Calkin and Calkin
[2009] FMCAfam 241
•20 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CALKIN & CALKIN | [2009] FMCAfam 241 |
| FAMILY LAW – Parenting – spends time with – willingness and capacity of each parent to promote a close and continuing relationship with the other parent – child’s views – parental involvement with pornography and possible risk to child – child as peacemaker. |
| Family Law Act 1975, Part VII, ss.60B, 60B (1), (1)(b), (2), (2)(b), 61DA, 60CC (3), (3)(c), (f), (g), (i), (j), (4), (4A), 65DAA, 65DAA (1), (2) |
| Re Andrew (1996) 132 FLR 118; (1996) 20 Fam LR 538; (1996) FLC ¶92-692 R. Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation,” (2007) 29 Sydney Law Review 131 M. Nussbaum, Hiding from Humanity: Disgust, Shame and the Law, (Princeton: Princeton University Press, 2004) |
| Applicant: | MR CALKIN |
| Respondent: | MS CALKIN |
| File Number: | CAC 1898 of 2007 |
| Judgment of: | Neville FM |
| Hearing dates: | 7 July, 24 November 2008 |
| Date of Last Submission: | 24 November 2008 |
| Delivered at: | Canberra |
| Delivered on: | 20 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Godtschalk |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: | Ms Rees (7 July 2008) Ms Tonkin (24 November 2008) |
| Solicitors for the Respondent: | Farrar Gesini & Dunn (July 2008) Lessli Strong & Associates (November 2008) |
ORDERS
UNTIL FURTHER ORDER, IT IS ORDERED THAT:
The Mother shall have sole parental responsibility for the [X] born in 1998.
During the course of Order 1 above, the Mother is to consult with and to keep advised the Father regarding major, long-term issues (as defined in the Family Law Act 1975) in relation to [X], but not limited to:
(a)Selection of schools;
(b)Medical treatment to be administered to the child, including examinations, operations, medical treatment, dental and orthodontic treatment, speech therapy and physiotherapy; and
(c)The emotional development and wellbeing of the child including attendance by them upon any counsellor, psychologist or psychiatrist.
Each parent will have responsibility for making decisions in relation to the day-to-day care of [X] while she is in their care.
[X] shall live with her mother.
The Father shall spend time with [X] as follows:
(a)For a period of two months from the date of these Orders:
(i)Each alternate weekend from 4.00pm Saturday until
12 noon Sunday; and(ii)Each Wednesday evening from after school until 7.00pm.
(b)After a period of two months from the date of these Orders:
(i)Each alternate weekend from 4.00pm Saturday until 4.00pm Sunday; and
(ii)Each Wednesday evening from after school until 7.00pm.
(c)After a period of 4 months from the date of these Orders:
(i)Each alternate weekend from after school on Friday until 4.00pm Sunday; and
(ii)Each Wednesday evening from after school until 7.00pm.
(d)After a period of 6 months from the date of these Orders:
(i)Each alternate weekend from after school on Friday until before school on Monday; and
(ii)Each Wednesday evening from after school until 7.00pm.
(e)After a period of 8 months from the date of these Orders:
(i)Each alternate weekend from after school on Friday until before school on Monday; and
(ii)Every Wednesday night, from after school on Wednesday until before school on Thursday.
During the September/October 2009 school holiday period, Order 5 above is to be suspended and the Father shall spend time with [X] for a four day (and three nights) block period in one week, times and dates to be agreed between the parties, but failing agreement, from 9.00am on the Friday of the first week of the holidays until 4.00pm on the following Monday.
During the December 2009/January 2010 school holiday period, Order 5 above is suspended and the parents shall spend time with [X] on a week-about basis, or otherwise as agreed, but so as to share the holidays equally.
If it is not a school day the parties shall meet for the purposes of changeover at an agreed half-way point between their two residences and failing agreement inside the [C] Shopping Centre (outside Woolworths), otherwise the Father will collect and deliver [X] to her school at the commencement and conclusion of his time with her.
Unless otherwise agreed to between the parties, notwithstanding the above Orders, [X] shall spend time with her parents as follows:
(a)On Mother’s Day from 9.00am to 5.00pm with the Mother if [X] is not otherwise in the Mother’s care that day;
(b)On Father’s Day from 9.00 am to 5.00pm with the Father if [X] is not otherwise in the Father’s care that day;
(c)On [X]’s birthday, as follows:
(i)In the event [X]’s birthday falls over a weekend, with the parent [X] is not otherwise spending time with pursuant to these Orders, from 6.00pm on the evening immediately preceding [X]’s birthday until noon on [X]’s birthday;
(ii)In the event [X]’s birthday falls on a weekday, from 5.00pm to 8.00pm with the parent [X] is not otherwise spending time with pursuant to these Orders.
(d)On the Father’s and Mother’s birthdays from 5.00pm to 8.00pm with the parent celebrating his/her birthday if [X] is not otherwise in that parent's care.
(e)On Christmas Day, with the parent with whom she is not living from 5.00pm Christmas Day until 5.00pm Boxing Day.
The parties shall each do all things to enable [X] to communicate by telephone with the parent with whom she is not residing between the hours of 7.00pm and 7.30pm each Sunday and on any occasion requested by [X], with [X] to initiate the call. Within seven (7) days of the date of these orders, each party shall provide the other with a mobile telephone number so that the party may contact [X] directly.
Within seven (7) days of the making of these orders, each party shall advise the other of their residential address and shall advise the other parent of any changes in this regard within seven (7) days of any such change.
The parties are not to approach within 100 metres of the other party’s residence, unless it relates to a medical or other emergency involving [X].
Unless otherwise agreed, the parties are to communicate by the following means:
(a)Email;
(b)Text message;
(c)By way of communication book which is to be maintained by the parties and handed over at each changeover; and
(d)By telephone only if there is an emergency.
The parties are to do all such acts and things as may be necessary to ensure that each of them receive, at their own expenses, copies of all school newsletters, school reports, school photographs and other material sent to parents from [X]’s school.
Each parent is at liberty to attend any extra-curricular activity, sporting or school event involving [X].
Each parent shall immediately inform the other of any health issues relating to [X] while in that parent’s care, including any emergencies, medical problems or illnesses suffered by [X] as well as any medication prescribed for [X].
The parties are at liberty to travel within Australia with [X] during the time each are spending with [X] provided however that the other parent is informed of the contact details including a telephone contact and the address for [X] during the time that [X] is outside of the Australian Capital Territory.
The parties each be and are hereby restrained by themselves and by their servants and agents from:
(a)showing or reading to [X] any solicitor’s letter or court document prepared as part of these proceedings; or
(b)discussing these proceedings with [X] or in the presence or hearing of [X] and ensuring others do not do so either;
(c)monitoring or being present during any telephone call that [X] has with the other parent;
(d)denigrating the other parent to or within the hearing of [X], and ensuring others do not do so either.
The Father is to secure all pornographic material in his possession or control in a locked place where [X] cannot locate or access that material.
The Father shall destroy all existing copies (if any) of pornographic material involving Ms Calkin in his possession or control, and file a written undertaking to the Court within 21 days of these Orders, confirming the destruction of any and all remaining material involving Ms Calkin.
The parties attend to one or all of the following things recommended by Ms Blanch, with written evidence of their attendance at any programs to be provided to the Court:
(a)attending a parenting orders program;
(b)attending mediation specifically to develop the parameters of a businesslike co-parenting relationship to prepare for the possibility of shared parental responsibility;
(c)attending a step-parenting education course or seminar;
(d)reading relevant books or information on applicable Internet websites about children’s developmental needs and post-separation parenting.
It is requested that Ms Blanch undertake a review of the care arrangements in the form of a further reportable family conference, to take place in December 2009, with a further report to be released in January 2010, prior to the commencement of the 2010 school year.
These Orders be reviewed upon the release of the further family report, at a date to be advised by the Court.
It is requested that Ms Blanch or [X]’s counsellor explain and discuss these Orders with [X].
AND IT IS NOTED THAT:
(a)School holiday periods are defined as commencing after school on the last day of term and concluding before school on the first day of the following term.
(b)The weekend time that [X] has spent with her father has coincided with the time that the Father’s partner Ms D has had the care of her children. It is the Father’s intention to continue the arrangement whereby the time he spends with [X] on weekends and during school holidays is in line with the time that Ms D has the care of her children. The Father will keep the Mother informed of these arrangements, including in relation to the recommencement of his fortnightly time with [X] after school holiday periods and the Mother shall facilitate these arrangements.
IT IS NOTED that publication of this judgment under the pseudonym Calkin & Calkin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1898 of 2007
| MR CALKIN |
Applicant
And
| MS CALKIN |
Respondent
REASONS FOR JUDGMENT
Introduction
In the course of her updated or second Family Report (dated
14th November 2008), Ms Blanch stated with her usual economy and perception the following in relation to 10 (going on 11) year old [X]’s parents:[1]
The most striking aspect of this updated conference assessment was the disparity between Mr and Ms Calkin in emotional presentation as well as their viewpoints about this dispute. Both parents referred to Dr M’s report, particularly his feedback to them about supporting their daughter’s needs; and they each expressed regret for the necessity of the Court proceedings to date. Despite these positive indications, it became abundantly clear that Mr and Ms Calkin inhabit utterly different worlds, emotionally, with little prospect of mutual understanding in the foreseeable future, if ever. Ms Calkin mentioned that she and
Mr Calkin are disputing child support at the SSAT, indicating a high level of conflict continuing between them. They each naturally make an emotional claim upon [X]; yet she must find a way to exist and hopefully flourish in her parents’ two worlds, if they cannot build a bridge for her.[1] Family Report, 14th November 2008. The Dr M referred to by Ms Blanch is a psychiatrist in Sydney. He was an independent expert who gave evidence in these proceedings both via Report (dated 24th April 2008) and by oral evidence. The two reports of Ms Blanch and the report of Dr M were formally admitted into evidence. See Transcript (24th November 2008) p.32.
I agree with Ms Blanch’s observations and assessment.[2]
[2] I should note at the outset that I have already delivered a judgment in these proceedings, Calkin & Calkin [2007] FMCAfam 1013, in November 2007. In that case I discussed a number of the allegations and areas of dispute between the parties. Although not absolved from dealing with relevant issues in this judgment, it is important to have regard to what I said there at least as a point of reference, but much more as well. It might be stated, very summarily, that since that interim judgment there has been important movement on the part of both Mr Calkin and [X], but very little on the part of Ms Calkin. I explain how, why and in what respects in the course of this judgment.
Ms Calkin does not seek to exclude Mr Calkin from [X]’s life. The issue in the case is not whether Mr Calkin should spend time with his daughter, but the extent to which, and the circumstances under which, he does so. There is no question as to the capacity of both parents to provide for the needs of their only daughter, although it is clear that, to some extent, there is some adjustment needed by both parents in this regard. It is also patently clear that [X] is very closely aligned with her Mother. To some degree, this has been caused by some inappropriate and insensitive action by Mr Calkin. However, it is also clear, that [X]’s extremely strong-willed Mother has not exactly promoted [X]’s relationship with her Father. And as Ms Blanch said, the relationship between the parents can only be described as exceedingly strained. But more of that soon enough.
In my view, this case turns less on the evidence of the parents and rather more on the evidence of Ms Blanch and Dr M. In my view, their evidence is the more determinative as to what, ultimately, should guide the Court. By and large, the evidence of the parties simply confirmed the obvious bitterness, hurt and much else besides between them, especially on the part of Ms Calkin. I do not intend undue criticism of her in saying this. In many respects, in my view, she has very good reason to be and to continue to feel utterly devastated, for example, by being pressured by Mr Calkin into participating in making `home pornographic movies.’ Her statement to Dr M that this was the worst thing that she had ever done in her life needs no comment.[3]
Mr Calkin’s actions, including him revealing this course of conduct involving Ms Calkin to her parents, could hardly entitle him to be described as a valorous, life-time companion.[4] That said, Mr Calkin did acknowledge that the latter, at least, was inappropriate and that he should apologise to Ms Calkin’s parents.[5]
[3] Report of Dr M (24th April 2008) par.31.
[4] I dealt with (a) Mr Calkin’s use and collection of pornography at home, (b) kept in a locked drawer, (c) its dire effect should [X] ever see any of it, and (d) his undertaking `without admission’, to ensure that [X] does not have access to it, at [25] of my interim judgment in these proceedings.
[5] See Transcript (7th July 2008) pp.31 ff.
These reasons proceed as follows: first, I outline the orders sought by the parties. Then I deal very briefly with their evidence. Thirdly, I consider the evidence of the experts to whom I have referred, before finally dealing with the resolution of the dispute in the light of relevant authority.
Orders Sought
In their most recent manifestation, the orders sought by each party are as follows. Mr Calkin has taken a much more conservative and realistic approach than had been the case initially when he had sought a shared care arrangement. He now seeks that he and Ms Calkin have equal shared parental responsibility for [X] and that she live with her Mother. Next he proposes a regime whereby his current, very modest time with [X] (alternate Sundays from 9.30am until 5.30pm, and each Wednesday from after school until 7pm) be gradually increased. His proposal would include some over-night time, and half school holidays. The overnight time would be one night, mid-week, and each alternate weekend from after school on Friday until before school on Monday.
For her part, Ms Calkin seeks orders that she have sole parental responsibility for [X], and that [X] live with her Mother. She then seeks orders for a much more regimented and limited time that [X] should spend with her Father. Significantly, Ms Calkin’s orders provide for no overnight time for [X] with her Father.
III. Evidence of the Parties
I have already indicated that as important as the evidence of [X]’s parents is, there are some qualifications to it, particularly what is contained in the reports of Dr M and Ms Blanch, and in the light of their later, oral evidence. As well, I considered some albeit untested evidence when I wrote the interim judgment at the end of 2007. There is also the simple fact that their evidence in July 2008, by effluxion of time and the subsequent developments recorded by “the experts”,[6] became somewhat dated by the time the resumed hearing took place in late November 2008. The summary of the parties’ evidence should therefore be seen in this context.
[6] By the short-hand term “the experts”, as already indicated, I intend to refer to both Dr M and Ms Blanch
Evidence of Mr Calkin: I accept Mr Calkin’s evidence that his relationship with [X] is virtually unable to progress due to the constrained time that he currently spends with her.[7] He also acknowledged in the course of his evidence in July 2008 that some of his communication with [X] had been “offensive, abusive and derogatory.”[8]
[7] Transcript (7th July 2008) p.8.
[8] Transcript (7th July 2008) p.13.
Given what I wrote in the interim judgment concerning his use of pornography and the risks associated with it, particularly for [X], together with Mr Calkin’s acknowledgement of his [continued] use of it, and his confirmation that he had sought, and was continuing to undergo, counselling in relation to a number of issues (particularly his poor communication with Ms Calkin),[9] I do not think that there is much to be gained by rehearsing the evidence over which there is no fundamental contest.[10]
[9] See, for example, Transcript (7th July 2008) pp.9 ff.
[10] Further evidence regarding Mr Calkin’s pornographic tapes involving Ms Calkin, which evidence also highlights the terrible relationship between the parties, is found at Transcript (7th July 2008) pp.25-31.
I take a similar view in relation to the range of graphic instances of the severely fractured relationship between the parties recorded in the material before the Court. To repeat each instance from the range of affidavits, and or treated in cross-examination, would serve no useful purpose and would likely keep open already raw wounds. Moreover, there is no disagreement between the parties that the relationship is utterly devastated. As well, a few more critical matters are addressed by the experts, which I consider below.
Mr Calkin agreed that his communication with and response to [X] had been inappropriate.[11] He also gave evidence in relation to an objection he had lodged with the Child Support Agency over his capacity to continue to pay private school fees. This was more in the context of a discussion about how that information/position might impact on his relationship with [X] and the stability her school provides.[12]
[11] Transcript (7th July 2008) pp.20 ff.
[12] Transcript (7th July 2008) pp.22 & 24.
Evidence of Ms Calkin: The tension in Ms Calkin’s evidence and in her orders sought is both implicit and explicit. It arises out of her categorical agreement, in the course of cross-examination, with the propositions of the importance to [X] that she have “both her mother and her father in her life” and that [X]’s relationship with her Father “needs to be re-established.”[13] All of that is on one side. On the other is the ruptured relationship between Ms Calkin and Mr Calkin and the extremely poor communication between them. Subject to what is said below, both aspects impact on [X]’s relationship with her Father.
[13] Transcript (7th July 2008) p.35. In answer to both proposition, as in a significant range of other responses, Ms Calkin answered with almost military precision, force and formality, “Absolutely, ma’am”, or words to that effect. The “ma’am” referred to was Counsel for Mr Calkin, Ms Godtschalk.
She conceded that, at least as a possibility (but still did so with alacrity), [X]’s relationship with her Father was unlikely to improve if her daughter was constantly made aware of Ms Calkin’s negative views about him.[14] She stated that she encouraged [X] to view her time with her Father as “positive,” and that she does everything she possibly can to promote [X]’s relationship with him.[15]
[14] Transcript (7th July 2008) p.36.
[15] Transcript (7th July 2008) p.37.
I have no reason to doubt the truth of Ms Calkin’s statements to which I have just referred. However, as with other things, her distress and antipathy towards Mr Calkin cannot help but affect, to some degree, [X]’s relationship with her Father, and of course, the capacity of both parents to communicate with each other in relation to [X]’s care and welfare.[16]
[16] There is, of course, significant material that discusses such matters in conflictual relationships. See, for example, R. Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation,” (2007) 29 Sydney Law Review 131; J. McIntosh and R. Chisholm, “Shared Care and Children’s Best Interests In Conflicted Separation: A Cautionary Tale from Current Research,” (2008) 20 Australian Family Lawyer 3-16. Most recently, see the important study of P. Parkinson & J. Cashmore, The Voice of the Child in Family Law Disputes, (Oxford: Oxford University Press, 2008). For a view on some of these issues from the UK, especially parental responsibility, see the collection of essays in J. Bridgeman, H. Keating, C. Lind (eds.), Responsibility, Law and the Family, (Aldershot, UK: Ashgate, 2008).
In answer to a question from the Bench, Ms Calkin conceded that her affidavit should have included material that referred to some positive aspects of Mr Calkin’s parenting. To her credit, she quite readily listed some of those traits.[17]
[17] Transcript (7th July 2008) p.39.
In response to another question from the same source, Ms Calkin confirmed that in seeking an order for sole parental responsibility she was not seeking that that order be “a long-term approach.” That order appeared to be sought, in essence, only for the next six months or so while arrangements between the parties and [X] were `bedded down’, so to speak.[18]
[18] Transcript (7th July 2008) pp.47-48.
She confirmed that it was less the physical violence about which she was concerned (and about which, it should be said, there was not unreasonable contest as to the accuracy of the evidence) than “the level of sexual, verbal and psychological abuse.”[19] Such matters were the subject of comment by Dr M, which are dealt with below. But also, in the course of cross-examination, Ms Calkin confirmed that [X]’s account to Dr M of seeing Mr Calkin strike her Mother was fabricated. Ms Calkin also stated that [X]’s account to Dr M [probably] reflected [X]’s perception of the volume of argument that took place between the parties while they were together.[20]
[19] Transcript (7th July 2008) pp.68-69.
[20] Ibid.
At the conclusion of the evidence of the parties, various proposals were put in relation to Mr Calkin spending time with [X]. It was actually agreed that [X] would undergo confidential counselling.
Evidence of Experts
Dr M provided a detailed written report, dated 24th April 2008. This was supplemented by his oral evidence given on 24th November 2008. In relation to the latter, his evidence was – to a significant degree – dependent on the most recent assessment of the parties by Ms Blanch
Ms Blanch wrote two Reports, dated December 2007 and November 2008. She also gave oral evidence. Because of the sequence of evidence, I will deal with the evidence of the experts in the following order: the Report of Dr M, the November Report of Ms Blanch (in my view it is unnecessary to consider her earlier Report), the oral evidence of Ms Blanch, followed by the oral evidence of Dr M.
Dr M: April 2008 Report: I note the following from his Report. It will be sufficient to set out relevant sections of it, against which his later oral evidence can be helpfully compared.
Observations of the Parties & [X]
21. Mr Calkin indicated that his primary concern was that [X] had a lack of time with her dad. He felt that she was unhappy, given her mother’s dominating behaviour. He emphasised that he was passionate in his desire to have more involvement with his daughter. He disputed my comment that [X] has a primary attachment relationship with her mother, who had been her primary care giver. He reported that he would play and read with her every night and that [X] would rush to the door to great him. He emphasised that he did everything for her. In contrast, the mother did not play with [X] and would yell and discipline her. He did however acknowledge that [X] would go to sleep in her mother’s arms. He expressed concern that [X] no longer called him Dad, referring to him as [first name omitted]. She would say that she hated him and wanted nothing to do with him. He did not view this as her true wishes. When she expressed her frustration with him, one time jabbing scissors into a Pringles container, he simply regarded her as being under the influence of her mother and maternal grandmother.
25. The mother referred to the Family Court proceedings as “highly stressful”. She had seen [X] change a lot over the previous 12 months, becoming more vocal and assertive. She thought that [X] had grown up too quick, as she had been exposed to unnecessary pressure.
26. In describing her experience, the mother had difficulty in expressing the many factors that needed to be taken into account. She was concerned that [X] had witnessed a lot of nastiness. As a mother, she felt that she had no alternative but to leave the house with [X] at the time of separation. She was tearful and stressed in describing this experience.
27. She was concerned by the father’s preoccupation regarding equal access and desire not to have to pay maintenance. She referred to feeling “utterly fatigued” by the Court process. She referred to her detailed notes whilst describing her experience.
31. Ms Calkin tearfully described her accommodation of his preoccupation with pornography. Her participation had made her feel “dirty and disgusting”. She felt constantly pushed by him to participate. She tearfully described her shame with regard to these issues. It had been his wish for her to have sex with a third party and film it. Her participation in this had been “the worst thing I’ve done in my whole life. I’m disgusted having done this”. Prior to their separation, [X] had asked about the locked cupboard containing the pornographic videos. It was her concern that [X] might find a way of accessing this. She had requested that the videos be destroyed, however [Mr Calkin] had been obstructive with regard to this. She had felt unable to discuss these issues with anyone. She described her distress and the confrontations leading up to the couple’s separation.
51. [X] drew an interesting picture depicting her dad, mum and herself, with the family pet in the middle. She connected the figures with lines which described their relationship. The line between herself and her dad was described as “very horrible”. Mum and dad’s relationship was depicted as “so horrible” and her relationship with her mother was “very perfect”. All parties were identified as having a good relationship with “[omitted]”, the family pet. [X] and her mother were depicted nearest each other.
56. [X] understood that during the assessment: “that I get to say what I kinda want to happen. My mum and my dad also get a say. I’m not very happy that my dad gets a say but that’s life!”
60. Currently she was visiting her father every second Sunday and every Wednesday. She complained that “[first name omitted]” would make her do things that she didn’t want to and would feed her leftovers. She complained it was very scary sleeping over, as it was a lot different from what she was used to in the flat. When she would wake up in the middle of the night to go to the bathroom, her “true feelings come out and I feel really upset and miss my mum”.
61. When I asked her to draw a self portrait of how she felt most of the time, she did a series of separate drawings depicting three separate scenarios. At dad’s she felt angry. The speech bubble explained that she hated him because he was so mean and she felt sad because she missed her mum. She also felt miserable because he was so bossy and annoyed that he took other people’s sides rather than her own.
66. She had previously been asked the question about her three wishes. She explained that these would be: “1. I’d wish that I had no time with my dad, only with my mum. 2. To have a really good house with my mum that we think is right for both of us. 3. For my mum to be super happy”.
69. She identified her dad as the most angry in the family but he was very nice when others were around. [X] commented: “When we’re on our own, he gets angry at me for no reason. It’s very hard and confusing”.
74. Her father expressed his love for his daughter and explained that it was not all his fault. [X] repeatedly narrowed her eyes and stared at her father and firmly stated: “Shoosh!” in a highly staged and controlled manner. She commented: “How many times do I have to say it!”
75. Her father tried to discuss their skiing holidays as a family. [X] pushed him away physically when he reached over to touch her. It was evident that she was unwilling to acknowledge any shared positive experiences, despite her father’s prompts. Importantly, it was evident that [X] felt in control of these interactions. There was no evidence that she felt threatened or scared by her father. On the contrary, she strongly expressed her feelings, both verbally and physically, towards him. When her father thoughtfully selected pencils for her to use in her colouring, [X] insisted on using different pencils in an overtly flamboyant gesture.
76. After approximately 10 minutes [X] warmed up to her father’s approaches, allowing him to share a piece of paper. They then drew together. Increasing comfortable interactions were observed. [X] started to select colours for her father to use in his drawing.
79. When I asked if there was anything else that [X] wanted to say, she added: “There are other bad things that happened at the house with [first name omitted]. They’re in the little red book. It’s about the bad things that happened there. I wrote it because if there is a bad thing that happened in the day... my mum and I came up with this idea. I said I wanted to write it down and she suggested she go out and buy a book for me to write in. One day my father bought a recorder to record in my room what I said to my mum on the phone because he said I was a liar”.
Professional Assessment
85. [X] was both observed and reported to have a primary attachment relationship with her mother. A close and positive rapport was observed between them. Both mother and child reported the closeness and importance of this bond. In contrast, the relationship between [X] and her father had been significantly impacted by the conflictual relationship between her parents. It was evident that she had strongly identified with her mother. She spoke consistently in a negative way with regard to her father. Her father acknowledged that this was the current status of their relationship. He regarded the mother’s actions as contributing substantively to this deterioration in the relationship between father and daughter. During the observed interactions between [X] and her father there was evidence of underlying intimacy and a positive relationship, despite this being actively disavowed by [X] and her mother.
86. It was evident that [X] was substantively affected by her mother’s emotional state. [X] was highly aware of how stressed her mother was, given the conflictual relationship between her parents and the current proceedings. It was my observation that there was an ambivalent relationship between [X] and her father. This was seen to be a direct consequence of [X]’s exposure to the parental conflict and differences in parenting style. It was my view that both parents had contributed to the development of this fragile father/daughter relationship. This relationship had deteriorated to such a degree that [X] expressed a consistent wish to have no further relationship with her father. It was her understanding that her mother was entirely supportive of this position. This was of concern.
88. The mother exhibited appropriate attitudes to the responsibilities of parenthood. It was acknowledged that the mother had difficulty in protecting [X] from her own emotional distress regarding her relationship with the father. In turn, this had limited her ability to encourage and facilitate [X]’s contact with her father. The father’s inability to control his hostile response to the mother had also interfered with the stability of his relationship with his daughter.
89. It was my impression that both parents were capable of addressing [X]’s emotional and intellectual needs beyond this key dimension. Appropriate attitudes were identified towards [X]’s developmental needs as expressed by the mother. The father was however seen to be primarily concerned by the obstruction to his relationship with his daughter. The mother was seen to be more empathic and thoughtful regarding her daughter’s experience.
90. The key difficulty experienced by [X] was exposure to the unresolved conflict between her parents and the associated separation anxiety she experienced, missing her mother whilst in her father’s care.
93. At the time of assessment, the mother presented with persistent symptoms of stress. This was consistent with an Adjustment Disorder with Depressed and Anxious Mood, in the context of the current proceedings. In my view, it was likely that in the past she had experienced symptoms of more significant Depressive Disorders, both in the post-natal period and following the parental separation…
94. …The mother also experienced significant shame and disgust in the context of her sexual experiences with her husband. This was observed to have had a profound effect on her personal integrity, as it was reportedly ego dystonic (inconsistent with her personal value system). It was evident that she continued to experience profound emotional distress with regard to these issues. It was encouraging that she had sought out psychological treatment to assist her in addressing these significant vulnerabilities. It was my impression that it had impacted upon her ability to provide a secure base for her daughter and support [X]’s relationship with her father. Her psychologist emphasised the mother’s awareness of this. Stress management strategies had been implemented to minimise the impact on [X].
95. The father had also experienced significant depressive symptoms immediately following the parental separation. He was identified to have had long standing jealous pre-occupations with regard to his wife. He was seen to have a preoccupation with sexual issues, which had been a source of distress for his wife.
99. It was my impression that both parents had the ability to approach parenting in a more appropriate manner with support and instruction. It was however evident that the mother was significantly affected by unresolved issues emanating from her experience of perceived abuse – verbal, emotional, psychological, sexual and financial, in her relationship with the father. This was likely to be an ongoing challenge.
100. [X] had an ongoing positive relationship with the maternal grandparents. This was both reported and observed, as she was brought to the assessment interview by them. These positive relationships were identified by [X]. She reported a positive relationship with her father’s girlfriend and her children, who were of a similar age. They however had limited contact…
101. …It was not my impression that [X]’s views had developed as a result of pressure upon her. Rather her views had developed given her experience of her parents and her mother’s support for her expressed wishes. It was my impression that [X] would be likely to accept an Order contrary to her wishes. She was seen to be “a good girl”, respectful of the assessment process and the rules imposed upon her in her life. She was also seen to be capable of strongly expressing her emotions and views.
102. It was thus my clinical impression that although [X] had been exposed to distressing circumstances, that she was highly capable of expressing her emotional experience in a competent manner. I felt it would be likely that with an appropriate counselling intervention and support from both parents that she would be able to develop a more appropriate relationship with her father. This would not however extend to a workable shared care arrangement, as proposed by the father…
Ms Blanch’s November 2008 Report: By way of background, it is useful to note Ms Blanch’s introductory paragraphs.
2. [X] aged about 10½ years (born [in] 1998) is the only child of Mr and Ms Calkin, whose long marriage ended in March 2007 when Ms Calkin left the family home with [X]. [X] lives with her mother in a rented house in Canberra; and spends time with her father regularly in accordance with court orders. Mr Calkin has re-partnered and very recently moved into the home of his partner and her daughter aged 12 and son aged 9 years. The family pet cat, “[omitted]”, of which [X] is fond, has remained with
Mr Calkin. [X] has since acquired a menagerie of pets at her mother’s home including dog, cat, birds, fish, frogs and she espoused the desire to become a veterinarian when she grows up. [X] reportedly has continued to do well at [C] School where she will probably stay in 2009. Her parents separately however had divergent views about her attendance beyond next year. [X] has continued her several extracurricular activities. Ms Calkin mentioned that she has needed to attend to [X]’s significant medical problems.
3. Finalising the division of property has enabled Mr and
Ms Calkin to take a step forward. Mr Calkin reported that he has continued, and will continue, to operate his business. He outlined the parenting courses completed and the one about to commence. Ms Calkin has continued her fulltime employment and has a position of responsibility. She reported severe financial difficulty following the property settlement and is contemplating bankruptcy. Ms Calkin also mentioned that she faces a significant surgical operation and has experienced health problems.
Of the parties themselves, Ms Blanch commented as follows:
5. Mr Calkin presented as much more positive, relaxed and resolved about his situation following the marital separation (apart from the issue of his relationship with [X] of course). He expressed optimism and warmth about his new relationship; and a resigned regret about the difficulty of parental communication with Ms Calkin. It sounded as if Mr Calkin had found therapeutic intervention including the parenting courses to be helpful. His discussion about [X] and this dispute was child-focused. It seemed that Mr Calkin wants no more than to be a loving father. It was observed however that Mr Calkin tended to be less engaged in two-way discussion with me about [X]’s needs and more inclined to use the opportunity to promote his views and fatherly claims. It seemed important to Mr Calkin to emphasise that his relationship with [X] has always been mutually loving. He furthermore characterised his present relationship with [X] as growing well with [X] secretly aligned to him because she cannot risk expressing positive feelings for him in her mother’s presence. Building upon Dr M’s report, Mr Calkin described Ms Calkin as unable to foster [X]’s affection for him.
6. Ms Calkin appeared to be significantly anxious and tearful, although perhaps less so than her presentation 12 months ago. Her anger towards Mr Calkin (whether validly-based or not) was palpable. Ms Calkin reiterated her dilemma regarding [X]’s relationship with her father. On the one hand, Ms Calkin said that [X] needs to spend time with her father. On the other hand however, Ms Calkin said [X]’s consistent resistance to Mr Calkin and her stream of complaints about her father has continued unabated. With examples, Ms Calkin declared that Mr Calkin’s allegedly abusive behaviour towards her has continued undiminished by his therapeutic attendances. Ms Calkin appeared genuine in her belief that Mr Calkin has been very difficult. Her personal distress seemed both sincere and consistent with her account of the demise of the marriage and continuing difficulties. Her medical problems and financial difficulty will be ongoing significant sources of stress, obvious to [X] even if not emphasised by her mother.
7. Mr and Ms Calkin’s parental relationship thus has continued to be quite poor; with neither parent willing or able to cite examples of improvement in their relationship however small in the past twelve months. Unfortunately the burden of dealing with this irreconcilable parental relationship has fallen upon [X]. The impression was gained of Mr and Ms Calkin that while they undoubtedly love [X], they are vulnerable to interpreting any information, whether it be [X]’s behaviour and statements or the opinions of professionals or revelations at Court, as support for their respective viewpoints.
Of [X], Ms Blanch observed:
9. [X] was again prettily presented, but on the day she was not well and coughed deeply. She looked tired. It also seemed that [X] was dutifully complying with rather than enthusiastically participating in the interview. This seemed to be not only because she felt physically unwell but also because she has spoken to multiple adults about her family conflict by now. Given the virulence of her parents’ conflict, her involvement possibly may have brought uncomfortable consequences to her; and from remarks made by her parents, she probably has felt some emotional pressure attached to her presentation at interviews. In her circumstances [X] is likely to feel some responsibility for her parents’ conflict and suffering.
10. [X] expressed the desire to spend more time with her mother and less time with her father. She was reluctant to extend the present time spent with Mr Calkin, explaining that she really missed her mother previously when staying overnight, when she had also found the changed physical surroundings unfamiliar and unsettling… [X] said that she knew Mr Calkin “really wants” her to spend time with him. She said that if compelled to spend more time with her father, her mother “might cry because she gets angry” and [X] worried about her mother sometimes, she said.
11. [X] said she would like Mr Calkin “to be nicer” to her and she was bothered that Mr Calkin “doesn’t talk to [her] sometimes”. When asked to say more about this, what emerged was [X]’s perception of feeling like an outsider, trying to redefine her place with her father in his new household now populated with two other children. [X] said she was happy with her mother “just as she is”. [X] gave some sparse information about
Mr Calkin’s partner and her two children with no trace of negativity.
13. While [X]’s limited information should not be overly interpreted, the themes emerging were that: [X]’s primary source of emotional security is her mother; making the emotional adjustment to her parents’ separation has been huge for her; she is now dealing with the usual issues involved in blending families in her father’s household; and that she may be tired of participating in processes to deal with her parents’ conflict. Above all, in the comparison of [X]’s presentation between family conferences almost 12 months apart, the clear impression emerged that [X] is dramatically much less negative towards her father. What underlies this shift, given the disparate accounts of her parents, is unknown. It was clear however that while [X]’s emotional security lies in her relationship with her mother, she was concerned about retaining centrality in her father’s affections in the presence of two other children potentially competing for his parental attention. It seemed that [X] has found some way within herself to disengage emotionally to some extent from her parents’ conflict. Whether her disengagement is a healthy or dysfunctional adaptation is unknown.[21]
[21] “In view of [X]’s vulnerability amid her parents’ conflict, it was decided not to communicate with her counsellor, given the risk of contaminating that therapeutic haven with this family law conflict. [X] needs an emotionally safe and peaceful space to call her own.” Ms Blanch, Family Report, 14th November 2008.
Ms Blanch’s formal opinion and assessment was as follows:
17. Mr Calkin, Ms Calkin and [X] have been through an emotional tornado in the breakdown of the marriage… Chronic conflict between her parents may undermine [X]’s capacity to reach her potential psychologically and academically. Mr and Ms Calkin quite naturally each make claims upon [X]’s love and loyalty. They must absolutely ensure however that [X] does not feel required to divide herself between them.
18. Having considered the viewpoints aired by Mr and
Ms Calkin as well as what it must be like to be in [X]’s shoes, it seemed that [X] may have grown to be something of an emotional chameleon, as can occur with children dealing with high level parental conflict. That is, in her adjustment to the aftermath of the separation, for [X] to exist between the divided worlds of her parents, she has needed to adapt to the views of each parent and their different lifestyles when with them. Moreover [X]’s feelings and opinions about each parent may naturally change over time and in accordance with her developmental stages. Accordingly each parent will gain differing and skewed impressions of their only daughter and of her relationship and lifestyle with her other parent, which in turn may fuel further parental ill-feeling and conflict. Thus each parent is likely to gain negatively coloured impressions of the other from [X].
19. Furthermore [X] will have different issues to deal with, in her relationships with each parent. With her mother, it may be to be supportive and to worry about her mother’s well-being and to deal with financial hardship. [X] will not want to hurt or upset her mother. With her father, [X]’s project will be to fit into a family household to which she is a visitor; and to rebuild her relationship with her father. She will have to learn to share with step-siblings. Her relationships with her parents, the family history suggests, are qualitatively very different. Thus she may have to be, virtually, a different child with each parent in order to make the best of her situation.
20. My impression of [X]’s relationship with Mr Calkin seemed consistent with the opinion of Dr M. The future for the daughter-father relationship has grown more positive… While Mr Calkin robustly refuted [X]’s complaints about him, it was my view that her concerns about her father’s emotional sensitivity have at least some substance which cannot be merely dismissed. [X]’s relationship with her father will be moreover influenced by her capacity to cope with transitions between her parents and by her experience with her mother. She is a perceptive and emotionally sensitive child, still healing emotionally from her parents’ separation, a process which can take years rather than months, whose primary relationship is with her mother…
21. Accordingly extending the time [X] spends with her father should occur gradually and cautiously, rather than more quickly than she can manage – especially given the negative emotional climate between her parents. Mr Calkin impressed as having devoted much thought to his proposal…
22. My recent assessment suggested that Mr and Ms Calkin continue to have a very poor parental relationship, likely to render the sharing of parental responsibility problematic.
23. Finally, re-partnering and blending of families is one of the major milestones following a marital breakdown, which can generate significant family conflict and suffering for children. There is a heightened risk of such conflict occurring in the context of the antipathy and lack of communication between
Mr and Ms Calkin. Their lack of common ground detracts from their ability to help [X] make this significant adjustment.
Her common-sense recommendations were as follows:
1. The Court consider whether the parental relationship is sufficient to support sharing of parental responsibility without conflict detrimental to [X];
2. in any event, both parents be able to receive information about [X]’s progress and welfare and be able to participate in [X]’s activities as normal to the parenting role e.g. attending school functions;
3. if Mr and Ms Calkin are to share parental responsibility, the respective obligations thereof and the processes for communication, discussion, decision-making and resolution of disagreements be specified in court orders to minimise the burden of confusion and further dispute falling upon [X];
4. [X] live with her mother;
5. [X] spend time with her father (via a stage of gradually increasing time during the 2008/09 summer holidays) on alternate weekends and overnight once mid-way during the intervening period;
6. from after February 2009 [X] spend time equitably with both parents on special occasions and during school holidays or at other times as agreed;
7. Mr and Ms Calkin provide access to the applicable facilities so that [X] can communicate privately and liberally with her absent parent by telephone or other electronic means;
8. where practical, [X] transition between her parents via a buffer i.e. to & from school, or by use of a public venue;
9. [X]’s arrangements be discussed and/or negotiated directly between Mr and Ms Calkin by appropriate means to exclude direct involvement of [X] in parental communication;
10. information about [X] be communicated between her parents via a communication book, by email or other means to reduce emotionally inflammatory direct contact until parental animosity eases;
11. importantly, Mr and Ms Calkin reduce their parental conflict and increase their capacity to support [X] with dealing with a blended family situation by:
- attending a parenting orders program,
- attending mediation specifically to develop the parameters of a businesslike co-parenting relationship if parental responsibility is to be shared,
- attending step-parenting education courses or seminars,
- reading relevant books or information on applicable Internet websites about children’s developmental needs and post-separation parenting.
Ms Blanch’s Oral Evidence: Summarily stated, the following may be noted. Ms Blanch confirmed that Mr Calkin had `moved forward’ quite significantly in the last twelve months.[22] She also agreed with Dr M’s assessment that [X] would be likely to accept any order of the Court that might be contrary to her wishes.[23]
[22] Transcript (24th November 2008) p.6.
[23] Transcript (24th November 2008) p.7.
Even more summarily, it may confidently be said that the essential thrust of Ms Blanch’s evidence and assessment of what should occur is that there should be increased time that [X] spends with her Father, but that that increase and any subsequent regime should occur gradually. She referred, for example, to the importance of increased time occurring “carefully in a way that doesn’t unduly raise her levels of anxiety and concern. If she’s worried about her mother, as a possibility, … in that context it may not be the ideal timing for her to take such a significant step….”[24]
[24] Transcript (24th November 2008) p.8.
Prudently, Ms Blanch recommended that any significant change in orders, pursuant to which her time with her Father was to be increased, should be explained and discussed with her counsellor in the first instance. An alternative, of course, would be for Ms Blanch to do so.
I am mindful also of [X] seeing too many people, as Ms Blanch recognised in answer to a question from Ms Tonkin, Counsel for
Ms Calkin.[25]
[25] Transcript (24th November 2008) p.11.
In answer to further questions from Ms Tonkin, Ms Blanch outlined what she saw as the competing interests or forces, and the balance that had to be struck between them. She said:
Ms Tonkin: So, the answer to my question is, yes, reluctantly, your recommendations are that orders be made to increase contact between [X] and her father?
Ms Blanch: It's about balancing her needs which may in some way be in conflict, that she has a need to be - have her wishes respected, heard and respected, and as far as possible, accommodated, but she also has longer term needs as well that need to be considered, and there lies the difficulty and dilemma.
Ms Tonkin: Is it not the case that she would be quite capable of meeting her needs with her father in the future if her wishes are respected?
Ms Blanch: It may be the case, but it seemed to me in terms of her concern about replacing her father's household that it would benefit her to feel - to have the opportunity to feel that she was more present in his household and that overnight visits would go towards that. That she would feel then less like an outsider and a visitor.[26]
[26] Transcript (24th November 2008) p.13.
Dr M’s Oral Evidence
: Again, by way of summary, the following were the most salient aspects of Dr M’s oral evidence in late November 2008. For example, he commented on the negative aspects of [X]’s relationship with her Father, but then said: “… certainly I did observe that even though she [[X]] stated that [there were negative attitudes towards and very negative experiences with her Father], that there were positive aspects to the interactions between them, and so certainly I observed more positive interactions than were observed by
Ms Blanch….”[27]
[27] Transcript (24th November 2008) p.17.
Dr M confirmed that there was an underlying intimacy and positive relationship between [X] and her Father.[28] And he agreed with
Ms Blanch that the transition to increase time should be gradual, and done in a manner that was not overly stressful and “anxiety provoking for [X].”[29]
[28] Transcript (24th November 2008) p.18.
[29] Ibid.
Dr M also stressed his concern at Ms Calkin’s mental state and that that was a factor in the transition for increased time for [X] with her Father. He suggested that one overnight “at this stage”, in addition to the time that [X] already spends with her Father, seemed the appropriate starting point.[30]
[30] Transcript (24th November 2008) p.19.
Dr M was concerned about [X] being very much aware of her Mother’s hostility towards Mr Calkin and that even though Ms Calkin says that [X] should have a relationship with her Father, the reality is that
Ms Calkin does not wish that to occur. All of that said, again Dr M confirmed the importance that there be increased time between [X] and her Father, particularly having regard to her long-term interests.[31]
[31] Transcript (24th November 2008) pp.20-21.
Dr M also confirmed that [X] had emotionally disengaged from her parents’ conflict as something of a survival mechanism. In this regard he considered that the disengagement was a healthy response to a dysfunctional family circumstance. At the same time, he thought that [X] had the capacity and maturity to have a healthy relationship with her Father whilst still maintaining her primary relationship with her Mother.[32]
[32] Transcript (24th November 2008) pp.24 & 25. Dr M also stated that he did not think [X]’s concerns in relation to her Father as being definitive of an “abusive relationship.” Transcript (24th November 2008) p.26.
Two final things should be noted from Dr M’s evidence. First, he was quite strongly of the view that the progression in the increase in time that [X] spends with her Father should be gradually changed. He was also firmly of the view that a `shared care’ arrangement, any time soon, would not be helpful. His emphasis, like Ms Blanch, was to take things very gradually.
The second matter to note concerned a question from the Bench. Dr M embraced quite enthusiastically the suggestion that there be a review in approximately 12 month’s time, to be done by either Ms Blanch or
Dr M, of the parenting issues and family relationships generally.[33]
[33] Transcript (24th November 2008) p.28.
It is time to consider jurisprudential matters in the light of the evidence.
Jurisprudential Considerations
Although in the context of a relocation judgment, Brown J’s summary, in Mazorski v Albright, of the objects and principles of Part VII of the Act is a helpful touchstone for the matters to be addressed in this case. Beginning at [3], her Honour said:[34]
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[34] (2008) 37 Fam LR 518 at pp.519-520. Brown J’s “twin pillars” summary of the Act and the “legislative pathway”, of course mirrors the Full Court’s prescriptions in Goode v Goode (2007) 36 Fam LR 422 at [82], which in turn were confirmed by a differently constituted Full Court in Keach & Keach (2007) FLC ¶93-353.
I wish to deal firstly with the issue of equal shared parental responsibility, as prescribed under the Act in s.61DA.
Mr Calkin seeks an order for equal shared parental responsibility;
Ms Calkin seeks that she have sole parental responsibility.
The evidence is equivocal, if not somewhat conflicting. Ms Blanch said in her Report of November 2008 (par.22) that, given the very poor parental relationship, it was likely to render the sharing of parental responsibility “problematic.” Yet in her evidence, Ms Calkin said that although she sought an order for sole parental responsibility, she did so really only for approximately six months.
For my part, given the extremely difficult relationship that exists between the parents, the most prudent course is to make orders whereby Ms Calkin has sole parental responsibility – until further order. That further order will most likely be shortly after the review that I order to take place twelve months from the date of this judgment.
However, that does not end this aspect of the matter. Ms Calkin is required to consult with Mr Calkin in relation to any long-term issues concerning [X]. And, except in relation to medical emergencies, both parents are to have responsibility for [X]’s day to day care and welfare whenever and while-ever she is in their care.
An order for sole parental responsibility formally obviates the necessity to consider s.65DAA concerning equal time or substantial and significant time. In any event, there is significant evidence that a shared care arrangement would not be in [X]’s best interests. And in any event,
Mr Calkin has wisely not pursued his original orders sought in this regard. I will determine the appropriate time that [X] should spend with her Father after I have considered the primary and additional considerations set out in s.60CC, which explicate the objects and principles of s.60B of the Act, all of which were captured in Brown J’s précis in Mazorski v Albright to which I have already referred.
Primary & Secondary Considerations
Although a summary has been provided, it may be helpful, not to mention convenient, to set out s.60B(1) and (2). Those sections provide:
(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).
From the evidence set out earlier, it is clear that the issues of contest – physical and verbal – between [X]’s parents remain matters, essentially, of history. This is to say two things. First, that with the effluxion of time, and with appropriate orders in place, given the now physical separation of the parties, the opportunities for the parties even to come into direct physical proximity are, and will be, very significantly reduced.
Secondly, for these same reasons, the opportunity for and likely chance whereby [X] is likely to encounter her parents being in dispute – to any significant degree – will be very considerably reduced.
For these reasons, together with other protective orders to be put in place (e.g. in relation to changeover location(s), except in cases of emergency, communication to be only by email, text message and or a communication book, non-denigration order), to the limited degree that any of the matters set out in s.60B(1)(b), s.60CC(2)(b) and s.60CC(3)(j) are `in play’ in these proceedings, I consider the Court’s responsibility to protect [X] from any risk concerning them to be fulfilled.
In relation to ensuring that [X] has a meaningful relationship with both parents, and that she has the benefit of both parents having a meaningful involvement in her life to the extent consistent with her best interests, I note the following by reference to the additional considerations in s.60CC(3).[35]
[35] Unless otherwise noted or required, I will follow the paragraph order of s.60CC(3) without necessarily referring to each paragraph reference.
In relation to any views expressed by [X] a number of matters may be observed. First, although she is just on 11 years old, [X] is described by the experts as a mature young girl. As such, some weight must be given to her views.
Secondly, however, there is some inconsistently in those views. The inconsistency arises in that while she expressed the view that she wished to spend less time with her Father and more time with her Mother, both experts noted that there was an underlying intimacy in the relationship with her Father at the same time that there was a degree of theatrical presentation in her reaction to her Father - which eased over time. It will be recalled that Ms Blanch described [X] as an “emotional chameleon.”
In Harrison and Woollard, the joint judgment of Fogarty and Kay JJ stated that “[t]he wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.”[36] Their Honours continued:
… the court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant.[37]
[36] (1995) 18 Fam LR 788 at p.797.
[37] (1995) 18 Fam LR 788 at p.800. See also the detailed discussion by Baker J of the psychological literature (at pp.819-823), which includes his Honour noting (at p.820): “There appears to have been a tendency for adults to underestimate the wisdom of children and their ability to make sound choices about their future welfare. It must be recognised that children know their parents’ attributes and failings better than any outsider and in most cases they alone have direct experience of the environment which each offers.”
In R and R, the Full Court (Nicholson CJ, Finn & Guest JJ) considered further the import of Harrison and Woollard. In the course of the joint judgment, their Honours said (at [44]): “What is required is that they [i.e children’s wishes] be given appropriate and careful consideration and not simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held wishes are departed from by the trial judge, it is apparent that good reason should be shown for doing so.”
Later in their judgment, the Full Court said (at [54]): “Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.” And later (at [57]): “… it is not the law that those wishes are determinative of the outcome which may be overridden by other factors relevant to the determination of the child’s best interests.”
In my view, the evidence confirms that [X]’s most recent views, as reported to Ms Blanch in November 2008, are no where near as entrenched in opposition to spending time with her Father compared to her views in November 2007, and perhaps, in April 2008. And as Dr M surmised, and as Ms Blanch confirmed, the relationship between [X] and her Father has improved markedly throughout the latter part of last year. This is especially significant given the degree of intransigence on the part of Ms Calkin.
These observations regarding [X]’s views are also relevant to her relationship with both her parents. This is to say that (a) she already has a close and continuing relationship with her Mother; (b) her relationship with her Father is improving and, subject to her being considered sensitively in Mr Calkin’s newer, blended household, and having regard to [X]’s significant personal capacities and Mr Calkin’s gradual but important focus more on [X]’s needs rather than his own, she will establish her place there as well. I do not need to elaborate on [X]’s relationship with her grandparents. Such matters are briefly considered in the Reports to which I have regularly referred.
A more problematic area is the willingness and capacity of each parent to promote a close and continuing relationship with the other parent.[38] The evidence in this regard has already been detailed, both from each parent and from Dr M and Ms Blanch. There are a number of things to say here.[39]
[38] The matters to be considered here under s.60CC(3)(c), are also relevant to s.60CC(3)(f) and (i), as well as s.60CC(4) and (4A).
[39] In a recent judgment I outlined some basic strategies, drawing from classical writers on ethics and virtue, to which I need only refer, rather than repeat the discussion and sources there set out. See Monds & Mullan [2009] FMCAfam 58.
First, in my view, in accordance with the opinions of both experts,
Ms Calkin needs a range of therapeutic measures which, over time, will hopefully ameliorate (among other things) the various emotional and psychological negative legacies from her marriage to Mr Calkin.
As Dr M highlighted, he has concerns about her mental state. I share his concern. In many respects, it would appear that a range of therapies will likely be required – as well as the curative effects of time and distance from Mr Calkin and the former relationship – to assist
Ms Calkin. Indeed, the impact alone of her forced involvement in pornography will likely require some kind of specialist intervention, and over some period of time. The destructive forces of pornography, and their corrosive effects on women, are well documented.[40] It will likely be quite some years before the wounds of this relationship – those acknowledged by Ms Calkin and those yet to be by Mr Calkin – are cauterised.
[40] In relation to pornography, the orders previously made to secure it in Mr Calkin’s residence, and to protect [X] ever being able to access it, must be continued. As well, should Mr Calkin have in his possession or control any pornographic recordings involving Ms Calkin are to be immediately destroyed. Their destruction is to be confirmed to the Court by his legal representatives within 21 days of the date of this judgment. It is both curious and unfortunate that Mr Calkin has chosen to continue to keep commercial pornographic material in his possession, rather than destroy and or discard it, if even for the sake of the best interests of [X]. On the same subject, there is, as I have indicated, abundant literature especially from feminist writers, such as Naomi Wolf in her prominent The Beauty Myth: How Images of Beauty Are Used Against Women, (New York: Harper Collins, 1990 [reprint 2002]). Even more strident critics of pornography and its impact on women would include Andrea Dworkin and Gloria Steinem and their well-published works, which are referenced in Martha Nussbaum’s recent commentary, Hiding from Humanity: Disgust, Shame and the Law, (Princeton: Princeton University Press, 2004). The shattering, chilling effects on young people exposed to pornography, as well as a blunt analysis of those who engage in such pursuits, are well documented by Wendy Shalit in A Return to Modesty: Discovering the Lost Virtue, (New York: Touchstone/Simon & Schuster, 2000). In any event, one would be hard-pressed to find any ethical theory (of virtue of otherwise) that could suggest that the use of pornography, and particularly forcing one’s wife to engage in making pornographic movies, was compatible with any conception of human flourishing. I note, too, that there has emerged in family law academia in the UK some discussion and use of aspects of natural law jurisprudence which seeks to revitalise classical virtue theory. See, for example, the Introduction to J. Bridgeman, H. Keating, C. Lind (eds.), Responsibility, Law and the Family, (Aldershot, UK: Ashgate, 2008), “Conceptualising Family Responsibility,” pp.1-17.
Although Mr Calkin confirmed that he had done some parenting courses, which would appear to have assisted the improvement in his relationship with [X], it would, in my view, be beneficial if both parents did post-separation parenting courses, as recommended by
Ms Blanch. An order to this effect will be made. I will, of course, learn of what has and what has not been done, via the revue that will occur in twelve month’s time.
Secondly, in her closing submissions Ms Tonkin, for Ms Calkin, contended that I should also have regard to cases like Re Andrew,[41] which stand for the general proposition that the anxiety of a care-giving parent, arising out of abuse, should be taken into account in framing parenting orders. Unsurprisingly, Ms Godtschalk, for Mr Calkin, rejected such a submission, inter alia, on the basis that there was no evidence to support such a course.[42]
[41] Re Andrew (1996) FLC ¶92-692.
[42] It may be that in addition to medical and psychological assistance for Ms Calkin, some of the elements and practices from the area known as `restorative justice’ might, in time, be useful and considered as one means, among many, which might bring a degree of healing and reconciliation between the parties that would benefit [X] in the long-term. As something of a “primer,” see, for example, D. Roche (ed.), Restorative Justice, (Dartmouth: Ashgate, 2004).
For my part, whatever the mental state and scarring in Ms Calkin’s life, her evidence is that she does and will promote [X]’s relationship with her Father. Given her abject hostility, such a concession, which I took in the manner in which it was spoken in open Court – direct, forceful and unqualified – I do not think there is any reasonable basis for this Court to consider the principles espoused in Re Andrew.
At the delicate and somewhat still distraught state of the relationship between the parents, I have little confidence that either parent will be able to promote [X]’s relationship with the other parent. Indeed, from the evidence, much of that capacity and responsibility has fallen to [X] herself. She seems to have succeeded to an almost spectacular degree in straddling the various hurdles posed by each parent to her relationship with the other parent. However unfair that is – and one would hope that each parent will do something, at some stage, to lighten her load and assume a degree of responsibility themselves – it is likely that [X] will continue to shoulder the bulk of the burden and remain the basic peace-maker of the original Calkin family.
Save for the issue of [X]’s school fees to which I have referred, I do not see any practical difficulty and expense in either parent maintaining personal relations with [X]. The same comment or small qualification applies in relation to her parents providing for [X]’s various needs.
Apart from what has already been said, I do not see any particular issues that need to be addressed under s.60CC(3)(g). I also do not see that there are any other parts of s.60CC(3) and (4) that require specific comment. What has been said is, in my view, sufficient.
What remains is simply to confirm that there be a gradual increase in the time that [X] spends with her Father. That is reflected in the orders set out at the beginning of this judgment. The orders, as previously indicated, include that there be a review of the family twelve months from the date of this judgment.
I have said in other judgments words to the effect that civility and common sense, not to mention other basic virtues, must now prevail. Not only are such things in [X]’s best interests, they will do her parents no end of good either. I look forward to seeing their progress in twelve month’s time. The ball is in their respective courts.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 20 March 2009
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