writer’s opinion a year ago. As the Report Writer has not been required to give evidence – and that is no criticism, forensically it is not necessary as the parties both accept that which is discussed and opined by the Report Writer – questions cannot be put or further addressed, such as whether, if that arrangement had now continued for a year, whether the opinions might change somewhat.
At paragraph 73, opinion is offered by the Report Writer that portions of the current arrangement need to change. That aspect of the arrangement sees young X spending each alternate weekend Saturday to Sunday with his father and then a period each week from Monday to Tuesday with his father. The specific circumstance discussed at paragraph 73 is the reality for X. He returns from his father to his mother on Sunday night and then the very next morning returns back to his father for another night.
The option suggested was to remove the return so that there was a similar length of time altogether but to avoid the return to sleep at his mother’s home for the night and then go back to his father to sleep there for the next night. That has not been something the parties have achieved, again, not to criticise either of them but simply to acknowledge it.
Ultimately the recommendations of the report focus not only upon X’s relationship with his parents but his general social development.
At paragraph 74, it is suggested that X should start attending play group, if not pre-school, so that socialisation and individualisation might progress further than it had been observed to have been progressed at the time of the interviews. In relation to time arrangements, it was recommended that X continue to live with his mother, predominantly so, and that X:
Gradually spends longer periods of time with his father. He should spend half the holidays with his father and half with his mother by the end of 2022.
That is the extent of the recommendations. Again, no criticism of the Report, merely to acknowledge that reality.
It is also recommended that the parents continue to practice equal shared parental responsibility. There is no dispute in that regard.
I do not propose to address the lengthy affidavit material of the parties. I will observe, however, that the most positive aspect of the case, the warm relationship between these parents and the general decency with which the parents treat each other, is reflected in the cross-examination of each party.
Mr Barnsley conceded in relation to young X’s relationship with his mother, “He loves her. They have a great relationship with each other.” A similar concession was made by Ms Gaynor.
It is regrettable that parties who are such competent parents and have such love for and commitment to their child and a joint desire that X have a meaningful relationship with each of them, will now have a decision imposed upon them by the Court. However, that is the Court’s role and, in this case, the task is made somewhat easier by the decency with which these parents treat each other and the decency and decorum with which Counsel have conducted their affairs.
Legislative provision
In turning to the legislative provisions that must be applied to the facts of this case, I must commence with section 60CA of the Family Law Act 1975 (Cth) which reminds the Court that in all that is done, the child’s best interests are the paramount consideration.
I must then have regard to the objects and principles in section 60B and which I incorporate herein:
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).
The objects and principles do not form part of the substantive law to be applied to the facts of the case, but do assist in interpreting and applying the substantive provisions as well as understanding the outcome that the Court should endeavour to achieve.
The objects provide that X’s interests are to be met by ensuring that he has the benefit of both parents having a meaningful involvement in his life, to the maximum extent that is consistent with his best interests.
The objects require that any order sees X protected from physical or psychological harm, although that is not at all in play in this case.
Orders must see that X receives adequate and proper parenting. He will, on any version of the evidence and on any proposal of these parties.
Finally, the Court must make orders that ensure that parents fulfil their duties and meet their responsibilities. There are no such orders that need be made, at least not in any significant sense. The parties are agreed as to a broad suite of orders regarding the provision of information and such matters. However, these parents do not need the Court’s guidance to meet their needs and responsibilities. They each strenuously and stridently desire to do so and will do so. Their parenting is beyond adequate. It is exemplary, not only as to practical and physical care for X but how they approach their duties and responsibilities.
Thus, the Court is left to focus upon the benefit for X of a meaningful involvement of each parent in his life. The question in this case, in turning to the proposals of the parties, is whether that is best achieved through an immediate or fairly immediate move to equal time or whether it is achieved in a far more gradual build-up of arrangements as proposed by Ms Gaynor.
Ultimately and to avoid the parties having to endure the remainder of this judgment awaiting some indication of what arrangements might look like, I propose to make orders that fall short of equal time but certainly are a far greater and far more rapid progression than Ms Gaynor proposes. I have used the expression “far more rapid” not to suggest that it will be particularly fast, but Ms Gaynor’s proposals are exceedingly gradual. Those arrangements will, by and large, see an immediate joinder of the periods that are presently occurring between X and his father, so that the Saturday-Sunday period will be merged with the Monday-Tuesday period and become a three-day block, together with time in the intervening week.
In broad terms and I will discuss the specifics shortly, that will continue until 2 July 2020 - that is, although not particularly relevant for X at this point, the end of term 2. Thereafter and until X starts school in 2021, time will then be for a weekend from Friday to Tuesday and with slightly longer periods during school holidays, but well short of half. From the commencement of school in 2021, matters will progress with the maintenance of the weekend and midweek arrangements but an increase in school holiday time.
I will explain each of those by reference to the evidence in due course (or I will attempt to do so).
The meaningful involvement that X can have is, in this case, thankfully not tempered or even impacted by hostility or attitudes held by one party towards the other. Curiously, perhaps one might say extraordinarily, even though each has criticisms of the other, those criticisms do not seem to get in the way of cooperation. It may well impact trust to some extent, but even that is not manifested in any substantial sense. X has never been withheld by one parent from the other, for example.
The meaningful involvement that X can have with each of his parents is also impacted by practicality. The parents do not live any significant distance apart, it would seem, 18 to 20 kilometres at most, but it means traversing from the inner west to the lower north shore and, certainly for change overs at 8.30am and 5pm, the times these parties, by and large, propose and agree upon, traveling during peak hour. That may be a short trip at 2 in the morning, but at the times these parties will undertake it, it may substantially longer. That must also temper involvement, and I will deal with that as part of section 60CC(3).
However, the involvement that young X can have with each of his parents should be the maximum that can be practically achieved as well as that which can be achieved by reference to his history of experience of life to date. It must be remembered that X is a little boy of four. He has never lived with his parents together. He has, to date, not spent time absent his mother for more than one night with his father. He has spent two lots of one night consecutively, Saturday night and then Monday night, and returning home to his mother in the intervening period. That is so, notwithstanding that the Report Writer, unchallenged as to her evidence, was quite clear at the time of her report, more than 12 months ago, that that arrangement should change, that it was disruptive, and recorded both parents acknowledging that it was so.
Thus, to understand the determination of the meaningful involvement X can have with each of his parents, it is important to commence with the parties’ proposals.
The parties each agree that there should be an allocation of equal shared parental responsibility. Mr Barnsley proposes that orders would be prefaced so that X spends different periods of time living with each parent. Ms Gaynor proposes that there should be an order that X live with her and spend time with her father. Whilst, ultimately, they are largely semantic arguments, they also have some real importance, each parent being put in a position where they feel that they have some greater degree of control or otherwise.
I accept the submissions that are put by Counsel for Ms Gaynor, albeit connected with the issue of whether time is to be equal or not rather than the terminology or nomenclature used, that such determinations are not made to meet the needs of parents, to “end power struggles”, to “create a level playing field”, or to seek to reduce conflict. They are made by reference to X’s best interests and the realities of his lived experience.
X’s lived experience is and has been, since birth, that he lives with his mother. I propose ultimately to make that order in those terms. That does not mean that he should not be practicing an abundant relationship with his father. He should be, and it is regrettable that the parties have not consensually, between the commencement of the proceedings and now, significantly advanced the practice of time that X has had with his father. It has certainly been augmented by the cooperation and communication between these parties that has seen each of them available to participate in events with X, irrespective of “whose time” it might be pursuant to an order.
As described by Ms Gaynor in her evidence, the parties have had shared time as well as their own individual time. An aspect of that might well be, taking it at its most positive and euphemistic, that Ms Gaynor has been very anxious to ensure that there is greater time. A more negative interpretation, although it is not one I choose to adopt, is that Ms Gaynor may have desired to be present at times when Mr Barnsley was spending time with X as she would otherwise miss young X. There may be some element of each in play, but, in any event, it has benefitted X, so I need not determine it further other than to acknowledge its reality.
Ms Gaynor proposes that time arrangements would remain as they are until X commences school in 2021. That is a little over 12 months away. If that were to occur, that would mean that the arrangements that X has had available to experience and practice his relationship and involvement with his father would go unchanged from late 2016 until 2021.
The absence of change in itself means very little. If it is meeting X’s needs, then it meets his needs. The question is whether there is an arrangement that would better meet his needs and without creating disadvantage. I am satisfied that there is, although it falls short of that which is proposed by Mr Barnsley, at least on present evidence and at this date, of moving immediately to an equal time arrangement. Another aspect is that Mr Barnsley’s proposal would see neither parent having an uninterrupted weekend with young X. Time would start either on a Saturday morning or a Sunday evening. I am satisfied that is also a relevant and important consideration. Each parent should have uninterrupted time. Section 65DAA(3) makes clear that parents should share different types of time, and that might well be extrapolated to include enjoying a weekend with their son without the other parent.
The proposal of Ms Gaynor then gradually increases. On commencing school in 2021, X would then spend time on a Wednesday afternoon for a few hours and alternate weekends from Friday till Monday. On Mr Barnsley’s proposal, time would already have commenced on an equal basis. In 2021, Ms Gaynor also proposes to introduce school holiday time. It is, however, an extremely gentle introduction of that time - alternate weekends, Friday to Monday, that which would already be occurring during school terms in any event, together with reintroducing, if it might be so described, one overnight in the alternate week, thus continuing very much an arrangement similar to the present.
During submissions, an amendment was made to the orders proposed. However, that would still delay the commencement of one-week periods during school holidays until December 2023. Until that time, that is for the next four years, Ms Gaynor proposes that would never be a block period of more than three days spent by X with his father. I am satisfied that this is far too gradual and that there is no sufficient basis that would make it viable or necessary.
The parties each seek a number of orders with respect to special occasions. They are not dramatically apart with respect to that which would occur. The differences are minor, although that is with one important exception. The arrangements that are proposed by Mr Barnsley with respect to the Christmas period substantially favour him, proposing that young X would be with him each Christmas from Christmas Eve until Boxing Day, and on that basis would spend little time with his mother during that period. The trade off, if it might be so described, is the concession by Mr Barnsley that various special events of cultural significance to Ms Gaynor, Chinese New Year’s Eve, New Year’s Day, and the Chinese Moon Festival, would fall always with her. Ms Gaynor similarly proposes that from 8.30 am until 5 pm each Christmas Day that X would be with her.
I propose to divide the Christmas period from Christmas Eve until 27 December between the parties for reasons which, again, I will attempt to articulate.
The objects certainly support meaningful involvement of both of these competent, loving parents. It need not necessarily be equal, but it need not be as slow and steady as Ms Gaynor proposes. It will be meaningful in any event.
It will be an involvement not simply confined to having Young X in their care. Both parents seek and consent to orders that they be involved in medical treatment, school, and such matters. That is very important for this little boy. Those orders can be readily made by consent, subject to some minor differences in language. To that extent, by and large, I accept that submitted on behalf of Ms Gaynor that as Mr Barnsley made concessions that he would agree to the orders as framed by Ms Gaynor that those wordings would be preferable.
The principles underlying the objects create what might be described as rights for young X. They are not absolute. They are subject to the caveat that they are neither enlivened nor practiced when to do so would be contrary to X’s best interests. However, in this case, that caveat does not apply.
X has a right to know and be cared for by both of his parents, irrespective of whether they were married, separated, never married, or never lived together.
X has a right to spend time and communicate with both of his parents and other people significant to his care, welfare and development, which would include, as specifically nominated within the subsection, his grandmother.
Parents share duties and responsibility and should agree about future parenting.
It is tragic that these two latter rights have, perhaps, not been fully achieved for X to date, although they have been achieved to a much greater extent than many parents.
X also has a right to enjoy his culture, including the right to enjoy that culture with people who share it. X is a child (without intending to be in any way offensive by the term) of “mixed descent”. His mother is part of the Chinese diaspora in Australia, his father is from Anglo-Celtic stock. X thus has, as was submitted by Ms Gaynor's Counsel, two important cultural heritages to practice. Neither is superior to the other. They are both fundamentally part of who X is and how he will identify.
Regrettably, Anglo-Celtic culture, or at least how it is expressed and understood by many in the community, might be perceived as expressing disadvantage towards him through racism and xenophobia as regards his Chinese heritage. His parents will do all they can to ensure that is not his experience. Sadly, they cannot control it completely.
The right to culture is not ventilated to any great extent in the evidence, but nor need it be. Each supports the other’s practice of culture and thus X’s.
X is learning and speaking Mandarin as well as English. He is engaging in classes to assist him in that regard. It is important that he speaks Mandarin. His grandmother does not speak English. Thus, he cannot practice the important relationship with maternal family relatives without that advantage, which he will receive from both parents. Similarly, the parents now agree on overseas travel arrangements to ensure that X can experience Chinese culture not only through a Chinese diaspora in Australia, but by travelling to China with his mother to visit other relatives.
He will have the experience also, through his father, of his Anglo-Celtic culture. I do not propose to consider the issue further.
I must then turn to section 61DA, the presumption of equal shared parental responsibility. The presumption would, in this case, apply.
I am not satisfied that a finding could be made, nor need it be made, that a parent has engaged in behaviour that would cause it to not apply. Similarly, I am satisfied the presumption is not rebutted. Neither parent urges that it would be so. It is not impractical and it is not contrary to X’s best interests that both of his parents be involved in decision-making. Indeed, it is substantially in his interests that they both be involved in major issues decision-making. Arguments about trifling matters need not distract from that reality. There may be, as is submitted on Ms Gaynor’s behalf, some degree of distrust between the parents but, again, it does not manifest itself in any meaningful way to obviate against these parents continuing to practice equal shared parental responsibility.
That being so, the presumption applying, I am required to consider equal and substantial and significant time before any other time arrangement. I propose to consider all arrangements at large by reference to section 60CC, to which I now turn.
I must commence with the primary considerations, the benefit to X of a meaningful relationship with both parents and the need to protect X from harm, the latter prioritised over the former by subsection (2A). Of course, in this case, the latter does not apply.
I am left to consider the benefit to X of a meaningful relationship with his father, Mr Barnsley, and his mother, Ms Gaynor. A meaningful relationship, as discussed by Brown J in Mazorski & Albright (2007) 37 Fam LR 518, subsequently adopted and affirmed by the Full Court, is based upon much more than time and a practice of relationship. The things that impact a relationship, its development and whether it is meaningful or not are very much founded in the parents, their attitudes and their behaviours.
This young boy has a meaningful relationship with both of his parents. If one is to look at what might be unusual, that is perhaps the most striking aspect of this case. This little boy, with two parents who have never really lived together in any significant sense, has a meaningful relationship with each notwithstanding that reality. It is counter-intuitive to expect that it would be so and yet it is. As I have already observed, it is so because these parents are focused, committed, and notwithstanding squabbles, disputes and criticisms they may each raise of the other in their fairly lengthy material, they are very much put aside whenever X is the focus of concern.
The benefit of the meaningful relationship is readily apparent and abundantly so. He has two parents who love him, who dote upon him, who desire to be part of his life, and who bring him great joy. The relationship is meaningful to X. That is the important test.
To continue the benefit of that relationship, by reference to the parties’ proposals, one must have regard to X’s lived experience to date. It will be a big change for X to go from spending no more than one night at a time with his father to spending more than one night at a time with his father. But change can be positive. The Report Writer, as I have already indicated, has observed that X could cope with that. That was some 12 months ago (see paragraph 72). It could be increased to two nights, so it was opined by the Report Writer in November 2018, without any untoward challenges for X. It is highly regrettable that step was not taken by the parties consensually. It has meant that for 12 months X has not had that benefit in his life. I accept that it is a benefit.
The movement, however, should not be dramatic. To go from one night at a time to seven might well go beyond the opinion of the Report Writer, not that the Court is bound by it, but very much informed by it, particularly when it is not challenged by the parties. There should be some graduation of arrangements, although, I accept, nowhere near as slow as Ms Gaynor has proposed. Hence, as I have already indicated, I propose for the next eight months that that time would increase to a three-night block together with the overnight period in the intervening week, comprising four nights a fortnight. Thereafter it would become a four-night block with a period in the intervening week - a nine/five arrangement, together with increasing periods of time during school holidays.
That is intended and designed not with any legal logic, but to seek to achieve a number of ends. Firstly, it is symmetrical. This young lad will know that he spends Monday nights with his father every week and he spends each second weekend with his father.
Secondly, it will provide a change of arrangements for this little boy that does not focus all change upon commencing school. Commencing school, for X, will be a big step. Maybe it is, perhaps, a big step for all children, but X, 12 months ago, was described as requiring some significant effort put into his greater socialisation and individualisation so that the transition could be achieved more efficaciously. It is on that basis that I propose a change mid-2020, so that rather than a leap from one night to four, that it be in steps and be in steps prior to X then having the further challenge of commencing school eight months after that step is taken.
It should also be noted in relation to the graduating increase in school holiday time, particularly by the point that the parties both agree it should be one-half of holidays, that X will be attending a private school where his holidays will likely be longer than public schools. Thus, to make an order for half of the Christmas school holidays is not to divide six weeks or slightly less than six weeks. It is, in all probability, to divide eight or possibly nine weeks of a long school break. Thus, that step will require some greater adjustment on X’s part.
The benefit for this little boy of a meaningful relationship with both parents being abundant and apparent and his relationship presently being meaningful gives me some confidence, in combination with that expressed by the parties as to their desire for the relationship to occur and for them to each support it, that it will meet his needs if such steps are taken.
I accept that which is submitted on Ms Gaynor’s part, that if the steps are too quick, too sudden, that it will cause some difficulty in, as it were, “dragging” Ms Gaynor along. Her ability to support an arrangement which she genuinely does not believe will meet the boy’s needs is inhibited.
However, Ms Gaynor, I accept, if necessary, by her returning to and obtaining the assistance which she previously sought out, (and thus there is no need for the Court to make any order about it), would adjust and be able to adequately support such a change – a graduated step, a greater step than Ms Gaynor proposes, but far less than the step which Mr Barnsley proposes. There is no greater logic or science involved in the determination. The Court does not have the assistance of the parties’ competing proposals being the subject of any extensive comment by the Report Writer. They have not attended for cross‑examination. Again, no criticism, but merely to observe that the guidance that is received is from the opinions from 12 months ago and the evidence as it has now fallen.
In turning to the additional considerations, I will address those that are relevant.
Views
There is no real evidence of X’s views led by either of the parents. The closest that one can come to views, although it is by inference only, is the report observing that X has a warm and affectionate relationship with both parents, transitions between them without distress, plays and interacts with each on a similar basis, and seeks each out for physical contact. That, in combination with paragraph 72, the lack of concern that there would be untoward challenges for young X, albeit 12 months ago, transitioning to more overnight time with his father, gives me some confidence that X would desire that there be greater time. It cannot be placed higher than that, however, and at X’s age, it would not garner great weight.
Nature of X’s relationship with each parent and other persons.
There is not a great deal of evidence of X’s relationship with other persons, although I accept that his maternal grandmother, with whom he lives, has a great role to play in his life. It is important to him. It is a relationship which, whilst not trumping that of the parents, must have some regard paid to it. It will continue if Ms Gaynor has a preponderance of care.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time or communicating with the child
Neither has.
Prior to the June 2012 amendments the Court was required to consider the more negative consideration of the extent to which each had interfered in the other’s capacity. Each has led voluminous evidence as to their perception that this has been so. I am not satisfied that any finding could be made, nor need be made, that it has been so.
Each of these parents has consulted the other, by and large, with respect to decisions of day‑to‑day and major importance. They have, by and large, talked it through and reached agreement. There have been squabbles and disputes, sometimes involving heated exchanges or words that are said that are later regretted, but they have not been significant or had any impact, profound or otherwise, upon X.
The extent to which each parent fulfils their duty to maintain the child.
That is not a criticism either raises.
Likely effect of any change, including separation from either parent or any other child or person with whom they live
Any transition towards greater additional overnight time spent by X with his father will, I accept, be difficult for Ms Gaynor. As is described at paragraph 72, Ms Gaynor has anxieties about additional overnight time (or did 12 months ago). Her evidence would suggest that is still a germane statement.
I accept that submitted on Ms Gaynor’s behalf, that she is conscious that arrangements be slow and gradual, indeed, conservative. However, to delay any increase in X’s time with his father from that which he has been practising since 2016 until X commences school 14 months hence is not, I am satisfied, supported by the evidence.
X’s abundantly warm relationship with his father means that to so delay arrangements will simply deprive X of that benefit and opportunity. As has been observed within the family law jurisdiction since the 19th century, any order for time, contact, access or however it may be described, in favour of one parent, invariably impacts upon the time the other parent can spend with the child.
Both of these parents are in substantial employment. They will each have calls upon their time and commitments, voluntarily accepted or imposed upon them, that will limit their ability to interact with X on a daily basis. That was a criticism levelled towards Ms Gaynor. I do not accept it as a criticism.
Parents have their own legitimate interests and expectations in life. They are entitled to pursue them. They are also connected with children’s welfare. Ms Gaynor being the best person she can be professionally and emotionally is supported by her engagement in employment, as is Mr Barnsley’s, let alone, the reality that they cannot financially support their child, including meeting the great expense of school fees that they both agree will be incurred in the not too distant future. Each will be away for those periods.
X has coped with it. One would hope the parents intend to engage in a plan, as the Report Writer opined, they should, to increase X’s attendance at day care, preschool, or however it may be described, in anticipation of better preparing him for school. It will be a difficult transition for X with his two parents as closely connected with him as they are, and as described by the report, he being somewhat uncomfortable when he is not the focus of their attention. It will be all the more difficult for him if he is not used to attending day care or preschool for more than the day and a half he presently does.
That will be a change. A beneficial change. It will assist him in those transitions. The other change that will assist him is to transition to an increased regime of practice of relationship with his father immediately and for that to then increase, again, albeit slightly, prior to his commencing school. The gradual increases in school holidays I will deal with separately.
Practical difficulty and expense
There is some difficulty in light of the party’s geographical residences. By reference to section 65DAA(5) of the Family Law Act (supra), that is important.
The parents live relatively close, but with traffic it is possibly a 45-minute commute. Once X starts school that begs the question of whether he can be gotten to school, or for that matter day care or preschool, prior to commencing. I have no concerns that Mr Barnsley will ensure that it is so. It is not so onerous a burden for him to have to leave his father’s home at 7.45am or so to guarantee that he is at school on time even allowing for traffic. It is time that will benefit him through practicing a relationship with his father.
It will increase Mr Barnsley’s meaningful involvement with X and X’s education. Taking him to and from school, meeting his peers, being able to speak with teachers and the like. Those benefits offset the geographical distance and travel. As has been observed by Justice Benjamin, even if sitting in a car with his father for 45 minutes, it is important time.
The capacity of the parents to implement an arrangement is somewhat untested although their practice of arrangements with the alternate weekend and then Monday-Tuesday period suggests that it would actually be far easier for them to have but one set of transitions. I am satisfied that this factor supports the arrangement I propose.
The capacity of these parents to communicate and resolve difficulties is far better than they perhaps themselves believe. They have resolved difficulties and have done so in the circumstances described, with no lived experience of doing so prior to X’s birth.
The impact on the child is, I am satisfied, positive.
The capacity of the parents to meet X’s emotional and intellectual needs
This is abundant in each household. It would potentially support the proposal of Mr Barnsley to move, eventually, to equal time.
I make clear that I do not propose to make orders that project that far into the future and predict that it will be beneficial. The Court makes prospective decisions based upon assessing the arrangements in the past, gathering the history and applying the law to it. The Court is not bound to continue a status-quo or to continue arrangements simply because that is how they have been. They are of assistance, however, in understanding how one might move forward based upon the child’s lived experience.
The steps I propose to take will move this family to a nine/five arrangement fairly quickly, at least, from Ms Gaynor’s perspective, fairly slowly, perhaps, from Mr Barnsley’s. But in taking those steps it will take young X through to the time that he starts school. I am conscious that the ability to predict arrangements for the future is already difficult. It need not be made more difficult by having a fourth, fifth, or sixth step as to how a progression might occur. The parents must be given some agency.
If they reach that point and arrangements are going well, one would hope they could engage, as Ms Gaynor proposes with an order for dispute resolution, in a dialogue towards changing arrangements. If X is receiving real benefit from an abundant practice of relationship with each of his parents, a more abundant practice might be even more advantageous. But they are matters that cannot be predicted today, two years ahead. Accordingly, I propose to make orders that will get through to X commencing school.
That will also, to some extent, increase or bring forward the practice of time during school holidays for half of the holidays. I propose to make an order that commencing with term 1, 2021, that half-holiday time commence. I am conscious that the Family Report Writer has opined that by the end of 2022 that such an arrangement should occur. Whilst there has been no cross-examination, and without intending it as criticism, there is little that can be taken from the evaluative portion of the report and the recommendations as a nexus between the two.
There is discussion of Ms Gaynor’s anxieties in rapid increase. There is discussion of Mr Barnsley’s desire for an immediate increase. The recommendation that is ultimately made as above, that half-holidays commence in 2022 or the end thereof, is not readily explicable by reference to the evaluation. It is something that I would have preferred clarification of through cross-examination of the expert but it is not worth putting the parties to the cost and further delay of requiring it. I am satisfied that it is a step that I can and should take.
The immediate pre-condition discussed that X commence some form of day care has occurred. That may well be assisting him in his progression of social skills and independence (paragraph 74) required to commence school successfully. However, doing the best I can with the evidences available and with a gradual progression of increasing blocks during school holidays, I am satisfied that by the end of 2021, a year earlier than the Report Writer recommends, that X should then benefit from half holidays without any significant disruptions.
It is, of course, open to the parents to negotiate how that occurs. I propose to simply make an order that it be half of the holidays. And in default of agreement, the first half with Mr Barnsley. However, the parents can, and I have every confidence they will, if they have different perspectives as to whether this young lad is ready for such an arrangement, have dialogue as to how it might better occur. That is part of their capacity in meeting his needs.
Maturity, sex, lifestyle, and background of the child
I am satisfied is adequately addressed by the above discussion.
Aboriginality and Culture
Clearly, young X is not a child from an Aboriginal or Torres Strait Islander background.
The attitudes of the parents towards their responsibilities as parents
As demonstrated by them in the past, their capacity is somewhat exemplary. There are certainly blots upon the copy book of each parent in that regard but they need not be focused upon. The positives are what are important for X. They are what have produced the circumstance the Report Writer describes of this little boy having an observably abundant relationship with each parent. One of real warmth and affection.
Family violence
This is not raised. There are no family violence orders.
Avoidance of future proceedings
As to whether it is preferable to avoid future proceedings, that again speaks to the issue of how many steps and how far into the future I might look. I have confidence in predicting what might meet this little boy’s needs for the next 12 to 18 months. Beyond that, I cannot see how I could possibly understand what would be best for X in 2024 when he will be twice as old as he is now. There are many things that might happen in that period of time. One would hope his health issues continue to be regulated and investigated but cause him no disadvantage.
I have no idea where the parents will live, what their work arrangements will be, and the like. For those reasons, again, I do not propose to make orders that project too far into the future, although, I am conscious to make clear, in that regard, that I do not suggest that the submission put on behalf of Mr Barnsley, as to an eventual move to equal time, is necessarily disadvantageous for this boy. I am simply not satisfied, on the evidence presently available, that it is a step I could immediately take or take within a timeframe of ready prediction, 12 to 18 months.
To make orders that projected further would most likely lead to the institution of future proceedings. It is more likely that the parents will come into dispute with each other as to how well things were working and whether the progressions should continue, if they have been pre-determined six years in advance, than to simply leave the parties, capable and abundant as they are as parents, to discuss those matters and resolve them themselves.
For all those reasons, I propose to make orders as broadly outlined earlier. By reference to the mother’s Minute, orders 1 and 2 are agreed with by Mr Barnsley, together with orders 5 to 7.
Order 8 would, by the conclusion of evidence, appear agreed, being the school that young X would attend. Ordinarily I would be loath to enter into the fray with respect to such issues. However, as the parents are largely agreed, it is preferable in this case to do so. It is ultimately a matter for parental responsibility, but as the parties will have equal shared parental responsibility and have expressed their broad agreement, I will include the order.
Mr Barnsley, again, agrees to orders 9 and 10 as sought by the mother, together with orders 11 through to 18. I have indicated during the conduct of the case that I did not propose to make order 11 as sought, as it seeks to provide permission to the parties to travel with X within Australia. It is of course a matter of common courtesy, something discussed at length in the evidence, that parents would let each other know if they are going away from the city during periods of time that X is in their care. That is so to ensure that parents do not see news of events which cause them concern that their child may be there. However, I have every confidence these parents will do exactly that. If Mr Barnsley is travelling to Queensland to visit his sister with X, I am sure that he would let Ms Gaynor know and similarly, if Ms Gaynor was travelling away, that she would let Mr Barnsley know. Indeed, in the past, the parents have gone on some trips together.
Accordingly, whilst there is consent from Mr Barnsley, I do not propose to make order 11 but the balance of orders, dealing, for example, with overseas travel, school enrolment and the like, I do propose to make as sought by Ms Gaynor, not to prefer one version of wording over the other but merely, as submitted by counsel for Ms Gaynor, there has been an indication of broad agreement.
In relation to the balance of what be described as specific issues orders sought by Mr Barnsley, a number of them are already accommodated by the orders sought by Ms Gaynor. However, orders 13, 15 and 17, I propose to make. They are in furtherance of the parties having equal shared parental responsibility and require nothing more than spelling it out in an order that both parents be permitted to attend school events, have school reports and the like. The order that is sought in relation to both parties advising each other of the child’s general practitioner does not intrude in practice. It merely means that each parent is entitled to obtain information. An alternate means might be consent to an electronic health record. But in any event, until that is forthcoming, there is no harm done and it enables both parents to have information, that as parents with equal shared parental responsibility, they would be entitled to.
Mr Barnsley seeks an order that if one parent is unable to care for the child, that the other be given the first opportunity. I do not propose to make the order, not because it is unhelpful that such an arrangement or practice might occur, but because it is unnecessary.
These parents are capable of making abundantly good decisions and have demonstrated that it is so. If they need assistance from the other, they will ask for it, and if it is asked for, it will, in all probability, be given. I need not prescribe that the parents must do it.
Finally, Ms Gaynor seeks an order that both parents will follow any instruction or recommendation of the child’s treating paediatrician. I do not propose to make the order, not to suggest any incompetence on the part of the paediatrician but because that is again a matter of equal shared parental responsibility and I am not satisfied I need be prescriptive as to how the parents follow medical treatment.
Whilst there is one issue raised on the evidence about a dispute some years ago about the prescription of antibiotics and their administration, it is not an order that I feel need be imposed by this Court nor appropriate. However, for all of the above reasons, I make orders as follows.
Time periods for weekends, even when X commences school, will be expressed to commence in the morning of a school attendance day and conclude after school on that day, so as to be clear as to the parent who has care of X during the day that he is attending school. That means that if X is in Mr Barnsley’s care each Monday, that he would be the relevant immediate contact person for school purposes.
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Harman.
Date: 20 January 2020
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