Beadle and Beadle
[2009] FMCAfam 1147
•2 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BEADLE & BEADLE | [2009] FMCAfam 1147 |
| FAMILY LAW – Parenting – relocation – where mother has job offer in Adelaide – where child has significant attachments to both parents – relocation would have detrimental effect on the child’s relationship with the father – child to remain in Sydney and spend substantial and significant time with the father – interpretation and application of McIntosh shared care research. |
| Family Law Act 1975, ss.60B, 60CC, 61 DA, 65DAA |
| Bolitho & Cohen (2005) FLC 93-224 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4 Kimberly Shefts, Virtual Visitation: The next Generation of Options for Parent-Child Communication 36(2) Family Law Quarterly 303 |
Applicant: | MS BEADLE |
| Respondent: | MR BEADLE |
| File Number: | SYC 3806 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 12 & 13 October 2009 |
| Date of Last Submission: | 13 October 2009 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lloyd SC |
| Solicitors for the Applicant: | Paul & Paul Lawyers |
| Counsel for the Respondent: | Ms Carr |
| Solicitors for the Respondent: | E H Tebbutt & Sons |
| Counsel for the Independent Children’s Lawyer: | Mr Barry |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
All previous orders be vacated.
The Mother and the Father have equal shared parental responsibility for the Child [X] born [in] 2005 (“the child”).
Commencing immediately, and continuing until the commencement of school term 1 in 2010, the child shall spend time with the father during the school term as follows:
(a)Each Wednesday from after daycare to 6.00pm; and
(b)Each weekend commencing from 4.30pm on Saturday afternoon to 4.30pm on Sunday afternoon.
From the commencement of school term 1 in 2010, the child is to spend time with the father during the school term as follows:
(a)Each Wednesday from after school or daycare as the case may be to 6.00pm; and
(b)Each alternate weekend from after school or daycare or 4.30pm as the case may be (whichever is the earliest) on Friday to the commencement of school, daycare or 9am on Monday as the case may be (whichever is the earliest).
From the commencement of school term 3 in 2010, the child is to spend time with the father as follows:
(a)In week one and each alternate week thereafter, each Wednesday from after school or daycare as the case may be to before school or daycare on Thursday;
(b)In week two and each alternate week thereafter; from after school or daycare or 4.30pm as the case may be (whichever is the earliest) on Friday to the commencement of school, daycare or 9am on Monday as the case may be (whichever is the earliest).
During the forthcoming school holidays, the child is to spend time with the father for two periods of four (4) days and three (3) nights as the parents agree, but if they are unable to agree, commencing at 10.00am on the second and fifth Fridays of the said school holidays and concluding at 4.00pm on the following Monday.
In subsequent school holidays, the child is to spend time with the father for one half of the same as agreed by the parties but failing agreement for the first half of the same as agreed by the parties but failing agreement for the first half in even numbered years and the second half in odd numbered years.
The child is to spend time with the Father from 12noon on Boxing Day to 12noon on Christmas Day in odd numbered years, and from 12noon on Christmas Day to 12noon on Boxing Day in even numbered years. All orders for holiday time are suspended during this period.
In the event the Easter period does not fall within a school holiday period and in the absence of an agreement between the parties, the child is to spend time with the father from 6.00pm on Easter Thursday to 6.00pm on Easter Saturday in even numbered years and from 6.00pm on Easter Saturday to 6.00pm on Easter Monday in odd numbered years.
The child is to spend time with the father on the child’s birthday as agreed between the parents, but failing agreement:
(a)For three hours if the birthday occurs on a weekday; or
(b)For five hours if the child’s birthday occurs on a weekend.
The child is to otherwise live with the mother.
For the purposes of Orders 2, 3 and 4, changeover is to take place as follows:
(a)If the child is at daycare or school, the father is to collect the child from daycare or school at the commencement of his time with her.
(b)Where the child is at the mother’s residence, the father is to collect the child from the mother’s residence;
(c)Where the child is to be returned to daycare or school, the father is to return the child to daycare or school;
(d)Where the child is to be returned to the mother’s residence, the mother is to collect the child from the father’s residence at the end of his time with her.
For the purposes of Orders 5,6,7,8 and 9 changeover is to occur with the father to collect the child at the commencement of time from the mother’s residence, and the mother is to collect the child from the father’s residence at the end of said time.
Order 3 (a) and (b) is varied on Mother’s Day each year so that the child commences spending time with the father that week at 4.30pm on Sunday instead of 9.00am on Sunday.
Unless otherwise agreed by the parties, school holidays:
(a)Shall commence at 9.00am;
(b)Shall conclude at 6.00pm;
(c)Will be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)Pupil free days are deemed to be school holidays; and
(e)After a period of school holidays, Order 2(a) shall resume on the first weekend after school has resumed if the child lived with the father during the first half of the school holidays AND on the second weekend after school has resumed if the child lived with the father during the second half of the school holidays.
Unless otherwise specified in the others, for the purposes of changeover:
(a)When the father delivers the child to the mother, he is to deliver the child to the back entrance of the mother’s residence at the gate and not go beyond the gate. The mother is to remain inside the residence.
(b)When the mother delivers the child to the father, she is to deliver her to the father’s apartment and remain at least four (4) metres away.
Each party is to maintain a separate wardrobe of clothing for the child at the home of that parent and when that clothing is worn by the child to the home of the other parent, then that parent is to ensure that the clothing is returned, washed and ironed, to the other parent as soon as practical and/or that clothing is worn by the child at the time of the next changeover.
Each party is to have liberal telephone calls with the child when the child is in the care of the other party and for the purposes of such communication:
(a)The parties shall facilitate the child telephoning the other party in accordance with the child’s wishes; and
(b)The parties shall ensure the child has privacy when speaking on the phone to the other party.
Either party is permitted to take the child interstate or out of Australia for holidays or for other short periods of time provided that:
(a)It is during the child’s scheduled holiday time with that parent, unless otherwise agreed to in writing by the other parent;
(b)Each party will give to the other party at least two (2) calendar months’ notice of that party’s intention to take the child out of Australia; and
(c)Each party will provide to the other party an itinerary which will include the date the child will be travelling interstate or will be leaving Australia and the date the child will be returning to Sydney, flight details including carrier and flight number, telephone number and address of where the child will be staying during their absence from Sydney.
Each party ensures the other party is kept informed at all times of the residential address of the child and a telephone contact number on which the child may be reached and shall advise the other party no less than 48 hours prior to any change of residential address or phone number.
Both parties are hereby restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child’s hearing.
(b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
Each party contact the other party in the event that there is a medical emergency involving the child whilst the child is in that party’s care.
The parties do all things necessary to enrol in and complete a post separation parenting course nominated by the Independent Children’s Lawyer.
The Father is to pay the Independent Children’s Lawyer’s costs in the sum of $1,650.00 to the Legal Aid Commission of NSW within
28 days of the date of these orders unless he receives a waiver in respect of the costs.
The mother’s application to relocate to Adelaide with the child is dismissed.
Parties have leave to relist before Federal Magistrate Altobelli as regards the interpretation, implementation and enforcement of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Beadle & Beadle is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3806 of 2009
| MS BEADLE |
Applicant
And
| MR BEADLE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a case about four year old [X], where she should live and how much time she should spend with each of her parents. Her mother wants [X] to live with her in Adelaide, and this would involve relocating from Sydney where the family now lives. Her father wants [X] to remain living in Sydney. From a legal perspective, this is an application for parenting orders where one of the proposals involves relocation.
[X]’s parents separated recently. This fact helps the court to understand why there is such a high level of emotion present in the evidence and apparent throughout the conduct of the hearing. It is possible that the parents may still be grieving the death of [X]’s sister, [Y], who was stillborn in September 2007. It is a complex emotional matrix that forms the backdrop of this case. There is added urgency because of a job offer that the mother has received. No relocation decision is an easy one to make.
Accusations have been made by each of the parents against each other and their respective families. These allegations can, again, be explained by reference to the emotional context of this case, but this evidence did very little to help me with the final decision that had to be made.
Background
The mother is 34 years old and the father 41 years old. They met in Adelaide, either in 1993 or 1995. Nothing turns on which of these dates is correct. From about 1997, their relationship developed further, and by 2001 they commenced cohabitation in Adelaide. In 2002 they moved to Sydney and where the mother took up a position at the [workplace omitted]. They married in March 2003 and [X] was born [in] 2005. In August 2006, what became the former matrimonial home at [omitted], a Sydney suburb, was purchased, and here the family resided until separation. Separation took place on 13 May 2009. There were apprehended violence proceedings in the [D] Local Court later that month and the father experienced various mental health issues at this stage.
The present proceedings commenced by way of an application that was filed by the mother on 26 June 2009. I made interim orders on 29 June, the effect of which were that [X] would spend two afternoons and one day with her father per week, with the exception of school holidays during which she would spend five days per week with her father. There was no overnight time given. Non-denigration orders were also made.
When the proceedings first commenced before me there was no issue about a possible relocation by the mother. It was in August this year that the mother amended her application to seek orders permitting [X] and herself to relocate to Adelaide for work purposes. Further consent orders were made on 19 August 2009, and the matter was set down for hearing on 12 October 2009.
By the time of final submissions on the second day of the hearing, the mother’s proposal was as follows. She sought orders to the effect that there be equal shared parental responsibility for [X], that [X] live with her in Adelaide and that [X] spend time with the father. The detailed proposal for [X] to spend time with her father depended on whether this was exercised in Sydney or in Adelaide, and itself depended on [X]’s age. It should be noted that up until the date of the hearing, the mother’s proposal was that she have sole parental responsibility.
The father’s proposal is contained in his amended response that was filed in October, and he seeks an order that the mother be restrained from relocating [X] from outside of the Sydney metropolitan area. He also proposed that [X] live with him on what amounts, in effect, to an equal time arrangement. He also raised, in his amended response, issues of a property settlement that remain in my docket and are still to be determined.
There was an Independent Children’s Lawyer (“ICL”) in this case.
The ICL’s counsel provided a minute of order during submissions. The ICL’s proposal was that there be equal shared parental responsibility, that [X] and her mother remain in Sydney and that, in the short term, there be an arrangement for [X] to spend increasing time with her father until there would eventually be an equal time arrangement similar to that proposed by the father.
As will be apparent from a consideration of the competing proposals, the issue in this case is where [X] should live and how much time [X] should spend with each parent. There are a range of alternatives in this regard. [X] could live with her mother and spend time with her father, either in Adelaide or in Sydney. [X] could live with her father on an equal time basis in Sydney, or [X] could live with her mother in Adelaide and spend time with her father. Alternatively, [X] could live in Adelaide and have an equal time arrangement with both parents there, provided the father agreed to move.
For all practical purposes it is necessary to determine in the course of making a decision which is in the best interests of [X], whether or not she should be allowed to relocate to Adelaide with her mother. In the course of this, it will be necessary for me to determine whether it is appropriate for her father to move to Adelaide as well. In each case, I will need to consider what is in the best interests of [X], and whether the arrangements proposed are child-focused and reasonably practicable.
Having regard to the provisions of the Family Law Act, the issues and the evidence lends itself to dissection by reference to a number of the considerations referred to in section 60CC of the Act. That is the framework that I will use for the purposes of these reasons for judgment.
I will need to determine, for example, whether there is a meaningful relationship between [X] and her parents, and if so, what is the impact of the competing proposals on that meaningful relationship. I will need to explore whether there is any evidence that gives rise to the need to protect [X] from any form of harm. I will need to establish whether [X] has expressed any views, and if so, the extent of weight that I should place on those views.
I will need to consider the nature of [X]’s relationships with her parents and other significant people in her life, and explore the potential impact of the competing proposals on these relationships. It may be relevant to consider the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between [X] and the other parent.
As each of the proposals in some way involves change for [X], I will need to explore the effect of changes on [X], especially if I accept a proposal that brings about a separation of her from one of her parents. This case potentially raises issues of geographical distance and travel in that context. Hence, I will need to consider whether any of the proposals involve issues of practical difficulty and expense that go to the question of [X]’s right to maintain a personal relationship and direct contact with both parents on a regular basis.
I may need to consider issues about the parenting capacity of [X]’s parents, as well as their respective attitudes and responsibilities towards parenthood. There are allegations about family violence, and a family violence order has been made, so I will need to consider the impact of that, again in the light of the proposals that have been made.
The evidence before me consisted of the affidavits of the father and his two witnesses, Ms V, and Ms B. The latter were not required for cross-examination. The mother’s evidence consisted of her affidavits, and the affidavits of her brother, her mother, and her father. The last mentioned three witnesses were not required for cross-examination. The evidence relied on by the Independent Children's Lawyer consisted of the Expert’s Report prepared by psychologist Cinzia Gagliardi.
Oral evidence was therefore given by the mother, the father and by the expert. I will refer to the evidence of the expert in different contexts throughout the hearing. However, I can say by way of introduction that as a general proposition, I accept her evidence, which was given confidently and assertively, notwithstanding a formidable challenge to aspects by Senior Counsel for the mother.
Both parents also gave evidence; neither parent was a good historian and both were prone to embellish and/or exaggerate aspects of their evidence at times. I find that both were honest, nonetheless, and I suspect that it was the current high levels of emotion that have clouded their perception of events, rather than malice. As the expert notes in her report, the parents have two different personalities, had two different approaches to parenting, and certainly have two different perspectives in relation to the dispute before the court.
The applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(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.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(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.
Substantial and significant time
(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; and
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) 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.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(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;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental conflict and shared parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Relocation
In my previous decisions of J & R [2007] FMCAfam 181, H & H [2007] FMCAfam 27, and M & K [2007] FMCAfam 26 I set out my understanding of the effect of this legislation on the law relating to relocation. There have been a number of later Full Court cases, and I discuss those below.
I adhere to the discussion in these earlier cases of the meaning of the term “meaningful involvement”, though I recognise that in the Full Court’s decision in Godfrey & Sanders (2007) FamCA 102 Kay J, sitting as the Full Court, made obiter comments at paragraph 36 suggesting a different interpretation. His Honour suggested that the legislation aspires to promote a meaningful relationship, not an optimal one, and that a diminution in the quality of the relationship does not necessarily mean it is no longer meaningful. I accept that the differences in approach are significant. One of the differences is that my interpretation of what constituted a meaningful relationship is based on social science research, as I set out in my earlier judgments. In each case it will be a question of assessing the nature and quality of the relationship between parent and child, and the degree to which the relocation diminishes that relationship. On the facts of some cases, the meaningful relationship is not diminished at all. An example of this is the decision of Dessau J in M & S [2006] FamCA 1408. In Godfrey & Sanders (2007) FamCA 102 Kay J obviously found that any post-relocation diminution of relationship was not, on those facts, significant. I very much doubt if His Honour meant his comments to apply generally. The children in that case were 11 and 7. But if the children were much younger, for example, relocation might have caused a greater diminution in the quality of the relationship between them and the non-relocating parent. It is also unfortunate that His Honour did not have the benefit of contrary submissions as to what constituted a meaningful relationship on the facts of that case.
It is also relevant to consider whether a meaningful relationship can be maintained through what has been described as “virtual visitation”. The term was used in two recent articles appearing in volume 36 Family Law Quarterly[5] and encompasses the use of telecommunications technology such as webcam and email. Innovation in telecommunications has resulted in children being able to communicate with their parents orally, visually, and in writing, almost at will. Virtual visitation orders are not uncommon, even in relocation cases. Dessau J in M & S (2006) FamCA 1408 accepted this form of communication at paragraph 93 of her judgment.
[5] Sarah Gottfried, Virtual Visitation: The wave of the Future Communication Between Children and Non-Custodial parents in relocation cases 36 Family Law Quarterly 475, Kimberly Shefts, Virtual Visitation: The next Generation of Options for Parent-Child Communication 36(2) Family Law Quarterly 303
On the facts of that case it was clearly appropriate as the child in question was not only familiar with but experienced in virtual visitation.
There is a real danger in relocation cases in putting too much weight on the availability of virtual visitation. Can a child have a meaningful post-relocation relationship with the non-relocating parent when that relationship depends on virtual visitation? The Family Law Council had some real concerns about virtual visitation at paragraph 4.12 of its Relocation report dated May 2006[6]. I doubt very much whether the social science approach to meaningful relationship, that emphasises emotional closeness and authoritative parenting in the diverse contexts of parent-child interaction, lends itself to virtual visitation.
[6] Family Law Council Report, “Relocation”, Canberra, May 2006.
From a legislative perspective, s.60CC(3)(e) seems to emphasise “personal relations” and “direct contact” rather than impersonal and indirect forms of contact. Moreover the definition of “substantial and significant time” in s.65DAA(3) emphasises not just the quantitative aspect of time, but the qualitative aspect of opportunities to be involved in daily routines and special events.
Virtual visitation, for some children, in some cases, may be a way of lessening the impact of relocation where relocation is otherwise in their best interests. The availability of virtual visitation is not a reason to allow relocation in and of itself.
A number of recent Full Court decisions on relocation establish the following principles:
a)If the presumption of equal shared parental responsibility applies, even in a relocation case the court must consider whether equal time or substantial and significant time is in the child’s best interests and is reasonably practicable: Morgan & Miles [2007] FamCA 1230 at paragraph 54, citing Goode & Goode (2006) FLC 93-286 and Newlands & Newlands [2007] FamCA 168; Taylor & Barker [2007] FamCA 1246 at paragraph 58.
b)
There is no “right” to relocate, in the sense that there is nothing in the legislation which provides that a parent who has an existing order which provides that the child spend
50 percent or more of their time with that parent has a unilateral right to move the child: Morgan & Miles[7].
c)For the time being, the Family Law Act does not treat relocation cases as a special category of parenting orders. The court is deciding with whom a child should live and spend time: Morgan & Miles[8].
d)In a relocation case there are no presumptions either in favour or against relocation: Morgan & Miles: paragraph 74.
[7] [2007] FamCA 1230 at 55
[8] Ibid at 72
The impact of the most recent amendments to the Act in relocation cases has been described in the following terms in Morgan & Miles[9] at paragraphs 79-81:
[9] ibid
79. In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
·that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
·that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
·that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
·the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
· Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
· that the child’s best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate “compelling” reasons;
· that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
· the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, [ remain valid].
81. What the legislation now requires is:
· consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
· if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
The distance involved in a proposed relocation does not necessarily involve different considerations. The Full Court in Morgan & Miles[10] described it in these terms at paragraphs 91-92:
91. The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.
[10] Ibid
In dealing with a relocation case, the court must consider the proposal for relocation as one of the proposals for a child’s future living arrangements. It is also relevant to consider other proposals and alternatives including, for example, that the parent opposing the relocation in fact relocate: U & U (2002) 211 CLR 238; (2002) FLC 93-112; Bolitho & Cohen (2005) FLC 93-224; Taylor & Barker [2007] FamCA 1246 at paragraph 53.
The obligation to consider equal time or substantial and significant time in s.65DAA does not require the court to consider reasonable practicality if it finds that a proposal would not be in the child’s best interests (Taylor & Barker[11] ).
[11] [2007] FamCA 1246 at paragraph 74
The obligation to “consider” equal time or substantial and significant time in the context of a relocation case clearly requires the weighing up of the advantages and disadvantages of a parent’s proposal to relocate against the advantages and disadvantages of the maintenance of the status quo: Taylor & Barker[12]. Each of the proposals needs to be considered through the framework of s.65DAA and its core concepts of “equal time”, “substantial and significant time”, “best interests” and “reasonable practicability”. In this regards the Full Court in Taylor & Barker[13] noted at paragraphs 82-83:
82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
[12] ibid at 75
[13] Ibid
But these sections do not mandate the making of orders in one or other of the terms, only that genuine consideration is given to them. The ultimate question is one of best interests: Goldrick & Goldrick [2007] FamCA 1260 at paragraph 43.
In some cases, the happiness or unhappiness of a parent proposing relocation may be an important consideration. Whilst clear evidence about this is preferable, sometimes happiness is a state of mind to be inferred from the evidence eg based on reasonable inferences. See Taylor & Barker[14]. However, the Act does not prescribe parental happiness, as such, as a factor in determining the best interests of a child: see the dissenting judgment of Faulks DCJ at paragraph 127. In any event, if parental happiness is a relevant consideration, it must surely be that the happiness of both parents is relevant.
[14] Ibid at 106 and 109
In some relocation cases, s.60CC(4) may be relevant. However the focus is always on a person’s capacity to parent (Goldrick & Goldrick[15]).
[15] [2007] FamCA 1246 at paragraphs 40-41
Meaningful relationship
The Expert’s Report of Ms Gagliardi confirms that there is a meaningful relationship between the parents, which was very much based on what she found to be [X]’s very secure and equal attachment to both parents. The evidence of both the mother and the father confirmed this and, in fact, they both conceded either explicitly or implicitly that [X] has a good relationship with both of them.
One of the major issues in this case is the extent to which, if at all, the proposals serve to undermine that existing meaningful relationship. For all practical purposes, the case was conducted on the basis that if I allowed [X] to relocate to Adelaide with her mother, that the father would, in all likelihood, not move to be with her. It was part of his case that this would undermine the meaningful relationship that exists between him and [X].
There was no suggestion that the existing meaningful relationship would be affected if both parents were in the same city. The question comes down to whether I accept that the meaningful relationship between [X] and her father would be affected if I allow relocation. There is also the related issue of whether it was reasonable to expect that the father would move to Adelaide.
On the first issue, there is little doubt that the evidence of Ms Gagliardi expresses quite serious concern about the impact on the meaningful relationship between the father and [X] if I allow relocation and he does not move to Adelaide. This was expressed by the expert using the language of attachment. Clearly, she was concerned that a reduction in the frequency of [X]’s interaction with her father, coupled by the challenges of distance, would result in the attachment being affected, and she described some of the impacts on [X] of this in quite graphic terms.
Despite an attempt by Senior Counsel for the mother to assert that the proposal for contact for the father in Adelaide was such as to avoid, or at least minimise the impact of relocation on the meaningful relationship, I simply do not accept his arguments in this regard. Even if it were possible for the father to travel to Adelaide each alternate weekend as proposed by the mother, the fact is that [X] would go from currently seeing her father each Tuesday, Wednesday and Sunday to a situation of seeing her father once each alternate weekend from Saturday to Sunday.
That is a substantial change in both the quantitative and qualitative circumstances in which [X] can relate with her father. I accept the expert’s evidence in this regard. Indeed, she was steadfastly opposed to the relocation from the perspective of the impact that it would have on [X]’s attachment with her father. The Independent Children’s Lawyer certainly supported the concerns about the effect on attachment of relocation in this regard.
The next issue, therefore, is whether it is reasonable under the circumstances for the father to adopt a stance that he would not move to Adelaide. Senior Counsel for the mother robustly cross-examined the father in relation to this. His evidence was quite firm. He indicated that he was currently in a full-time job and that he was studying [omitted] with a view to establishing a consultancy business in that area in due course. He expected his studies to end next year. He indicated that he was satisfied in his job, and that he hoped that his studies would lead to an opportunity to reinvigorate his entrepreneurial flare. He agreed that if he established his [omitted] consultancy, it could be conducted anywhere in New South Wales but would not agree in cross-examination that it could be conducted in South Australia. When challenged on this, his explanation was that the South Australian legislation was different.
In his closing submissions, Senior Counsel for the mother was quite critical of this explanation. The fact is, however, that the only evidence I have about the difference in legislation is that which was asserted by the father. It was not put to him in cross-examination that the evidence he gave was not correct. Accordingly, I am left with the father’s explanation in circumstances where I have no other reason to doubt it. He was further cross-examined about whether he would move to Adelaide if the court allowed [X] to go. He indicated that he would not.
From the perspective of the mother’s case, the father’s evidence in cross-examination, at its very highest, was to agree with a statement from the mother’s Senior Counsel that he had the ability to work in Adelaide as much as he had the ability to work in New South Wales. The father quite frankly conceded that, “Yes, he could work in South Australia” but the context of it was very clear: it would not be in his current position.
When it was suggested, specifically, that there was no impediment to him working in South Australia, the father explained that he had no job there, that he had a good job here - one that was flexible enough to allow him to provide care for [X] - and that he had his studies here. Whether or not I accept the reasonableness of the father’s position in this regard, must, I think, also be considered in the context of the reasonableness of the mother’s reasons for moving to Adelaide. There is no requirement, of course, for the mother to establish any reasons for wanting to relocate, let alone, compelling reasons. But in a case like this where part of the mother’s case involves the assertion that the father could move, and that his stance in refusing to move is unreasonable, then it certainly opens up the question of the motives of the mother’s move.
The mother was given the opportunity by the Independent Children’s Lawyer in cross-examination to tell the court why she thought it was in the best interests of [X] for her to be allowed to relocate. The mother made four points. Firstly, she suggested that [X] would benefit from the family support that would be provided by the mother’s family network in Adelaide. She pointed out, for example, that her mother, father and brother are there, and that, in addition, even the father’s sister lives there with [X]’s cousins. The second point she made was that their standard of living would improve, and that she thought she would be able to purchase a home, send her to private schooling and allow her to participate in extracurricular activities to a standard in Adelaide that would be superior to that in Sydney.
Thirdly, the mother thought that there would be benefits in the sense that she herself would be better supported as a mother, and thus able to provide care for [X]. The last point she made is that she was confident that a move to Adelaide could still be done in a way as to maintain the meaningful relationship between [X] and her father, but on the basis, of course, that he moved to Adelaide and enjoyed some of the same benefits to which she had just adverted.
It was part of the mother’s case, and indeed, the urgency for dealing with the case on an expedited basis, that she had been offered a position with [workplace omitted] in Adelaide. The evidence before me about her position indicates that there is certainly a position available to her, but her case at the very highest in terms of the evidence presented, is that she would be going to a temporary position as a [occupation omitted], with an initial contract that would expire on 12 March 2010, and with reasonable certainty that it could be expired for a further six months. Beyond that, the evidence could not possibly be interpreted on the basis of there being any certainty of the mother’s employment.
Based on the evidence before me, therefore, at the very highest the mother is moving to a job in Adelaide in circumstances where she would have employment for a guaranteed period of six months and a highly likely period of 12 months. Based on the overall evidence, it was the mother’s employment opportunity that seems to be the main precipitator for her application to relocate. I accept that she perceives that she would receive greater family support if she moved there.
Whilst the mother asserts that, for example, her standard of living would improve, the evidence that was advanced in this regard was so generalised and imprecise that I would give little weight to it.
I accept that the mother feels subjectively that she would be benefited and more supported as a mother by moving somewhere closer to where her family is.
The evidence about whether there is any pressure here in Sydney compelling her to move was scant indeed. The impression I formed is that whilst she may not be entirely happy with her current job, it is nonetheless one that is secure on the evidence before me, and that provides for the family’s financial needs. Even if I accept that there is some financial stress in this regard, the mother works for all practical purposes on a full-time basis, and there is nothing to suggest that, for example, a move to Adelaide would reduce her hours of employment.
When one steps back and considers whether the mother’s reasons for wanting to move to Adelaide are any more or less legitimate than the father’s reasons for not wanting to move to Adelaide, it is impossible to differentiate between the two. Under the circumstances, I could no more label the father’s opposition to move as unreasonable, than I could label the mother’s desire to move as being unreasonable. In these circumstances, and subject to the other matters to which I will shortly refer, I find that I accept the father’s evidence that there are good reasons for him to remain in Sydney, and I find that his attitude is reasonable under the circumstances.
This takes me back, therefore, to a consideration of which of the proposals of the parties has the greatest likelihood of undermining the meaningful relationship that clearly exists between [X] and her father. Regrettably, the mother’s proposal involving relocation is the one that creates the greatest threat in this regard. That is consistent with the evidence of the expert and it is consistent with my own impression of the evidence about the relationships between the mother, father and [X].
I do not accept that the mother’s proposal for contact in Adelaide would, as a matter of reasonable practicability, provide a sure basis for the existing meaningful relationship to be continued. Accordingly, from the perspective of meaningful relationship, the alternatives that best meet this consideration involve [X] and her mother remaining in Sydney.
Protecting [X] from harm
The next consideration is whether there is any evidence that gives rise to the need to protect [X] from harm. I am satisfied that there is no such evidence. The expert indicated in her family report that [X] was not at risk of any physical or psychological harm from either parent. Even though, during the course of the mother’s oral evidence, she used the term “psychological abuse” in the context of some of the things that she asserts the father has been saying to or in the presence of [X], it was not seriously advanced as part of the mother’s case that there were any issues about protecting the child from harm.
Indeed, it is significant from the perspective of this consideration, and others to which I will shortly refer, that the mother agreed that there should be an order for equal shared parental responsibility. By agreeing that the presumption of equal shared parental responsibility set out in s.61DA of the Act applies, there is an acknowledgement that there has been no abuse of the child and family violence. Moreover, the application of equal shared parental responsibility means that, pursuant to section 65DAA of the Act, I must consider [X] spending equal time or substantial and significant time with each parent, unless the same is not reasonably practicable or is otherwise not in her best interests.
Views of the child
The next consideration to which I must refer is whether [X] has expressed any relevant views about the matters in question. The expert reports that [X] had clearly articulated a desire to be close to both parents. The expert observed that given [X]’s age and cognitive development, she was not yet fully aware of the ramifications of the separation of her parents, and of the practical issues of co-parenting. The expert noted, however, that [X] holds a normal desire to be with both parents and continue to have the support and care she has been afforded to date.
On behalf of the father, it was asserted that comments that [X] had made to the expert indicated that she wanted to live with her father and certainly wanted to spend more time with him. To the extent that [X] has expressed a view that is relevant to these proceedings, I am not prepared to place any weight on the same. I think the expert correctly identified that [X]’s age and cognitive development are reasons why any views that she has articulated should not receive any weight.
[X]’s relationships
I next consider the nature of [X]’s relationship with her parents and the other significant adults in her life, and again consider the impact of the proposals in relation to the same. To some extent, the discussion about “meaningful relationship” already covers the ground in this regard. Clearly, [X] has a good relationship with both parents, and one that was established on the basis of a frequent involvement by both of them in her life. The evidence satisfies me that the father was very substantially involved in [X]’s life prior to separation, particularly during periods when the mother was in full-time employment.
It would be unfair and improper to attempt to characterise [X]’s relationship with her father simply by reference to the amount of time that she has spent with him since separation. Of more significance in this regard is not so much the time that she has spent with him but the frequency with which it has occurred; namely, three times a week. In these circumstances and viewed holistically, the proposal which, in my opinion, presents the greatest threat to the nature of [X]’s relationship with her father is the mother’s proposal to be allowed to relocate to Adelaide.
Encouraging continuing relationships
The next consideration is the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between [X] and each parent. The expert notes that both parents had articulated a desire and a necessity for [X] to have a close and continuing relationship with the other parent. She noted, however, that this willingness was still impacted by the parents’ inability to put aside their own distress and emotions around their separation and their respective behaviours. Indeed, the evidence of the parents, both in their affidavits and orally, strongly suggested to me that neither parent has yet come to grips with the emotional aftermath of their separation.
Indeed, it would be easy to be critical of both the mother and father for things that they have said and done to each other or to [X], or in the presence of [X], which with the benefit of hindsight they would either concede was inappropriate or, indeed, did concede that it was inappropriate in evidence. The expert expressed the view that the parties should become more focused on the needs of [X] once this litigation was ended. Senior Counsel for the mother expressed quite a degree of scepticism in this regard and directed towards the father. I must say, I do not agree.
I agree with the expert’s assessment, that once the litigation is over, both parents can parent more effectively. That is not to say, as the expert conceded, that there were not examples of the father putting his own interests above that of [X], but that is nonetheless not necessarily evidence of an inability to facilitate and encourage [X]’s relationship with her mother. Both the mother and the father in the evidence sought to raise concerns, directly or indirectly, about the other’s ability to facilitate an ongoing relationship. I must say, the evidence that I read and heard is inconsistent with this.
Whilst these parents have a long way to go in terms of working more cooperatively in relation to [X], it could not be said on the available evidence that they are attempting to subvert the important role that each has in [X]’s life. Even to the extent that it might be said by the father, for example, that the mother’s proposal to relocate was itself an example of the mother’s unwillingness to facilitate and encourage a close and continuing relationship with the father, I would not accept the same. It could not be said that her proposal to relocate was brought in bad faith and with a view to deliberately undermining this relationship.
Overall, the totality of the evidence supports the expert’s opinion that there is a willingness to facilitate there. However, it is impacted, at least for the time being, by a focus on their own needs and this litigation. I share the expert’s optimism that on conclusion of this litigation, both parents might become more focused on [X]’s needs.
Changes in [X]’s life
Another consideration, of course, is the effect of change in [X]’s life, particularly if I adopted a proposal that led to a separation from one of her parents. I have already accepted that it is not reasonable to expect the father to move to Adelaide. In these circumstances, I am still faced with the prospect of change in [X]’s life, because the other decision I need to make is how much time [X] should spend with each parent. For the time being, it is the mother’s proposal to relocate that would bring about the greatest changes in [X]’s life. It would take her away from the next most significant person in her life, her father, by substantially reducing the amount of time that she would have with him. It would also take her away from her circle of friends, but that is not a large factor in my mind.
The benefits that the mother asserts that would accrue to [X] if she does, in fact, move to Adelaide are, firstly, not established convincingly in my mind, and in any event, it would not offset the adverse impact of the changes on her to which I have just referred. Nonetheless, there will be change. The father’s proposal involves a substantial increase in time with [X] and even the mother’s proposal concedes this. Nonetheless, change occurring in the environment where both her mother and father will be substantially involved in her life, is change that is manageable.
I have not ignored the mother’s evidence that she will probably need to sell the former matrimonial home. That will bring a significant physical change in [X]’s life and, indeed, she may well need to change where she goes to preschool. Whilst I recognise these are significant changes, they are still taking place in the context of both her mother and father being there for her on a meaningful basis. I will discuss elsewhere in my judgment the extent to which [X]’s time with her father should be increased.
On the question of change, the expert noted that [X] had been afforded a stable and loving home environment that has resulted in the development of a confident little girl. The expert describes [X] as effectively having two secure bases in both of her parents. The concern expressed is that a separation from either parent will result in significant emotional and developmental consequences for [X]. She notes that [X] has developed a good balance of her mother’s and father’s traits, which she uses to negotiate and navigate in her environment. Accordingly, separation from either parent, at this stage of her development, would result in confusion and insecurity. I accept the expert’s evidence in this regard.
Practical difficulty and expense
Another consideration is whether there would be such a degree of practical difficulty and expenses as to have an impact on her right to maintain a relationship and direct contact with both parents on a regular basis. I am left in no doubt that it is the mother’s proposal that presents the greatest practical difficulty and expenses. Both parents advanced evidence about the practicalities, costs and logistics of the father travelling to Adelaide and [X] travelling to Sydney. On balance, I think the mother’s evidence overstates the realistic impacts of this on [X] directly and on the father, particularly from a financial perspective and in terms of the impact on his work.
I also take into account the mother’s offer to subsidise some of these costs, but given that her estimates in this regard are unrealistic, it must follow that her offer to contribute is not a realistic one. In any event, this case is not being decided by reference to issues of practical difficulty and expense, but primarily by reference to the impact on [X]’s relationship with her father of the move to Adelaide.
Parental capacity
The next consideration looks at issues of parental capacity. This is related somewhat to the consideration of parental attitudes and responsibilities. The expert observed in her report that, in her opinion, both parents were assessed as possessing excellent parenting capacity and as possessing attitudes to parenthood that would foster good developmental progress in [X]. Regrettably, I observed evidence that indicated that both parents had failed, from time to time, in being responsible parents and focussing on [X]’s needs.
I am satisfied from the evidence, for example, that both parents have said things to [X] or in [X]’s presence which was then communicated either to the expert or to the other parent, and which reflect poorly on the parent making the statement. I think there were examples from the father’s evidence of his actions in relation to changeover and, for example, the father’s letter to [Mr N], which demonstrated poor judgment and an inability to prioritise [X]’s needs over his own, and a real failure to understand the mother’s perspective on events.
Once again, it is easy to be critical of both parents, but the reality is that the separation is a recent one and that levels of emotion are high. According to the evidence, the mother is predisposed to be anxious and I sense that there are still unresolved issues of grief, all of which cumulatively help the court to understand why both parents did and said things, which, one would hope, with the benefit of hindsight, would illustrate a real lack of child focus. It is possible that the father has misled the Child Support Agency in relation to how much time he spends with [X]. I cannot make a finding that he did so deliberately, but I can accept the undertakings that he gave in cross-examination that these are matters that he will rectify.
The concerns that I have about parental capacity and parental attitudes and responsibility will influence the decision that I make about how much time [X] should spend with her father, but these considerations are otherwise not determinative on the question of whether relocation should be allowed. Clearly, the parents find it difficult to communicate and, clearly, there is still a high level of distrust and conflict. The expert expresses the view, perhaps more accurately expressed as a hope, that the conflict will settle once the litigation ends. I certainly hope so.
Family violence
The next consideration is to take into account whether there has been any family violence, any family violence orders and the extent to which this involves the child or applies to [X]. The expert observed that [X] does not display any evidence of traumatic reaction or trepidation in the context of any alleged past family violence. That is heartening to know.
However, there is evidence before me that indicates, firstly, that there is a family violence order in place, and, secondly, that both parents have said things and done things that might technically amount to family violence for the purposes of the Family Law Act. If a distinction needs to be made, clearly the father’s actions were more threatening towards the mother than the mother’s actions towards the father. The mother says that she felt intimidated at times and I accept this. I am not in a position to make findings about the more serious allegations that she makes.
Her Senior Counsel, again, robustly cross-examined the father about these issues. Whilst I was left with an impression that there has been family violence, I am not sure that it is to the extent to which the mother asserts in her affidavit evidence. The expert described the family violence in these terms - at page 16 of her reports she states:
In relation to the separation of the parties it is important to note that past behaviour needs to be understood in the context in which it occurs. On the surface, Mr Beadle’s behaviour, post-separation and during the initial periods of access with his daughter may appear to be erratic and highly risky. However, when considering the manner in which the separation occurred, and how each party was respectively dealing with their own grief and loss, his behaviour can be easily understood as context and crisis-specific.
In his closing submissions, Senior Counsel for the mother was quite critical of these comments and suggested that if the expert was asserting that the behaviour of the father can be rationalised away by reference to the context, then this was not acceptable. I am not sure that the expert was attempting to rationalise anything by making the reference to behaviour being understood in context and crisis-specific. All that the expert was explaining is that the action of the parents needed to be understood in the context of events in their life at that time.
She was not seeking to justify the father’s behaviour. And, indeed, the father, in his evidence, openly acknowledged the unacceptability of some of the things he said and did which were so robustly criticised by Senior Counsel for the mother. The expert’s point, of course, is that both parents were dealing with issues of grief and loss in the context of a recent separation. That did not justify the father’s behaviour, but it did provide some context in which the expert’s confidence that it would not repeat itself could be understood.
In effect, I believe the expert was saying that the father’s behaviour was not part of a pattern of abusive behaviour and, as such, could be characterised as context and crisis-specific. The father’s behaviour still remains significant in my mind because it demonstrates the difficulties that both parents will face in attempting to co-parent [X] into the future. The family violence that did occur is not such as to justify a relocation that would have such a profound impact on [X]’s relationship with her mother.
Indeed this conclusion must be implicit in the mother’s case because she did not seek to rebut the presumption of equal shared parental responsibility because of family violence. It is however a significant factor pointing towards the formidable obstacles that these parents face in seeking to engage in cooperative or collaborative parenting. Indeed, this may well be a factor that suggests that equal time is not in [X]’s best interests, even if it is reasonable practicable, and that is a discussion that I will continue below.
Accordingly, whilst I note that family violence has occurred, I do not think the evidence is clear. It does not go anywhere near seeking to rebut the presumption and, in any event, this was not sought by the mother. It is a strong contra-indicating factor insofar as equal time or any formed of shared parenting is concerned.
Equal shared parental responsibility
It is the common position of the mother, the father and the independent children’s lawyer that I should make an order for equal shared parental responsibility.
Even if the matters relating to family violence asserted by the mother had been established, I would not have accepted that it would be sufficient to rebut the presumption for the purposes of section 61DA. The consequence of the presumption of equal shared parental responsibility is that under section 65DAA, I must consider, in a meaningful and not token fashion, whether equal time is in the best interests of [X] and is reasonably practical, and if not, whether substantial and significant time is in [X]’s best interests and is otherwise reasonably practicable.
Equal time or substantial and significant time?
The expert considered that equal time was a possibility. She says that it is in the child’s best interests to spend either equal, or substantial and significant time with each parent. She noted that both parents have the capacity to implement such an arrangement and have the capacity to communicate effectively with each other to resolve their difficulties. However, she notes their willingness to do so, whilst still engaging in litigation and still processing their separation, must be impaired. She thought that with the aid of an external mediator to initiate appropriate communication strategies, it is the expert’s belief that both parties are capable of resolving these difficulties.
Both the Independent Children’s Lawyer and the father invited me to make orders which, in the fullness of time, would amount to equal time order. The mother’s proposal, however, amounts, in the fullness of time, to a substantial and significant time. I note that the expert was of the opinion that either equal or substantial and significant time could apply. I believe it is not in [X]’s best interests for there to be an order for equal time, at least not for the time being, and possibly not even for the foreseeable future.
There are unresolved issues between the parents about their capacity and their attitudes and responsibilities, and these are the matters to which I have referred above. In particular, I have concerns about the father’s capacity to engage in cooperative and collaborative parenting. He was certainly quick, and indeed, quite articulate, in terms of espousing the virtues of this in his evidence, but still left me with lingering doubts as to whether he actually had the capacity to do so. The expert herself noted the different personalities of the mother and the father, and my impression is that these personalities are not such as to create the level playing field and the ability to openly communicate that is needed in a shared parenting arrangement.
I do not accept that the parents presently have a capacity to communicate, and that the only reason why they are not communicating is the litigation. I think it is a somewhat more complex situation. The expert has openly recognised that the mother is predisposed to anxiety. Whilst it is true that this is a mother who has operated at a high level in her employment, the fact is that in her personal life, the context is different. Even the father acknowledged that for a period of time this year, he had been unduly controlling of the mother, and that he had approached matters in the wrong way. He acknowledged to the independent children’s lawyer’s counsel in cross-examination that assistance and guidance was needed in making joint decisions with the mother. I thus have concerns about their ability to communicate and collaborate.
Whilst I accept the appropriateness for making an order for equal shared parental responsibility, I think the issues to which I refer make an equal shared care arrangement fraught with difficulty. There is a risk that [X] would be caught in the practical crossfire of her parents’ conflict and inability to communicate.
McIntosh research into share care
During the course of the evidence reference was made by both the Family Consultant, and counsel for the ICL, to what has commonly become known as the McIntosh research into shared care. A very useful summary and discussion of this research is found in an article entitled “Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research” by Jennifer McIntosh and Richard Chisholm 2007-8 (20(1)) Australian Family Lawyer 3. The authors express concerns about the adverse impacts on children of substantially share physical care arrangements (defined as a minimum of five nights per fortnight with each parent) in families characterised by persisting inter-parental conflict. Counsel for the ICL asked the expert whether she was aware of this research and had considered it. The expert responded that she was both aware of it and had considered it, but believed that the facts of the present case did not fall within the category of high-conflict families that were the subject of the McIntosh research. Thus equal shared care was not contra-indicated on this ground alone.
I record my surprise that this evidence was not challenged by those representing the mother, and I received no submissions on this issue. I raised the McIntosh research with the ICL’s counsel in submissions and he indicated that the parents in this case did not fit within the criteria identified as problematic in the McIntosh research. With respect I think both the Expert and counsel for the Independent Children’s Lawyer may have misunderstood the research. I will discuss this below.
It is true to say that the McIntosh research did identify multiple variables to see what core factors or combinations of factors were most highly associated with the poor outcomes experienced by children in the high-risk mental health bracket. Bearing in mind that the research was based on two samples, a mediation sample and a Family Court sample, the following variables were found to be associated with children’s high emotional distress scores. In the mediation model:
a)Fathers had low levels of formal education;
b)There was high, ongoing inter-parental conflict;
c)Children’s overnight care was substantially shared;
d)Mother-child relationship was poor, as reported by mother and child;
e)There was high acrimony (psychological hostility) between parents; and
f)The child in question was under 10 years old.
In the Family Court sample:
a)The child was un happy with their living and care arrangements;
b)The parent’s relationship with the child had deteriorated post-court;
c)The child lived in substantially shared care;
d)One parent held concerns about the child’s safety with the other parent;
e)The parents remained in high conflict.
If I understood the submission correctly, it was to the effect that as so few of these variables were present on the facts of this case, it meant that this case did not fall within risk indicators identified by McIntosh, and thus her research could be distinguished. Thus, the submission proceeds, equal shared care is not ruled out. Indeed it could be argued that the only variable clearly present on the present facts is high, ongoing inter-parental conflict, and high acrimony (psychological hostility).
If this is the argument, it fundamentally misconstrues the McIntosh research. For example the factors referred to above were identified through regression modelling i.e. the measure of the association between one variable (the dependent variable) and other variables (the independent variables). Thus, looking back on the research data collected, it was noted that for those children with high emotional distress scores, there were certain variables or factors that were associated with this. The variables distilled from the regression modelling are, therefore, a useful predictive tool. But as McIntosh and Chisholm point out in their article, some of the variables independently predict poor outcomes. One of these is high, ongoing inter-parental conflict. Another is living in substantially shared care. On this basis, therefore, the findings I have made about inter-parental conflict contra-indicate a substantially shared care arrangement.
I fully appreciate that the Independent Children’s Lawyer is confident that the parental conflict will diminish once this litigation is completed. While I certainly hope it is the case I am not prepared to take a risk with [X]’s psychological welfare by ordering shared care, especially if it turns out that the confidence placed in the parents was in fact misplaced.
[X]’s time with her father
It is apparent from the evidence, however, that there is no reason why [X] should not be having overnight time with her father. Indeed, curiously, the orders sought by the mother provided that overnight time with [X] in Adelaide be supervised in the first instance, but that [X]’s time in Sydney not be supervised.
In terms of the proposals for time in the context that relocation is not allowed, the mother proposed that from the date of the orders to the commencement of term 1, 2010, [X] have contact each Wednesday, from after day care to 6 pm, and each Sunday from 9.30 to 6.30. I note that this proposal is actually less than the frequency of time that [X] currently enjoys with her father.
The mother further proposes that during the school term of 2010 it be each alternate weekend, from 9 am Saturday to the commencement of pre-school on Monday, and each Wednesday and Thursday from after day care through to 6 pm; and then from the commencement of term 1, 2011, it be each alternate weekend from after school Friday to the commencement of school Monday, and Wednesday evenings from after school to 6 pm.
The Independent Children’s Lawyer’s proposal in this regard was that until 29 November, it be each Wednesday from after day care to 6 pm, and each weekend, commencing 17 October 2009, from 4.30 pm Saturday afternoon to 4.30 pm on Sunday afternoon. The Independent Children’s Lawyer proposed that from the end of November the child would live with her father on a two-week cycle basically on an equal time arrangement.
Whilst I accept that [X] is certainly ready for overnight time, the fact is that she has not spent a considerable period of overnight time with her father. Accordingly, overnights should clearly be introduced but I intend to make orders that introduce that time over a more generous timeframe than that suggested by the father or the independent children’s lawyer, but certainly not nearly as conservative as that proposed by the mother.
One of the matters that I would like to address in the orders for time is the need to minimise the opportunities for the mother and father to come into contact with each other. The independent children’s lawyer has suggested an order that each party maintain a separate wardrobe of clothing for [X]. I can see the benefit of this in the circumstances of this case and I intend to make that order.
Orders are proposed that neither party denigrate the other, and I think that is appropriate, but I also will make orders that neither party is to discuss these proceedings or the separation in the presence of [X]. There is evidence to suggest that this has taken place, and it is very much not in her best interests to do so.
Order in the best interests of [X]
Having regard to the matters set out above, what are the orders that are in the best interests of [X]? When all of the evidence is considered, having regard to the discussion of the principles to which I have referred above, it is apparent that it is not in [X]’s best interests that she be allowed to relocate to Adelaide with her mother.
I understood that the mother’s case was that if relocation was not allowed, she would not move to Adelaide without [X]. If I have misunderstood that, then I grant leave to the parties to relist this matter before me on 72 hours’ notice. I would be surprised, indeed, if the mother relocated to Adelaide without [X].
On the basis that both parents remain in the Sydney metropolitan area, I will make an order for equal shared parental responsibility and that [X] live with her mother, but that [X] spend time with her father on a gradually increasing basis which over a period of time will by term 3 2010 amount to four nights per fortnight, taken as a three-night block over one weekend and one night in the alternate week. When possible changeovers will occur away from the home of either parent, but if that is not always possible I will make orders in terms similar to that which the parents consented to on 19 August 2009. I hope the need for this will evaporate as times goes by.
I sensed that the father’s proposal for time was partly predicated on matters of convenience, the need for him to study and work as well.
I am not prepared to make orders for [X] that accommodate these factors. He will, in effect, have to rearrange his life so that he can be available for [X] as much as is reasonably practicable for a working parent, and having regard to the orders that I make.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Monique Robb
Date: 2 November 2009