Bergin and Grove
[2008] FMCAfam 834
•6 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BERGIN & GROVE | [2008] FMCAfam 834 |
| FAMILY LAW – Children aged 7 and 5 – arrangements for care pending final hearing – best interests – views of older child – allegations of family violence – overnight time – presumption of equal shared parental responsibility – practical considerations. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA |
| Goode & Goode (2006) FLC 92-286 In the Marriage of Patsalou (1994) 18 Fam LR 426 JG & BG 18 Fam LR 255 Cowling v Cowling (1998) FLC 92-801 |
| Applicant: | MR BERGIN |
| Respondent: | MS GROVE |
| File Number: | ADC 2615 of 2008 |
| Judgment of: | Brown FM |
| Hearing date: | 31 July 2008 |
| Date of Last Submission: | 31 July 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 6 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lewis |
| Solicitors for the Applicant: | Alderman Redman |
| Counsel for the Respondent: | Ms Dickson |
| Solicitors for the Respondent: | Norman Waterhouse |
UNTIL FURTHER OR OTHER ORDER
The parties have equal shared parental responsibility for the children of the marriage [B] born in 2001 and [C] born in 2003 (hereinafter referred to as “the children”).
The children live with the mother.
The children spend time with the father as follows:
(a)In alternate weekends commencing 8 August 2008 from 3:30pm (or the conclusion of school) on Friday until 5:00pm the following Saturday;
(b)Each other alternate Saturday commencing 16 August 2008 from 8:00am to 5:00pm; and
(c)In alternate weeks commencing 14 August 2008 from 3:30pm (or the conclusion of school) on Thursday to 9:00am (or the commencement of school) the following Friday.
Orders 1, 2 and 3 of the orders made on 9 July 2008 with the consent of each of the parties will continue until further order.
The parties do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court to be undertaken by a psychologist or counsellor to be agreed between the parties within fourteen (14) days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time.
The costs of such assessment and the report arising from such assessment to be borne equally by the parties.
The matter is fixed for final hearing before Federal Magistrate Brown on 20 and 21 April 2008 at 10:00am NOTING 2 days allowed.
The applicant file and serve all affidavit evidence he proposes to rely on at trial 28 days prior to the hearing.
The respondent file and serve all affidavit evidence she proposes to rely on at trial 14 days prior to the hearing.
Further consideration of this matter is adjourned to 10 December 2008 at 9:30am for further directions.
IT IS NOTED that publication of this judgment under the pseudonym <Name & Name> is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2615 of 2008
| MR BERGIN |
Applicant
And
| MS GROVE |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Bergin “the father” and Ms Grove “the mother” are the parents of [B] born in 2001 and [C] born in 2003.
These proceedings are concerned with interim parenting arrangements for the two children, particularly how much time they should spend with their father, pending the final hearing of the parties’ respective applications.
Both the father and mother, and indeed the children themselves, were born in the United States. The family emigrated to Australia in mid-2005, as a result of the father taking up an academic position at the [University omitted].
The parties separated in early February 2007. Since that time, [B] and [C] have lived predominantly with their mother and spent brief periods with their father. The issue of overnight time is particularly controversial between the parties, especially so far as [B] is concerned.
It is the mother’s position that she is the undisputed primary carer of the two children. She has many criticisms of the father’s level of insight into the responsibilities of being a parent and the standard of care he has provided to [B] and [C] in the past. Ms G also alleges that Mr Bergin has unresolved issues to do with alcoholism and his ongoing psychological/psychiatric health.
The mother is deeply unhappy in Australia, where she feels financially insecure and bereft of familial support. It is her position that these issues impact upon her ability to parent [B] and [C] to the optimal level of her capacity. As a consequence, she wishes to return to live in [X], in New York State, where her parents live, with the children as soon as possible.
In both the shorter and longer term, the father wishes to extend the time he spends with the two children and increase the amount of care he provides for them. He aspires to the children spending alternate weekends and two school evenings each fortnight with him, during school terms, as well as half of each school holiday.
The father asserts that it would be difficult for him to obtain an academic position in the United States, certainly close to where the mother wishes to live in New York State. He sees his future in this country. Accordingly, his aspirations, so far as parenting arrangements for [B] and [C] are concerned, will be rendered impossible, if the mother and children return to live in the United States.
I am not dealing with the difficult issue of relocation directly today, but it forms the background to the issues I must determine at this stage. The father commenced these proceedings on 1 July 2008. At his request, they were given an early return date of 9 July 2008.
The reason for the urgency was that the father asserted that the mother’s departure for the United States, with the children, was imminent. Accordingly, he sought interim injunctions regarding the removal of [B] and [C] from the Commonwealth of Australia and other ancillary orders relating to their travel documents.
The mother did not have an opportunity to formally respond to this application by 9 July 2008. However, on that date, the parties were able to agree on some orders, pending the preparation of the mother’s response and answering material.
Essentially, the mother acknowledged that, pending the resolution of the relocation issue on a final basis, she and the children would remain in Adelaide. The father also recognised that [B] and [C] should continue to live predominantly with their mother, in the former family home, at [N].
More importantly, in the context of these proceedings, the parties agreed that the father could spend time with the children as follows:
a)From 3:30pm (or the conclusion of school) to 7:00pm each intervening Thursday, commencing Thursday, 10 July 2008.
b)From 8:00am to 12:30 pm each Saturday.
c)With the said child [C] only, from 3:30pm (or the conclusion of school) Thursday to 9:00am (or the commencement of school) Friday commencing Thursday, 17 July 2008 and each alternate week.
From the mother’s perspective, she is happy for these orders to continue. She is particularly concerned at any proposal that [B] should spend additional and overnight time with her father. The mother alleges that [B] is not well bonded to her father and she ([B]) is opposed to spending time with him.
On the other hand, it is the father’s position that it is imperative that the two children concerned have a more extensive and, so implicitly, more meaningful relationship with him. To this end, he proposes that both children spend some overnight time with him, ideally on both a weekend and week day evening. He would also wish his time with the children on Saturdays to be extended to 5:00pm.
The father refutes any suggestion that [B] is in any way fearful of him. He does however concede that she has indicated a preference not to sleep over at his home. A sleep over, planned in April of 2008, did not go well.
However, the father believes that [B] is too young for her ostensible wishes to be the definitive factor in the case. In addition, given the significant level of tension between the parties, he is apprehensive that [B] is being either consciously or unconsciously influenced by her mother in the expression of this view. As such, he believes that the court needs to act quickly to prevent any further alienation of [B] from him, which he believes would be detrimental to her long term interests.
In addition, although the father concedes that he has previously had issues to do with alcoholism, it is his position that he is now sober.
He also refutes any suggestion that he is mentally unstable.
It is the father’s position that he is an insightful and competent parent. However, in order to provide reassurance for the mother, he is willing to undertake to her and the court that he will return [B], to the mother’s care, in the event that she becomes unduly distressed, during any overnight periods of time she is in his care.
After the initial mention of the proceedings, the case was adjourned until 31 July 2008, in part, so that the parties might attempt to resolve some of the parenting issues between them consensually through a process of mediation. Unfortunately, this process was not fully successful.
However, the parties acknowledge that a family assessment report should be prepared by some suitably qualified expert to assist both them and the court to resolve the difficult issues between them. They also agree that the relocation issue needs to be given the earliest possible hearing date.
The documents relied upon
The father relies on the following documents:
i)His application filed 1 July 2008;
ii)An affidavit of himself filed 1 July 2008;
iii)A further affidavit of himself filed 29 July 2008.
The mother relied on the following documents:
i)Her response filed 24 July 2008;
ii)An affidavit of herself filed 24 July 2008;
iii)An affidavit of her solicitor, Georgina Parker filed 24 July 2008.
To this latter affidavit was attached an email statement of Ms G, the children’s maternal grandmother. This email was not on oath and was almost entirely critical of the father.
The proceedings before me were bitter contested. The positions of the parties are polarised in the extreme. The mother, in particular, has nothing of a positive nature to say about the father.
The hearing, at the interim stage, does not allow for the hearing of oral evidence from the parties concerned nor any cross examination. Necessarily the hearing has to be brief. As a result, I cannot make findings of fact, where there is a dispute between the parties concerned as to what previously happened between them. There are many such disputes in this particular case.
Legal principles to be applied
The service of [B] and [C]’s best interests is the most important consideration in this case [Family Law Act s.60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
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 court has a discretion not to apply the presumption at the interim stage, if circumstances exist which make it inappropriate for it to be applied [Section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [see Goode & Goode (2006) FLC 93-286 at 80,903].
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)].
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible [section 61DB].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA. If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time and if this is considered to be neither to be in the child’s best interest nor reasonably practical, the court is then required to consider the child living with each of his or her parents “substantial and significant” periods of time.
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.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. [see Goode & Goode (supra) at 80,903].
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 children concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[1]
[1] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In Goode & Goode the Full Court directed that in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Brief background
The father was born in [Z] in 1967. The mother was born in [X], New York in 1969.
The parties began to live together in 1996. They married in October 2000 in Las Vegas, Nevada. Both [B] and [C] were born in [Y], Nebraska.
The parties and the children arrived in Australia in July of 2005, they are all entitled to permanent residency in this country. The parties ultimately rented premises in [N]. The father moved out of these premises on separation. He lives nearby.
The father is a University Lecturer at the [University omitted].
The mother is currently studying at the [University omitted]. She has other qualifications in [omitted]. Due to her immigration status, she is not entitled to social security benefits in Australia.
The competing cases of the parties
It is the father’s position that he has been an involved and active parent, from the date of [B]’s birth onwards. The mother does not agree, deposing that he provided little, if any, care for [B] and later for [C] because he was drinking heavily and his behaviour was erratic.
She says that the father was frequently verbally abusive towards her.
The mother contends that the father was diagnosed, by a psychiatrist, as suffering from depression and bipolar disorder. The father denies a bipolar illness but acknowledges depression and anxiety, which he says is well managed with medication.
It is the mother’s further position that the father was emotionally and verbally abusive towards her during the period of their relationship.
As a result, the parties have separated from time to time. The father denies ever having been formally diagnosed with issues relating to the expression of anger and deposes that he expresses his “anger appropriately and respectfully”.[2]
[2] See father’s affidavit filed 29 July 2008 at paragraph 7
It is the father’s case that, whilst the mother undertook a [omitted] course in 2004/2005, he took on the lion’s share of the parenting of the children. The mother denies this is true, asserting that she utilised babysitters, rather than risk leaving the children in the father’s compromised care. She says [B] and [C] became upset, if they were left with their father. Underpinning her case, is her assertion that “[b]oth of the children were and remain extremely attached to me”.[3]
[3] See mother’s affidavit filed 24 July 2008 at paragraph 43
After the family moved to Australia, the mother asserts that the father was frequently verbally abusive towards her and, in addition began to consume alcohol to excess. The father concedes that he had a relapse, in his drinking, at the time of separation but had previously been sober for five and a half years and is sober once again, with the assistance of Alcoholics Anonymous.
It is the wife’s position that both children are fearful of the father because of what they have seen of his behaviour, particularly around the time of the parties’ separation. Following separation, the children spent only short periods of time with their father and the mother remained anxious about the father’s behaviour, particularly his drinking and emotional equilibrium.
It is common ground, between the parties, that [B] attended one overnight period with her father in April 2008. The mother asserts that [B] has refused to attend any further overnight stays with her father because she is frightened of him, particularly at the prospect he may become angry with her.
The father says he and [B] enjoy their time together. He concedes that [B] “has experienced the conflict between Ms Grove and myself more severely than [C] who is younger.” As such, he asserts that [B]’s anxiety, about sleeping over at his home, is not to do with her relationship with him but rather because of the mother’s refusal to support him as a parent.[4]
[4] See father’s affidavit filed 29 July 2008 at paragraph 10 & 11
Issues in dispute between the parties
As the above synopsis of the parties’ respective cases demonstrates, there are many areas of dispute between the parties. These can be summarised as follows:
·Was the father emotionally and verbally abusive towards the mother?
·Does this constitute family violence?
·What is the nature of the father’s relationship with the children, particularly [B]?
·What is the nature of the father’s parenting skills and past involvement with the children?
·Are the father’s parenting skills impaired by his psychiatric condition and/or alcoholism?
·Is the father’s psychological health well managed and is his alcohol use in remission?
·What are [B]’s views about spending time with her father?
·What is influencing those views?
·Given [B]’s age and likely level of development, what weight should be given to those views, if any?
It is difficult, if not impossible, at the interim stage to resolve these issues between the parties definitively. In addition, at this stage, I do not have any report from a suitably qualified expert regarding the child’s level of attachment with either of their parents.
In particular, I have no assessment of the possible psychological implications, for either [B] or [C], of their parents’ currently difficult and acrimonious relationship with one another. Such a report is likely to be helpful to me in the final disposition of this case.
In addition, it is not uncommon, particularly when the parents concerned have a poor relationship with one another, that disputes arise as to what a particular child wishes in respect of care arrangements.
At this stage, I have no reliable mechanism to ascertain the views of the children, particularly [B], independently of their parents.
Yet, notwithstanding these difficulties, a decision needs to be made regarding ongoing arrangements for [B] and [C]’s care, until there can be a more thorough and definitive hearing. The lodestar for this decision must be the children’s best interests, as determined by reference to the factors set out in section 60CC.
Primary considerations
The applicable legislation places two considerations in a position of pre-eminence – the benefits of the children having a meaningful relationship with both their parents; and the need to protect the children concerned from harm, as a result of exposure to abuse and family violence.
The mother places more emphasis on the first consideration and the father emphasises the desirability of [B] and [C] having a meaningful relationship with him. One consideration is not to be given pre-eminence over the other, rather the importance of each must depend on the individual circumstances of the case concerned.
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children [see In the Marriage of Patsalou (1994) 18 Fam LR 426].
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned [see JG & BG 18 Fam LR 255 at 261]. Obviously the latter behaviour is the more damaging, so far as children are concerned.
Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.
The fundamental task for the court is to assess prospective dangers for the child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.
Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4]. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.
The mother’s complaints against the father are of verbal and emotional abuse. The father denies the gravamen of the mother’s allegations against him. It seems to be his position that, if he has behaved inappropriately in the past, it has been as a result of the parties’ unhappy situation with one another.
The parties have been separated for over a year now. There is no independent verification of the mother’s complaints against the father. In this regard, I do not find the email from Ms G to be helpful.
The document is not on oath and the person concerned is likely to be strongly aligned with the mother.
In this context, I must make some assessment, on all the evidence currently available to me and determine, from that evidence, the level of risk the father’s alleged behaviour poses to the children concerned and make orders commensurate with that risk.
In carrying out this balancing exercise, I must also bear in mind that there may be risks to both [B] and [C], in terms of them having an ongoing and meaningful relationship with their father, if I allow them to spend only brief periods of time with him. The years of early childhood are important for children to develop parental bonds, which are likely to be highly significant to them in their later years.
Once issues of family violence have been raised, which is a common occurrence in cases of this kind, I must be careful not to overlook a child’s entitlement to have a meaningful relationship with both of his or her parents.
In all the circumstances of this case, particularly given that both children have been spending time with their father, in the period since their parents’ separation, I consider that significant emphasis should be given to the benefits of [C] and [B] having an ongoing and meaningful relationship with their father.
From the father’s point of view, his relationship with both the children will be imbued with additional meaning, if he is able to spend time with them in a variety of settings. In particular, he wishes to be able to spend time with both [B] and [C], in his home environment, during the evening on both a school and weekend night.
No doubt, he hopes this will encourage the children to feel that he is an active part of their lives and is not confined to a wholly subsidiary role as a “contact” parent. I think there is some force to the father’s submission in this regard, particularly given the limited time the children have spent with him up to this stage. I am concerned that the mother’s proposals will not be adequate enough to enable [B] and [C] to have a sufficiently meaningful relationship, with their father, as envisaged by the applicable legislation.
Additional considerations
[C] is about five and a half years of age. The mother does not assert that her views are likely to be significant at this stage of her development.
[B] is seven years old. She is older than [C] but could not be described as either emotionally or intellectually mature. It is also highly likely that she is aware of the significant tension between her parents. Accordingly, she is placed in a difficult position, as her loyalty to each of her parents is likely to come under pressure.
Given these circumstances, I do not think that [B]’s views should be a strongly determinative factor in this case. In any event, there is significant dispute between the parties as to what is forming those views and, at this juncture, I do not have any independent assessment of those views [section 60CC(3)(a)].
There is considerable dispute between the parties as to the level of relationship the children have with each of them. The mother describes herself as the children’s primary carer. The father asserts that, from time to time, he has been significantly involved in the children’s care, particularly when the mother was studying.
These issues are difficult to determine, at this stage. It seems to me that, from time to time, both parties were busy people, who had employment and educational responsibilities outside of the home. What is clear however is that, for the vast majority of the children’s lives, the parties lived together, with the children, as a family.
Accordingly, it seems to me that the children have a significant level of relationship with their father. Certainly, he cannot be described as a stranger to them. Given this state of affairs, it seems incumbent on the court that significant consideration should be given to the children maintaining a meaningful level of relationship with him [section 60CC(3)(b)].
One of the flavours of the father’s case is that he fears that the mother is incapable of supporting the children having a proper paternal relationship with him. Again, this is a difficult issue to resolve at the interim stage. However, given the tension necessarily precipitated by the mother’s relocation application, there seems to be at least some likelihood that the mother has not been completely supportive of the children maintaining their relationship with the father [section 60CC(3)(c)].
The mother opposes there being any significant changes in care arrangements for the children at this stage [section 60CC(3)(d)]. Her position is predicated on the basis that she has been the children’s primary carer and the court should not abruptly change this arrangement.
Even if I accept the mother’s position that she has been [B] and [C]’s predominant carer, up to this stage, the applicable legislation no longer enshrines any principal that the court should perpetuate any status quo in respect of care arrangements, for children, at the interim stage.[5]
[5] See Goode & Goode (supra) at paragraph 80
To the father’s credit, he has no great criticisms of the mother’s capacity as a parent. The same cannot be said of the mother in respect of the father. Sadly, allegations that one party is a negligent and incompetent parent often arise in proceedings of this kind. Adversarial proceedings, such as these, do not encourage parties to say complimentary things about each other.
However, in this case, there is no independent verification of the mother’s complaints against the father. In addition, she has been prepared to allow [C] to spend overnight time with her father. These seem to be factors in favour of the modest increase, which the father seeks, in the amount of time he spends with the two children concerned, particularly so far as overnight time is concerned.
There is no family violence order applicable in this case [section 60CC(3)(k)]. The parties live close together in suburban Adelaide.
As such, there are no pressing practical difficulties standing in the face of the father’s proposal to spend time with the two children concerned [section 60CC(3)(e)].
In my view, both [B] and [C] are of an age and likely level of development, where the court should consider them spending extended periods of time, including overnight time, in the care of the parent other than the one who has provided the predominant aspect of their care [section 60CC(3)(g)]. In my view, given the children’s ages, the father’s proposal must be considered a modest one.
Application of the presumption contained in section 61DA
The father seeks that the presumption of equal shared parental responsibility should apply in this case. The mother seeks to have sole parental responsibility for the children, on a final basis and is silent about the matter at the interim stage. I am required to consider the presumption before making any parenting order.
I do not think that the presumption is rebutted by the court having “reasonable grounds” to believe that the father has engaged in either abuse of the children or family violence. At this stage, I am not in a position to form a concluded belief, one way or the other, regarding whether the mother’s allegations of verbal and emotional abuse qualify as family violence, within the meaning of the applicable definition in the Family Law Act.
The question, which remains is whether, at this interim stage, the parties’ poor and mistrustful relationship with one another and the many evidentiary disputes between them render it inappropriate for the presumption to be applied.
The Full Court has indicated that the discretion, provided by section 61DA(3), is not to be exercised in a manner which is broadly exclusionary. Accordingly, it seems to me that the discretion must be exercised within the overall intent of the Act, which is to encourage both a child’s parents to have a meaningful relationship with the child concerned, commensurate with the need to protect the child from harm.
In all the circumstances of this case, I am not persuaded that it would be obviously inappropriate for the presumption to be applied at this interim stage. In my view, the discretion is to be engaged when potentially very serious matters of family violence or child abuse are raised, in the material before the court, which can be neither definitively established nor definitively negated, within the context of an interim hearing. In the circumstances of this case, I do not think that the discretion should be engaged because of the pre-eminence required to be given, by the court, to issues of child protection.
Having considered all the relevant section 60CC factors and having analysed the evidence, as best I can, I have come to the view that it is likely to be in the children’s best interest for the presumption of equal shared parental responsibility to be applied.
I reach this conclusion because of the likely significance, to both [B] and [C], of their paternal relationships and the likely benefits both will gain from having a meaningful relationship with their father.
Practical considerations
The father does not seek to spend equal time with the children. He does however wish to spend time with them involving both week days and weekends and which would allow him to be involved in [B] and [C]’s daily routine, to a greater extent than currently occurs [section 65DAA(3)].
The parties do not live very far from one another. However, their ability to communicate with one another and exchange information about the children appears to be compromised currently.
The issue of relocation looms large in this case. Necessarily it precipitates strong emotion in both parties. I must make orders in this case because the parties themselves are incapable of agreeing on arrangements for the care of their children. Obviously, this does not bode well for any parenting arrangement predicated on cooperation.
It is, I think the case, in the present matter, that the parties do not trust one another and there is a high level of tension between them. Whether this state of affairs is transitory or entrenched between them is difficult, if impossible to ascertain at the present time.
Although I am uncertain whether it is a situation which applies in the present case, I am concerned that the emotional topography, which often prevails in children’s cases, may encourage the party, who is vehemently opposed to either a shared care regime or one whereby the children concerned spend substantial time with both their parents, to act in a way which is fundamentally contrary to the principles and objects of the amending legislation.
He or she may be prone to perpetuate parental conflict; may magnify the practical difficulties which exist; and intensify the level of disputation about various parenting issues; in order to defeat the application of the mechanisms provided by section 65DAA. Whether such ulterior motives are present in any given case may be difficult to ascertain, particularly at the interim stage.
It is clear from the legislation that such an approach to parenting is contrary to its intention. The optimal outcome for a child, in the making of any parenting order concerning that child, is for his or her parents to have the maximum degree of involvement possible in that child’s life.
In determining issues to do with the parties’ current and future capacity to communicate with one another and resolve difficulties which may arise from a shared parenting regime, the court is required to consider the matters which arise under s.60CC(3)(c) & (i).[6] Accordingly it is the duty of the parents concerned to facilitate close and continuing relationships between the child concerned and each of his or her parents.
[6] See note 1 to section 65DAA(5)
It is clear from what was said by the Full Court in Goode that the court, at the interim stage, is required to take a different approach to the making of parenting orders to that previously propounded in cases such as Cowling.[7] In Cowling the emphasis was on the desirability of the court making orders which resulted in the maintenance of pre-existing care arrangements.
[7] see Cowling v Cowling (1998) FLC 92-801
Since Goode, it has become clear that the court must be more pro-active, at the interim stage, in bringing about a care situation for the children concerned, as much in accord with the optimal one prescribed by the relevant legislation as possible, provided it is in the children’s best interests.
It is clearly the mother’s position that, to advance the time the children, particularly [B] spend with their father, will have a deleterious consequence for the children. The father does not agree, seeing more perils arising if the children’s relationship with him is retarded.
Clearly, at the interim stage, and given what occurred in April 2008, it may be imprudent to be overly ambitious in respect of increasing the time the children spend with their father, at an unduly rapid rate. There may also be pitfalls in leaving things as they are. In the absence of any detailed family assessment, these are difficult issues to assess.
There is often an experimental aspect to many orders dealing with children. It cannot be anticipated, with any degree of certainty, how an individual child will react to any particular order or set of circumstances. Again, it is necessary for the court to attempt to balance competing considerations and reach the conclusion it thinks will best serve the interests of the child concerned.
The dynamic present in this case is a common one. The mother wishes the court to adopt a cautious approach to the children spending time with their father. On the other hand, for obvious reasons, the father wishes the court to move at a faster rate. From his point of view, he is fearful that his paternal relationship with the children will wither and diminish, if steps are not taken for him to spend more time with them.
These difficulties are compounded by the antipathy the parties share for one another and their inability to compromise easily. In such circumstances the children concerned are likely to have their parental loyalties tested. Accordingly, it is desirable that certain orders are made. Caution should also be taken in respect of any apparent view expressed by a child, in these difficult circumstances particularly one who is not yet eight years of age.
In my view, the father’s proposals cannot be categorised as unreasonably ambitious or unduly hasty. I think they strike a balance between the desirability of the children maintaining a meaningful relationship with him and the obvious practical difficulties, which the parties’ poor and mistrustful relationship throws up.
Conclusions
The intention of the Family Law Amendment (Shared Parental Responsibility) Act2006 is to favour the substantial involvement of both a child’s parents in their child’s life, both in regards to parental responsibility and the time they each spend with the child concerned.[8] However, one size does not necessary fit every family, particularly where young children are involved and the concerned parties’ parenting relationship is one which is compromised.
[8] See Goode & Goode (supra) at paragraph 72
On balance, I have come to the conclusion that the presumption of equal shared parental responsibility should be applied, in this case, at this stage. I have also come to the view that considerations of the children’s best interests favour the orders sought by the father being made.
I reach this view on the basis the children are likely to have a significant parental relationship with their father. As such they are likely to benefit from having a meaningful relationship with him.
These factors militate in favour in an increase in the amount of time the children spend with their father.
In addition, the children are close together in age. I would expect them to have a very close relationship with one another. Given their common experience of parenting, up to this stage, it seems undesirable that there should be a different regime, so far as the time each spend with their father is concerned.
The father’s proposals do not, in my view, constitute a dramatic increase in the amount of time the children spend with him. It is a graduated increase in keeping with the ethos of the Act that children should have a sense that both their parents are involved in aspects of their case and regime which are necessarily confined just to weekends.
I will make orders fixing the parties’ applications for final hearing. I will also make an order that a family assessment report be obtained.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 6 August 2008
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