BLAXLAND & VINCENT

[2009] FamCA 1041

FAMILY COURT OF AUSTRALIA

BLAXLAND & VINCENT [2009] FamCA 1041

FAMILY LAW – CHILDREN – Parental Responsibility – Time spent – 5 years of conflict – Little ability to communicate – Child anxious – Need for certainty/stability – Sole Parental responsibility

APPLICANT: Mr Blaxland

RESPONDENT: Ms Vincent

FILE NUMBER: BRC 11198 of 2007

DATE DELIVERED: 16 October 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 14, 15 & 16 October 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Laws

COUNSEL FOR THE RESPONDENT: Mr G Waterman

SOLICITOR FOR THE RESPONDENT: Delaney & Delaney, Brisbane, Qld

Orders

IT IS ORDERED

1. That orders be made in accordance with the minutes of proposed orders, sealed and attached hereto.

2. That pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED

1. That the Court received submissions on the issue of whether the counselling should be reportable and a decision was made in Chambers that the counselling referred to in paragraph 34 should not be reportable.

MINUTES OF ORDER

IT IS ORDERED BY CONSENT:

1. That the Orders dated 5 July 2006 be discharged.

2. That the Father does not consume marijuana at least twenty-four (24) hours prior to or during any period of time that the child is in the Father’s care.

IT IS ORDERED:

1. That the Mother have the sole parental responsibility for the major long-term decisions concerning the care, welfare and development of the child, …, born … October 2004.

2. That the Mother is obliged to confer and consult with the Father prior to making any decision in relation to the child on the following issues:

   a.Choice of future schooling; and

   b.Surgery or serious medical treatment.

IT IS FURTHER ORDERED BY CONSENT:

1. That the child spend time with the Father until he commences school in 2010, from 5:00pm Friday until 5:00 pm Sunday every second weekend, commencing on 23 October 2009.

IT IS FURTHER ORDERED:

1. That the child spend time with the Father as follows:

   (a)From after school Friday until 5:00 pm Sunday every second weekend until the commencement of Term Three in 2010;

   (b)From after school Friday until before school Monday every second weekend upon the commencement of Term Three in 2010; and

   (c)In the event that the Father has annual leave and provides confirmation, in writing, to the Mother that he has leave during his time with the child, then the child shall spend time with the Father during the Queensland gazetted school holiday periods as follows, once the child commences Term Three in 2010:

   i.     For Term One, from 5.00 pm Thursday prior to Good Friday until 5.00 pm on the Tuesday following Easter Monday in even numbered years and from 5.00 pm on the Tuesday following Easter Monday until 5.00 pm Sunday in odd numbered years;

   ii.   For one week during the Term Two and Term Three gazetted school holiday periods, for the first half in even numbered years and for the second half in odd numbered years;

   iii.     For a total of three weeks during the Term Four gazetted school holiday period, for not more than one week at a time, with such time being the first, third and fifth week in even numbered years and the second, fourth and sixth week in odd numbered years.

IT IS FURTHER ORDERED BY CONSENT:

Special Occasions

1. That in the event that the child is not in the Father's care on Father's Day, then the child shall spend time with the Father from 9:00 am until 5:00 pm on that day.

2. That in the event that the child is not in the Mother's care on Mother's Day, then the child shall spend time with the Mother from 9:00 am that day.

3. That in the event that the Mother's birthday (… November) falls on a Saturday when the child is not in the Mother's care, then the child shall spend time with the Mother from after school Friday until 10:00 am Saturday, or if such day falls on a Sunday when the child is not in the Mother’s care, then the child shall spend time with the Mother from 4:00 pm Sunday.

Where the Child Lives

1. The child shall live with the Mother at all other times.

Telephone Communication

1. That the child shall have telephone communication with the Father each Wednesday between 5:30 pm and 6:00 pm, with the Father initiating the call.

2. That once the child commences school, the child shall have telephone communication with the Mother each Tuesday and Thursday between 5:30 pm and 6:00 pm when the child is spending holiday time with the Father, with the Mother initiating the call.

3. That in the event that the child requests to have telephone communication with the other parent whilst spending time with either parent, then the parent who has the child's care shall do all things necessary to facilitate the child's telephone call to the other parent. 

School Holidays

1. That the time the child ordinarily spends with the Father in accordance with paragraph 5 herein shall continue during the Term Four gazetted school holiday period in 2009/2010.

2. That the child’s time with the Father referred to in paragraphs 6(a), (b) and (c) herein shall be suspended during the gazetted school holiday periods. 

3. That the school holidays shall be deemed to commence from after school on the day that the School Term finishes and conclude at 5:00 pm on the Sunday prior to the child’s return to school, with the handover during the school holidays being 5:00 pm each Sunday.

Handover Arrangements

1. That until the child commences school in 2010, the Mother shall deliver the child to the B Contact Centre at the commencement of the child’s time with the Father, with the Father delivering the child to the A Contact Centre at the conclusion of the child’s time with the Father.

2. That once the child commences school in 2010, the Father shall collect the child from school at the commencement of his time with the Father, with the Mother collecting the child from the B Contact Centre at the conclusion of the child’s time with the Father.

3. That once the child commences school in 2011, the Father shall collect the child from school at the commencement of his time with the Father, with the Father delivering the child to school at the conclusion of his time with the Father.

4. That for the purposes of handover during school holidays, special occasions, public holidays or pupil free days, the Mother shall deliver the child to the B Contact Centre at the commencement of the child’s time with the Father, with the Father delivering the child to the A Contact Centre at the conclusion of the child’s time with the Father.

5. That in the event that either party is expected to be delayed or is delayed in delivering or collecting the child from the handover location by more than ten (10) minutes, then the delayed parent is to notify the other parent of the delay via text message to that parent's mobile phone.

6. That within seven (7) days of these Orders, the Mother and Father shall register with the B Contact Centre and the A Contact Centre and complete the intake process required by each Centre and confirm, in writing, to each other compliance with this Order.

7. That each parent shall be responsible for the administrative fee applicable and to pay their respective share of the costs associated with the handover.

Specific Issues

1. That the parties utilise a communication book for the purposes of informing each other of all things relevant to the child's health and education.

2. That the Father obtain and maintain a mobile phone within seven (7) days of the date of these Orders.

3. That the Mother and Father each respectively provide to the other their mobile telephone numbers and advise each other within twenty-four (24) hours of any changes thereto.

4. That the Mother and Father ensure that the mobile telephone number provided to the other parent is switched on and has a fully charged battery at all times that the child is in their care, particularly prior to handover times and the times referred to in paragraphs 18, 19, 20 and 21 herein.

5. That each party is restrained from participating in the following behaviour in respect to the other party or any member of each party’s family or household in the presence or hearing of the child:

   (a)Making comments to the child in relation to the other party that criticises, demeans, belittles or ridicules them;

   (b)Making negative comments to the child in relation to their time or communication with the child or the other party’s time or communication with the child;

   (c)Making comments to the child that impacts on his relationship with the other parent;

   (d)Making comments to the child that cause him to question decisions in relation to him by either parent.

6. That in the event that any of the above such comments are made by another person in the presence of, or hearing of the child, then the party with the care of the child at that time is to remove the child from the presence of such person.

7. That the Mother and Father advise each other as soon as practicable of all emergencies involving the child, including the name of the treating doctor, hospital and contact number.

8. That the Mother and Father keep each other advised in writing as to the day care, schools, activities and medical practitioners whom the child attends and advise each other forty-eight (48) hours prior to any change to those details.

9. That each party is at liberty to contact all of the medical practitioners treating the child from time to time and these Orders authorise the child’s medical practitioners to provide information or reports concerning the child to each parent.

10. That each party is at liberty to contact the child’s day care, school and teachers to ascertain how the child is progressing and these Orders authorise the child’s school and relevant educational institutions to provide a copy of the child’s school reports and school photographs to each parent.

IT IS FURTHER ORDERED:

1. That the Mother and Father attend upon Ms C for the purposes of post-separation counselling based on the Separating Respectfully Programme for a period recommended by Ms C, with both parents facilitating the child’s participation in the counselling as recommended by Ms C, with the Father to be responsible for the cost.

IT IS NOTED that publication of this judgment under the pseudonym Blaxland & Vincent is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11198 of 2007

MR BLAXLAND

Applicant

And

MS VINCENT

Respondent

REASONS FOR JUDGMENT

ex tempore

1. This matter has a most unfortunate history and the issues relate to the parenting arrangements for the parties’ five year old child, born in October 2004.  The parties separated in July of 1995 when the child was nine months old.  Since that time, he has primarily resided with his mother and has spent varying times with his father. 

2. The litigation has been on foot since 2006 and there have been multiple court appearances and family consultant interventions, which provided the parties with some clear direction and contained, in particular, clear advice about the dangers for the child of ongoing conflict between his parents.  Sadly, those processes have not quelled the conflict which has prevailed.  Each of the parties complains in a great deal of detail, in all of the material before me and in their exchanges with the family consultants, about a never-ending history of open conflict, alienation and inability to communicate. Unfortunately, but not surprisingly, after a lifetime of experiencing that environment, the child has been adversely affected.  He has an acute awareness of the conflict.  He has difficulty negotiating transition between his parents and he has clear signs of developing anxiety, insecurity and a sad belief that the world is not a safe place for him.

3. He experiences nightmares and, according to the mother at least, he is exhibiting other signs of disturbed behaviour, including enuresis.  All this is occurring to this lad at the ripe old age of five.  The sad reality is that a great deal of damage has already been done.  Mr L has assessed the child as a very sensitive young child and that, as a result of that, he is at an even heightened risk. 

4. The matter was first before me on 24 February of this year.  That attendance by the parties was preceded by post-separation parenting courses attended by each of the parties.  It was preceded by the parties viewing a video which addressed, quite directly and tellingly, through the eyes and mouths of children, the adverse impact of parental conflict upon young children. 

5. At that hearing, each of the parents confirmed that they had understood the importance of that message and each expressed a wish to improve matters in that regard.  The father was unrepresented at that hearing but it was, indeed, a striking moment in the trial when, not long after making those expressions, the father informed the court that he had no intention of responding to the mother’s greetings at the beginning and conclusion of contact in the presence of the child and reasserted his resistance to the exchange of information, both ways, about matters relating to issues such as medical treatment or accidents.  

6. I had the opportunity to not only hear what the father said but to observe his demeanour and presentation during the course of those proceedings.  I have made it clear that I was left with a great deal of concern as a result of what the father had to say on that occasion.  I was left with a sense of pessimism about the future.  Sadly, that pessimism appears to have come to pass.  Sadly, it appears that the conflict between the parents has continued, even under the microscope of a pending trial, when they each were to know that their conduct and the events between February and this date were matters which would be reviewed by the court.  All of the evidence and, in particular, the affidavits of evidence in chief of each of the parties filed on the eve of the trial, are the clearest indications that nothing has improved.  I read, and continue to read, of allegations and counter-allegations and each party seeking to hold the other entirely responsible for all of the ongoing problems. 

7. In the period after 24 February and pending this trial, there have been serious issues between the parties, including allegations of drug use, suspension of contact, impasse over the child’s very enrolment at pre-school, public altercations about hair cuts, misuse or abuse of the one reliable means of communication, being a communication book, and serious allegations raised by each of the parents against the other of what could only be described as gross emotional abuse of the child in the form of serious threatening suggestions about the other parent to this young child.

8. After this period from 24 February, Mr L re-interviewed the parties and, most importantly, re-interviewed the child.  What he observed, with great concern, was a marked deterioration in the child’s presentation, with heightened levels of sadness and anxiety.  He expressed very serious concerns for the welfare of the child if this were to continue. 

9. I have a sense that, in terms of the child’s short and medium-term welfare, in terms of the prospects of him having a happy and meaningful life and of reaching his full potential, that the parents in this case are literally facing one minute to midnight. 

10. One of the saddest features of this case is that, individually, they have so much to offer their son.  Individually, they present as intelligent, loving, caring parents.  As a collective, however, I say that they are capable of destroying the very child they love so much.  The reality for the child has now become that, no matter how much love and care and nurturing he receives individually from his parents, if they are unable or unwilling to completely relieve him of the burden of dealing with their ongoing conflict, they are facing the prospect of committing their young son to the potential of a very bleak future indeed. 

11. A child who feels anxious and unsafe in the presence of his parents is a child whose healthy development is being placed at risk.  The evidence of such anxieties can have a very serious impact upon the child’s prospects in the future in terms of his education, his socialisation, his emotional and even his mental well-being.  The child is entirely dependent upon his parents to enable him to negotiate his pathway through childhood.  He is dependent upon his parents for appropriate nurturing, for appropriate role modelling, and to keep him safe from the prospect of harm, and particularly emotional harm.  The impact upon children whose parents fail to meet those responsibilities can be both very serious and long term. 

12. As I have indicated earlier, the cases as presented in the affidavit material of the parties have reinforced the concerns I held in February of this year.  The reading of the material and the case outlines gave me no cause for optimism at all. 

13. Happily, the first positive signs in this matter may be emerging in the course of the further hearing of these proceedings.  Of course, the difficulty for me is that it is impossible to determine to what extent the parties might embrace their proposals as opposed to determining to what extent they feel compelled to enter into these arrangements. I need to observe that these eleventh hour developments are not consistent with what appears in the affidavits or what emerged from Mr L’s exercises.  They appear very recent developments.  Nevertheless, I must acknowledge the reality of the positive implications of the proposals put forward by the parties.  Further, the parties deserve some credit in that they have chosen not to proceed with a contested hearing, which would have exposed parties to a difficult exercise which may not have augured well for the future.  Having said that, the one outstanding, important issue in this case did, unfortunately, necessitate some analysis of the history which presented the parties with some difficulties.

14. The terms of the agreement entered into are comprehensive.  They are designed to address and redress some of the past difficulties. They provide for definition.  They provide for the exchange of information.  They seem to have required of the parties some concessions.  I acknowledge, particularly, the ground given by the father, who had aspirations which were entirely understandable as a father, to spend as much time with his son as is possible, and to have the greatest possible involvement with his son and his activities and his life.  The father apparently listened to the advice, evidence and recommendations of Mr L which, in the circumstances, saw the essential elements of any agreement being an arrangement which would provide the child with the greatest sense of security, stability and predictability.  The accommodation of those ideals required the father to give ground on his aspirations.

15. Mr L was very concerned about the child’s current vulnerability and emotional fragility and was observing that he has had a great deal of instability in the past and is about to be confronted with other significant challenges, particularly in the form of schooling.  The father has, apparently, been willing to embrace a regime which is designed to address those matters. 

16. The other encouraging aspect of the arrangements entered into by the parties is their agreement to attend upon some joint counselling. 

17. The end result is that I have been left with very little to decide, although, as I say, there is one issue which is of great importance to each of the parties and to the child, and I will turn to that shortly.

18. As to the incidental orders, the father, through his counsel, has indicated today he does not press the difference that existed between himself and Mr L.  Having heard Mr L’s evidence, the mother continues to ask the court to proceed at a more conservative pace.  Mr L suggests that the change to the current contact regime should be implemented in the middle of next year.  The mother asks the court to consider delaying that until the commencement of next year, so that the child is given one full school year before he is exposed to the changes which would be otherwise agreed. 

1. I am persuaded by Mr L that his recommendation is one which finds an appropriate balance between the need for stability for some time, which has the ingredient of delaying the father’s greater involvement in the child’s life and schooling, and the advantages of that latter proposal.  Mr L was well satisfied that, if there was a delay until the middle of next year, the child would be able to cope with the changes at that time.  I propose to make orders which will result in the current contact regime continuing until the commencement of the third term in 2010.

2. There was, at one stage, an issue about whether or not the child should have the opportunity to spend Father’s Day with his father, Mother’s Day with his mother, and their respective birthdays with his parents.  Mr L was quite clear on the desirability of the mother’s proposals as they stood at that time, and felt that, if they were prescribed, they did not compromise his emphasis upon predictability and stability.  He suggested they represented important days in the lives of particularly young children who have an awareness of these events and, as he said, are most often prepared for them at schooling.  I am well satisfied that the opportunity to participate on those days with his parents is important and, in the end, the father has not persisted with his resistance to that prospect.

3. The third incidental matter relates to the cost of counselling.  I trust, in my earlier remarks in this judgment, that I have made my view clear about the importance and value of engaging in professional help.  The reality is that whatever guidance the parties have received through family consultants’ reports in the past has not been sufficient to secure a change in attitude and approach to matters of conflict so as to bring about a positive outcome for the child. 

4. In the way in which the case has been conducted, I am not in a position to apportion responsibility between the parties.  I rely upon my experience to draw the conclusion that it is not likely that all of these difficulties are the responsibility of one person, and it is not likely that one person is without blame.  It is a case where, clearly, both parents can improve and they will each benefit from professional assistance. 

5. In making those observations, I do not wish to be unrealistic.  The perfect parent has not been invented and one needs to acknowledge that breakdowns in relationships are difficult matters to manage.  We also know that many children thrive, notwithstanding their parents’ separation.  There has to be a happier medium for the child somewhere between the extremes that I have described earlier in this judgment.  I hope and trust that the inherent goodness of these parents, their inherent intelligence and their underlying love and commitment for their son will, at some stage, enable them to benefit from these processes, and improve the lot for their son.

6. I regard this as a critical aspect of the resolution and it is essential that the counselling be facilitated.  That is going to impose financial hardship upon one or both of the parties and, in this case, the burden must fall where it is best able to be met.  The father is in a senior position in the public service.  He is well paid, although I acknowledge, in reality, he is not earning a substantial income.  He says his income is of the order of $68,000.  I acknowledge that he has commitments.  I acknowledge that his commitments are such that, at the present time, he cannot afford his own car.  I accept as a reality that life for him probably means living from week to week.  In his case, he has some extra commitments in the form of travel for the child and the like.

7. On the other hand, like most people in his position, ways and means are found to meet unexpected expenses.  Presently he has found the means to meet the costs of a $10,000 retaining wall.  He has informed the court that he is currently in the process of saving towards a car.  He has, by today’s standards, a comparatively modest mortgage of some $90,000 and the capacity to draw down on that mortgage.  If the father can find $10,000 for a retaining wall, I hope and trust there remains some capacity to meet the costs of this essential exercise for the welfare of his son who would, no doubt, stand as a higher priority.

8. The mother, on the other hand, is an unemployed single mother dependent upon social security and, no doubt, some child support.  As between these parties, an unemployed mother on social security as opposed to an employed public servant on $68,000 per year, represents a no contest, in my view.  In those circumstances, it will be necessary for the father to bear the very significant burden of meeting these further costs for the benefit of his son. 

9. Finally, I turn to the much more vexed question of shared parental responsibility.  This is a matter of huge significance to all parents and to children. 

10. I am acutely aware of the legislative requirements in this regard, particularly those relating to the presumption in favour of equal shared parental responsibility as prescribed in s 61DA of the Family Law Act, which provisions are, in turn, consistent with the objects and principles of the Act set out in s 60B.  I am acutely aware of the sensitivities of parents who feel excluded from sole parental responsibility orders, and I am acutely aware of the benefits available to children who have the opportunity to have meaningful input from each of their parents and the disadvantages of losing that opportunity.  Each of those important matters are, of course, however, subject to the obligation imposed upon this court to make orders which are in the best interests of the child.  The tensions that exist between those matters create challenges for the court in many matters, including this one. 

11. In my view, important ingredients of a viable, shared parental responsibility order include some level of ability to communicate constructively about matters of significance and, preferably, that ability is accompanied by some level of mutual respect, trust or understanding of the position of the other parent.

12. The reality of the past five years is that those essential ingredients of a shared parental arrangement have been non-existent.  Communication appears to have been limited at best, but usually conflictual. Direct communication has resulted in a type of open conflict that has had an adverse impact upon the child.  More recent evidence of efforts at indirect communication, particularly that through the use of a communication book, have proven to be entirely ineffective. 

13. Further, right up until the filing of affidavit material, all of the evidence indicated that there was an abject lack of trust by each of the parents towards the other.

14. The history that I deal with, as Mr L observes, does not bode well for the future and is entirely contra-indicative of shared parental responsibility.  The extent to which it has been tried, has failed or has not been implemented because of the difficulties between these parents.  The shared parenting ordered to date is one that has failed the child and has not served his interests well.

15. It is contended on behalf of the father, not so much that I should disregard the last five years, but that I should observe upon the terms of the orders proposed yesterday, the father’s willingness to further compromise having heard the evidence of Mr L yesterday, and observe upon the father’s presentation in the witness box yesterday, and conclude that there is cause for optimism. 

16. The one feature of the father’s evidence yesterday that was particularly promising arose when questioned about prospects of change.  He said that he is committed to that process, and he is encouraged by the fact that the parties will now receive the professional help that he says he has wanted for some time.  At face value, that represents a different approach to that which he presented with on 24 February. 

17. Mr Waterman, for the mother, says, however, that the court must necessarily exercise caution in accepting those assurances at face value.  He contends that there is a heavy responsibility thrust upon the court not to make unrealistic orders that might expose the child to more of the same, and expose the parties to the pathway that I have expressed my concerns about earlier. 

18. The difficulty for me in this case is that, as counsel for the father himself submitted, the child has been dealing with two capable, intelligent parents for five years who, notwithstanding their strengths, their capabilities and their intelligence, have not, individually and collectively, been able to manage their affairs in a way which has saved the child from exposure to their conflict.  That exposure for five years is causing him to show very serious signs of early compromise to his welfare and development.

19. At the end of the day, I have been persuaded by the thrust and content of Mr L’s report.  The overriding consideration in this case is one which imposes upon me an obligation to put in place a regime which leaves this damaged child exposed to the least amount of conflict possible.  I am afraid, on the child’s behalf, I am simply unable to sufficiently put to one side my concerns which remain after five years of conflict. 

20. It remains my hope that matters will improve, for the child’s sake.  I trust that the parents will embrace the exercises anticipated by the orders made positively and I hope that they will arrive at a situation for the benefit of their son, where they will be able to confer and consult about matters of significance relating to the welfare of their son.  I am not satisfied that the time has yet arrived where I can confidently make those types of orders without an overriding concern that they may work against the child’s best interests. 

21. The mother is not to perceive this as a victory over the father, or as an opportunity to exercise inappropriate control, and, certainly, it is not in her son’s best interest to have the child’s father excluded from his life.

22. I am comforted, to some extent, by the terms of the orders which provide for the exchange of information, as it is essential that the father has an awareness of these matters in his dealings with his son, which is going to include involvement in his schooling, and none of those matters are excluded. 

23. I have, however, decided that it is appropriate that the mother bear the responsibility of conferring with the father in relation to two specific matters, that is, the choice of future schooling for the child and in the event that the child is in need of serious medical treatment.

24. In my view, those types of very serious issues are matters upon which both parents are entitled to be involved and the child is entitled to receive the benefit of the input of each of his parents.  Those matters are so specific, so narrow and so limited in the times they are likely to arise, that I am satisfied that the balance between the advantages and disadvantages of joint decision making swings in favour of involvement of the father in relation to those specific matters. 

25. The order I propose to make would be an order that vests in the mother sole parental responsibility, with the qualification that she is obliged to confer and consult with the father, and endeavour to reach agreement with him, about issues relating to any change of schooling or undertaking any serious medical procedures likely to require extensive therapy or surgical intervention.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: