BERG & CARRILLO
[2019] FCCA 363
•20 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BERG & CARRILLO | [2019] FCCA 363 |
| Catchwords: FAMILY LAW – Child aged 3 years old –parties separated when child was infant – high degree of parental conflict – poor level of communication between the parties – father seeks either equal time – practical issues – parallel parenting arrangement – nature of parental responsibility – meaningful level of relationship with each parent – best interests – matters to be considered. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC, 60CA, 61DA, 65DAA |
| Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 MRR v GR (2010) 240 CLR 461 Godfrey v Saunders 2008 FLR 287 Fox v Percy (2003) 214 CLR 118 Mazorski v Albright (2007) 37 FamLR 518 Goode & Goode (2006) FLC 93-286 Bright v Bright (1995) FLC 92-570 Taylor & Barker (2007) FLC 93-345 Astor & Astor [2007] Fam CA 355 Zahawi & Rayne [2016] FamCAFC 90 U v U 2002 FLC 93-112 Bartel & Schmucker (No 3) [2012] FamCA 1094 |
| Applicant: | MR BERG |
| Respondent: | MS CARRILLO |
| File Number: | ADC 422 of 2016 |
| Judgment of: | Judge Brown |
| Hearing dates: | 27, 28 & 29 August 2018 |
| Date of Last Submission: | 1 November 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 20 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Adelaide Family Law |
| Counsel for the Respondent: | Ms Tinning |
| Solicitors for the Respondent: | Norman Waterhouse Lawyers |
ORDERS
The parties have equal shared parental responsibility for the child of their relationship [X] born … 2015 (hereinafter referred to as “the child”).
The child live with the mother, apart from the period specified hereunder, during which periods he will live with the father as follows:
(a)From the date of these orders, on a fortnightly basis, during both school terms and holiday periods:
Week 1 (Commencing 23 February 2019)
(i) On Tuesday from 4:15pm to Wednesday 8:30am;
(ii) On Saturday 8:30am to Sunday midday for the first four (4) visits, thereafter to Sunday 4:00pm.
Week 2
(i) On Tuesday from 4:15pm to Wednesday 8:30am;
(ii) On Thursday from 4:15pm to Friday 8:30am.
(b)Upon the child attaining the age of 4 ½ on 18 April 2020 the child live with the father, during both school terms and holiday periods, on a fortnightly basis, as follows:
Week 1
(i) On Tuesday from 4:15pm to Wednesday 8:30am;
(ii) On Friday 4:00pm to Sunday 4:00pm.
Week 2
(i) On Tuesday from 4:15pm to Wednesday 8:30am;
(ii) On Thursday from 4:15pm to Friday 8:30am.
(c)Upon the child attaining the age of 5½ on … 2021 the child live with the father, on a fortnightly basis, during both school terms and holiday periods, as follows:
Week 1
(i) On Tuesday from 4:15pm to Wednesday 8:30am;
(ii) On Friday 4:00pm to Sunday 4:00pm.
Week 2
(i) On Tuesday from 4:15pm to Wednesday 8:30am;
(ii) On Thursday from 4:15pm to Friday 8:30am.
(d)Upon the child attaining the age of 6½ on … 2022 the child live with the father, on a fortnightly basis, during both school terms and holiday periods, as follows:
Week 1
(e)On Tuesday from 4:15pm to Wednesday 8:30am;
(f)On Friday 4:00pm to Sunday 4:00pm.
Week 2
(a)On Tuesday from 4:15pm to Friday 8:30am.
The living arrangements for the child contained in order (2) hereof continue until the end of school year holidays in December 2022 and thereafter the following regime be implemented in respect of school holidays, subject to the specific arrangements for longer holidays contained in order (4) hereof
(a) The child live with each parent during school holidays on a week about basis as agreed between the parties, but in default of an agreement, from 5.00 pm Friday (or the conclusion of school if applicable) until 5:00pm the following Friday.
Upon [X] turning the age of 7 in … 2022 each party is authorised to take one extended holiday with the child of up to 14 days, provided that the applicable holiday period is otherwise equally divided between the parties.
Each party be at liberty to travel interstate with the child during relevant holiday periods pursuant to orders (3) & (4) hereof provided that the travelling parent provides written notice to the other parent detailing the destination, travel dates and electronic contact details are provided to the non-travelling parent.
During the specific festive days of Christmas, unless the parties agree otherwise orders (3) to (4) herein be suspended and the child spend time with the parties, during these days, as follows:
(a)In 2019 with the Father from 3:00pm on 24 December 2019 until 3:00pm on 25 December 2019 and in 2020 from 3:00pm on 25 December 2020 until 3:00pm on 26 December 2020 and each alternative year thereafter,
(b)In 2019 with the Mother from 3:00pm on 25 December 2019 until 3:00pm on 26 December 2019 and in 2020 from 3:00pm on 24 December 2020 until 3:00pm on 25 December 2020 and each alternative year thereafter.
During the period, of Easter, unless the parties agree otherwise the orders (3) to (5) herein be suspended and the child spend time with the parties as follows:
(a)In 2019 and each alternative year thereafter, with the Father from 5:00pm Easter Thursday to 5:00pm on Easter Saturday.
(b)In 2019 and each alternative year thereafter, with the Mother from 5:00pm Easter Saturday to 5:00pm on Easter Monday.
(c)In 2020 and each alternative year thereafter, with the Mother from 5:00pm Easter Thursday to 5:00pm on Easter Saturday.
(d)In 2020 and each alternative year thereafter, with the Father from 5:00pm Easter Saturday to 5:00pm on Easter Monday.
The child spend time with the Father from 4:00pm (or the conclusion of school if applicable) to 7:30pm on the occasion of the child’s birthday (…) unless the child is otherwise in the care of the Father then the same provisions will apply to the Mother.
The child spend time with the Father from 4:00pm (or the conclusion of school if applicable) to 7:30pm on the Father’s birthday (…) unless [X] is otherwise in the care of the Father then the same shall apply to the Mother on her birthday (…).
The child spend time with the Mother on Mother’s Day from 5:00pm on the preceding Saturday to 5:00pm on Mother’s Day.
The child spend time with the Father on Father’s Day from 5:00pm on the preceding Saturday to 5:00pm on Father’s Day.
The child be exchanged between the parties wherever possible at his Early Learning Centre or Primary School but otherwise he be exchanged at the mother’s home except where the parties otherwise agree in writing.
Each parent allow the child to reasonably communicate with the other parent, by appropriate electronic means, such as mobile phone, telephone, email, text message and skype when the child is in each of their respective cares and each is directed to take all necessary steps to facilitate such communication.
The parties exchange all relevant information relating to the care, welfare, development health and education of [X], regarding his medical, dietary, scholastic and extramural requirements in writing by means of emails to be exchanged in respectful terms weekly on each Thursday evening or if they choose to adopt such method via an internet app applicable for the use of separated parents.
The parties provide any information to the other concerning any illness or injury suffered by [X] forthwith with each parent at liberty to both attend and confer upon any medical practitioner consulted by the child.
The child have one General Medical Practitioner as the parties agree from time to time.
Each party be at liberty to attend all functions, activities or events at the child’s Kindergarten/School to which parents are ordinarily invited to attend.
Each party be at liberty to obtain information direct from any school or kindergarten the child may attend from time to time as to the child’s attendance and progress.
The parties be and are hereby restrained by injunction from:
(a)Discussing issues raised in the court proceedings with the child or in his presence;
(b)Criticising or denigrating the other parent to or in the presence of the child or allowing any other person to do so.
All applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Berg & Carrillo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 422 of 2016
| MR BERG |
Applicant
And
| MS CARRILLO |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Berg “the father” and Ms Carrillo “the mother” are the parents of [X], who was born on … 2015. They are in vehement dispute about what are the optimal final arrangements for [X]’s care and parenting.
The dispute centres on the appropriateness of an equal time regime, for a child of [X]’s age, in circumstances in which his parents acknowledge their relationship, as parents, is poor; they do not communicate well; and, given when they separated, they have no shared history of providing care jointly for [X]. As will become apparent, the evidence also indicates that this situation is unlikely to change any time soon.
Issues
The parties met, in their workplace, at the Employer, in early 2014. Apart from their employment – they have little in common by way of background. They commenced their relationship shortly after having met and began to live together in … of 2014.
In … 2015, Ms Carrillo discovered that she was pregnant. It is common ground between the parties that the pregnancy was not a planned one and, with the benefit of hindsight, it seems both accept that they were not psychologically compatible with one another and, as such, were ill-equipped to embark upon the adventure of parenthood together.
During the pregnancy, the relationship between Mr Berg and Ms Carrillo, already strained, fell into deeper difficulties. As a consequence, the parties separated, in … 2016, when [X] was less than four months old. They have been in litigation, with one another, in the period since. Due to his extremely tender years, [X] remained in his mother’s primary care, at separation and continues to do so, as at the date of this judgment.
The father commenced these proceedings approximately a fortnight after the parties had separated. On a final basis, he sought orders that would see [X] living with the parties in an equal time basis. This remains his position.
In addition in the immediate difficult and emotional circumstances, Mr Berg sought urgent interim orders, directed towards him being able to spend fixed but short periods of time, with [X], so that a bond could be established between the two. In the period since early February 2016, there have been a series of acerbic interim hearings, directed towards this end.
Regrettably, given the parties inability to agree these arrangements, it is readily apparent that they continue to have little in common, apart from their shared love of [X]. Implicit in this love, is the assumption that they each want the best for [X] – both now and as he matures into adolescence. However, they disagree fundamentally on how this outcome can be achieved. The father from an equal time regime; the mother through a regime based on [X] having one predominate home with her and spending prescribed periods of time with his father.
As a consequence of the differences between the parties, both in aspiration and temperament, every interaction and communication between them is fraught with difficulty and mistrust. However, necessarily, because of their shared role as the parents of a young child, they must interact with one another to some degree. It is neither possible nor likely to be in [X]’s best interests, for one party to be excised completely from the child’s life.
Mr Berg is optimistic that relations, between the parties can get better or, failing this, strategies adopted to protect [X] from the more corrosive aspects of their poor parenting relationship. In this regard, he favours a strategy, which can be summarised within the rubric of the phrase parallel parenting.
What is meant by this expression is that he and Ms Carrillo would each have autonomous responsibility for [X], during the period of time he is in their respective care and they would each endeavour to keep their communications with one another, about him and his requirements, to a respectful but effective minimum.
In this manner, the child would transit between their two households with relative ease and he would not be exposed to any conflict arising between them. In this way, a shared care regime could be rendered feasible for [X].
Ms Carrillo views this concept as misconceived utopian mumbo jumbo. She does not believe it can work in this case but rather will have the potential to be psychologically destabilising for [X], as he will be exposed to two households and styles of parenting which are not complimentary with one another.
Essentially, it is her position that no intervention is likely to be able to turn the parties’ compromised parenting relationship into one which will support the equal time regime to which Mr Berg aspires. As such, it is essential for [X]’s welfare that he have one main home and she should provide it as [X]’s historical primary carer and more experienced parent.
One thing, however, is certain – Mr Berg is not going to withdraw, in any way, shape or means, from [X]’s life. To the contrary, Mr Berg aspires to be a fully committed and involved parent. He also struck me as a determined and persistent person. Ms Carrillo is also a person of strong views, who did not present to me as being one who was easily cowed. The parties equally determined natures have also shaped the form in which the case has taken.
The case was allocated to the docket of Judge Mead and she has managed the case through the various interim hearing required. However, due to her indisposition, it has fallen to me to conduct the final hearing, which occurred over three days, during which I was able to observe each party being tested through extensive cross examination. It is on the basis of this exposure to the parties that I have formed my impression of their respective characters.
At the outset, Mr Berg wished to spend periods of time with [X], on five days each week for periods ranging between two hours and five hours; with the time to be extended when [X] was six months of age. He also wished to be able to take [X] to Melbourne to visit members of his paternal family. At this early stage, he foreshadowed a split care regime to be inaugurated when [X] was two.
Ms Carrillo responded by proposing the father spend time with [X] for one hour on two occasions each week, subject to her informal supervision. She did not have any proposals for his final care arrangements.
Rather she sought to reserve her position until further expert evidence was available in the form of a family assessment report. Accordingly, the respective positions of the parties, as to what was appropriate for [X]’s care, can only be regarded as being poles apart. This remains the case.
Inevitably, emotionally charged proceedings, such as these, lead the parties involved in them to make ambit claims. It is Ms Carrillo’s position that this tendency is particularly pronounced in Mr Berg’s case and indicate a person who was and remains out of touch with the realities involved in parenting a child of [X]’s age. If it was otherwise, she asserts, he would not have sought such grandiose orders in respect of [X].
In addition, Ms Carrillo is highly critical of Mr Berg on the basis that it is her perception that he has neither the experience nor aptitude required to be a competent parent. Besides [X], she is the parent of another child. She is [Y] born … 2007. Due to the manner in which she has been parented, [Y] has had little relationship with her biological father.
It is Mr Berg’s case that he formed a close bond with [Y], during the twelve months or so he lived with Ms Carrillo. In these circumstances, he also sought a regime of time spending orders in respect of [Y]. Ms Carrillo does not accept that [Y] has a close or loving relationship with Mr Berg. To the contrary, it is her position that [Y] was emotionally mistreated by Mr Berg, during the parties’ relationship, and now wants nothing more to do with him.
Her view of the nature of [Y]’s relationship with Mr Berg has informed her current stance that he is a person who has little parenting aptitude and no insight into the emotional needs of young children. If it was otherwise, she asserts Mr Berg would be aware of his compromised relationship with [Y].
The court’s rules require each party, in a case relating to children, to file a Notice of Risk document, in which any welfare concerns can be flagged in respect of children affected by the proceedings concerned. In the father’s case, he has filed a notice in which he alleges [X] is at risk because:
·His mother declines to have him vaccinated;
·His mother suffers from depression and paranoia;
·Ms Carrillo is intent on alienating [X] from him.
For her part, in her notice, Ms Carrillo alleges that [X] is at risk of exposure to family violence because, in the past, Mr Berg has been verbally abusive and belittling of [Y], such that she has had to seek assistance from a counsellor. Accordingly, the positions of the parties are polarised to an extreme degree. This polarisation flavoured the proceeding before me. No quarter was given and it was apparent to me that each party has a jaundiced view of the other.
Initially, on 24 February 2016, Judge Mead ordered that [X] spend three periods of time per week, each of an hour in duration, with his father. The time was directed to take place at the mother’s home, in the absence of the mother but with her sister in reasonable proximity. Undoubtedly, this was a tense and difficult period for all concerned.
Thereafter, the time has been gradually and cautiously increased by Judge Mead and the conditions to which it is subject relaxed to some degree. Currently, pursuant to orders made on 14 November 2017, [X] has an overnight stay, with his father, each Tuesday and spends each third Thursday afternoon and two out of three weekends, during the day, with his father.
These reasons for judgment are directed to determining what should be the final arrangements for [X]’s care. They arise following vigorously contested proceedings, which took place over three days, during which the motivations and parenting capacity of each of the parties concerned was subject to rigorous scrutiny.
As already indicated, Mr Berg aspires to parenting [X] in what is commonly called an equal time or shared care regime. He proposes that this arrangement be incrementally introduced, on an annual basis, culminating in the child living for seven nights per fortnight, with each of his parents, when [X] is six years of age in October of 2021.
Ms Carrillo also proposes a graduated increase in the time [X] spends with his father, which would conclude in mid-2022. However, she asserts that an equal time regime would not be in [X]’s best interests and, even if it could be demonstrated that it was, she and Mr Berg do not have the type of parenting relationship, which would be conducive to its implementation.
Rather, it is her position that the position that the relationship between he and Mr Berg is just too conflicted; their parenting styles and aspirations just too disparate; and their communication skills just too compromised; to make such a regime work for [X] successfully. In addition, she asserts that she is by far the superior and experienced parent, as a consequence of having successfully raised [Y]. As such, she submits that she has the greater level of insight into what is likely to be best for [X].
In these circumstances, although she concedes that [X] will benefit through spending fixed periods of time with his father, she advocates a more conservative regime of time sharing for [X] with his father, which will fall well short of equal time and which will be implemented more gradually than Mr Berg would wish. The aim of her regime being that it would provide [X] with the emotional stability and predictability of one home base, with her and [Y].
It is her position that this time should not exceed alternate weekends, during school terms, from after school on Friday until the commencement of school the following Monday and, an overnight period, from the conclusion of school Wednesday, until the commencement of school the following Thursday.
As previously indicated, it is her position that this outcome should be achieved through gradual six monthly increases commencing in March of 2019, when [X] will be three and a half years of age. She also advocates a draw back from the current time spending regime, which she asserts is not conducive to [X]’s current emotional and care needs. She is particularly concerned that overnight time, for [X], had been introduced prematurely.
It is further her position that only when [X] is about ten years of age should consideration be given to him spending equal periods of time with each of his parents during school holiday periods. However, she is open to [X] spending time with his father, for designated periods, on special occasions.
In addition to the parties themselves, evidence was provided by a number of experts, who have been involved with the family, in both an advisory and therapeutic setting. The main expert witness was Ms A, a family consultant and psychologist, who compiled two family assessment reports on 20 August 2016 and 20 July 2018.[1]
[1] See affidavit of Ms A filed 6 August 2018
The first report was directed towards assisting with interim arrangements for [X]’s care in the difficult period following separation. The second to providing evidence about [X]’s longer term needs. The contents of Ms A’s second report are controversial. From it, Mr Berg draws support for his proposal for the parallel parenting of [X], if there is no amelioration in the parties’ relationship with one another.
In Ms A’s assessment, at the time of her second report, [X] was a happy and confident child, who had developed a secure attachment to each of his parents. She also found that he was achieving all his necessary developmental milestones and neither of his parents reported any concerning emotional behaviour.
In these circumstances, notwithstanding the problems in the parties’ parenting relationship, particularly in respect of communication, Ms A was in favour of [X] spending gradually increasing periods of overnight time, with his father, until an equal time regime was achieved around about the time [X] turned seven years of age. Certainly, Ms A was of the view that [X] would, at the present time, “be likely to adapt with relative ease to a gradual increase in overnight stays with Mr Berg.”
For obvious reasons, Mr Berg is likely to accept Ms A’s recommendations with alacrity; whilst, on the other hand, Ms Carrillo is likely to greet them with suspicion and some degree of opposition. In this context, Ms A considered that one parent’s either passive or active resistance to the regime, which she advocated as being best for [X], should necessarily result in such a regime being ruled out.
In this context, she wrote as follows:
“The viability of an equal shared care arrangement should primarily be dependent on [X]’s developmental progress, given his strong attachment relationship with each parent and the importance of both parents sharing a meaningful parenting role. If it is determined either of the parties is unwilling to address their attitude/behaviour impacting on their ability to parent co-operatively this should not necessarily preclude consideration of an equal care arrangement, since a parallel parenting approach could be adopted if required.”[2]
[2] See second family assessment report at page 15
This statement encapsulates Mr Berg’s position in the case. He has deposed that he is more than willing to do whatever it takes to work co-operatively with Ms Carrillo to improve their parenting relationship. It is his case that [X] has an excellent relationship with both him and his mother and Ms Carrillo’s antipathy for him (Mr Berg) should not act as a bar to [X] having the best possible level of relationship with his father.
The parties are each intelligent individuals, who hold down responsible positions. Necessarily there are many demands on their time. They are also each well-resourced financially, when their circumstances are compared to many others in the community. In this context, they have attempted to improve their parenting relationship through a process of co-parenting counselling conducted by Ms B, a psychologist experienced in this field.
Ms B has provided a report of her involvement with the parties and also attended at court for cross-examination. She cannot be described as being sanguine in respect of how the parties have responded to the assistance, which she has provided. She viewed Mr Berg as being enthusiastic about it, whilst Ms Carrillo was not. Overall, in her report, Ms B opined as follows:
“There does not appear to have been a general improvement in the parents’ ability to communicate outside of the sessions from their reports. The communication book does not seem to be helpful and Ms Carrillo stated that she does not know what Mr Berg wants to know about [X] in this book.”[3]
[3] See affidavit of Ms B filed 16 August 2018
It is Ms Carrillo’s position that she has ample cause to be mistrustful of Mr Berg. She views him as being a person who is intent on getting his own way and who is emotionally manipulative and labile. She describes him as being Jekyll and Hyde like in his behaviour towards her.
As such, she asserts that the communication difficulties are on his side rather than on hers. In this context, she deposes as follows:
“… the father often behaves unpleasantly towards me, but modifies his behaviour when other people are around to observe him. The father is often irritable and aggressive when communicating with me in person and often refuses to look at me when he speaks at handovers. The father’s behaviour in this regard has made it difficult for me to trust him.”[4]
[4] See affidavit of the mother filed 24 July 2018 at [37]
In this context, Ms Carrillo is concerned that what she has reported as being Mr Berg’s unreasonable and aggressive conduct towards her may have its origins in some form of psychological disorder or illness. The father concedes that he has consulted a psychologist, Ms C, in the period since the parties separated.
Ms C is the final of the expert witnesses to have provided a report and evidence to the court. Ms C was also extensively cross-examined by counsel for the mother. In addition, Ms Carrillo’s solicitor subpoenaed Ms C’s clinical notes taken in respect of her various consultations – in excess of twenty seven – with Mr Berg. Ms C’s diagnosis of Mr Berg was that he had suffered acute depression and anxiety, associated with severe stress, following the parties’ separation
In context of Ms C’s evidence, much was made of the fact that Mr Berg had made a number of unflattering comments, about Ms Carrillo, to Ms C. However, overall it was Ms C’s opinion that Mr Berg was currently coping well but remained vulnerable to the stress arising from his current circumstances, which included the proceedings with Ms Carrillo concerning [X]; Ms Carrillo’s complaints about the standard of his care of [X]; his fear that he might lose contact with [X], if Ms Carrillo’s complaints were accepted.
In support of her case that Mr Berg is a poor and neglectful parent, Ms Carrillo has raised several incidents in which she asserts that Mr Berg’s parenting has been found wanting. These incidents relate to issues of a dietary and medical nature. In particular, when she alleges [X] has been fed strawberry yoghurt in breach of a recommended dietary exclusion and others incidents in which [X] injured his foot and another when he apparently suffered a blood nose. From Mr Berg’s perspective these incidents have either been exaggerated or taken out of context.
It is also Ms Carrillo’s position that [X] is becoming increasingly resistant to spending time with his father and returns from his visits tired, hungry and emotionally de-regulated. She believes that [X] is suffering anxiety attacks as a result of spending time with his father, particularly in the context of over-night stays. Needless to say, Mr Berg does not accept the validity of this evidence, which from his perspective is completely at odds with Ms A’s independent and expert assessment of the nature of his relationship with [X].
These reasons for judgment are directed to resolving this complicated and emotionally laden dispute between the parties. Needless to say, each of the parties has a very different perspective on what is likely to be the best outcome for [X] and what has motivated the other in their respective conduct of the proceedings.
From the father’s perspective, the outcome he proposes will ensure that [X] has the optimal level of relationship with each of his parents and this in turn will be highly beneficial for him. It is the father’s view that the early years of childhood are fundamental for forming the bond required to ensure that children have properly meaningful relationships with their parents, which is their entitlement pursuant to the applicable legislation principles.
It is his further position that, although the relationship between the parties is far from perfect, the mother has exaggerated the difficulties in order to retard his relationship with [X], in order to satisfy her own emotional neediness and psychological compulsion to be in control. It is his case that he is willing to work with Ms Carrillo and put aside any differences between them, for [X]’s sake.
The nub of his case can be gleaned from the following paragraph of his trial affidavit:
“The mother has made no attempt to co-parent and doing (sic) the bare minimum to keep me informed in relation to [X]’s health and welfare and at the same time was seeking to rely upon the lack of co-parenting as to placing restrictions on or limiting [X]’s time with me.”[5]
[5] See father’s affidavit filed 9 July 2018 at [112]
Essentially, the father asserts that he is open to a co-parenting relationship and is willing to engage any intervention to achieve it; whilst the mother cynically restricts his time with [X] and resists any mechanism designed to ameliorate the parties’ relationship, so that she can submit to the court that a co-parenting regime is unworkable.
The father concedes that there are likely to be many problems arising, from time to time, in the relationship between him and Ms Carrillo. However, it is his position that it is more important, for [X] that he spends as much time as possible with each of his parents and whatever difficulties arise can be overcome through a combination of goodwill, the parties’ obvious intelligence and access to appropriate therapeutic parenting support. In this context, he would advocate the continued utilisation of Ms B.
On the other hand, Ms Carrillo categorises Mr Berg as being out of touch with [X]’s physical and emotional needs and as an inept and un-insightful parent. It is her position that Mr Berg is motivated more by ideological issues rising from his view that fathers have an entitlement to spend equal period of time, with their children, rather than what is likely to be actually best for [X]’s welfare.
Fundamentally, she also asserts that such a regime is out of step with Mr Berg’s actual parenting abilities and is likely to remain so for many years to come. In this regard, she points to her own recent experience of how [X] has returned to her home after spending time with his father and her own direct observations of him with [Y].
Finally, it is her position that the obvious communication problems, in the parties’ relationship, stem from Mr Berg, not from her because he is essentially a bully, who disrespects her. As such, it will be futile to continue with co-parenting counselling because Mr Berg is only feigning his acceptance of its utility as he is incapable of changing his behaviour and attitude towards her.
In all these circumstances, it is her position that it is essential, for [X]’s best interests to be secured, that the court take an extremely cautious approach to the case, which would see the child living predominantly with his primary carer and spending closely regulated periods of time with his father.
Such a regime will ensure that [X] has the prerequisite level of meaning, in each of his parental relationships, which may not accord with Mr Berg’s aspirations, but will nonetheless be sufficient to ensure that [X] knows he has a father, who loves and is interested in him and which will satisfy the underpinning principles of the Family Law Act.
The court is required to resolve this dispute by reference to the principals contained in Part VII of the Family Law Act. In so doing, it is to regard [X]’s best interests as the paramount or most important consideration. It must also consider the application of a presumption relating to the allocation of parental responsibility for [X] between the parties, which has implications for the allocation of the time he spends with each of his parents.
However, as will be explained in more detail in due course, the court is not able to ignore the dynamics of the parties’ parenting relationship with one another and its potential to impact deleteriously on [X], in its deliberations, particularly in determining whether it is reasonably practicable for the child to be parented in an equal time regime, or one in which it is envisaged that [X] should spend substantial and significant time with his father.
The Legal Principles Applicable
Having outlined the various issues arising in the case, before turning to the evidence in more detail, in my view, it will be helpful if I outline the principles which I must apply to any findings I make.
Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:
(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.
Clearly, Mr Berg places particular emphasis on the benefits he perceives [X] will accrue, if he spends as much time as is possible in his care, as well as that of his mother. On the other hand, Ms Carrillo is of the view that the regime advocated by the father will be deleterious to [X] in both physical and psychological terms because of what she views as the father’s unstable and violent temperament.
When the applicable legislation was originally inaugurated, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:
“(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.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(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).”
Mr Berg argues that the ethos of the Act supports his position. In this context, he points to the desirability of [X] being parented by both him and Ms Carrillo to the maximum extent possible. On the other hand, Ms Carrillo points to the fact that this aspiration must always be tempered by considerations relevant to [X]’s best interests, particularly protective concerns.
There are fourteen such criteria, including, pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance which it considers relevant. This is to ensure that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[6]
[6] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[7] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[8]
[7] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[8] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The primary considerations are generally to be given more emphasis, arising as they do directly from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC, whilst acknowledging the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents. In specific terms, the issue of time division is dealt with by section 65DAA.
Relevantly, neither party seeks the formal rebuttal of the presumption. Rather they take a different approach as to what should follow, in practical terms, when an analysis is undertaken of [X]’s best interests and what is feasible to implement in this regard, given the current and probable prospective nature of their co-parenting relationship.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned. Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
This consideration crystallizes one of the difficulties arising in the current matter. [X] has just turned three years of age. What is currently likely to be beneficial for him, at this stage of his development, may be very different to what is desirable for him when he is seven or eight. Both parties recognise this difficulty and have each proposed a graduate approach over time, with different levels of gradients arising as a consequence of their differing perspectives on the case.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from the operation of sections 65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
It held that it is a statutory pre-condition of the making of an equal time order (and indeed a substantial and significant time order) that it is reasonably practicable for such an order to be made. This is because sections 65DAA(1) & (2) are expressed in “imperative terms” and oblige the court to consider both questions – one not being subordinate to the other. The affirmative answer to both such questions being an essential jurisdictional fact before an equal time or substantial or a significant time order are made.
Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable, in the sense of facilitative of the child’s best interests alone, that an order for equal time to be spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[9]
[9] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
Accordingly, a proper consideration of what is feasible requires the court to consider the circumstances of both parties. This is the nub of Ms Carrillo’s position, even if she conceded (which she does not) that it was in [X]’s best interests, in theoretical terms, to spend equal time with his father, it is her case that the parties’ compromised parenting relationship and flawed communication style render such a regime impractical, not least because of its potential to adversely affect [X].
On the other hand, it is Mr Berg’s view that such a regime is calculated to be in [X]’s best interests and any practical difficulties can be overcome through the application of parallel parenting principles. In this context he points to the fact that the parties live proximate to one another in suburban Adelaide and mechanisms can be devised to ameliorate the worst aspects of their parenting relationship, particularly in regards to how they do (or do not) communicate with one another.
From his perspective (and if his case is ultimately accepted) he submits that it would not be in keeping with the ethos of the Act, if the benefits likely to flow to [X], from either an equal time regime or something approaching it, could be negated by the recalcitrance or unwillingness of Ms Carrillo alone to willingly adopt it.
However, as As Kay J pointed out in Godfrey v Saunders[10] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. In this context, I must be careful not to determine the case, in the artificial framework of considerations of what is theoretically ideal for the child.
[10] See Godfrey v Saunders 2008 FLR 287 at 298
Rather I must consider the current reality of [X]’s familial situation, particularly the emotional topography prevailing between his parents. In my view, it is in this context, that the particular nuances arising in the case will come into focus. As such, it may not be helpful to allocate fault for who of the parties is or is not more responsible for the current dire state of relations between them. Rather, I must approach their relationship as it is and how it is likely to be in future.
The evidence
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[11] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[12]
[11] See Evidence Act1995 (Cth) at section 140
[12] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
The main witnesses in the case are Mr Berg and Ms Carrillo. As is clear, their positions are polarised in the extreme. On the one hand, it is the father’s position that the mother is intent on diminishing his relationship with [X] and ensuring there is no possibility of him having as full a relationship as possible with him. In these circumstances, she is hyper-critical of him and every aspect of his parenting; exaggerates the communication difficulties between the parties; and exacerbates their differences.
On the other hand, it is the mother’s position that the father is a poor parent; close to impossible to communicate with; and aggressive and demanding in all his dealings with her. As a consequence, it is only to be expected that she would be resistant to the ambitious regime, for [X]’s care, which the father advocates.
This issue must be resolved in these proceedings. To some extent the resolution of the issue depends upon my assessment of the presentation of each of the parties in the witness box and how they each respond to the pressures of being cross-examined by a skilful advocate.
I acknowledge that the assessment of credibility, through the observation of a witness giving evidence, is highly artificial. For many the witness box is an alien and intimidating place. Some dishonest witnesses may present well in it; an honest but nervous person may present poorly.
In my assessment, each party is a highly intelligent and articulate person. Each is convinced of the validity of the approach adopted by them in the case. I found the father to be an honest person, who was obviously devoted to [X]. I did not consider that he had adopted his position because of any desire to thwart or annoy Ms Carrillo or that he was influenced by any extreme doctrinaire philosophy regarding the rights of fathers.
Of the two parties, he also appeared to me to be the one more capable of self-reflection. In this context, he acknowledged that he came to parenting with a limited skill set. He appeared to be to be open to criticism and willing to learn. He presented as level headed and sensible in the witness box, not as a person with a temper on a hair trigger. He was not disrespectful of Ms Carrillo. I found him entirely credible. As such, his presentation in the witness box was at odds with Ms Carrillo’s portrayal of him.
Without wishing to convey any disrespect, I found Ms Carrillo to be a more opinionated and difficult personality. She could find very little of a positive nature in Mr Berg. Her presentation of him was at odds with my assessment of him. He seemed measured, reasonable and open to compromise. In this context, I accept one important component of his evidence – he wants to improve his relationship with Ms Carrillo. I am not convinced that the same can be said of Ms Carrillo in respect of her relationship with Mr Berg.
I accept that it may be seen as foolhardy to make such an assumption on the basis of presentation in the witness box alone. For that reason, it behoves the court to examine other aspects of the evidence particularly that which is less reliant on the subjective and emotionally charged evidence of the parties but more objective in nature.
In this context, Ms A’s evidence is central. She viewed [X] as having an excellent relationship with each of his parents. I do not consider that this could have occurred, in the extremely difficult circumstances prevailing between the parties since their separation, if Mr Berg was the aggressive, demanding and querulous person depicted by Ms Carrillo. Rather, he appeared to me to be a well-motivated parent, who aspires to be fully involved in [X]’s life.
I do not think he is to be criticised for this aspiration, which, in my view, is in keeping with those many fathers who, like Mr Berg, belong to the affluent middle class of our society. The ethos of the times is that working fathers no longer want to be seen as being divorced from the nuts and bolts realities of the day to day parenting of their children.
The reality of the parties’ situation, at the time of the separation, is that Ms Carrillo held all the tactical advantages in respect of how the case progressed. [X] was of tender years; she was his undisputed care giver. In these circumstances, it is open to be critical of Mr Berg for launching an ambit and unrealistic claim in respect of his time with [X], at this early stage.
However, since that time, in my assessment, Ms Carrillo has displayed little capacity for compromise. She, too, has adopted an ambit style, in her response to her the parenting of [X]. It appears to me, therefore, to be the case that it is likely to be to her tactical advantage to exaggerate, if not actively distort, her perceptions of Mr Berg’s failings as a parent and her view that he is impossible to communicate with.
Ms Carrillo is not likely to share Mr Berg’s aspirations regarding the desirability of parents sharing roles in respect of their children’s care irrespective of gender stereotypes. She is entitled to her views in this regard. However, from my perspective, it is clear that the parties have quite different personalities and aspirations regarding the optimal approach to [X]’s parenting.
In these circumstances, in my view, Ms Carrillo has a clear motivation to lard her criticisms of Mr Berg, both as a parent and in her description of how he chooses to communicate with her. In my assessment, there is a strong possibility that Ms Carrillo does wish to curtail, as much as is possible, the role Mr Berg plays in [X]’s life, to satisfy some deep emotional need of her own.
In my assessment, of the two parents concerned, it is Ms Carrillo who is by far the more difficult one to deal and communicate with. In simple terms, in my view, she is likely to be a parent who is extremely unwilling to cede power (as she perceives it) to the other parent concerned. For these reasons, in general terms, I assess Mr Berg to be the more reliable witness of the parties in this case.
However, irrespective of this finding, I consider that Ms Carrillo is an excellent, capable and loving parent, who is obviously devoted to securing [X]’s best interests, as she perceives them. She is also a highly protective parent. Given the brevity of the parties’ relationship and [X]’s age, when they separated, which led to the almost instantaneous commencement of legal proceedings, it is hardly surprising that she has a mistrustful attitude towards Mr Berg.
Accordingly, on an individual basis, each party is likely to be a competent and solicitous parent. However, in tandem, they are likely to be problematic. This is the central issue in the case. In these circumstances, it may be specious for the court to try to allocate fault, between the parties, as to why their parenting relationship is compromised. Rather, what I must do is look to what is likely to be the reality of the situation surrounding [X]’s parenting, both now and in the next few years. I confess that this is not likely to be an easy task to accomplish.
Background
The father was born in Melbourne on … 1983. In the past, he was employed as a public servant. Currently, he is employed as a professional at Employer. He earns $103,000.00 per annum. It is his evidence, which I accept, that his employer allows him a significant level of autonomy and he has flexible hours of around 35 hours per week.
As such, he would be able to fit his work around requirements to collect [X] from child care and/or kindergarten and school, when he has commenced there. At most, he is required to work interstate three or four times a year. Because his work consists mostly of …, he can shape the timing of his appointments relatively easily.
Mr Berg’s family continue to live mainly in Melbourne. His two siblings also have children. His parents have retired. Although they have not provided any direct evidence in the proceedings, I accept that they are interested in all aspects of [X]’s care and are desirous of having a grand-parenting relationship with him. Mr Berg would also like this to occur.
In this context, the paternal grandparents are planning to purchase a home in the Adelaide area and split their time between here and Victoria. Mr Berg proposes that, depending on the orders of the court, he would utilise a mixture of child care; OSHC; and his parents; to provide care, for [X], when he is at work.
Mr Berg has five weeks holiday per year and does not work over the period of Christmas. Currently, he is living in Suburb D, a suburb of Adelaide. I have no reason to consider that his home does not provided appropriate accommodation for [X]. He has not re-partnered.
The mother was born in Country E on … 1984. She migrated to this country, as a child, with her parents. She is currently employed as a professional with Employer. She earns $180,000.00 per annum. She too enjoys a significant level of autonomy in her work and does not have to work specific hours. She is assisted in the care of both [X] and [Y] by members of her family, particularly her own mother, who lives in Adelaide.
Ms Carrillo has re-partnered. This relationship is in its early stages, having been in place for about a year. She lives in Suburb F, around two or three suburbs to the west of Suburb D. Accordingly, in purely practical terms relating to geography and access to motor vehicles, there are no impediments to the regime advocated by Mr Berg for [X]’s care.
[Y] has lived exclusively with her mother since her birth. She attends a private school and is doing well. She does not spend any time with her biological father and, to all intents and purposes, has no relationship with him. Mr Berg would contend that this state of affairs is symptomatic of Ms Carrillo’s attitude to having fathers involved in the lives of her children. I am not in a position to say. I accept [X] and [Y] have a happy and close relationship as siblings.
The father’s time with [X] was extended, after the initial order, on 11 October 2016 and 26 May 2017. The most recent change was made on 14 November 2017, when overnight time was first inaugurated. Overnight time was in place when Ms A completed her second report.
The evidence, in the trial, was completed on 29 August 2018. There was no time for oral submissions, by way of summing up, to be provided on behalf of either of the parties, following the hearing. For this reason, orders were made for the filing of written submissions. Neither counsel kept to the time frame envisaged for the filing of these submissions. For this reason, the publication of this judgment has been delayed. On 29 August orders were made in respect of [X] spending Christmas and his birthday with each of his parents.
The mother lives in a four bedroom home, which provides a separate bedroom for both [X] and [Y]. I accept this is comfortable accommodation for [X]. Shortly prior to the final hearing with the assistance of Ms B, the parties have agreed that [X] will attend the … Early Childhood Centre.
Both have signed the necessary enrolment form.[13] Ms Carrillo has now asserted that she was railroaded into the decision. Given my assessment of her as a determined person, this seems to me to be improbable. Ms B, who brokered the agreement expressed herself surprised that apparent agreement was reached. This is indicative, in my view, of the problematic relationship between the parties.
[13] See Exhibit A
Ms C’s evidence
Counsel for the mother had closely examined the various notes taken by Ms C of her various consultations with Mr Berg. Significantly, the file was headed Confidential Psychological File of Mr Berg.[14] The aim of this exercise was to support the mother’s claim that Mr Berg suffers from some form of psychological deficit, which renders him unable to parent [X] adequately, or harbours a pathological contempt for Ms Carrillo.
[14] See Exhibit K
In my view, the evidence and documents elicited from Ms C achieved neither of these objectives. Mr Berg is no paragon. He is subject to all the frustrations and emotional frailties which befall all humanity. It is clear to me that he was very upset when the parties separated and, at this stage, he was well aware that it was likely to be difficult for him to sustain his relationship with [X].
In such circumstances, it is not surprising that he had difficulty adjusting to what must be regarded as being a very stressful situation, which led him to develop some level of depression and anxiety. It is only human that he would regard Ms Carrillo as being the agency of his various difficulties and that he would harbour some level of resentment towards her. In addition, it is only to be expected that he would express this resentment, to his therapist, particularly given that he was entitled to think that what he said to her was confidential.
In this context, I accept Mr Berg’s evidence that he saw Ms C as providing him with a shoulder to cry on and a person to whom he could vent his frustrations concerning his relationship with Ms Carrillo. Merely because Mr Berg painted an unflattering portrait of Ms Carrillo, to Ms C, ostensibly privately and in a therapeutic setting, does not mean that he is not capable of curbing any animosity towards Ms Carrillo or communicating with her effectively, in the context of an on-going parenting relationship.
In addition, I accept as valid the submission of Mr Anderson, counsel for the father, that it is to Mr Berg’s credit that he sought Ms C’s advice as to how he could improve his relationship with the mother. She advised him to keep conversations cordial, short and focussed. Mr Berg’s evidence is that he had endeavoured to follow this advice.
Ms C is an extremely experienced psychologist. I accept her evidence that Mr Berg first presented to her with symptoms of depression related to his then stressful circumstances. She was confident that his mood would lift, if he was able to spend reasonable periods of time with [X]. In this context, in July of 2018, she was confident that he was doing well and his psychological health posed no impediments to his ability to care for [X].
I have found that Mr Berg is an intelligent person. In addition, he has access to normal amounts of emotional control. Although he may lose his emotional composure from time and flare up, in my assessment, he is not incapable of behaving appropriately towards Ms Carrillo. In my finding, there is nothing pathologically dangerous in his attitude towards her.
To the contrary, Mr Berg presented to me as being something of a can do person. He would prefer to solve problems, through compromise, rather than fester on them. He also seemed to me to be an emotionally sensitive person. Certainly, I do not consider that he is the sort of person who willingly seeks out conflict. Rather, he seemed to me to be conciliatory in nature. However, like Ms Carrillo herself, he is also a determined person by nature and, if he considers something is not right, he will forcefully say so.
Given his obvious intelligence, Mr Berg is likely to realise that it is not calculated to be in his interests to be overtly hostile to Ms Carrillo. To the contrary, it is likely to be helpful to him if he can demonstrate some level of ability to compromise. The parties have different views as to his success in this regard. In this context, various text messages, which have passed between them, have been subject to a high degree of forensic scrutiny.
The mother’s criticisms of the father’s parenting capacity and behaviour
Very many parenting matters coming before the court are concerned with significant issues of drug and alcohol abuse; mental illness; and family violence; which potentially pose grave risks to the children involved. Although Ms Carrillo has made some significant criticisms of Mr Berg in this regard, in my assessment, this is not a case concerned with protective issues to do with [X]. Neither party would willingly do anything to expose [X] to harm.
It is Ms Carrillo’s case that Mr Berg behaved inappropriately towards her in the period immediately following separation, particularly that he was verbally abusive towards her and, on one occasion, in early October 2016, forced his way into her home in order to spend time with [X]. This led her to make a statement to police. The father denies the gravamen of the allegations and no formal charges were laid. He was not interviewed by police
I accept that, particularly during much of 2016, the emotional topography between the parties was particularly volatile. The father asserts that the mother has exaggerated the various incidents; the mother asserts that the father is seeking to evade responsibility for his actions. No independent evidence is available to support either party’s position. I am not in a position to make a positive finding one way or the other.
However, I do not consider that this is a case concerned with issues to do with coercive and controlling family violence in the sense envisaged by section 4AB of the Family Law Act. Rather, in my view, it is more probable that each of the parties has behaved inappropriately, in the heat of the moment, in reaction to the difficult and stressful circumstances precipitated by their separation and the need for them to interact with one another because of their on-going relationship as the parents of a child of extremely tender years.
The mother asserts that the father has a poor relationship with [Y] and, during the time the parties lived together, he was snappy and inconsistent in his behaviour towards her. The implication of this evidence being that he is likely to behave in a similar way towards [X]. The father denies this evidence. He asserts that he loves [Y]. As previously indicated, when he commenced these proceedings, he sought orders to enable him to spend time with her.
[Y] is not subject to these proceedings. Her relationship with Mr Berg has not been subject to any independent expert assessment. In these circumstances, in my view, it is not necessary for me to make any specific findings regarding the nature of Mr Berg’s relationship with [Y] and what implications it has, if any, in respect of the level of his parental insight.
I note, however, that the allegations of Ms Carrillo, in this regard, are at odds with Ms A’s observations of Mr Berg’s interactions with [X]. She reported that [X] interacted happily and familiarly, with his father, on both occasions she observed him. I also consider that Ms Carrillo is likely to emphasis, rather than minimise, any problems relating to the relationship between [Y] and the father.
The mother’s position is that she is, by far, the more competent parent. In this context, she points to a number of specific incidents, which she asserts demonstrate Mr Berg’s negligence and disregard for her. She deposed as follows:
“I have concerns about the father’s ability to provided adequate care for [X]. A number of incidents have occurred since separation, which have given me cause for concern in relation to the father’s general parenting and co-parenting capabilities.”[15]
[15] See mother’s affidavit filed 24 July 2018 at [46]
In my assessment, Ms Carrillo is more likely than not to set very exacting standards in respect of such matters and be more likely to find fault than forgive it. It is not improbable that Mr Berg does not have the same standard of parental aptitude enjoyed by Ms Carrillo. How could it be otherwise, given [X] is his first child and the parties separated when he was a baby. However, that, of itself does not render him an incompetent parent.
In my view, what is important is a willingness to learn and to be open to correction, if appropriate. The mother’s characterisation of Mr Berg as a demonstrably incompetent parent do not sit easily with Ms A’s view of Mr Berg. As indicated, in my view, I must be careful to balance the mother’s highly subjective and jaundiced view of Mr Berg, with other independent evidence.
In her observations of him, with [X], Ms A noted that Mr Berg was attentive to the child’s needs and safety. He brought appropriate snacks and drinks to the observation. Above all [X] was happy in his father’s care, sitting in his father’s lap and sharing a hug with him. The impression is off a solicitous parent. More importantly, Ms A’s impression of [X] was that he was a chatty, outgoing and happy child, not one who was withdrawn or developmentally delayed in any way.
I appreciate that, for obvious reasons, Mr Berg would have wanted to leave Ms A with a favourable impression of his capacities as a parent. However, nonetheless, his performance, at the most recent family report observation, is not consistent with an incompetent or defensive parent.
Rather, it seems to me that, in difficult circumstances, off a small base, Mr Berg has been able to forge more than adequate parenting skills. These may be different, in emphasis, to those of Ms Carrillo. This is to be expected, given the difference between them of background, experience and indeed gender. However, these difference do not necessarily mean that [X] will receive substandard care in his father’s household or that he is incapable of improving his skills.
Ms Carrillo’s criticisms of the father’s parenting capacity arises from the following incidents, which I have endeavoured to summarise, including the relevant dates:
·[October 2016] Mr Berg took [X] swimming, when she had advised him he was unwell. This led [X] to being ill for four weeks, which delayed his immunisations;
·[February 2017] [X] was placed on a diet excluding dairy, following the display of bowel irregularities. [X] became ill following a return from his father and vomited. From the mother’s inspection of his vomitus, she was of the view that he must have been fed strawberry yoghurt;
·[June 2017] The father failed to follow the advice of [X]’s paediatrician that he avoid public places to avoid “catching something”. Rather, he took the child to a play café;
·[June 2017] The father failed to supervise [X] properly, at the play café, which led to the child suffering a fractured heel. Not only did the father fail to ensure the injury was avoided, he did not observe the child’s discomfort;
·[June 2017] The child suffered a nose bleed, whilst in his father’s care;
·[March 2018] [X] indicated to his mother that he slept in wet shoes and socks at his father’s home;
·[March 2018] [X] suffered a split lip, whilst in his father’s care;
·[X] does not have an organised routine, during his time with his father. Rather, Mr Berg takes him out to frequent activities, which renders [X] tired and unsettled;
·[X] returns from his father’s home hungry and she is concerned that he has not had adequate sleep;
·The father misreports in the communication book. One example being that he was reported to have eaten chicken casserole, whilst Ms Carrillo had received hearsay information from a friend that father and child had been observed at McDonalds, which was not reported;
·[X] has begun to develop behavioural issues, following spending time with his father. This has resulted in panic attacks [March & May of 2018].
Overlaying these concerns, is Ms Carrillo’s view that she and Mr Berg are not able to discuss these issues let alone resolve them satisfactorily. She asserts that Mr Berg will only respond defensively, aggressively or dismissively to her concerns and is not candid with her about any mishaps which befall [X] or how he utilises the time with him. She also complains that he bombards her with text messages requesting information about [X]’s medical condition.[16] The import of this evidence being that shared care is demonstrably out of the question for her and Mr Berg.
[16] Ibid at [91]
The father concedes that [X] became unwell following the swimming excursion but disputes that he was unwell for a month afterwards. It is clear from his evidence that Mr Berg is of the view that it will be advantageous for [X] to have swimming lessons. However, he has acceded to the mother’s view that swimming should be avoided in the winter months from mid-2017 onwards. In my view, this is indicative, too some modest degree, that the father is capable of behaving in a conciliatory manner.
The father denies that he fed [X] strawberry yoghurt. It is evidence that he has attempted to follow the exclusionary diet provided and to this end has purchased a cookery book directed to this end. He denies that [X] is underfed by him, pointing to the fact that his height and weight are in normal parameters for a child of his age.
It is Mr Berg’s view that the mother, from time to time, has overstated the extent of [X]’s medical indispositions as a pretext to prevent him spending the ordered time with his father. In particular, in the period between November 2016 and July 2017, he claims time was cancelled on approximately twenty occasions without adequate explanation being given. This led him to file an interim application in mid-July 2017, following the incident in which [X] fractured his heel, which led to Ms Carrillo withdrawing [X]’s time with him.
The father’s evidence is that he is unaware how [X] fractured his heel or whether the injury occurred whilst the child was with him or his mother. However, when he became aware the child was out of sorts, he contacted the mother; took him to his general medical practitioner, who advised an x-ray; and then proposed to meet the mother at hospital, so this could occur. She preferred to meet and collect [X] at a shopping centre.
The child’s paediatrician has reported that no specific treatment was required for the injury, which was expected to heal quickly. He could attribute no cause for the fracture. It is the father’s evidence, which I accept, that the mother over-reacted to the incident and was quick to allocate blame to him without hearing any explanation as to what he had done about the incident. I also accept that he acted entirely appropriately, when he noticed [X]’s discomfort.
Ms Carrillo withheld [X], from Mr Berg, for a period of around ten weeks. I accept that Ms Carrillo is highly protective of [X] and mistrustful of Mr Berg. Dr G, the child’s doctor apparently indicated that it is not uncommon for children to develop hairline fractures in their growing bones. In these circumstances, the mother’s actions in retaining [X] seem to me to be an extreme over-reaction and to display a significant lack of empathy for the father’s feelings.
It is further his evidence that the nose bleeds [X] has suffered are not exceptional but are part and parcel of growing up. He denies letting [X] sleep with wet shoes and socks on but agrees he did permit the child to nap, with his shoes on, so he would not have to be waken. He has observed no signs of emotional distress in the child. It is his view that Ms Carrillo has the propensity to make a mountain out of a molehill, in respect of even the most commonplace of childhood mishaps. I accept that this is likely to be the case.
Mr Berg agrees that the child is likely to be distressed by the high levels of tension between him and Ms Carrillo. This is an issue which has been canvassed with Ms B, who has recommended that handovers occur at a park, wherever possible. The evidence indicates that this intervention was not overly helpful. Again each party blames the other for this state of affairs.
Ms Carrillo attended the handover with [Y] and [X] who was seated in a remote controlled car. Mr Berg believes these interventions were calculated to make the handover more difficult because [X] would not want to leave his mother; Ms Carrillo said that she was intent on distracting [X]. Again, a difficult issue to resolve on credit issues alone. However, it does not appear to me that the mother’s action could easily be interpreted as being an exercise in simplifying the process.
In circumstances in which [X] has been withheld from him, Mr Berg concedes that he has sought information from Ms Carrillo and this has involved him sending multiple text messages to her. It is his evidence that Ms Carrillo chooses not to respond to his messages, which causes him to send more. He denies feeding [X] McDonald’s but agrees he visited a McDonalds with the child. From his perspective, these types of complaint are more indicative of the mother’s need to control him through covert surveillance and poorly reflect on her, rather than vice versa.
As I have already indicated, it is difficult to resolve the truth or otherwise of these various complaints and attribute fault for them on the basis of findings of credit alone. However, the fact remains [X] has not come to serious harm. The father has accepted his lactose and possible fructose intolerance[17] and by all independent metrics [X] is doing well and is enjoying all the attributes of a well-resourced middle class childhood. I accept that he is at the centre of both his father and his mother’s deliberations at all times. In this sense, both parties are parenting him appropriately, although almost certainly with different emphases.
[17] See Exhibit D. A series of text messages about the issue, in which Mr Berg indicates he will be using a lactose free formula for [X]. Also Exhibit E. An email exchange in which the mother informs the father that [X]’s loose stools have been attributed to a lactose intolerance. The father responds by saying he will not give the child lactose or juice. The tone of the email is respectful and cordial.
To my mind, what these various incidents really reflect, is the parlous state of the parties’ parenting relationship with one another. No doubt, from time to time, Mr Berg has made mistakes or done things, with [X], of which Ms Carrillo has disapproved. For her part, Ms Carrillo is quick to think the worse of Mr Berg and assume he is negligent, so far as [X]’s care is concerned.
As previously indicated, I have been provided with various text messages which have passed between the parties.[18] The mother provides advice in her messages and, in my assessment, the father is accepting of it. It is the case that he is at times firm in his tone, particularly if he is of the view that the child is being withheld unjustifiably from him. In my assessment, there is nothing extraordinarily hectoring or belligerent in the tone of the messages.
[18] See Exhibits B, C & D
That is not to say Mr Berg has an overly optimistic view of his parenting relationship with Ms Carrillo or the mode of his communication with her. In his oral cross examination, he describes her as very controlling; holding fixed views; difficult to reason with; having a limited ability to see another person’s point of view; and having no empathy with anyone outside her family. In his experience, these were traits Ms Carrillo shared with her mother, a person of whom Mr Berg obviously disapproved being of the view that she had too much influence in respect of [X].
In her oral evidence, Ms Carrillo indicated a desire to co-parent with Mr [X]. However, she indicated she found the current state of their relationship to be emotionally exhausting to such an extent that she gave in to what she considered to be the father’s unreasonable demands. The example given to support this assertion was her ostensible acquiescence to [X] attending … Early Childhood Centre.
This evidence did not accord with my own impression of Ms Carrillo. To the contrary, I can find scant evidence of her offering any degree of capitulation to any request emanating from Mr Berg if she disagreed with it. Quite simply, I do not assess Ms Carrillo as being a person whose idiosyncratic sensibilities are easily overborne by others. To the contrary each party is determined in nature, particularly Ms Carrillo.
In addition, each party sees the other as having a hidden agenda, so far as [X] is concerned. The father believes the mother is intent on alienating the child from him by whatever means are open to her. The mother believes the father is not fixed on what is best for [X] but on what he wants. There is likely to be some truth in the perception of each of the parties. Ms Carrillo is not inclusive, so far as Mr Berg is concerned. Mr Berg is not the sort of personality to take a back seat.
In my assessment, both Mr Berg and Ms Carrillo are in it for the long haul, so far as [X] is concerned. This is as it should be. In these circumstances, it will be necessary for the parties to fashion some form of relationship, which recognises this fact and works for [X], as best it can. Essentially, one of the aspects of being a good parent is the capacity to work with the other parent, notwithstanding the aversion felt for that parent.
Mr Berg expresses a desire to work with Ms Carrillo, as effectively as their current circumstances permit. He acknowledges that their parenting relationship is likely to lack empathy indefinitely. However, from his perspective, [X] will be quarantined from the worst aspects of their relationship, if he is exchanged at a neutral venue and each parent has autonomy for what occurs in their respective households.
He also asserts that he is open to compromise and to finding a middle way in respect of any controversial issue, relating to [X]’s parenting, which will require joint parental decision. From his perspective, emails and/or the involvement of Ms B will be of assistance in this regard.
Ms Carrillo has no proposals to improve the parties’ parenting relationship. In my view, she has demonstrated passive resistance to the co-parenting counselling offered by Ms B. She does not advocate any particular mode of communication to improve matters. Essentially, she asserts the parties’ relationship is irremediably broken.
The difficulty I have with Ms Carrillo’s position is that it has the flavour of a self-fulfilling prophecy about it. From her perspective, the co-parenting of [X] is doomed to failure because she personally is unable or unwilling to find some effective or neutral way of communicating with Mr Berg and reaching some mutually acceptable decision, with him, regarding any issue to do with [X]’s parenting. In these circumstances, the fact that [X]’s relationship with his father may become some form of collateral damage, because of the on-going conflict between the parties, appears immaterial to her.
She does not specify what the sticking points are likely to be with Mr Berg. Rather, she points to what she perceives to be Mr Berg’s past failings as a parent. Obviously, Mr Berg has a vested interest in finding solutions to the problems and because of her antipathy to his proposals, Ms Carrillo has an equally powerful motivation to assert his solutions will not work. Accordingly, the problem relates to the politics of the parties’ relationship.
It would, in my view, be inconsistent with the overall ethos of Part VII of the Act, if the court could only make an equal time arrangement (or something analogous to it), if the circumstances prevailing were perfectly conducive for the facilitation of such an arrangement.
As previously indicated, parents who litigate with one another are not likely to produce such optimal circumstances. Necessarily, the vast majority of parents who come to court, at the final hearing stage, do not agree on many issues to do with their children and have problems discussing their difference amicably.
The parties’ relationship, given their history, is likely always to be problematic. These issues must be balanced against not only [X]’s best interests, but what is workable, in objective terms. A workable arrangement, in my view, does not have to be a perfect one. Once created, the parties have an obligation to do the best they can to facilitate it, whether it has their personal imprimatur or not.
Ms B has the greatest independent experience of the parties’ parenting relationship and their capacity to compromise and make decisions together. She is obviously not hugely impressed with the parties in this regard but, as indicated above, noted that the parties did listen to one another, although not always respectfully and each has displayed some capacity to move and accommodate the other’s view.
In the light of this evidence, I am more inclined to accept Mr Berg’s view that the parties’ relationship is good enough to get by, if the strategies of parallel parenting are adopted. In this context, I do not consider that Ms Carrillo’s obvious and strong personal antipathy to an equal time regime is a sufficient practical reason alone to rule it out.
In my view, it would be unacceptable for her to suggest, even peripherally, that she will not or is incapable of communicating with Mr Berg in order to achieve her preferred outcome. Such a stance is incompatible with the responsibilities of being a parent. As I have observed early, the conflict between the parties is currently a cold rather than a hot one.
If the parties have to communicate, they will. It also seems that they can do so without overt conflict inevitably breaking out. Although, I am conscious that this may be unduly optimistic, I would also hope, with the effluxion of time, the tensions in their relationship will ease to some degree.
d) Impact on the child
One of the strong themes of Ms Carrillo’s case is that the strong currents of antipathy flowing between the parties will have an adverse emotional effect on [X] and this, of itself, is ample reason for the court to be persuaded that the regime proposed by Mr Berg is not reasonably practical.
The parties are, of course, entitled to dislike one another. They do not have an entitlement to display that dislike to [X]. There is no evidence to indicate that [X] has been detrimentally affected by the problematic nature of his parents’ relationship. To the contrary, in Ms A’s view, he is developing well and has an equally positive relationship with each of his parents.
The parties have canvassed, with Ms B, mechanisms to assist them to exchange [X] between them more easily. She has suggested the use of a neutral location, such as a park. This intervention was not hugely successful. Mr Berg would contend because Ms Carrillo distracted [X] by placing him in the electric car, which he would assert was done wittingly by her, with a view to making the handover more difficult.
Whether this is true or not, I am unable to say. It is also Ms Carrillo’s case that [X] is become increasingly resistant to spending time with his father and has had panic attacks in this context. The import of this evidence being that [X] is being adversely impacted by some aspect of the parties’ relationship.
This evidence does not fit easily with Ms A’s observations of [X]’s engagement with his father or with Mr Berg’s evidence generally. As indicated, I assess the father’s evidence as likely to be more reliable. In any event, once [X] begins at ELC, he will be able to be exchanged in the absence of the parties and so protected, to some degree, from exposure to frequent pressurised handovers.
Conclusions
In my assessment, the evidence available to me, does not support it as being in [X]’s best interests for his time with his father to be reduced, at this point. To the contrary, in my view, he is likely to benefit from his time with his father being increased.
In my assessment, Mr Berg is a competent and devoted parent. In difficult circumstances, he has developed a strong and loving bond with [X]. As such, in my view, [X] will benefit from having a meaningful level of relationship with his father and indeed, in time, with other members of his wider paternal family.
The concept of meaningful parental relationship must change as Australian society itself changes. Each party, in this case, is a busy and successful professional person, who must face the struggle of balancing the commitments of a career with those of being a parent and sustaining family life. In this sense, there is an equality in the familial situations of each of them.
The other commonality, which Mr Berg and Ms Carrillo share, is their aspiration to being as fully involved in [X]’s life, as possible. In my assessment, they are each capable of meeting his physical and emotional needs, albeit quite possibly in different ways and with different emphases. They are each good parents.
The presumption of equal shared parental responsibility, created by section 61DA of the Act, is not rebutted. Accordingly, the court is mandated to give active consideration to the prospect of [X] being parented firstly in an equal time arrangement and, if this is ruled out, secondly, in a manner involving substantial and significant time, which is essentially a regime encompassing weekdays; weekends; holidays; and special occasions.
Each such outcome is posited on the satisfaction that it is both in [X]’s best interests and objectively feasible. In this case, I am satisfied that it would be in [X]’s ultimate best interests to be able to spend significant periods of time, with each of his parents, provided there is a graduated runway leading to this outcome.
It is also likely to be in [X]’s best interests that these proceedings not be unduly protracted. The difficult being that if the court only deals with the next few increments of time increase between [X] and his father and defers its final decision in this regard, it will exacerbate rather than reduce the tensions between the parties, as it is highly likely that the mother will oppose any such increase and there will be further vitriolic proceedings. In these circumstances, it is better that a conservative timetable be set now to lead to this outcome rather than deferred notwithstanding the fact of [X]’s tender years.
Primarily because of my assessment of the competency of Mr Berg’s parenting and the benefits likely to accrue to [X] from having a meaningful level of relationship with his father, I have come to the conclusion that over the next five years or so it would be in [X]’s best interests that there should be a gradual timetable set to increase [X]’s time with his father.
The evidence of Ms A, which I accept, is that [X] has an equally positive relationship with each of his parents, notwithstanding the fact that Mr Berg and Ms Carrillo separated, in extremely difficult circumstances, when [X] was a few months old. This, assessment, in my view, speaks eloquently of the parental competency and insight of Mr Berg.
That is not an end to the matter. The parties’ circumstances, for complex emotional and historical reasons, are far from optimal for any shared parenting regime. This situation is not likely to change for the foreseeable future. As such, the reality of [X]’s familial life, as a consequence of his parents’ separation, is that it will remain ruptured indefinitely but he will nonetheless have to negotiate that rupture on a frequent basis, as he passes between his parents.
I agree with Ms B’s assessment that this will not be an easy road for [X]. However, the only individuals able to repair it are the parties themselves. In my assessment, Mr Berg is likely to be more open to such a process than is Ms Carrillo. [X]’s road in life is likely to remain difficult no matter what is the court’s determination.
In these circumstances, no division of his time with his parents can be entirely satisfactory. One or other of his parents will be dissatisfied; the rupture between them will always remain. Yet [X] has an entitlement to a proper level of relationship with both of his parents, each of whom presents to me as being a loving and devoted one. This is particularly important, given Ms A’s assessment of the qualitative equality of [X]’s attachment to each of his parents.
In my view, it is clearly not in [X]’s best interest to have an artificially truncated level of relationship with one parent, who is assessed as being as competent and loving as the other parent, because of the parties’ poor relationship with one another, particularly if one parent is either unwilling or incapable of change or moderation. I accept Ms A’s assessment that it would be detrimental to [X]’s long term welfare for him to have a paternal relationship confined only to weekends and one other day per fortnight.
In these circumstances, the court must look to mechanisms, designed to ameliorate possible sources of stress for the child, which fall short of any excessive curtailment of one of his central parental relationships. In my view, it will be of fundamental importance to [X], as he progresses through his childhood, that he have as meaningful a level of relationship with his father as possible.
This will require interaction between the two to take place on school days; weekends; holidays; and special occasions. The two need to able to hang out comfortably together. Such intimacy needs a sufficient quantity of time to be successfully founded. The time, in my view, needs to be substantial and significant.
The parties are each well-resourced financially. [X] will enjoy a comfortable middle class childhood and education in each of them. The strategies of parallel parenting – minimal but formal communication; minimisation of opportunities for conflict; structured opportunities to exchange information, such as via Ms B; the use of specialised electronic communication tools, such as mymob; - seem to me to be achievable by the parties.
The structure of the Act requires active consideration of equal time first. The qualitative distinction between equal time and substantial and significant time is likely to be a fine one. In this context, the question arises is the former outcome likely to be more problematic to achieve, in practical terms, than the latter.
The chief impediment to the parties having a workable parenting relationship is the politics of their relationship, stemming from their difficult history together. In this context, they are likely to each wish to have some form of ascendancy over the other. As the evidence of Ms B indicates their relationship is characterised by a struggle for advantage.
This tendency is likely to be more pronounced in Ms Carrillo than Mr Berg and is likely to be manifest in her desire to see herself having more control over [X] than his father. As such, she is likely to be highly resentful at the implementation of an equal time regime and her resentment is likely to pose a threat to [X]’s wellbeing.
Accordingly, it seems sadly to be the case that the logistical difficulties will become more pronounced the closer that [X]’s time, with each parent, comes to one of equality. Ms Carrillo, in particular, is likely to chaff at what she perceives to be the injustice of such a situation. These issues will remain with a substantial and significant time regime but may be marginally less.
In addition, as I have already indicated, I do not consider it would be in [X]’s best interest to confine his relationship, with his parent, as Ms Carrillo would propose, because of any sense of entitlement or resentment attributable to her. The principles of parallel parenting can be applied to a substantial and significant time regime.
Accordingly, I have reached the conclusion that an equal time regime should be ruled out because the practical circumstances of [X]’s family do not support it. However, in my view, over the next few years, the court should implement orders that will see [X] spending substantial and significant time with his parents. In my view, such an outcome reflects the practical realities of [X]’s familial situation, which is not without its challenges, due to the incompatibility of his parents to co-parent him effectively.
As with everything, it is a question of the court trying to balance a variety of different factors to arrive at the result which is best suited for [X] but is also one which does not inevitably provide the means for him to be exposed to harmful conflict. That the parties will continue to disagree about issues to do with [X] must be regarded as a given but this sorry state of affairs does not justify the child being robbed of the opportunity to have a fully engaged paternal figure in his care and upbringing. In my view, the correct balance will be struck by a regime of gradually increasing time which reaches substantial and significant time.
Regrettably, I have reached the conclusion that the parties’ dire parental politics, which are driven more by Ms Carrillo than Mr Berg, nonetheless dictate [X] should live more, in a temporal sense, with one parent than the other. Given the stage of his development, when the parties separated, this parent should be Ms Carrillo. However, regrettably, I still hold the same fears as Ms B, that this will still mean [X]’s childhood will be a hard road for him to follow.
The Orders
The parties should be conferred with equal shared parental responsibility for [X]. In order for there to be a runway to him spending substantial and significant time, with his father, when he is of primary school age, the following orders should be made.
Firstly, there should be the introduction of a further overnight stay now. One can be added on alternate weekends, as Ms A recommends, in augmentation to the current arrangement of weekly Tuesday overnights. For the first four visits return can occur at midday Sunday, which can be thereafter extended to 4.00 pm. This will be a regime of three overnight visits per fortnight. This arrangement can commence on Saturday 23 February 2019.
Secondly, again as Ms A’s recommends, when [X] turns four and a half in April 2020, the alternate weekend can be extended from Friday to Sunday afternoon, along with the existing mid-week overnight creating a regime of four overnights per fortnight.
Thirdly, when [X] turns five and a half, again as Ms A recommends, the fortnight can be divided so that a regime is created that provides a regime of five nights per fortnight. The best way to do this is to maintain the existing alternate weekend arrangement and add a block of weekday time in the other week of the fortnight, from Wednesday afternoon until Friday morning.
Fourthly, when [X] turns six and a half, the fortnight can be divided so that he spends two blocks of time consisting of weekend/weekday time with each of his parents, so that the time is divided six night to the father and eight days to the mother. This can be done by adding a night to the weekday regime to make it commence after school on Tuesday afternoon.
This will amount to substantial and significant time, but fall marginally short of an equal time regime, which for the reasons I have elaborated, at some length, I do not consider would work because of the personal dynamic existing between Mr Berg and Ms Carrillo.
The concept of a working week is a long standing one. Children’s education is provided according to this model. Mr Berg and Ms Carrillo both work to it. Accordingly, it provides the most logical format to divide a child’s time with each of his/her parents, if the parental relationships in question are strong and significant, as is the case in this matter. However, the politics of the parties’ relationship rule it out.
The difficulty with the regime I have formulated is that it will mean [X] will go some days each month without being able to touch base physically with his father. The two will, however, be able to contact each other electronically in these intermissions. I believe the regime is workable and will provide [X] with the benefits he requires of having a meaningful level of relationship, whilst sparing him from the conflict likely to arise from absolute equality of time.
I concede that my guarded optimism may be regarded as naïve, given the lengths each party is prepared to go to achieve his/her preferred outcome. However, in my view, an unnecessarily truncated paternal relationship, for [X], implemented to mollify the mother, is not justifiable in terms of his best interests.
The split fortnightly regime should continue during school holidays until [X] is seven years and two months old. Coinciding with the end of year school holiday in 2022, it will be appropriate for this holiday and all further school holidays to be divided on a week about basis.
The difficulty with this regime is that it will not allow any extended interstate or overseas holidays to take place for [X], with either his father or his mother. Given the commonality in respect of the parties’ financial circumstances and background, it would appear probable that each, at some stage in the future, will want to take [X] on an extended holiday some interesting location, either in Australia or overseas.
The father seeks comprehensive orders relating to the issue of a passport for [X]. The mother’s application is silent in respect of the issue. Given her background, it is not beyond the bounds of possibility that she may wish to take [X] to Country E at some stage. However, this is a matter of conjecture on my part. I do not propose to deal with the issue of overseas travel, given the absence of evidence about the issue.
However, prior to [X] turning seven years of age, I will give each party the opportunity to take him for one seven day holiday, within Australia, each year, provided three months written notice is given and an itinerary is provided and the holiday takes place within the school holiday period.
Once [X] has attained the age of seven, each party will be authorised to one extended holiday, with [X], at the end of the year, of up to fourteen days, provided that holiday period is otherwise equally divided between the parties. It will be open to each parent to utilise the time allocated to him/her during the short school holiday to do whatever they deem fit with [X], provided if an interstate or some special holiday is envisaged relevant information (such as location, travel details and contact particulars) is provided to the other parent.
Specific orders need to be made to ensure that [X] spends time, with each of his parents, on occasions which are special and significant to him and so to his mother and father. I will attend to these matters as equitably as I can.
Finally orders need to be made, which will provide, as far as is reasonably practicable, mechanisms for information about [X] to pass as seamlessly as possible, between his parents, according to the principles of parallel parenting. Such principles are not strictly in keeping with the ethos of Part VII of the Act, which encourages joint decision making, by parents, in respect of their children, whenever possible.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [see section 65DAC]. The parties are to be conferred with parental responsibility for [X] equally, which they are to share.
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Accordingly, neither one of them will have primacy, over the other, in respect of medical, educational or other major long-term issues to do with [X]. Rather, they are required to consult with one another about these matters. Necessarily any process of efficient consultation requires the exchange of all relevant material, between the parents, so that views can be exchanged and conceivably an agreed position reached in respect of such issue.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
Accordingly, it will be open to both Mr Berg and Ms Carrillo to make decisions, concerning [X], which are not major long term ones, autonomously of the other, whilst [X] is in each of their respective care. Clearly such a concept is in keeping with parallel parenting. However the boundary in question is somewhat artificial in nature, given that [X] will have to cross over the point of demarcation regularly, given the orders I have made.
This must mean that some level of information must pass between the parties regularly regarding [X]’s activities and needs in each household. The information need not be exhaustive but should be businesslike, precise and informative. Email would appear to me to be the best media for the information to be conveyed.
In Bartel & Schmucker (No 3) Cronin J said as follows regarding the nature of parental responsibility:
“Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [33]
[33] See Bartel & Schmucker (No 3) [2012] FamCA 1094, at [18]
It is unclear what is to happen if, after the making of the mandated genuine attempts at resolution, the parents concerned are unable to reach agreement, other than that they seek the court’s adjudication. That should, of course, be a last resort. Endless discord will not be helpful to [X], as Ms B has pointed out. It will also be potentially costly for the parties themselves.
The mother proposes a communication book be utilised by the parties for the purpose of exchanging information about [X], which should be exchanged at each and every handover. She also proposes, as does the father, that the child be exchanged wherever possible at his ELC or school.
With respect, in my assessment, these are contradictory provisions. I am not sanguine at the prospect of [X] being the custodian of the book concerning arrangements for his care, both in practical and emotional terms. The parties should exchange the necessary information, in emails, to be exchanged at a designated time each week, say Thursday evening.
The father proposes that any cancellation of his time with [X] be supported by a medical certificate. In my view, this is too proscriptive. However, given the parties share parental responsibility for [X], it will be incumbent on the mother to provide information concerning any illness suffered by [X] forthwith and the father will be at liberty to both attend upon and confer with any medical practitioner consulted by him.
In this context, it seems to be eminently sensible that the child have one main general medical practitioner, as the parties agree from time to time. Otherwise orders requiring the parties to keep the other informed of medical issues and enabling each of them to attend at school activities are obviously appropriate, as are the normal injunctions restraining denigration and comment about litigation matters to [X]. The parties would do well to remember that the dispute between them is their dispute, not [X]’s.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment. I am satisfied that they are calculated to be in his best interests.
I certify that the preceding four hundred and thirty-seven (437) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 20 February 2019
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Injunction
-
Procedural Fairness
0
6
2