Buchanan and Gardiner - [2007] FamCA 1661

FAMILY COURT OF AUSTRALIA

BUCHANAN & GARDINER

[2007] FamCA 1661

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT:

Mr Buchanan

RESPONDENT:

Ms Gardiner

FILE NUMBER:

BRF

5536

2002

DATE DELIVERED:

5 September 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Applicant appears on his own behalf

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Respondent appears on her own behalf

SOLICITOR FOR THE RESPONDENT:
INDEPENDENT CHILDREN'S LAWYER	Ms McArdle

Orders

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

The parties sign all documents and do all things necessary to ensure that if the enrolment of the child … born on … February 1995 at the E State High School for 2008 is accepted (the acceptance date anticipated to be 22 September 2007) he commence his Grade 8 year in 2008 at that school and remain at that school.
If the child’s enrolment application should not be accepted by the E State High School the parties either directly with each other or through the independent children’s lawyer consult and endeavour to come to a joint decision for the child’s secondary school in 2008 and beyond.
If despite consultation no joint decision is able to be made the matter be raised on Day 1 of the Division 12A hearing at 10am on 4 December 2007 for urgent judicial decision if possible.

AND IT FURTHER ORDERED

The father’s amended application in a case filed on 4 June 2007 (original filed on 1 September 2006) otherwise is dismissed.
The matter be listed for Day 1 of a Division 12A hearing at 10am on 4 December 2007.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 5536 of 2002

MR BUCHANAN

Applicant

And

MS GARDINER

Respondent

REASONS FOR JUDGMENT

There are two matters for interim decision, namely the time the child … born in February 1995 spends with the father during school terms, and the time the child spends with the father during the 2007/2008 Christmas school holidays.
The child is 12½ years. He will turn 13 years in February 2008.
Pursuant to final consent orders made on 16 March 2004, the child lives with the mother and spends time with the father on alternate weekends from 6 pm Friday until before school Monday; on each Wednesday or other agreed week day from 5 pm until 7.15 pm; and for half of the school holiday periods as well as on special days.
The mother proposes that the time the child spends with the father during school terms be unchanged and that during the 2007/2008 school holidays the child spend time with the father only during the first and third weeks.
The father proposes that during school terms the child spend time with him on the equal time basis in alternate weeks from 6 pm Friday until the commencement of school on the following Friday (seven nights/seven nights), or alternatively substantial and significant time in alternate weeks from 6 pm Wednesday until the commencement of school on the following Monday (five nights/nine nights); in the intervening weeks on Wednesdays from 5.30 pm until 7.30 pm; and that the time spent during school holidays be unchanged.
I am required to consider these proposals having regard to the child's best interests.
Mr Cooper, solicitor, for the father, urged that having regard to s 65DAA of the Family Law Act 1975 I must first consider whether an equal time order would be in the child's best interests and reasonably practicable, being a consideration tending to result in or the need to consider positively the making of an equal time order; and that if I do not make an equal time order consider whether a substantial and significant time order would be in the child's best interests and reasonably practicable, similarly being a consideration tending to result in or the need to consider positively the making of a substantial and significant time order. Goode & Goode (2006) FLC 93-286 at par 64.
Section 65DAA, as is understood, in its terms, is invoked if a parenting order provides or is to provide that a child's parents are to have equal shared parental responsibility for the child.
The final consent orders made on 16 March 2004 included an order, still in force, that the father and the mother be jointly responsible for the long term care, welfare and development of the child.
Further, pursuant to an interim consent order which I will make today, agreed by the parties yesterday, in effect they will have equal shared parental responsibility for decisions concerning the child's choice of school, being one aspect of the child’s education.
Mr Cooper urged that relevantly the application of s 65DAA is triggered by the final consent order in place for joint responsibility for the long term care, welfare and development of the child, that order being materially the same, in effect, as an order for equal shared parental responsibility when regard is had to ss 61B and 65DAC of the Act, the definition of major long term issues in s 4 of the Act and the matters traditionally associated with the “old style” orders for responsibility for a child's long term care, welfare and development.
Mr Cooper submitted that because there is no necessary or obvious distinction, in effect, between the old style terminology and the new style terminology, the intention should be imputed to Parliament that s 65DAA is triggered relevantly when an existing parenting order provides for a child's parents to have joint responsibility for a child's long term care, welfare and development.
In Goode (above), the Full Court considered the collocation of provisions concerning parental responsibility including ss 61B, 61C, 61D, 61DA and 65DAC observing (at par 39) the difference between ss 61C and 65DAC, but did not have occasion to consider the question immediately posed. For my part, I would observe that s 65DAC deals with parenting orders for shared parental responsibility, providing that such orders be taken to require decisions to be made jointly, whereas s 65DAA is triggered by parenting orders made or to be made providing for equal shared parental responsibility. It is difficult to perceive what Parliament may have intended by the express inclusion in s 65DAA of the word "equal" especially as, under s 65DAC, parenting orders providing for shared parental responsibility, equal and non equal alike, require the decisions to be made jointly.
There is force in Mr Cooper's submission that the existing parenting order in effect provides that the long term decisions be made jointly ("jointly responsibile") so that s 65DAC applies to it (including s 65DAC(3) and (4)), as much as to an order for equal shared parental responsibility made or to be made. However, there is a conundrum created by Parliament's use of the word "equal" in s 65DAA (which is the provision I am asked to find is intended to apply to the existing order which order does not include the word "equal") especially as I am required to apply the fundamental principle of statutory interpretation that Parliament must have intended the word "equal" in that provision to have some meaning or relevant application and thus strive to ascertain that meaning or relevant application because otherwise the result would be that the word "equal" in that provision has no meaning or relevant application, which intention should not be imputed to Parliament.
Thus, on its face, presuming the word "equal" in s 65DAA is intended to have some meaning or relevant application in the phrase "equal shared parental responsibility" as opposed to the phrase "shared parental responsibility" (of which joint parental responsibility is a form) I am unable to accept Mr Cooper's submission that s 65DAA is triggered, although both phrases require joint decisions.
Further, I do not consider that s 65DAA is triggered by the interim consent order to be made today by which the parties will have equal shared parental responsibility for decisions concerning the child's schooling, because that order does not and will not give equal shared parental responsibility for all major long term decisions (as defined in s 4 of the Act), but only one aspect of them.

However, to err on the side of caution, I will apply s 65DAA especially as, when considering the child's best interests, even if s 65DAA is not triggered, I am required in any event to consider, having regard to the father's proposal, whether an equal time order or a substantial and significant time order would be in the child's best interests. See Goode above at par 82(k). Further, to obviate argument, I make clear that whether or not s 65DAA is triggered, in applying it I will give to the matter consideration tending to result in and considering positively the making of an equal time order, and if I do not make an equal time order, consideration tending to result in and considering positively the making of a substantial and significant time order.
As made clear in Goode (above) at pars 68 and 74, in these interim proceedings this is an abridged process where I am not able to make findings of fact about disputed matters, but am able to look at the less contentious matters and facts not in dispute. Mr Cooper submitted that I should make a finding of fact that the mother has taken steps to delimit the father's role in the child's life. In this regard he referred to several aspects of the evidence to support such a finding, which evidence he submitted is uncontroverted or uncontrovertible, showing a "pattern of marginalising incidents." For example, he referred to the mother's involving the Department of Child Safety in relation to a matter which resulted in a letter from the Department dated 4 May 2007 stating that after investigation the matter was unsubstantiated (annexure 1 to the father's affidavit filed 29 August 2007); the mother endeavouring to exclude the father from parental responsibility concerning the child's education, especially the choice of a school for the child, and indeed seeking an order that she have sole parental responsibility for the child's schooling and education; her seeking presently to reduce the child's holiday time with the father; and for alleging, contrary to independent evidence that the child's behaviour is improving (Dr O, letter dated 31 July 2007, annexure LDB1 to the father's affidavit filed 30 August 2007), that the child's behaviour is deteriorating, blaming that on time spent with the father.
However, I do not propose to make any finding of fact as sought by Mr Cooper. In relation to the first matter referred to, the Department's letter referred to the circumstance that in relation to the subject matter of the notification, the father may have been forceful in his approach when disciplining the child and there is merit in the submission of Ms McArdle, the independent children's lawyer, that in relation to the incident notified the mother had raised reasonable concerns with the Department. In relation to the second matter, the mother's conduct in seeking to exclude the father from decisions relating to the child's education and parental responsibility generally is complex, the mother being an educational psychologist, and the child having been diagnosed (report Dr H, psychiatrist, 27 May 2007) with Asperger's Syndrome; as meeting the “criteria for obsessive compulsive disorder”; who has a "very unusual interpersonal communication style"; "a number of quasi-psychotic symptoms"; and a "strong family history of psychotic disorder"; such that "it is certainly possible that he may develop a psychotic disorder in the future." In relation to the third matter, it is yet to be tested whether the mother’s motivation is genuine concern for the child, whom she says has expressed to her fear of the father. In relation to the fourth matter, the reasons for the child's behaviour patterns needs to be tested at the final hearing having regard to what has emerged already as a considerable volume of psychiatric, family, educational and other reports.
Thus I will consider the s 60CC factors without making any findings of fact.
The child has a meaningful relationship with both parties and on present indications would benefit by the continuation of that circumstance.
According to the Department's letter dated 4 May 2007 to which I have referred, the child is not at significant risk of harm although the letter qualified this on the basis that the mother "is a parent able and willing to provide an adequate level of care and protection for her child." There are, however, matters of concern to be investigated at the trial including the incident which caused the notification which, according to the child, was the father forcing him to eat and using his hands to open wide the child's mouth; an alleged incident in which, according to the child, the father "dragged him along" putting such pressure on the child's arm that in the child's view would have caused the arm to break if he had tried to get away (mother's affidavit filed 2 February 2007, par 23); the matters in a notice of child abuse filed by the mother on 6 February 2007 allegedly reported to her by the child; and other incidents between the child and the father reported by the child to the mother and set out in her material.
The child has expressed to Ms D, the family report writer, that the most comfortable arrangement for him as to how much time he spend with each parent would be for the current arrangements to be left in place (family report, par 40). The father's evidence included that the child has said he would like to spend more time with him. The mother's evidence included that the child often says to her that he dreads "going on visits" to the father and that he feels unsafe with the father.
It appears that the child has appropriate bonds with each parent.
The matter of the parties' willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other parent needs to be tested. The father, as I have said, alleges that the mother seeks to marginalise the father's role in the child's life. The father expressed the view that whilst the child has benefited from exposure to the "maternal role" to date, his age and sex indicate that from now on there should be greater exposure to him for the child's need now of the "paternal role", and expressed concerns as to the mother's mental health history (as to which see the report of Dr K, psychiatrist) having impact potentially on her competence as a parent.
Ms McArdle urged that the likely effect of change, if the father's proposal for equal time or substantial and significant time be preferred, is a very significant factor. As it is the child was excluded from P College in October 2006 for reasons explained by the school in correspondence dated 21 November 2006 (annexure 9 to the mother's affidavit); was home schooled by the mother for the balance of 2006; attended the E State Primary School in 2007; and in 2008 is to commence his secondary education at the E State High School. Thus it was put by Ms McArdle he is to be challenged enough by the imminent change in 2008 without a change to spending increased time with the father, particularly as there is evidence that the child becomes "stressed" (see, for example, par 42 of Ms D's family report). Dr H, psychiatrist, in the report dated 29 May 2007, said that he "cannot see any reason to recommend any change to the residential and access arrangements." Mr Cooper submitted that this opinion ought not be given much weight because Dr H seems to have applied the status quo test which the Full Court made clear in Goode (above) no longer applies having regard to the legislative intent (see at pars 68-73), and which opinion also did not heed Ms McArdle's letter of instruction to Dr H (page 5 of the letter) specifically seeking that he address the child's best interests in relation to equal time, substantial and significant time and the other matters there set out. Mr Cooper referred to other parts of Dr H's report as being indicative of benefit to the child by change, for example, the use by the parents of a "combined behavioural plan" which conceivably would best be implemented by the child spending increased time with the father.
The parties' capacities to provide for the child's needs, including emotional and intellectual needs, invites consideration of the circumstance that they have very different parenting techniques, the father's more authoritarian than the mother's, and the mother's perhaps more nurturing. Ms D (family report, par 46) referred to the mother's tendency to indulge the child by way of compensation for his special needs difficulties, however, this was not described with criticism, Ms D observing that the child having special needs requires "sensitive and realistic managing by his parents." The mother, as an educational professional, says that she is better equipped to provide for the child's emotional and intellectual needs and directed much of her affidavit evidence to this; whereas the father says he can offer the child exposure to a different style of parenting so that the child may learn "perspectives from seeing different ways of handling situations", and a broader range of new interests, for example cooking, to which he has introduced the child, who is now "enthusiastic about cooking." The child also has developed interests while with the father of making toys, growing plants, reading, riding bicycles, archery and soccer, the father adding that he and the child "have a great deal of fun together."
The parties are each willing to accept the responsibilities of parenthood. In particular Dr H noted (page 15) that he was "impressed by both parents' focus and commitment on the long term well being of their child."
In relation to violence, or the possibility of violence, I have referred to the mother's notice of abuse and the Department's investigation and its result, however, these matters are yet to be the subject of a full examination at the trial.
As proceedings are currently on foot, the question of the institution of further proceedings is presently academic.
Ms McArdle urged that the current orders should stay in place in the interim, referring to the following passage in Dr H's report as to the child's current circumstances (page 15):
It is likely that he is extremely difficult to manage behaviourally because of the combination of his anxieties and rituals and his deficiencies in high level social language and communication. Young people such as this often become very angry and irritable in the context of increased anxiety sometimes associated with attempts to interrupt their obsessive compulsive rituals (i.e. around eating, hygiene and food in his case). They also become particularly distressed in the context of social miscommunication and conflict.
Ms McArdle, amongst other matters, to some of which I have made reference already, referred to the conflict between the parties, Ms D's reference to the child expressing that the most comfortable arrangement for him would be to leave his current living arrangements in place and his “stress” in coping with his “problems” (Ms D’s report, par 42), so that at this point in time the child's best interests would be served by maintaining consistency, this view being supported by the experts. It will be recalled that Dr H said that he could not see any reason to recommend any change to the residential and access arrangements. Ms D recommended (family report, par 55) that the current living and time spending arrangements be as currently ordered.
Mr Cooper, amongst other matters, again to some of which I have made reference already, urged that the essence of Dr H's report is that there are no deficiencies in either parent's capacity to parent the child, and referred to Ms D's observations (family report, par 25) that the father has a genuine commitment to the child and wishes to have a significant role in the rearing of his son whilst also being supportive of the child's continuing relationship with the mother, whereas (par 32) the mother and also the maternal grandmother (who used to live with the child and the mother but no longer does) are " inclined to minimise or interpret in the most positive light any difficulties" that the child may experience.

Mr Cooper referred to the mother's marginalisation of the father in the child's life and submitted that unless the father is given the opportunity to parent the child in the manner Dr H recommends, that is, by co-parenting with a "combined behavioural plan" (Dr H, page 16) the child's best interests would not be met. Mr Cooper urged that despite Dr H concluding that he could see no reason to recommend any change to the child's residential and access arrangements, the "underlying theme" in his report favoured co-parenting so that in approaching positively the question of equal time or substantial and significant time, unless there be evidence of perceived detriment to the child by one or either of those arrangements, equal time, or at least substantial and significant time, would be in the child's best interests.
Mr Cooper submitted further that having regard to the content of Dr O's letter dated 31 July 2007 (to which reference has been made already) the child has handled change well so that in considering the likely effect of change (referring to all of the changes in 2006 and 2007 already referred to a above) there is every reason to conclude that the child would cope well with a change to either equal time or substantial and significant time. Mr Cooper emphasised that unless there is a change now, so that the child has the benefit of real co-parenting, the father will continue to be marginalised in the child's life, to the child’s detriment.
The mother urged that on the evidence there is a link between what she described as the father's "aggression" and the child's behavioural problems. She said that the child is "scared" of the father, and that the father's "belief" that she is the cause of the child's behavioural problems because of her mental health history is wrong. She submitted that, having regard to the father's aggression and that the child is scared of the father "a three week block in the summer vacation" is unrealistic, particularly having regard to the Department's conclusion (in the letter already referred to) to the effect that the child is not at risk in relation to the father's aggression because she can provide adequate protection for the child, adding that unless the child is predominantly in her care effect cannot be given to the Department's qualification that the child is not at risk because of the level of care and protection she can provide him.
The mother emphasised that the child has said to her that he "dreads" visiting the father and is “scared” of being physically hit by him.
She urged that "short amounts of time" with the father would be in the child's best interests, so that there be "quality time" with the father rather than increased time.
The mother urged that there is "confusion" in the expert's reports as to whether the child has a "good or bad" relationship with the father, so that there should be no change in the time the child spends with the father during school terms until this aspect of the matter can be tested at the trial, but the summer holiday time with the father should be reduced for the reasons already stated.
In relation to s 65DAA, having considered all of the evidence, the submissions and the statutory factors I am required to consider, and having considered an equal time order positively, I am not persuaded at this interim stage that an equal time order would be in the child's best interests, primarily for the reasons advanced by Ms McArdle. In short, the child has had and has much to cope with at present. By the time the matter comes on for trial in 2008 he will have commenced his secondary schooling and has already expressed to Ms D (family report, par 42) that he becomes "stressed" due to his "problems", and (par 40) that for him the most “comfortable” arrangement would be to continue as at present.
The mother, undoubtedly, is seeking to marginalise the father in the child's life. The mother's mental health (see Dr K's report) is a matter of great concern, as is Dr H's observation that "there is a strong family history of psychotic disorder" which appears, but I may be wrong, and which must be tested at the trial, to be a reference to the mother's family. At the trial Dr H can enlarge on what he meant by this reference.
Ultimately at the trial, when all of these matters properly can be tested, it may well be determined that the child's best interests would be served either by living with the father or by spending equal time with him. However, equally, the child's fears of the father expressed to the mother, or at least which the mother says the child has expressed to her, must be tested at the trial. Predominantly, however, one of the key matters for the trial may be expert evidence as to how a child would cope with a change to equal time with the father. Now, this is as yet untested, not only in reality but also as to expert opinion tested under cross-examination.
Further, having considered all of the evidence, the submissions and the statutory factors I am required to consider, and having considered a substantial and significant time order positively, I am not persuaded at this interim stage that such an order would be in the child's best interests, for reasons similar to those already stated. Although arguably there would be less impact on the child of such a change, and I confess that at times during my deliberation of the matter I have swung closely to ordering substantial and significant time on the interim basis (five nights/nine nights as urged by Mr Cooper in the alternative), the child's particular sensitivities and needs have persuaded me that at least in the short term, until all of the controversial matters can be properly tested at the trial, such a change would not be in the child’s best interests. In particular, there is tension between the father's claim that the mother seeks to marginalise him and the mother's claim that there is good reason for this, being the father's aggression and its effect on the child. These matters must be left for the trial.
In Goode (above) at par 73, after concluding that the status quo definitively is not the appropriate test (and categorically therefore I do not apply it) the Full Court nonetheless observed that in some cases after a consideration of the s 60CC factors, there being no ability in interim hearings to test controversial evidence, it may be that stability for a child derived from a well settled arrangement may be in a child's best interests by way of interim arrangement. In my view, this is such a case, the child's stability, in my view, by adherence to his current living arrangements, being indicated as being in his best interests at present, at least until all of the controversial matters to which I have referred may be tested at the trial. The child is not “just” a special needs child but, to coin a phrase, is a “very” special needs child, Dr H observing that to regard him as “just” having Asperger's Syndrome would be “overly simplistic”.
I have, therefore, concluded at this interim stage that the child's best interests would be served by maintenance of the current orders. I would reiterate, however, that this circumstance should not be regarded as a precursor to the final outcome at trial once all of the relevant factors have an opportunity to be fully tested.
I have concluded also, based on similar reasoning, that the child's holiday time with the father for the Christmas school holidays 2007/2008 should not be reduced in the manner proposed by the mother. In this regard, apart from the other matters canvassed, the child will have exposure with the father to the variety of interests to which I have referred already to which it appears he may not be exposed with the mother, exposure to his different parenting style and a “holiday change” from the indulgence with which the mother, on one view, may cloy him by over protection and a lack of robustness in his exposure and life. Further, to leave the current holiday arrangements in place is consistent with the child spending time with the father “as currently ordered”, as recommended by Ms D.
On 15 December 2006, when the matter was before the Honourable Justice Bell he observed (reasons for judgment, page 5) that in the current procedural system there is no longer the ability to order speedy trials. However, since then, by reason of the docket system which the Brisbane Registry currently is trialling, this matter has been allocated to my docket with the ability to give it such priority as I consider appropriate, having regard always to the exigencies and demands of other urgent matters.
It is sufficient to say that there will be Day 1 of a Division 12A hearing on 4 December 2007, with Day 2 allocated in about March 2008 and the continuation of the trial by about mid 2008 thus according the matter somewhat the status of a speedy trial.
Yesterday, as I mentioned, the parties agreed to consent orders in relation to the child’s schooling in 2008.
The orders thus will be first the consent orders agreed yesterday in relation to that aspect of the matter, and then the dismissal otherwise of the father's application in a case filed on 4 June 2007 (original filed on 1 September 2006), followed by an order that the matter be listed for Day 1 of a Division 12A hearing on 4 December 2007.
It is regrettable in a sense that there have already been several listings of the matter since the commencement of the proceedings on 1 September 2006, which proceedings, being commenced after 1 July 2006, ought to have been treated under the Division 12A model with no interim hearing at all, but a listing and hearing before the Day 1 procedure only for urgent relief, which is not the case here in relation to the applications for changes in the child’s current living arrangements. Thus, as I observed during argument, this matter somehow has "slipped between the cracks" which is inevitable perhaps in any transitional period from one system to another.
Thus the parties, I am told from the Bar table, have not yet even completed their questionnaires, nor been asked by the Registry to do so, and yet have filed some four inches or so of controversial affidavit material. The intent of the Division 12A process is that the parties not file any affidavits, but only complete the questionnaires, until after the Day 1 procedure, and then file affidavits only pursuant to directions made by the Judge on Day 2 of the process.
I will indicate that if this matter should reach Day 2 of the process (that is, if it does not result in consent orders on or after Day 1 of the process), I will insist upon one trial affidavit only of the parties to address the identified issues and one affidavit each of their witnesses in relation to those then identified issues. However, these are matters for the future. In the meantime I pronounce the orders which I have mentioned. I publish my reasons.

I certify that the preceding fifty three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly

Associate

Date: 5 September 2007