C & B
[2007] FMCAfam 539
•31 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & B | [2007] FMCAfam 539 |
| FAMILY LAW – Shared parenting – equal time – young child – parental communication issues – weight to be given to expert evidence – family consultant acting under mistaken view of law – child’s religion – name change. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| BBT and JMT (1980) FLC 90-809 Beach v Stemmler (1979) 90 FLC 92 Chapman v Palmer (1978) FLC 90-510 Goode and Goode [2006] FamCA 1346 Makita Australia Pty Ltd v Sproules [2001] NSWCA 305 R v Turner [1975] QB 834 Suttie & Suttie [2007] FMCA fam 175 South Western Area Health Service v Edmonds [2007] NSWCA 16 |
| Applicant: | A P C |
| Respondent: | L B |
| File Number: | SYC 23 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 24 April 2007 |
| Date of Last Submission: | 24 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | Robyn Sexton & Associates |
| Counsel for the Respondent: | Ms Cleary |
| Solicitors for the Respondent: | Dettmann Longworth |
ORDERS
The Father and the Mother have equal shared parental responsibility for the Child of the relationship S (“the Child”), born 5 February 2005.
For the first 12 months following the making of these orders the Child live with the parties as follows:
(a)With the Father:
(i)Each Tuesday from 5.00 pm until Wednesday morning, on which occasion the Mother will deliver the Child to the father at the commencement of the period, and the Father will deliver the Child to day care at the conclusion of the period;
(ii)Each alternate weekend from Friday afternoon until 7.00 pm on Sunday, when the Father will collect the Child from day care at the commencement of the period and return him to the Mother at the conclusion of the period;
(b)With the Mother for all times other than those specified in Order (2)(a).
From the conclusion of the 12 months specified in Order 2 herein, until such time as he commences attendance at school, the Child live with the parties as follows:
(a)With the Father:
(i)Each alternate weekend from Friday afternoon until Monday at 8.30 am, when the Father will collect the Child from the day care or pre-school at the beginning of the period and the Mother will collect the Child from the Father at the conclusion of the period, or as otherwise agreed;
(ii)Each Tuesday from 5.00 pm until Wednesday morning, on which occasion the Mother will deliver the Child to the Father at the beginning of the period and the father will deliver the Child to the Mother at the conclusion of the period, or as otherwise agreed;
(iii)For at least 3 periods of 7 consecutive nights in each calendar year.
(b)With the Mother for all times other than those specified in Order (3)(a), provided that the arrangements in Order (3)(a) will be suspended to enable the Child to spend three periods of seven consecutive nights in each calendar year with the Mother.
From the time he commences attendance at school, the Child live with the parties as follows:
(a)During school terms on a week about basis, from before school each Thursday until after school the following Thursday:
(b)During school holidays for one half of each school holiday period.
The Child spend time with the parties on the following special days:
(a)For the period 9 am Christmas Eve until 6 pm Boxing Day:
(i) In 2007 and each alternate year thereafter with the father;
(ii) In 2008 and each alternate year thereafter with the mother;
(b)On the Child’s birthday for at least 3 hours with each parent; and
(c)With the Mother on the Mother’s birthday from 5.30 pm the night before her birthday until 8.30 am the morning following her birthday; and
(d)With the Father on the Father’s birthday from 5.30 pm the night before his birthday until 8.30 am the morning following her birthday; and
(e)With the mother on the Mother’s Day from 5.30 pm the night before Mother’s Day until 8.30 am the morning following Mother’s Day; and
(f)With the father on Father’s Day from 5.30 pm the night before Father’s Day until 8.30 am the morning following Father’s Day; and
(g)At any other time as agreed between the parties; and
(h)Where applicable, for the purpose of spending time with the parties as set out in this order, the arrangements set out in Orders 2, 3 and 4 will be suspended.
Each party notify the other as soon as practicable in the event of S suffering a serious illness or having a serious accident.
Each party keep the other informed of their addresses, landline telephone number and contact details, including mobile telephone numbers where they will be otherwise un-contactable.
Each party keep the other informed in relation to all medical, dental or other health related treatments being undertaken by the Child and the identity of the treating professionals.
The parties will consult with each other in relation to the school which the Child is to attend from time to time, and in the event of failing to agree within such time as is required to ensure the Child’s enrolment, the parties will attend upon a counsellor to discuss the Child’s school attendance. The Court NOTES the Mother’s position that she does not have the capacity to contribute to private school fees.
Both parties must within fourteen days:
(a)Contact the program provider Unifam and arrange an appointment within 28 days for an initial assessment as to suitability for a post-separation parenting program.
(b)Attend the appointment at any reasonable location nominated by the provider and complete the assessment.
(c)If assessed as suitable for a program or part of a program and the program provider nominates a particular program to attend, they must attend that program or part of the program (as the provider directs) as soon as practicable.
(d)The program provider is requested to notify the court in writing as soon as practicable if either party has failed to attend the initial assessment and the Registry Manager must re-list these proceedings to determine what further appropriate orders should be made in relation to the non-attendance.
(e)At the assessment appointment the program provider must complete the assessment within 28 days.
(f)Upon completion of the initial assessment the program provider must notify the court of the results.
(g)The program provider must inform the court in writing as soon as possible if:
(i) A party to this order has failed to attend the program;
(ii)The program provider considers a party a subject of the order is unsuitable to take any further part in the program or part of the program.
(h)Upon receipt of such notification from the program provider, the Registry Manager is to re-list the proceedings for further orders.
No earlier than nine (9) and no later than ten (10) calendar months after the making of these Orders, the parents are to consult with an appropriate professional, as agreed between the parties, but failing agreement to be JB, with regards to the adjustment of the Child to the parenting regime under these Orders.
Issues to be discussed during said consultation include:
(a)The Child’s physical adjustment to the parenting regime as set out in these Orders; and
(b)The Child’s emotional adjustment to the parenting regime as set out in these Orders; and
(c)Any other issue or concern pertaining to the Child’s adjustment to the parenting regime under these Orders.
That in relation to the Child’s name:
(a)The Father and Mother will forthwith do all things necessary, including signing all documents to enable the Department of Births, Deaths and Marriages (New South Wales) to amend the Child’s birth certificate such that ‘B’ will be added as an additional middle name, and the Child’s name will therefore be registered as S P B C on his birth certificate.
(b)The Father and the Mother shall at all times ensure both of S’s middle names “P B” are included on all documents and certificates upon which middle names are to be inserted.
Leave to re-list before Federal Magistrate Altobelli on seven (7) days notice as regards the implementation of these Orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 23 of 2007
| A P C |
Applicant
And
| L B |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This application relates to S who was born in February 2005, and who is currently two years old. On 14 August 2006, S's father, Mr C commenced proceedings in the Family Court of Australia seeking orders for equal shared parental responsibility and orders in relation to the time that S spends with each parent.
S's father is a practising barrister, conducting a practice that includes defendant insurance work and personal injuries. He is 36 years old. S's mother is Ms B, who is also 36 years old. In her response, filed 15 December 2006 she seeks orders that S spend time with his father, but on a different basis to that suggested in the father's application. S's mother is a field manager with a company conducting research and she works three days a week.
The mother's response did not contain an application for an order in relation to equal shared parental responsibility but I was informed by the mother's counsel that the making of an order, pursuant to s.61DA of the Family Law Act would not be opposed, and accordingly, I will make such an order.
On 21 September 2006, the following orders were made by consent by Registrar George in the Family Court of Australia:
1. That S P C born 6 February 2005 (“S”) live with the mother except as provided for herein.
2. (i) That S live with the father in a two week cycle
a.From 6.00pm Friday to 6.00pm Saturday in the second week;
b.From 6.00pm Saturday to 6.00pm Sunday in the first week.
(ii) Each Tuesday from 4.00pm to 7.00pm;
(iii) Each Thursday from 4.00pm to 7.00pm
3. The mother deliver S to the father at his residence at the commencement of S’s time with his father, and the father to deliver S back to his mother at her residence at the conclusion.
4. NOTE the parties have a further counselling appointment on 1 December at the Family Court and presenting are continuing to see Jill Burrett.
After the orders were made, the matter was transferred to the Federal Magistrates Court. I note that the parents had themselves agreed that there should be overnight time, once weekly.
A Family Report was prepared by Mr H on 19 April 2007. Mr H is a Regulation 8 Family Consultant with formal qualifications by way of a Bachelor of Social Studies obtained from Sydney University in 1975. The curriculum vitae to his report sets out the details of his 30 years career as a social worker, counsellor and psycho-therapist. Mr H gave evidence by telephone and was examined by both counsel.
The father's evidence is contained in his affidavit, filed 3 April 2007. He was cross-examined. A further affidavit was filed on his behalf by M, his mother. She was not required for cross-examination. The mother's evidence is contained in her affidavit, filed 20 April 2007. She was cross-examined. On her behalf an affidavit was filed by her employer, Mr W, and he was not required for cross-examination.
Orders sought by the parents
In this case, it is important to set out the orders sought by each of S's father and mother insofar as they relate to time. I was provided with a document entitled Amended Final Orders Sought by Applicant Father, in the following terms:
1. That the father and the mother have equal shared parental responsibility for the child of the relationship S (“S”), born 5 February 2005.
2. That for the first 3 months following the making of these orders S live with the parties as follows:
2.1 with the father:
2.1.1 each Tuesday from 5.00 pm until Wednesday morning, on which occasion the mother will deliver S to the father at the commencement of the period, and the father will deliver S to daycare at the conclusion of the period;
2.1.2 each alternate weekend from Friday afternoon until 7.00 pm on Sunday, when the father will collect S from daycare at the commencement of the period and return him to the mother at the conclusion of the period;
2.2 with the mother for all times other than those specified in paragraph 2.1.
3. That from the conclusion of the 3 months specified in Order 2 herein, until such time as he commences attendance at school, S live with the parties as follows:
3.1 with the father:
3.1.1 each alternate weekend from Friday afternoon until Monday at 8.30 am, when the father will collect S from the day care or pre-school at the beginning of the period and the mother will collect S from the father at the conclusion of the period, or as otherwise agreed;
3.1.2 each Tuesday from 5.00 pm until Thursday at 8.30 am, on which occasion the mother will deliver S to the father at the beginning of the period and the father will deliver S to the mother at the conclusion of the period, or as otherwise agreed;
3.1.3 for at least 3 periods of 7 consecutive nights in each calendar year.
3.2 with the mother for all times other than those specified in paragraph 3.1, provided that the arrangements in paragraph 3.1 will be suspended to enable S to spend 3 periods of 7 consecutive nights in each calendar year with the mother.
4. That from the time he commences attendance at school, S live with the parties as follows:
4.1 during school terms on a week about basis, from before school each Thursday until after school the following Thursday:
4.2 during school holidays for one half of each school holiday period.
In general terms, the amended final orders sought by the father represents the recommendations made Mr H, the Regulation 8 Family Consultant. However, as the underlining in the above document indicates, the orders sought by the father at the hearing were different from the orders sought by him in his application, filed 14 August 2006. In this regard order 2 sought by the father in his application provides as follows:
2. That until such time as he commences attendance at school, S live with the parties as follows:
2.1 With the father:
2.1.1 Each Tuesday from 5.30pm until Wednesday morning, on which occasion the father will collect S from the mother at the beginning of the period and will deliver him to day care or pre-school at the conclusion of the period;
2.1.2 Each Thursday from 5.30pm until Friday morning, on which occasion the father will collect S from the mother at the beginning of the period and will deliver him to day care or pre-school at the conclusion of the period;
2.1.3 Each alternate weekend from Friday afternoon until Monday at 8.30am, when the father will collect S from the day care or pre-school at the beginning of the period and the mother will collect S from the father at the conclusion of the period, or as otherwise agreed;
2.1.4 For additional periods of five nights in each calendar year;
2.2 With the mother for all times other than those specified in paragraph 2.1, provided that the arrangements in paragraph 2.1 will be suspended to enable S to spend four periods of five consecutive nights in each calendar year with the mother.
The essential difference is that at the time the father filed his application he sought an order that S live with him on Tuesday nights, Thursday nights, and on each alternate weekend from Friday afternoon until Monday morning. The differences between the father's original application and the orders sought relate to the period from the making of orders to when S commences school. The father has consistently sought orders that that from the time S commences school he lives with each of his father and mother on a week about basis.
The final orders sought by the mother at the hearing, relevant to the issues before me for determination, are as follows:
3. That the child spend time with the father as agreed between the mother and the father but failing agreement as follows:
[B]Until the child turns 3 years of age:
(a) On Tuesdays from between 4.00 and 4.30pm to 7.00pm.
(b) On Thursdays between 4.00 and 4.30pm to 7.00pm.
(c) Each weekend in a two week cycle:
(i) from 6.00pm Saturday to 6.00pm Sunday in the first week;
(ii) from 6.00pm Friday to 6.00pm Saturday in the second week.
[C] From when the child turns 3 years of age until he commences school
(a) On Tuesdays between 4.00 and 4.30pm to 7.00pm.
(b) On Thursdays between 4.00 and 4.30pm to 7.00pm.
(c) Each alternate weekend from 6.00pm Friday to 6.00pm Sunday.
(d)For three separate block periods per 12 months as follows:
(i) Each block period shall commence at 6.00pm on a Friday and conclude at 6.00pm on the following Tuesday.
(ii) There shall be at least a 12 week gap between any block period and shall not immediately precede or follow any other time the child is with the father.
(iii) The father shall be at liberty to nominate each particular block period PROVIDED he gives to the mother a minimum of five weeks notice of each block period AND the nominated block period shall not coincide with the child’s birthday, the mother’s birthday, Mother’s Day, Easter Sunday or a Christmas Period when the child would be with the mother pursuant to these Orders.
[D] From when the child commences school
(a) On Tuesdays between 4.00 and 4.30pm to 8.00pm.
(b) On Thursdays between 4.00 and 4.30pm to 8.00pm.
(c) Each alternate weekend from 6.00pm Friday to 6.00pm Sunday commencing on the 2nd weekend in each school term.
(d) for part of each school holiday period being no more than half and, failing agreement, the second half. During such school holiday period, time between the child and father pursuant to paragraphs (a), (b) and (c) shall be suspended.
The only material differences between the orders sought by the mother at the hearing, and the orders sought in her response, filed 15 December 2006 are as indicated in bold below:
3. That the child spend time with the father as agreed between the mother and the father but failing agreement as follows:…
[C] (d)For two separate block periods per 12 months as follows:
(i) Each block period shall commence at 6.00pm on a Friday and conclude at 6.00pm on the following Tuesday.
(ii) There shall be at least a 12 week gap between any block period.
(iii) The father shall be at liberty to nominate each particular block period PROVIDED he gives to the mother a minimum of five weeks notice of each block period AND the nominated block period shall not coincide with the child’s birthday, the mother’s birthday, Mother’s Day, Easter Sunday or a Christmas Period when the child would be with the mother pursuant to these Orders.
The mother’s position in those proceedings was, therefore, that S spend two nights during each fortnight with his father, and that was her position whether S had turned three or had commenced school.
Issues
In terms of the issues that I need to determine in this case, they are as follows:
a)The weight to be given to the Family Report. During submissions Ms Cleary, counsel for the mother, submitted that for reasons that I will discuss at length below, I would give very little weight to the Family Consultant's report. I agree that this is a significant issue for me to determine in this case.
b)The amount of time that S should be spending with each parent. Putting aside transitional issues, the father's application seeks equal time, but the mother's application seeks substantial and significant time. The transitional issues relate to how quickly either such arrangement should evolve. Also, the father seeks orders in terms of S living with him, whereas the mother seeks orders that S spends time with his father. I did not have the benefit of submissions deal with this specific issue. I do not think that it makes much difference in the final result.
c)The name by which S was to be known is also an issue. The mother seeks to have her surname, B, incorporated as one of S's middle names. The father opposes this.
d)Aspects of S's religious upbringing raised by the mother. The mother's religious background is Jewish, and the father's is Catholic.
e)There is a dispute about where, and how S is to be educated.
The key differences as between the father and the mother relate to which of their proposals is in the best interests of S. On behalf of the father, his counsel, Mr Millar, submitted that as there was going to be no opposition to the making of an order for equal shared parental responsibility, then the legislation required me to consider equal time or substantial and significant time, having regard to whether each of these was reasonably practicable and in the best interests of S.
Mr Millar submitted that all of the evidence, and particularly, Mr H's Family Report, led to a conclusion that, apart from a relatively short period of transition, equal time was in S's best interests and reasonably practicable. What is in S's best interests is determined by reference to the considerations contained in s.60CC (2) and (3), and all of the relevant considerations pointed to an order in terms of those sought by the father.
Ms Cleary's submissions for the mother, however, emphasised that if far less weight is to be given to the Family Report, the Court needs to be much more conservative and cautious in approaching this case. She emphasised that all the evidence points to S doing extremely well in the arrangements that have existed today, and the Court should be concerned about whether the father, having regard to his work in particular, is prepared for and capable of meeting the exigencies of parenthood that would inevitably arise on the basis of the orders sought by him.
She also submitted that the acknowledged communication failures and difficulties between the parents also pointed towards the difficulties in implementing a shared care arrangement. In essence, Ms Cleary's submission is that equal time is certainly not in S's best interests, and is possibly not reasonably practicable.
The Applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration; s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
The Family Report
The Family Report indicates that Mr H met with the father, mother, and Child on 27 March 2007. He interviewed the parents together, and each of the parents separately, and was able to observe the interaction between S and both of his parents. Mr H had not read any of the documents filed on behalf of the parties. His report follows what appears to be a standard format for family reports. Based on the histories given to him by each of the parents he sets out the current parenting arrangements, and the proposals of the parties. Mr H identified that the issue in the dispute was the amount of time that S would spend with each of his parents, and how that time should be best organised.
During the assessment, he identified two further issues. The first issue was the degree to which S could satisfactorily move between his parents' home without causing him undue distress and instability. The second issue identified was the lack of effective communication between the parents and the implications of this for a shared parenting arrangement for S.
In Mr H's interview with the father he observed the father to be "a caring father who felt that Ms B was attempting to control, and to a degree frustrate, his relationship with his son." In relation to Ms B he observed that she "presented as a caring mother who stated she had felt unsupported as a new parent." The evaluation made by Mr H is contained as paragraphs 19 to 25 of his report. As this evaluation become an important issue, I set it out at length:
19. S C is loved by both his parents, and, it would appear, loves them in return. There was no evidence that he experienced any distress while in the care of either parent, and neither parent made any significant criticism of the other parent’s care. It is to the credit of each parent that they are able to acknowledge the other parent’s love of S.
20. The significant difference between the parents is the amount of time they believe S should spend with his father, and whether or nor he [S] would be able to cope with separations from his mother. Mr C acknowledged that Ms B had been the more involved parent following S’s birth, but denied her allegation that he had not been involved in his son’s care. It would seem that Ms B felt isolated and unsupported following S’s birth, and that she therefore believes Mr C is ill-equipped to care for S. It would appear, however, the parental relationship was, by both parents’ account, under considerable stress at the time. Mr C’s lack of involvement might be seen as more indicative of the breakdown in the parental relationship than as his inability to care for S. It was significant that Ms B was unable to provide any evidence critical of Mr C’s current care of S.
21. Mr. C is proposing a significant increase in the amount of time S lives with him. The current two overnight stays would be increased to around five per fortnight. Ms B considers this to be too much for S to cope with at this time, and is proposing a more modest increase. In principle, there is no evidence that children of this age will be unduly distressed by the amount of time Mr C is proposing. For such a regime to be successful, however, the parents will need to significantly improve their communication, so that both will feel confident regarding the care S is receiving, This may be facilitated by both parents attending a parenting after separation programme such as Unifam’s “Keeping Contact”.
22. It might also be more appropriate to gradually increase the amount of time S spends with his father, both for his reassurance and for Ms B’s. Therefore it might initially be best for S to spend one midweek night and two weekend nights living with his father. Perhaps a period of three months with such a regime would give all the parties a chance to adjust prior to its’ extension to longer periods. Both parents will need to be sensitive to S’s reactions to these extensions. Ms B will need to support and encourage S in his attendance, and Mr B will need to support S having some contact with his mother during them.
23. The regime proposed by Mr C involves considerable movement by S between the parent’s homes. For example he would live at his father’s home on Tuesday and Thursday nights and at his mothers’ home on the intervening Wednesday night. This might be quite unsettling for him, and it might be more appropriate for S to stay with his father on two successive nights (for example Tuesday and Wednesday) so that there would be more stability for him.
24. There would appear no reason why, once the above regime is established, S should not be able to spend the block periods Mr C is suggesting with him.
25. While there has been considerable friction and distrust between the parents, and communication between them needs to be improved, there was no evidence presented that would suggest that the parents should not continue to have equal shared parental responsibility for the child.
Finally, Mr H makes the following recommendations:
26. It is recommended that the parents continue to have equal shared parental responsibility.
27. It is recommended that, unless information is presented to the Court that indicates otherwise, the amount of time S spends with his father should be gradually increased to the point where he is spending two nights each week, and three nights each alternate weekends with him. It is further recommended that once this level has been achieved, S spend block periods with his father for seven days at least three times each year, or as, hopefully, arranged between the parents.
28. It is recommended that both parents attend counselling to address their communication and trust issues as they affect the parenting of S.
I observe that on the face of the report it is quite unremarkable. Indeed, it seems quite a standard report, based on an interview and observation and containing relatively clear recommendations based on an evaluation that is made.
However, in cross-examination of Mr H by Ms Cleary, he made a number of comments that ultimately led to Ms Cleary's submissions that I should give little weight to Mr H's report.
Weight to be accorded to Family Report
As indicated above, one of the significant issues arising in this case is the weight I should give to the family report and, therefore, its recommendations. Ms Cleary for the mother submits I should give it minimal weight whereas Mr Millar for the father submits it should be considerable weight.
The issue arises in the following context. The following exchange took place between Ms Cleary and Mr H, during the latter’s examination.
Ms Cleary: I take it that – well you say in your report that you hadn’t read anything or knew nothing about the matter until you saw the parties?
Mr H: That is correct.
Ms Cleary: Did you read anything after seeing the parties and before doing your report?
Mr H: The only information I was given was the parties’ details.
Ms Cleary: And that is as set out in your report?
Mr H: That is right, yes.
Ms Cleary: Did you, when you first speak [sic] to the parties, explain to them about the change in the law of July of last year?
Mr H: I mention that, yes.
Ms Cleary: That it affected the way that Family Reports are written now?
Mr H: That’s right, yes.
Ms Cleary: What you said was that the law said that:
“50/50 living arrangements must be assumed as the starting point and that therefore needed to be written from the point of view of why 50/50 living arrangements shouldn’t happen”?
Mr H: Yes, you have to adjust things according to each family’s circumstances and therefore you needed to have information as to why that shouldn’t be the case.
Ms Cleary: All right, so it would be correct to say that your view about writing a report is that you operated with a starting point of 50/50 and see if there was any reason why that shouldn’t happen?
Mr H: Well adjust it, yes, adjust it to family circumstances.
Ms Cleary: Do you recall Ms B saying to you that she had thought that the new law meant the parents had equal responsibility for children that that didn’t automatically translate into equal time?
Mr H: I don’t actual remember her saying that, no, but I’m not saying she didn’t.
Ms Cleary: Alright, in any event, is that the extent of what you recall explaining to the parties about your approach?
Mr H: Yes, and I also asked them if there were any other issues apart from where the child was living that I needed to address.
That evidence gave rise to the following submissions by Ms Cleary:
Ms Cleary: I will come first to the report of Mr H. Now, his report was prepared knowing nothing of the parties’ evidence or their proposals and it was done on Mr H’s evidence with a method, the method being that there would be that S would spend equal time with his parents unless Mr H could identify reasons to displace that presumption. That is his evidence.
My submission to your Honour is that setting about doing the report in that way is to introduce a formula that was not required of him and it also reduces considerably the significance of the subjective factors in the matter. So if he meets the parties, sees them together and says effectively– where are the disentitling matters, then it isn’t a report that is going to assist your Honour with whether or not there should be equal time with each parent, or that there are particular matters in this family that justify why there should be particular time.
I particularly asked Mr H what were the positive reasons as to why there should be equal time and as to why equal time should start as soon as three months from the date of this hearing, and his response to that was that there were no reasons why there shouldn’t be equal time.
The whole approach – and I mean Mr H gave evidence freely about it, “is there any reason why I shouldn’t just make a recommendation for equal time” and apparently having found none, made a recommendation for equal time; so after three months of something less than that to move to seven nights a fortnight. Now, in my submission, that is not a helpful way to have gone about it and it is not a particularly helpful report because it is not something that the Act sets up: do a report on why it shouldn’t happen. It is not the thrust of the legislation…
He had the opportunity to see the parties and to see the child and to identify how things appeared to be travelling between S and each of parents and clearly that evidence is helpful. S is doing exceptionally well. Paragraphs 18 and 19 are the observations of S and his parents in the evaluation, couldn’t be more positive, relaxed, happy, no anxiety, good relationship with both parents and if there is tension between them they have concealed it from S.
So they are very significant matters that Mr H can help your Honour with. But what is absent is an analysis of the impact on S of equal shared time, given the history, which is agreed by both parties that until separation the mother was more responsible for the care of S; post separation, almost immediately if your Honour accepts my client’s evidence, there is the pattern that becomes consent orders, so for about a month there is that pattern and it becomes a consent order in September 2006 and that is what has prevailed since then.
So there hasn’t been equal time from the time S was born. So in my submission, what your Honour would expect to see is an analysis of the fact that S has done exceptionally well and is happy in his relationships at the time of observation with there not having been equal time between S and his parents and considering whether or not there is a need to be mathematical about it and to have equal time in the future and what are the compelling positive reasons which would justify that change.
There would then be an analysis of whether this amounted to a significant and/or substantial time between S and each of his parents and if it fell into that category whether that is what should continue or whether it should be something different and an overall analysis of whether or not there was any difference between a baby, a two year old, a school aged child, a child aged 12, is it always the case that there is going to be an assumption, despite the age of the child, that equal shared time is what should happen, unless there is disentitling conduct.
I can’t say to your Honour that I can see where Mr H has got that approach from in terms of the legislation. But there certainly isn’t any kind of tiered analysis of how S’s personal history fits into this report or is somehow governed by the legislation. So the observations of the family reporter are helpful, but in my submission the approach is not of great assistance to your Honour.
From the mother’s perspective, these are important matters so I have extracted the transcript at length. In essence Ms Cleary’s submission was that the family consultant commenced the preparation of his report from a false premise – that there was, in effect, a rebuttable presumption of equal time. This meant that unless the family consultant could identify reasons why it was not in S’s best interests to have equal time, that should be the result. Moreover, submits Ms Cleary, this formulaic approach means that there was no real analysis of the impact of various shared parenting time arrangements on S, based on his best interests.
I invited Mr Millar, counsel for the father, to reply to this submission. His submissions are succinctly summarised by this extract from the transcript:
So my friend is right when she says he took into account the legislation, because he told the Court that he did, but he took into account all those other things as well which make it really superfluous whether or not he took into account the legislation because he is clearly able to reason his conclusion based on those things which are simply observation and assessment of what happened in front of him between the three people.
According to Mr Millar, therefore, despite the family consultant’s clearly incorrect understanding of the legislation, his recommendations are based not on this mistaken understanding of law, but on observations and assessment of the family.
One can understand that the mother’s perception of the family report is that its conclusion of equal time was inextricably linked to what she considers to be its opening (but nonetheless mistaken) premise – that the law creates a rebuttable presumption of equal time.
The family consultant’s methodology was clearly flawed. It was not his role to explain the law, or to prepare a report from the basis of his understanding of the law, or to approach his report from a paradigm of best interests that asserts, in effect: why shouldn’t equal time be the outcome? I suspect that during the family consultant’s oral examination he may well have started to realise that his approach was being seriously challenged. Not only was his methodology under attack but, significantly, the fact that his premise was not even articulated in the family report itself. This is a serious omission. His answers to the questions did try to emphasise that his approach or understanding was adjusted “according to each family’s circumstances”. The issue I need to decide is whether he has, in fact, done so i.e. made recommendations based on this family’s actual circumstances such that I can be confident that he was not predisposed to a certain outcome because of a mistaken view of the law. I must also consider whether the mother’s perception that the report is, in effect, fatally flawed, means that I should give it no weight.
The order for the preparation of the family report was made by me on 9 February 2007 in these terms:
2. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia on a date to be advised for the purposes of the preparation of a family report.
3.The Family Report to deal with the following matters:
(a)any views expressed by the child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(b)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
I observe that this is a standard form of order used by this Court in ordering reports pursuant to s.62G of the Act. In this regard s.62G(2) provides:
(2) The court may direct a Family Consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable.
It is clear that order 3(b) is intended to pick up the matters referred to in subsection (2) above.
Section 62G(4) provides:
(4) The Family Consultant may include in the report, in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child.
It is clear that order 3(c) above is intended to pick up the matters referred to in subsection (4) above.
Perhaps some consideration should be given to revisiting the terms of this standard order just in case the specific reference to sections of the legislation contributed in some way to the family consultant’s misunderstanding in this case. It is possible, for example, that a non-lawyer reading s.65DAA would conclude that equal time is the desired outcome in parenting orders. That is not, of course, what s.65DAA(1) intends. It provides:
(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Equal time is a possible outcome as a result of this section. Indeed in some cases it may well be the likely outcome. But if equal time is the outcome it is not because either:
a)there is no reason as to why it shouldn’t be the case; or
b)it is a starting point.
If equal time is the outcome as a result of s.65DAA(1) it is because of positive findings that for the child or children in question:
a)it is in that child’s or those children’s best interests; and
b)it is reasonably practicable.
Equal time is not a default position. There is no presumption of equal time. One does not get to a conclusion of equal time because there are no contra-indicators. One gets to equal time because it is positively indicated for the children in question because it is in their best interests and it is reasonably practicable for them.
Section 65DAA(1) uses the word “consider” three times. The first two times each have a discrete context: paragraph (a) relating to best interests, and paragraph (b) relating to reasonable practicability. The third use of the word “consider” is significant. Appearing as it does in paragraph (c) it is clear that the legislation intend there to be a further consideration process even after there has been consideration of best interests and reasonable practicability. It emphasises the discretionary nature of the decision making process.
The Full Court in Goode and Goode [2006] FamCA 1346 considered the meaning to be given to the word “consider” at paragraph 64 of its judgment:
64. While these observations of the Federal Court are of some assistance, we do not think that the meaning of “consider”, when applied to consideration of administrative law as in the cases referred to, is entirely apposite to the meaning of the word in s 65DAA. This is so because the juxtaposition of ss 65DAA(1)(a), 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA(1)(a), being the best interests of the child, and s 65DAA(1)(b), reasonable practicability, are met. The Se considerations apply to s 65DAA(2).
Even this passage does not, in my opinion, detract from my comments above.
This discussion hopefully demonstrates just how inaccurate and misconceived was the family consultant’s approach in this matter. But does this necessarily mean that the report should receive such little weight as to have no significant influence on the decision I would otherwise make? Mr Millar’s strong submission, it should be recalled, is that the family consultant’s conclusion was based on things which are simply observation and assessment and not based solely on his understanding of the legislation. Is Mr Millar’s submission supported by the report itself? On the face of the report the answer is clearly yes, but this is because the family consultant does not articulate the view in the report that his approach was, in effect: why shouldn’t there be equal shared time? The mother’s perception is that it was the family consultant’s un-stated premise that ultimately is reflected in his recommendations.
For all practical purposes, I treat the family report as being a report prepared by an expert. Rule 15.43 Family Law Rules defines expert in the following terms:
Expert means an independent person who has relevant specialised knowledge based on the person’s training, study or experience.
I acknowledge that part 15.5 Family Law Rules does not apply to the family report in this case: r.15.4(1)(d), but that does not detract from the usefulness of the definition. I also acknowledge that Wood SJ in BBT and JMT (1980) FLC 90-809 at page 75099 took a different view, suggesting that an officer who prepares a family report pursuant to the Family Law Act is not an expert. Whether the family report is, or is not, a report prepared by an expert, in my view it ought to be treated for all purposes of admissibility and weight as if it were expert evidence.
In this case, Ms Cleary’s submission was not that the report should be excluded, but that the problems with the report should result in it being accorded minimal weight. This means that this case is materially different to the recent decision of Housego FM in Suttie & Suttie [2007] FMCA fam 175. In that case the application before the court was for the family report not to be received into evidence at all based on the principles set out in Makita Australia Pty Ltd v Sproules [2001] NSWCA 305. Her honour found that even that even though the rules of evidence did not apply to the proceedings before her save to the extent provided for in s.69Z of the Act, principles of fairness did apply: South Western Area Health Service v Edmonds [2007] NSWCA 16 (particularly paragraphs 127 to 131). Applying principles of fairness her honour excluded the family report in its entirety as it lacked “any probative value”.
It seems to me that principles of fairness, in the context of proceedings that involve the welfare of children and the rights and obligations of parents, may often coincide or approximate with common law standards of admissibility and weight, subject only to the terms of any express statutory provision. Indeed I note the comments of McColl JA (with whom, Giles and Tobias JJA agreed) in South Western Area Health Service v Edmonds [2007] NSWCA 16 at paragraph 131 relating to:
The desirability of experts reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value.
It should be noted that McColl JA was speaking in the context of proceedings where the rules of evidence did not apply.
It is appropriate to consider therefore, the application of common law standards of admissibility and weight of experts reports to the family report in this case. The judgment of Heydon JA (as he then was) in Makita Australia Pty Ltd v Sproules [2001] NSWCA 305 contains a comprehensive summary of this common law. For example, paragraph 60 of his Honour’s judgment states:
Davie's case is not to be read as reflecting only a principle peculiar to Scottish law. Before it was decided, in R v Jenkins; ex parte Morrison [1949] VLR 277 at 303, Fullagar J said that an expert witness must "explain the basis of theory or experience" upon which the conclusions stated are supposed to rest, for, as Sir Owen Dixon said in an extra-judicial address quoted by Fullagar J, "Courts cannot be expected to act upon opinions the basis of which is unexplained".
On the facts of the present case the family report was prepared (at least in part) on a basis that was not explained until cross examination, at which point in time it became quite apparent that it was a flawed basis.
At paragraph 64 of Makita Australia Pty Ltd v Sproules [2001] NSWCA 305 Heydon JA states:
The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.
On the facts of this case, the family consultant was under the mistaken assumption that, in effect, amendments to the Family Law Act created a rebuttable presumption of equal time. I regard this as a mistaken assumption of fact (i.e. he believed it to be the law), rather than a mistake of law, but even if it were the latter it would make no difference in my mind: see paragraph 77 of Makita Australia Pty Ltd v Sproules[2] and the extract from Eggleston: “an expert must not express an opinion if to do so would involve un-stated assumptions as to either disputed facts or propositions of law.”
[2] [2001] NSWCA 305
Moreover, it was fundamentally wrong for the family report to have been prepared as the basis of an unarticulated assumption. It should not have been left to the wife’s counsel to elicit this mistaken assumption in cross-examination: paragraph 69 of Makita Australia Pty Ltd v Sproule[3] extracting a passage from R v Turner [1975] QB 834 at 840 per Lawton LJ. In R v Turner [1975] QB 834 at 840 Lawton LJ said:
Before a court can assess the value of an opinion it must know the facts upon which it is based. If the expert has been misinformed about the facts or has taken irrelevant facts into consideration or has omitted to consider relevant ones, the opinion is likely to be valueless. In our judgment, counsel calling an expert should in examination in chief ask his witness to state the facts upon which his opinion is based. It is wrong to leave the other side to elicit the facts by cross-examination.
[3] ibid
Having regard to that common law, I accept Ms Cleary’s submission that it is not a helpful report and it should receive limited weight. Specifically his recommendations should receive limited weight. But even Ms Cleary acknowledged that Mr H’s observations were significant matters of assistance to the Court. And even Ms Cleary did not recommend that I should order a fresh report. This is a case where I need to apply the law having regard to the evidence, giving the family report limited weight, but not ignoring it.
S's Time with His Parents
All of the evidence in this case indicates that S is well-loved by his parents, and more than adequately provided for in terms of the care he receives from each of them. As Mr H noted, there was no evidence that S experienced any distress while in the care of either parent, and neither parent made any significant criticism of the other parent's care. This was apparent from the evidence of both the mother and the father, as well as Mr H's observations.
It was also acknowledged by the father that the mother has been S's primary carer since separation. And whilst there is a dispute about the extent to which the father was involved in S's care before separation, even the mother does not dispute that the father was so involved - it is only a question of degree. I do not need to make a finding about the extent to which the father was involved in S's care giving prior to separation.
So far as the future care of S is concerned, and determining how much time he will spend with each parent, I think it is more important to understand what the mother's concerns were in relation to the father's proposal. Furthermore, insofar as the issue of S’s time with his father is in fact related to his overnight time, it is important to remember that S already spends one night a week with his father.
The father's view about the mother's concerns to his proposal arises out of his perception that the mother is seeking to control and, to a degree, frustrate, his relationship with S. This was not just observed by Mr H, but was apparent from the father's affidavit and his evidence. It was clearly part of the father's case that the mother had intended to restrict his time with S, was controlling, and that there was an element of "pay back". Each of these propositions was put to the mother in cross-examination, but firmly denied by her.
The mother's concerns about the father's proposal were summarised by Ms Cleary in her closing submissions. She had, and continues to have, a firmly held concern that the father is unprepared to undertake the extent of shared parenting that he has sought and thus lacks the capacity to do so, particularly, having regard to his work as a barrister. Even the husband’s participation in poker tournaments was advanced as an example of how he was unprepared to undertake shared parenting.
Ms Cleary's submission in this regard is that the cross-examination of the father indicates that he really is unprepared to meet the exigencies of parenthood and that his proposals to cope with the myriad circumstances that arise out of the responsibilities of parenthood are unrealistic. For example, in cross-examination, the father conceded that there would be times when he would be delayed in Court, a proposition that the father had to admit, and which he freely did admit.
The father gave evidence in cross-examination that if he were delayed in a context where, for example, he was otherwise to pick S up from his mother, or from childcare, he would involve the assistance of the mother, or his family. He gave evidence that he will be able to rearrange his practice at the Sydney Bar so that he does not have conferences after Court on the days when S is with him, does not work during school holidays, and will deal with emergencies by relying on the mother, members of his family, or other resources, including professional colleagues, depending on the specific emergency that arises.
Having regard the father's own evidence about how he would deal with the exigencies of parenthood, Ms Cleary submitted that it was unrealistic and, in any event, often dependent upon the mother and other family members to meet needs as they arose. All of this, stressed Ms Cleary, needs to be recognised in the clear context of the difficulties in communication between the mother and the father that each of them acknowledge, and was observed by the family consultant.
Drawing this together, therefore, Ms Cleary submitted the mother's concern about the father's proposal was that he was unprepared, and the proposals were unrealistic having regard to his work and that, in fact, her concerns remain substantiated after the father's evidence was given.
The other concern of the mother was, as submitted by her counsel, that the father's proposal cuts across all the existing arrangements in relation to S that had been carefully implemented in a timely fashion and carefully monitored. In other words, the father's proposal involved not just too much change, but for it to occur too quickly.
Ms Cleary strongly submitted that there was no evidence from which I could conclude that the mother was seeking to control, but rather that the mother had adopted a "careful, measured, anxious approach to raising S since he was born." When I suggested to Ms Cleary, in closing submissions, that the mother's proposals were, perhaps, "too careful" Ms Cleary made the frank concession (as it was appropriate for counsel to do) that it was probably too conservative but that nonetheless the mother was being "genuine, but overprotective."
The mother's evidence indicates that throughout S's life she has sought advice and assistance from professional advisors and that she has had regard to that advice in structuring S's time with his father. Mr Millar's cross-examination of the mother did lead me to think that there was a strange dissonance between the mother accepting the advice of many people with whom she had discussed parenting issues, including material she had read, even though those people had not met and assessed the family, but that she could not accept the recommendations of Mr H who had met and assessed the family, even taking into account her concerns about his report.
In cross-examination she expressed the view that Mr H's recommendations were "extreme". The mother's concerns about Mr H's report however was also very much linked to the submission about the weight I should give to the report, which is discussed above.
The mother was robustly cross-examined about certain events alleged to have happened by the father, and deposed by him in his affidavit, particularly, at paragraphs 72 and 73. If the father's evidence could be accepted as regards these two paragraphs, it might have been open for me to conclude that at least one of the mother's motives in not allowing him more time with S was the desire to control. However, she firmly denied that the conversations attributed to her took place in the terms so attributed.
All of the above leads me to conclude that the mother had genuine concerns about increasing the amount of S's time with his father. Those concerns were not based on the desire to control or restrict time, or to pay back, but were concerns in relation to how S would cope. Her concerns were based on what she had read and heard and her own subjective concerns.
I find that on the totality of the evidence, there was little objective basis for her concerns. The fact is that no independent evaluation of the family had taken place before Mr H's report.
She was, indeed, genuine but over protective in the past and the issue I have to determine now is whether those concerns have any basis as regards the future.
As I indicated above, both parents, and Mr H agree there are substantial communication difficulties between the parents. In his evidence Mr H emphasised the importance of parents being able to communicate, in order to have a successful shared parenting arrangement. I formed the impression that Mr H was rather surprised that two parents, neither of whom were critical of the other or of the care provided by the other, still did not communicate well.
He agreed in examination by Ms Cleary, counsel for the mother, that his recommendations depended on not only S coping with the changes, but the level of communication improving. Mr H recommended the parties attend a Keeping Contact program as a way of possibly assisting them with their communication difficulties. He also suggested that in order to deal with concerns about how S will cope with the implementation of his recommendations, the parents might be able to enlist the assistance of a local child and family health worker in this regard.
Indeed, it seems from the evidence of both the mother and the father that they would consider Jill Burrett appropriate in this role, as they have had previous meetings with her in the context with their relationship issues. Mr H admitted that he was optimistic that the parents would resolve their communication issues, and he also acknowledged that he was not aware of the extent to which both parents had attended counselling and sought professional assistance in relation to these issues in the past. Based on my observations and the evidence overall, I believe that it is optimistic to believe that these communication problems can be easily resolved.
The communication difficulties between the parents was expressly referred to in the family report and was then carefully explored in the examination of Mr H by both counsel. At the end of Mr H's examination, I formed the impression that notwithstanding the communication issues he adhered to his recommendations subject to the parties attending a Keeping Contact program and/or meeting with someone like JB, both in the context of addressing their communication problems and being able to monitor how S copes with a change to the shared parenting arrangement.
I am concerned that Mr H’s recommendations may have been overly influenced by his mistaken assumptions about equal time, and did not adequately factor in the communication difficulties experienced by S’s parents.
Another concern of the mother is that, in effect, the father does not have the capacity to implement the shared care arrangement that he proposes in a way which is in S's best interests. The primary concern in this regard is that the very nature of his work as a barrister creates structural problems that makes it hard to be a parent for S. Ms Cleary's submission in this regard was that having regard to the father's work, in the absence of measured change as took place for the mother, he will simply not be able to deal with the practical exigencies of parenthood.
I believe he can. His evidence is that on the days when S is living with him, he will not schedule conferences. When school holidays becomes an issue, the father's evidence is that he will not take briefs. If urgent situations arise he will be able to rely on others, including his mother. Her affidavit indicates the strength of her relationship with her son and grandson, S, the extent of her involvement with them and her willingness and availability to assist her son and Ms B in any way possible in their care of S. I do not doubt for one moment that parenting presents special challenges for barristers, litigation solicitors and, indeed, judicial officers. As for the father’s participation in the game of poker, the evidence does not lead me to have any concerns at all.
In this case, however, both parents impress me with the love of their child, their commitment to him, and the absence of criticism of their parenting capacity. There is no reason to doubt the father's evidence that he will make the necessary changes so that he can be available to care for his son.
Ms Cleary urged me in her closing submissions to take into consideration the fact that the father's position changed as a result of the family report. Putting aside the proposal for the first three months after the making of these orders, for the period up until S goes to school, the father proposes each alternate weekend (three nights) plus every Tuesday and Wednesday night (four nights), meaning equal shared care. In his original application, however, it was each alternate weekend (three nights) plus each Tuesday and Thursday (four nights) meaning seven nights, or equal shared care. The only relevant difference, therefore, is that Tuesday night and Thursday night has become Tuesday night and Wednesday night, a matter actually commented on and recommended by Mr H. Accordingly, I read nothing into the change of position of the father after the family report was prepared. Indeed, it seems entirely appropriate under the circumstances.
Another concern of the mother is demonstrated by the obvious contrast in the proposals as regards how quickly an arrangement is implemented by which S spends more time with his father. That which the father proposes for the first three months is what the mother proposes when S attends school. Ms Cleary, on behalf of the mother, pointed to how different was the father's proposal, and the family consultant's recommendation as compared to the existing arrangement which clearly seemed to be working well for S.
The impact of these changes on S is something that I needed to be concerned about and in respect of which I needed to move cautiously. One of Ms Cleary's strongest criticisms of the family report is that he had not adequately analysed or even considered the impact of these changes on S, having regard to his age. In Ms Cleary's examination of Mr H, the mother's preference for a slower progression in terms of the time that S spends with his father was squarely put to him. He was clearly aware of the mother's concerns in the context of his report (e.g. paragraph 21).
Whilst acknowledging that there are different views, Mr H remained of the view that there was no evidence that S at this age would be unduly distressed by the amount of time his father was proposing, subject to the communication issues already discussed above, and subject to some monitoring to see that S is coping, also as discussed above. Thus, Mr H was clearly aware of the mother's concern and nonetheless, subject of the matters referred to above, still made the recommendations. I cannot entirely discount his statement about a child of S’s age being able to cope with the time away from his mother. It is not a statement that is necessarily undermined by any mistaken view of the law.
Whilst acknowledging that S's relationship with his father had developed satisfactorily on the basis of the current level of time spent with him, Mr H stated in his examination that the relationship between father and son would be enhanced by more time. As to why it should be equal time, however, his evidence was that it was appropriate. I would have been assisted by a fuller explanation, even if it was by reference to social science research.
This is another point at which I am concerned that Mr H’s views may have been overly influenced by a mistaken assumption about equal time, and did not explain why it was in S’s best interests to progress to equal time as quickly as he was recommending. Clearly he did have concerns about the mother's proposal suggesting that it was a slow progression and that there was no reason not to have overnights during the week. Mr H was clearly concerned that the mother's proposal provided a rate of progression that was far too slow, and I agree with Mr H that this is the case, having regard to all the evidence about the relationship S enjoys with both parents and the absence of serious criticism about parenting capacity.
Conclusion about time
In deciding what parenting order to make in a case where I put little weight on the family consultants recommendations, but still rely on the evidence of his observations, as well as that of the parties, I believe it is very important to look at the position the mother adopted in these proceedings, and from that subjective position strive to ascertain what is objectively in S’s best interests. This is not an exercise undertaken in a vacuum. There is much evidence before me about this family including observations from the family consultant.
The mother seeks orders that S continues to spend time with his father in accordance with the interim order (Tuesday and Thursday afternoons weekly, alternating Friday and Saturday nights i.e. two nights per fortnight) until he turns three on 5 February 2008. Thereafter she proposes that until S commences school, S’s time with his father extend to each alternate weekend (Friday and Saturday nights i.e. still two nights per fortnight) plus three block periods annually of four nights. Thereafter once S commences school, each alternate weekend (Friday and Saturday nights i.e. still 2 nights per fortnight) extended afternoon/evening (but not night) time on Tuesdays and Thursdays, and half the school holidays.
The evidence and my findings indicate that:
i)S is coping well with the current arrangements
ii)he has a good relationship with each of his parents;
iii)there are no issues whatsoever about his current health and welfare;
iv)there are no concerns about the capacity of either parent to provide for S’s needs even taking into account the father’s profession.
v)subject to one matter I will discuss below, both equal time and substantial and significant time are reasonably practicable for the purposes of s.65DAA(5);
vi)there are no issues about the willingness of each parent to facilitate a continuing relationship between the other parent and S;
vii)there are no issues about parental attitudes or family violence;
viii)the mother is over protective of the child;
ix)there are communication difficulties as between the parents.
From this factual matrix I must consider what time sharing arrangement is in S’s best interests. In my opinion, based on all the evidence, S is a happy, well adjusted resilient and much loved little boy. He seems not only to have coped with the changes that have occurred in his life, but thrived. To quote the personal observations of the family consultant S “was noted to be a relaxed apparently happy child who exhibited no anxieties in moving freely between his parents. He appeared to enjoy the attention of both of his parents and appeared unaware of any tensions between them”. Moreover, S “is loved by both his parents, and, it would appear, loves them in return. There was no evidence that he experienced any distress while in the care of either parent” (paragraph 19). Based on these observations I find that there are no attachment or separation issues in relation to S, and that he is developing normally.
In these circumstances a slower progression to equal time is in S’s best interests. When I say slower, I mean in comparison to that proposed by the family consultant who may well have felt himself compelled to reach a conclusion of equal time because of a misconceived understanding of the law. In the circumstances I will order that equal time commence from when S goes to school. In the meanwhile, there will be an increase in time as set out in my orders.
Issues of reasonable practicability
Mr Millar, on behalf of the father, submitted that there was no evidence indicating that equal time was not reasonably practicable. I raised with both counsel only one concern that I had in that regard. Section 65DAA(5)(b) refers to a parent's "capacity":
65DAA(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
The concern I raised was that while I was satisfied that the mother would abide by any order made by this Court I was not sure whether she would cope, in the emotional sense, with orders providing for time with S's father about which she has held such genuine concerns for such a long period of time. That is, I was concerned about the mother’s “capacity to implement an arrangement for the child”. It was apparent from the mother's evidence that she was firmly opposed to the father's proposals, and the family consultant's recommendations, and that she genuinely believed that these were not in S's best interests.
The father seemed to believe that were it not for the fact that he had sought and obtained interim orders that enabled him to spend time with S in accordance with the current arrangements, he would not even be spending the current period of time. This confirms his view of the intransigence of the mother's attitude. To offset that, however, is the fact that the current orders were entered into by consent, and the mother has complied with them. Nonetheless, the extent of the change to the shared care arrangement, and the time within which it is intended to be implemented, are clearly both matters of serious concern to the mother and represent an even more fundamental change than that brought about by the consent orders.
In response to this, Mr Millar submitted that s.65DAA(5)(b) deals with reasonable practicability and thus deals with physical, and not psychological concerns such as whether a mother will cope. There is some force in this submission, having regard to the context of the paragraph. There is also the consideration that a parent's capacity to comply with an order is already one of the additional considerations referred to in s.60CC(3). In any event, Mr Millar's submission was that there was no evidence to indicate that the mother fell into the category of "anxious woman/anxious child" case that is sometimes encountered in this Court.
Ms Cleary, on behalf of the mother, suggested that I would be concerned about whether an order for equal time would be reasonably practicable having regard to the anxiety the mother would feel about implementing the arrangement, even though she would doggedly abide by what the orders say. Ms Cleary submitted that s.65DAA(5)(b) could be interpreted to include psychological capacity. On balance whilst it is possible that s.65DAA(5)(b) could be interpreted to mean psychological or emotional capacity, this is a matter that is already covered by the additional considerations in s.60CC(3)(c) and (f) even though slightly different language is used.
On the facts of this case, however, I agree with Mr Millar's submission. Even if I might have concerns about how the mother might cope, she gave no evidence in this regard other than a clear indication that she would abide by any order of the Court.
Name
The issue of S's name, like the issues of religion and school, were not matters that either parent raised with the family consultant. The order the mother seeks is Order 12 in the following terms:
12. That in relation to the Child’s name:
(a) That the father and the mother will forthwith do all things necessary, including signing all documents to enable the Department of Births, Deaths and Marriages (NSW) to amend the child’s birth certificate such that “B” will be added as an additional middle name, and the child’s name will therefore be registered as “S P B C” on his birth certificate.
(b) That the father and the mother shall at all times ensure both of S’s middle names “P B” are included on all documents and certificates upon which middle names are to be inserted.
It was clearly an issue raised late in the context of these proceedings. In any event, the effect of an order in terms of that sought by the mother would be for S to have an additional middle name. It is not, therefore, the mother's proposal to change his surname, even by introduction a hyphenated surname.
The mother's evidence is that she wanted to include her surname in S's name so that it becomes a connection to her and her family. She absolutely refuted the suggestion that it was to facilitate, in the future, dropping the surname C. The father's evidence in his affidavit was that he opposed the mother's request, initially because she did not provide any reason, but also because it could cause S confusion, particularly, as B is a surname, not a middle name. So far as the father was concerned, he could not see any reason why it would be good to change the name. He admitted that he had a fear that if he agreed to the inclusion of B in S's name, that at sometime the surname C will not continue to be used.
The authorities in relation to change of surname are quite well known. The leading case is the Full Court decision in Chapman v Palmer (1978) FLC 90-510 at 77674-6. Another useful decision is the decision of Connor J in Beach v Stemmler (1979) 90 FLC 92.As the Full Court stated in Chapman v Palmer:
The guiding principle is that the welfare of the child is the paramount consideration. It must stand above the wishes or proprietary interest of the parents.”
The court later summarised the relevant factors in these terms:-
(a) the welfare of the child is the paramount consideration.
(b) the short and long-term effects of any change in the child’s surname.
(c) any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d) any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e) the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during marriage.
(f) the effect of frequent or random changes of name.
The inclusion of the name “B” as another middle name will, in my opinion, strengthen S’s connection to his mother and his mother’s family without causing confusion or undermining his sense of identity with his father. I am satisfied, therefore, that it is in his best interests to have the additional middle name “B”.
Religion
No order was sought by the father in this regard. The mother seeks an order in these terms:
a)The father is restrained from causing or allowing the child to take part in any sacramental celebrations or receive any sacraments of the Catholic faith including but not limited to Baptism or Confirmation unless the mother firstly consents in writing.
b)The mother is restrained from causing or allowing the child from having a Bar Mitzvah unless the father firstly consents in writing.
c)The Court further notes that nothing in these orders prohibits or prevents:
i)The father taking the child to regular Catholic events or observances such as Sunday mass or seasonal celebrations;
ii)The mother taking the child to regular Jewish events or observances such as specific religious meals, temple or seasonal celebrations.
The father's evidence about this issue was contained at paragraph 108 -110 of his affidavit. The mother's evidence in this regard is set out at paragraph 112 - 115 of her affidavit. She is Jewish and he is Catholic. In the evidence they agreed that they began to discuss the issue of religion even before S was born and consulted a counsellor to discuss these issues. The evidence of the mother and father about the conversations that they had about S's religious upbringing during their relationship conflicts. The cross-examination of the parties does not assist me to resolve the conflicting evidence in this regard.
The mother is opposed to the father baptising S in the Catholic faith because of her belief that it then stops him from being involved in another religion and, for example, prevents S going through a bar mitzvah. In the father's cross-examination on this topic, his evidence was that they had agreed that he should be exposed to both the Jewish and Catholic faith and that he wanted S to have an opportunity to be baptised. Indeed, the father had no opposition to S going through a bar mitzvah.
This is a difficult issue. I do not have enough evidence to make a decision. I would in any event be reluctant to make an order in terms of that sought by the mother. I doubt it can be enforced. Even if it were contravened it would be almost impossible to fashion an appropriate sanction. There are some matters of parental responsibility that are simply best left to parents to decide. This is one of those issues where, on the facts of this case, law should not intervene. The mother who is Jewish, and the father who is Catholic, might consider for themselves the words of an eminent Mormon family law scholar:
Some advocates of children’s rights manifest the lingering hubris of the belief in the infinite and invincible capacity of the law to do good. They see law as a secular Messiah, a cure all for every social ill, a big yellow social bulldozer that can shove away the old problems and build new temples of goodness. But rights and relationships are very different things. It is troubling to try to define relationships between parent and child in terms that suggest separation, individualism, boundaries, legalism, lawyers, courts, lawsuits, and forced compliance.[4]
[4] Lynn D Wardle “The Use and Abuse of Rights Rhetoric: The Constitutional Rights of Children”, Loyola University Law Journal vol 27 p332
Perhaps it is not just advocates of children’s rights who need to reconsider the view that law somehow has the answer to all the issues that might arise in relation to children. Perhaps many parents who have conflicts about their children also need to recognise the limits of family law.
I am confident that S’s parents, both of whom are highly intelligent and articulate, and who love him very much, are capable of resolving this issue for themselves. It is not in S’s best interests for me to make this decision in terms of the orders sought.
School
The order sought by the father in relation to schooling is order 7. He simply seeks an order that the parties will consult with each other about school, and if they cannot agree, they will go to counselling. The mother's order in relation to school is found at 10(c) and it provides that the parents shall:
10(c) Consult with the other parent in relation to the selection of schooling for the child provided neither parent shall enrol the child in a boarding school without the consent of the other parent firstly had in writing. FURTHER THE COURT NOTES the mother’s position that she does not have the capacity to contribute to fees of a private school.
The father's evidence about this issue at paragraph 111 of his affidavit. The mother's evidence is found at paragraphs 142 - 144. They both appear willing to consult with each other, but the mother is opposed to a private school, mainly because of the expense associated with it. She is also opposed to S attending a religious school.
I do not believe it is appropriate to make orders in relation to S's schooling at this point in time. He is only two years old. Both parents agree, in principle, to consultation and they will be in a far better position to assess S's needs, and their own capacity to provide his educational needs, close to the time that he needs to go to school. I propose to make a notation to my orders that simply reflect the orders sought by the parents in these proceedings.
Conclusions and Orders
Having regard to all of the matters set out above, I am satisfied that the evidence indicates that an equal shared care parenting arrangement is in the best interest of S, and is reasonably practicable, subject only to the transition period and other conditions discussed above. The orders I make will reflect this.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 31 July 2007
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