Capps & Gates
[2010] FMCAfam 756
•30 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAPPS & GATES | [2010] FMCAfam 756 |
| FAMILY LAW – Parenting – children – significant acrimony & conflict between parents – both capable parents. |
| Family Law Act 1975, Part VII, ss.60B(1), 60CA, 60CC(1), (a), (2), (3) (b) (i), (ii), (c), (i), (4), (4A), 61DA (1), 65AA, 65DAA(1) (a) & (b) (2), (3), (5) (b), (c) |
| Goode v Goode (2007) 36 Fam LR 422 Aristotle, Nicomachean Ethics Bk V.5 |
| Applicant: | MS CAPPS |
| Respondent: | MR GATES |
| File Number: | CAC 1159 of 2008 |
| Judgment of: | Neville FM |
| Hearing dates: | 15, 16 March & 24 May 2010 |
| Date of Last Submission: | 2 July 2010 |
| Delivered at: | Canberra |
| Delivered on: | 30 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Godtschalk |
| Solicitors for the Applicant: | Watts McCray McGuinness Eley, Canberra |
| Counsel for the Respondent: | Ms A Tonkin |
| Solicitors for the Respondent: | Mazengarb Barralet Family Lawyers, Canberra |
| Solicitors for the Independent Children’s Lawyer | Ms M Burgess Legal Aid ACT |
ORDERS
Subject to Order 2 of these Orders, the parents have equal shared parental responsibility for the children [X], born [in] 2005, and [Y], born [in] 2007.
The Mother have sole parental responsibility in relation to all medical issues concerning the children. The Mother is to keep the Father informed, as soon as reasonably convenient, of any medical treatment (including consultations with any medical specialist) required by or proposed for the children.
The children live with their Mother.
The Mother may relocate with the children from [S] to Canberra.
The child [X] will spend the following time with his Father:
(a)From after preschool/school/childcare each alternate Friday until before preschool/school/childcare the following Monday, and if Monday is a public holiday, until Tuesday morning;
(b)From after preschool/school/childcare on the Monday following a non-contact weekend until before preschool/school/childcare the following Tuesday;
(c)For a period of one week, to include a contact weekend, three times prior to the commencement of school in 2011 in order that [X] may have a holiday with his Father.
(d)Thereafter for one half of the school holidays, save that during the Christmas school holidays 2011/2012 the child will spend time with his parents on a 2 week/2 week, 1 week/ 1 week rotation; and
(e) Such further and other times as the parents may mutually agree.
The child [Y] spend the following time with her Father:
(a)Until the child turns 3 years of age from after childcare each alternate Friday until 5:30pm Sunday and at the same time as the child [X] on the Monday following a non-contact weekend;
(b)For one week in the 2001/2012 school holidays coinciding with the child [X]’s time with the Father;
(c)Thereafter, for the same time as the child [X] spends with this Father pursuant to orders 4(a), (b) and (d) above.
Notwithstanding these Orders the children will spend the following time with the parent with whom they are not residing:
From 9:00 am to 5:00pm on Mother’s day with their Mother and on Father’s day with their Father.
On the Mother’s birthday, the Father’s birthday and the children’s birthday for 2 hours if that day falls on a school day from after school until 5:00pm and from 9:00am to 1:00pm if on a weekend or during a holiday period.
The children will telephone their Father each Wednesday between 6:30pm and 7:00pm, with the Mother to facilitate that telephone call and each parent will facilitate the children telephoning the other parent twice each week during any school holiday period that the children are with them.
For the purposes of Order 4 and 5 above in the absence of any written agreement between the parties to the contrary the following Orders apply:
(a)The first half of all school holidays is deemed to commence at 10:00am on the first day;
(b)The second half of all school holidays is deemed to conclude at 5:00pm on the Saturday prior to the commencement of school;
(c)The second half of the December/January school holidays is deemed to commence at 5:00pm on the Saturday that falls approximately three weeks after the last day of the fourth school term of the previous year; and
(d)The second half term school holidays is deemed to commence at 5:00pm on the middle Saturday of those school holidays.
In the event that changeover of the children is not able to occur at the children’s preschool/school/childcare:
(a)If the Father is residing in [S] and the Mother in Canberra the parents will meet at the bus depot car park at [M];
(b)If both parents are residing in Canberra they will meet at the McDonalds Restaurant at [U]; and
(c)If [Y] is not in preschool/school/childcare the changeover of [Y] on each alternate Friday, Monday and Tuesday mornings will occur at the same location as for [X].
Each parent will notify the other within 7 days of any change of address or telephone number.
Each parent contact the other as soon as practicable in the event of serious injury or hospitalisation of either of the children, either parent may immediately attend at the doctor or hospital in relation to that incident.
Both parents are restrained from saying unkind or unpleasant things about the other to the children, in their presence, or allowing any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Capps & Gates is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1159 of 2008
| MS CAPPS |
Applicant
And
| MR GATES |
Respondent
REASONS FOR JUDGMENT
Introduction
Three matters are indisputably clear from the evidence in these proceedings: (a) both parties are capable parents in the care of their two children (4½ year old [X] and 2½ year old [Y]); (b) both children have a good and close relationship with both of their parents; and (c) especially in more recent years the parenting relationship has become extremely strained[1] and has been characterised by increasing levels of acrimony and especially of distrust and discordant parenting of the children such that the children are beginning to manifest distress.[2]
[1][2]Notwithstanding very significant therapeutic attempts of many and varied kinds to assist the parties to resolve their differences, put shortly, the parents have been (and remain) utterly incapable of conducting a mutually satisfactory parenting relationship either for the sake of the children or for their own sanity and well-being. Indeed, excluding joint or separate sessions at the Family Relationship Centre, the fact that the parties have seen six separate consultants – privately and Court appointed – in recent years may be taken, of itself, to be significant evidence of the substantial difficulties they have in jointly exercising their parental responsibilities.[3]
[3] This same point was acknowledged by Ms L in her evidence at trial. See Transcript (24th May 2010) p.3. I should record here the four Reports that have been produced in the course of these proceedings: Dr S’s Report: 24th August 2008; Ms M’s Report: 9th December 2009; and two Reports from Ms L: 23rd June 2009 & 12th March 2010. Although none of these Reports was formally admitted into evidence, on the principles articulated by Warnick J in SPS & PLS (2008) FLC¶93-363 at [8] – [19], it should be taken that, by necessary implication, they were admitted into evidence. That said, it is, of course, one thing to admit something into evidence; it is quite another matter what, if any weight, is given to what is contained in the material admitted. I deal with such matters later in these reasons in the light of an objection by Mr Gates to the use of Ms M’s Report.
In the light of the well documented adverse impact of parental conflict on children – especially young children - the issue in the case is ‘what orders should be made in such circumstances that are in the children’s best interests?’[4]
[4] See the following representative studies in relation to the adverse impact of conflict on children: T. Altobelli FM, “A response to `A Cautionary Tale’: Learning to paint with a fine brush,” presentation to the 8th Annual Family Law Intensive, Sydney; 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; J. McIntosh, “Legislating for Shared Parenting: Exploring Some Underlying Assumptions,” (2009) 47 Family Court Review 389-400; H. Rhoades, “The Dangers of Shared Care Legislation: Why Australia Needs (Yet More) Family Law Reform,” (2008) 36 Federal Law Review 279-299; B. Smyth, “A 5-year retrospective of post-separation shared care research in Australia,” (2009) 15 Journal of Family Studies 36-59.
These reasons proceed as follows: (a) the Orders Sought by both parties are set out; (b) the legal principles for parenting cases of this kind are summarily stated; (c) the evidence of the parties is considered; (d) the expert evidence of Ms L (especially in the Family Report dated 12th March 2010, and from her oral evidence, given on 24th May) is treated; and finally, (e) the prescribed legislative pathway is negotiated in the light of the evidence and as that pathway has been illumined by Full Court authority, such as Goode v Goode and Keach & Keach.[5]
[5] (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and (2007) FLC ¶93-353 at [24] ff respectively.
A. Orders Sought
Each party filed a Minute of Orders Sought, which are set out below. There was no separate Minute from the Independent Children’s Lawyer, Ms Burgess, because she supported the orders sought by the Applicant Mother, Ms Capps.
Applicant’s Final Orders Sought
(1) The parents have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2007 save that the Mother have sole parental responsibility in relation to all medical issues concerning the children.
(2) The children live with their Mother.
(3) The Mother may relocate with the children from [S] to Canberra.
(4) The child [X] will spend the following time with his Father:
(a) From after preschool/school/childcare each alternate Friday until before preschool/school/childcare the following Monday, and if Monday is a public holiday, until Tuesday morning;
(b) From after preschool/school/childcare on the Monday following a non-contact weekend until before preschool/school/ childcare the following Tuesday;
(c) For a period of one week, to include a contact weekend, three times prior to the commencement of school in 2011 in order that [X] may have a holiday with his Father.
(d) Thereafter for one half of the school holidays, save that during the Christmas school holidays 2011/2012 the child will spend time with his parents on a 2 week/2 week, 1 week/ 1 week rotation; and
(e) Such further and other times as the parents may mutually agree.
(5) The child [Y] spend the following time with her Father:
(a) Until the child turns 3 years of age from after childcare each alternate Friday until 5:30pm Sunday and at the same time as the child [X] on the Monday following a non-contact weekend;
(b) For one week in the 2001/2012 school holidays coinciding with the child [X]’s time with the Father;
(c) Thereafter, for the same time as the child [X] spends with this Father pursuant to orders 4(a), (b) and (d) above.
(6) Notwithstanding these Orders the children will spend the following time with the parent with whom they are not residing:
(a) From 9:00 am to 5:00pm on Mother’s day with their Mother and on Father’s day with their Father.
(b) On the Mother’s birthday, the Father’s birthday and the children’s birthday for 2 hours if that day falls on a school day from after school until 5:00pm and from 9:00am to 1:00pm if on a weekend or during a holiday period.
(7) The children will telephone their Father each Wednesday between 6:30pm and 7:00pm, with the Mother to facilitate that telephone call and each parent will facilitate the children telephoning the other parent twice each week during any school holiday period that the children are with them.
(8) For the purposes of Order 4 and 5 above in the absence of any written agreement between the parties to the contrary the following Orders apply:
(a) The first half of all school holidays is deemed to commence at 10:00am on the first day;
(b) The second half of all school holidays is deemed to conclude at 5:00pm on the Saturday prior to the commencement of school;
(c) The second half of the December/January school holidays is deemed to commence at 5:00pm on the Saturday that falls approximately three weeks after the last day of the fourth school term of the previous year; and
(d) The second half term school holidays is deemed to commence at 5:00pm on the middle Saturday of those school holidays.
(9) In the event that changeover of the children is not able to occur at the children’s preschool/school/childcare:
(a) If the Father is residing in [S] and the Mother in Canberra the parents will meet at the bus depot car park at [M];
(b) If both parents are residing in Canberra they will meet at the McDonalds Restaurant at [U]; and
(c) If [Y] is not in preschool/school/childcare the changeover of [Y] on each alternate Friday, Monday and Tuesday mornings will occur at the same location as for [X].
(10) Each parent will notify the other within 7 days of any change of address or telephone number.
(11) Each parent contact the other as soon as practicable in the event of serious injury or hospitalisation of either of the children, either parent may immediately attend at the doctor or hospital in relation to that incident.
Respondent’s Final Orders Sought
(1) The parents have equal shared parental responsibility for the children [X] born [in] 2005 (“[X]”) and [Y] born [in] 2007 (“[Y]”).
(2) Each parent will have sole parental responsibility for the day-to-day care of the children when they are residing with that parent
[X]
(3) [X] shall spend time with his Father as follows:
(a) 2010 From 5:00pm Thursday until the commencement of pre-school on Monday and if the Monday is a public holiday, then until 9:00am Tuesday.
(b) 2011 Week 1- From after school Wednesday until the commencement of school Monday and if the Monday is a public holiday, then until 9:00am Tuesday.
Week 2- From after school Wednesday until 9:00am Saturday.
(c) 2013 and ongoing:
Week 1- From after school Monday until the commencement of school Thursday; from after school Friday until the commencement of school Monday and if the Monday is a public holiday, then until 9:00am Tuesday.
Week 2- From after school Thursday until the commencement of school Friday.
[Y]
(4) [Y] shall spend time with the Father as follows:
(a) March 2010- From 5:00pm Friday until 5:30pm Sunday.
(b) July 2010
Week 1- From 5:00pm Friday until 9:00am Monday
(c) October 2010
Week 1- From 5:00pm Thursday until 9:00am Monday and if the Monday is a public holiday then until 9:00am Tuesday.
(d) 2011 Onwards [Y’s] time to replicate [X]’s.
(5) When the children are in either parent’s care their time may be spent at a registered child-care facility or pre-school.
(6)Any decision in relation to enrolment of either child in a child-care or school facility should be made with the consent of both parties.
School Holidays
(7) School holidays are to be defined to commence on the first day after school breaks up and ceases on the Sunday prior to the commencement of the next school term.
(8) In 2010 commencing for the September/October school holidays, both children will spend the second week of the school term holidays with their Father commencing 9:00am Saturday and ceasing 5pm on the following Sunday.
(9) Commencing in 2010, both children will spend the second, fourth and sixth week of summer/Christmas holidays with their Father commencing 9:00am Saturday and ceasing 5:00pm on Sunday.
(10) From 2011 for all school holiday periods both children will spend time with their parents on an alternate week arrangement with the first week being with the parent with whom the children did not reside the weekend before.
(11) From 2013 during all summer/Christmas school holiday periods, the children will spend time with their parents on a 2 week/2 week, 1 week/1 week rotation with the first week being with the parent with whom the children did not reside the weekend before.
(12) In the event that either parent proposes to take the children outside of their residential area, they will provide the other parent with reasonable notice and details of their travel plans.
Specific Issues
(13) In the event that changeover of the children is not able to occur at the children’s pre-school/school/childcare:
(a) If both parents are residing in [S], then the children will be delivered to the Father’s residence and will be returned to the Mother’s residence;
(b) If the Father is residing in [S] and the Mother in Canberra, the children will be collected from the Caltex service station car park at [G] (on a weekday) and the bus depot car park in [M] (on a weekend or holiday).
(c) If both parents are residing in Canberra then the changeover place will be the Caltex service station car park at [G].
(14) Notwithstanding these orders the children will spend:
(a) On the Mother’s Birthday, the Father’s Birthday and the children’s Birthday and any siblings Birthdays from after school until 6:00pm if on a school day and from 9:00am to 1:00pm if on a weekend or during a holiday period.
(b) From 9:00am to 5:00pm on Father’s Day with their Father and on Mother’s Day with their Mother.
(c) Commencing in 2010 and in even numbered years, from 5:00pm on Christmas Eve until 5:00pm on Christmas Day with their Father.
(d) Such other times as the parents may mutually agree from time to time.
(15) Each parent will contact the other as soon as practicable in the event of serious injury or hospitalisation of either of the children, and either parent may immediately attend at the doctor or hospital in relation to that incident.
(16) Each parent will notify the other within 48 hours of any change in residential address, landline and mobile telephone number.
(17) Neither parent will say anything unkind or hurtful about the other parent in the presence of the children, nor will they allow any other person to do so.
(18) Neither parent will change the children’s residence from the [S] or Canberra area without the written consent of the other parent or further order of the Court.
(19) The parents will communicate with each other in relation to matters involving the children through email and to that effect, they will keep the other advised of a current email address.
(20). In the event that either parent obtains medical treatment for either of the children, they will notify the other parent by email within 24 hours of details of the treating doctor, the treatment and any medication prescribed.
B.Overview of Legal Principle
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Family Law Act 1975 (“the Act”). Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[6]
[3] 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).
[4] 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.
[5] 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.
[6] 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)).
[6] (2008) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[7]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[7] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121].
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Subject to further consideration of the legislative pathway later, this overview may suffice for jurisprudential context and principle. I turn to the evidence of the parties, and seek to consider it as summarily as possible.
C.Evidence of the Parties
At the outset I should record that not only have I had regard to the significant body of affidavit material filed on behalf of both parties since mid 2008, but also their regular attendance in Court over a protracted period when each of them has sought judicial assistance. Over such extended periods together I have had the opportunity to observe and assess both parents. And, of course, I had the considerable advantage to measure that assessment against what I observed most recently in the course of their evidence at trial. Put another way, because of my regular involvement with these parties over such an extended period I am in a very good position, perhaps better than usual, to evaluate what may have changed or what might have become more entrenched in relation to the various issues in dispute, and particularly in relation to the attitudes and capacities that each parent brings to the lives of their children and to the other parent.
I have also had significant regard to the various reports prepared by the experts who have been consulted, perhaps most notably (but not exclusively), Ms M and especially Ms L, both of whom are extremely experienced family consultants attached to the Court. Because Ms L has provided the most recent assessments, both in her two family reports (or June 2009 and March 2010) and in her oral evidence, I regard her evidence as the most persuasive. I will consider her evidence after I treat that of the parties.[8]
[8] Ms L was appointed as the family consultant after Mr Gates objected to Ms M’s continued involvement. See the brief discussion at Transcript (16th March 2010) pp.59-61. At the conclusion of that discussion at the trial I noted then, as I have now, that, in my view, especially because of it being the most recent, Ms L’s evidence was the most relevant and persuasive.
Evidence of Ms Capps: Ms Capps is a [occupation omitted], who commenced to live with Mr Gates in approximately August 2004. They did so with Ms Capps’ other child from a previous relationship, [Z], who was born in 1998.
The parties never married, and lived together for approximately three (3) years. They separated shortly before [Y] was born.
Ms Capps’ cross-examination, like that of Mr Gates, was relatively brief. In both cases, I saw confirmation of what is set out at length in the affidavit material, and in the multiple Reports before the Court.
To a significant degree, much of Ms Capps’ evidence concentrated on various communication difficulties with Mr Gates. Indeed, the substance and point of many questions put to her was to the effect that, at times, and when it suited Ms Capps, she was able to communicate with Mr Gates, but chose not to do so at other times.[9]
[9] For this summation, see Transcript (16th March 2010) p.59.
I took Ms Capps to be a candid and truthful witness who hoped that the communication with Mr Gates would get better, but found, over time, that it did not. She confirmed that, as recorded in Dr S’s Report, she had hoped that the parties would be able to work towards a shared care/equal time arrangement, particularly as the children got older.[10]
[10] See Transcript (16th March 2010) pp.11-18. Dr S’s Report is dated 24th August 2008.
In answer to questions from the Independent Children’s Lawyer,
Ms Burgess, she also confirmed that, in the future, she would be open to a shared care/equal time arrangement with Mr Gates if that would prove beneficial to the children, and, of course, if the communication and co-parenting issues with him were able to be resolved.[11]
[11] Transcript (16th March 2010) p.57.
It was certainly clear that, as her evidence confirmed, having four separate communication books has not helped the parties to communicate. Unsurprisingly, they have only helped to obfuscate, confuse and complicate the attempts at communication between the parties. Indeed, in the light of many of the entries, it is not going too far to suggest that they became in themselves a constant source of bitterness, division and conflict. Without intending to be melodramatic, flippant, or hyper-critical, they became a fertile font that kept feeding the most negative sources of conflict between the parties. Moreover, it was Ms Capps’ evidence that, in her view, Mr Gates used the communication book(s) to challenge her parenting, to do so in a quite formalistic way that provided an extended critique of, and commentary on, her parenting, and to use them (she thought) “to set up” Ms Capps for use against her in Court.[12]
[12] See Transcript (16th March 2010) p.57.
It was also clear, as she confirmed, that the parties had little if any trust that would enable them to co-parent in any effective manner.[13]
[13] See Transcript (16th March 2010) pp.33 & 57.
The final matter to note is that, understandably and in my view correctly, Ms Capps is concerned about the strained relationship that developed between her older son [Z] and Mr Gates, and the importance of the sibling relationship between [Z] and his younger sister and brother, [Y] and [X]. Ms L notes the importance of this relationship. I will come back to it. I will also return to my overall assessment of the evidence of both parties after consideration of Mr Gates’ evidence, the expert evidence of Ms L, and the submissions, particularly of the Independent Children’s Lawyer, Ms Burgess.
Evidence of Mr Gates: In no pejorative way I observe that Mr Gates gave the Applicant Mother’s Counsel, Ms Godtschalk, rather more material with which to work than did Ms Capps, both in his extensive affidavits, in his Orders Sought, and in a number of respects in his answers to questions in the course of cross-examination. As summarily as possible, I note the following.
The first part of his cross-examination focussed, to a significant degree, on his proposal to have the children move, over the course of a few months, to a situation where they lived primarily with him. According to his (then) ‘orders sought’, the children would live eight nights per fortnight with him and seven nights with their Mother. This would be in a situation where, hitherto, she has been their primary carer, and indeed, where (almost) three year old [Y] has been spending only one night per week with her Father.[14]
[14] Generally, see Transcript (16th March 2010) pp.64-70.
Mr Gates’ proposal, as then submitted, would involve six ‘hand-overs’ per fortnight, and would result in the children having no week-end time with their Mother, and their brother [Z], until 2011.
I have no doubt that Mr Gates genuinely wishes the best for his children. However, I was surprised, and remain so, how little insight Mr Gates had in relation to how such a dramatic change which he proposed in the care and residence arrangements would likely have on his young children. Perhaps it was simple naïveté rather than intransigence or obduracy. Nonetheless, as with other matters noted below, in my view, he showed an uncanny lack of ability to put their interests above his own - which seemed heavily predicated upon a fundamental need for the maximum time for the children to spend with him - and certainly a significant lack of insight into their needs, especially given their young age.
I have already canvassed with Ms Capps’ evidence, and Mr Gates did not deny, that change-overs have been a source of significant contest and distress for quite some time, especially for Ms Capps. Mr Gates, on the other hand, said that he did not perceive hand-overs to be that difficult.[15]
[15] Transcript (16th March 2010) pp.74-75.
Surprisingly, a number of times in his testimony, Mr Gates said that ‘there was no conflict with [Ms Capps], and that the children are doing fine.’[16] This was so notwithstanding the evidence from Ms Capps, and more significantly, the evidence contained in the four Reports before the Court, all of which confirm the significant levels of discord between the parties.
[16] See Transcript (16th March 2010) pp.73 & 75.
Mr Gates maintained that he thought that issues between Ms Capps and himself could be sorted out.[17] This was so notwithstanding the unchallenged evidence that little had been “sorted out”, even with the assistance of six different consultants/therapists. For example, Dr S observed in his Report, at par.8.6: “The possibility of successful equal sharing of time with [X] and [Y] being successful will be compromised unless effective communication is re-established.”
[17] Transcript (16th March 2010) p.76.
A little later in the same paragraph, Dr S said: “Presently both parties appear to be extremely sensitive to any perceived slight or problem.”
To put it somewhat colloquially, the same issues identified by Dr S in his Report in August 2008, remained “on the table” in 2010. In a number of respects, as noted below particularly in the light of Ms L’s evidence as well as the evidence of Mr Gates, they had either become more entrenched if not worse over the last couple of years.
What was also alarming in Mr Gates’ evidence was his agreement – quite readily given – with the proposition put to him that throughout his affidavit material any and every fault raised in the proceedings rested at the feet of Ms Capps.[18] Such a one-sided view of the parenting relationship again, in my view, showed both lack of insight and short-comings in relation to co-operative parenting capacity.
[18] Transcript (16th March 2010) p.77.
To be fair, and fortunately so, after some further questioning, he did acknowledge that some responsibility for the on-going parenting issues should be shouldered by him.
Another significant part of Mr Gates’ cross-examination concerned his relationship with Ms Capps’ older son, [Z]. This included a series of allegations that [X] (in particular) was, perhaps, watching age-inappropriate DVDs while in his Mother’s care. So it was contended by Mr Gates, because [Z] watches ‘older DVDs’, it may be that [X] does so too. Upon being questioned about movie- watching at
Ms Capps’ residence, Mr Gates conceded that all of his criticisms of Ms Capps in this regard were based on assumptions. I need not take this matter further: in my view, it speaks for itself.
In my view, what was more significant, however, was Mr Gates’ contention that his children, [X] and [Y], should spend no time with their older brother [Z].[19] He maintained this position notwithstanding Ms L’s observations and recommendations as to the good and close relationship between the siblings, and the importance of that relationship. Again, in my view, Mr Gates’ position, which was earnestly held, showed a certain lack of insight into the needs of his children.
[19] Transcript (16th March 2010) pp.89-92. The Transcript references for the extended discussion in relation to movie-watching are at pp.80-89.
The final matter I wish to note from Mr Gates’ evidence concerned his claim, recorded at par.10 of Ms L’s most recent (March 2010) Report, that he was “flexible in his approach to others” and that he “... always [tries] and take other people’s perspective and understand they might not see things the same way I do.” This assertion was explored with Mr Gates at some length. I seek to summarise its essential features.
The discussion with Ms Godtschalk arose out of a proposal, put to
Mr Gates’ solicitors via her solicitors, whereby Ms Capps sought to alter – by one day - the days that the children spend with their Father so that Ms Capps could continue her work as a general practitioner, albeit on a part-time basis. Critically, in my view, there would be no loss of time the children were to spend with their Father.
This request to change the days the children spend with their Father was rejected. It was rejected on the basis that [X]’s time with his Father would be reduced. After quite some questioning, Mr Gates conceded that his contention about a reduction of time was erroneous.[20]
[20] Generally, see the discussion at Transcript (16th March 2010) pp.95-101.
What was no less problematic was the fact that what Ms Capps was proposing would have reduced the number of change-overs for the children, thereby reducing somewhat the opportunities for contest and discord between the parents (and the risk of distress for the children). Mr Gates contended that he did not wish to change because it was likely that, following the imminent trial, changes would be made to the parenting orders in any event and, therefore, he did not wish to change so close to the trial. Quite fairly, he also conceded that changeovers had been a problem “on and off” since 2008.[21]
[21] Transcript (16th March 2010) p.101.
While I accept his reasoning, up to a point, for my part it was a significant and readily agreeable change that would have (a) assisted the children, (b) assisted the parents, (c) assisted Ms Capps in her limited employment, and (d) not changed any of the time Mr Gates spent with his children. In my view, it again showed lack of insight in relation to what might be in the best interests of the children. It also under-mined, to a significant degree, his contention made to Ms L that he had a ‘flexible approach to others’ and that he ‘always [tries] and take other people’s perspective and understand they might not see things the same way I do.’ I have little doubt that, notwithstanding his good intentions, and accepting that there is no malevolence or mala fides at all, this flexibility unfortunately and patently does not extend to Ms Capps.[22]
[22] I accept Mr Gates’ assertion that he never specifically intends to cause distress to Ms Capps in his communications and dealings with her. See, for example, Transcript (16th March 2010) p.91. However, he appears, at least, not to comprehend the impact on her of his repeated comments about her parenting, for example, set out in the communication books to which reference was made in the course of Ms Capps’ cross-examination and the cross-examination of Mr Gates. See, for example, Transcript (16th March 2010) p.73.
In my view, her proposal to Mr Gates about a change in the days (but not the duration) that the children spend with their Father was both sensible and reasonable. It should have been small effort to agree to it; it would have generally benefitted everyone, and certainly could cause no detriment to either the children or Mr Gates. It was a recent, lost opportunity for Mr Gates to exhibit a basic capacity in relation to the matters comprehended by s.60CC(3)(c) and (i), and s.60CC(4) and (4A).
Not dissimilar in attitude was Mr Gates’ response regarding the schools for the children in the not too distant future. Ms Capps has recently taken up a position as [omitted], at which she will also do some [omitted] work, in one of the outer suburbs of the [B] region in Canberra. There are a number of schools – primary and secondary – near to that [business]. Mr Gates, however, wishes the children to attend [D] School, which is in a somewhat inner northern suburb of Canberra, much closer to the city centre, and something of a distance to drive from the location of Ms Capps’ [business] – and also her proposed new, relatively nearby residence.
In this regard, I note that Mr Gates intends to move to [S]. It may be inferred that, as a matter of geography, [S] is closer to the location of the schools in the vicinity of Ms Capps’ [business] than it is to [D] School. In theory, at least, for the children to go to school closer to their Mother’s intended residence (in [U]) and her place of work, and which is closer to their Father’s intended residence in [S], would seem a more practical solution. However, Mr Gates seemed to take a quite different view. If ultimately acceded to, it would inconvenience at least Ms Capps to a very significant degree. It would also likely increase travelling times for the children moving to and fro’ between home, school, and their Mother’s place of work.
Although I do not need to decide formally the issue of ‘schools’, there being no such application before me, it was, in my view, another instance which manifested (a) the level of discord between the parties, and (b) a lack of flexibility which Mr Gates contended he had.
One final matter needs to be recorded: Mr Gates confirmed that he no longer objected to Ms Capps relocating from [S] to Canberra with the children.[23] Should it be needed, such an order will be made.
[23] See Transcript (16th March 2010) pp.103-104.
Ms L’s Evidence: All parties have copies of Ms L’s most recent Report, dated 12th March 2010. It is unnecessary to repeat the various observations she makes about how clearly loved and cared for the children are, and the various comments and tensions evident in the relationship between the parents, as well as the extra dimension now added by Mr Gates’ new partner.
It is important, however, to set out in full Ms L’s “Evaluation” and “Recommendation”, from pars.32-35 of the Report.
32. It is, again, apparent that both Mr Gates and Ms Capps are capable and caring parents with whom [X] and [Y] have formed a trusting attachment. It is again further apparent that the children have developed a positive relationship with Mr Gates’ partner, Ms T. There is no issue regarding the children’s relationship with any of the adults. The central issue of concern remains the parents’ strained parenting relationship, which, it seems, has become even more entrenched over time. It is disappointing that Mr Gates and Ms Capps could not make progress with the assistance of Dr A.
33. It would appear that [X], in particular, is, on and off, experiencing difficulties moving between his parents. It is normal for children of [X] and [Y]’s age to exhibit some behavioural changes as they move from one home to another as part of an adjustment process. Living across two homes is a big ask for children, especially young children, under the best of circumstances. There is little doubt, however, that the tension between the adults, especially that observed by the children at changeover is disrupting [X]’s ability and, to a lesser extent, that of [Y], to part from one parent to go to the other free of anxiety and to readily settle into each of their homes. The adults’ responses on the Devereux Early Childhood Assessment scale regarding [X] and [Y] are indicative of children who are not coping with the care arrangement as well as could be expected. It would appear that [Y] might fret when she leaves her brother behind at her father’s home on Saturday to return to her mother’s care, which is an added stress for her. The many changeovers, especially for [Y], might also have a negative impact on the children’s ability to adjust to the current routine. Given the parents are not co-operative in aligning their care routines, it is a further challenge for the children to adjust to the expectations in each household.
34. Mr Gates and Ms Capps have made several attempts to improve their parenting relationship, however, without success. Unfortunately, their ability to co-operate in the future might continue to be limited. Under the circumstances, a primary care arrangement might best meet the children’s needs, especially while young. Both parents are capable of providing the primary care for [X] and [Y] such that the children’s developmental needs are met. The children’s situation is, however, that [Y], to date, has lived primarily with her mother with whom she would, at present, have the more significant attachment. As observed during the family conference, [X] and [Y] have a close sibling bond with their older brother, [Z]. It would, therefore, make sense that Ms Capps be the children’s primary carer.
Recommendation
35. With some hesitation and regret, I recommend a primary care arrangement for [X] and [Y]. There is little doubt that both Mr Gates and Ms Capps are equally competent parents and have equally much to offer the children. However, given the constraints on the parents’ ability to co-operate and the ages of the children, a substantially shared-care arrangement as proposed by Mr Gates might not be the best care arrangement that optimises the children’s ability to attain the tasks of their stages of development during their formative years.
Ms L’s final Report formed the basis of her cross-examination. The substance of that examination was as follows.
Ms L agreed that the difficulty in the case “really lies in the parenting relationship.” Related to this, she said, was that [X] in particular was struggling to leave either parent and to cope with the constant changing, the “moving backwards and forwards” between households, which was “really quite a task for him.”[24]
[24] Transcript (24th May 2010) p.4.
Ms L confirmed that, according to established research, children in [X] and [Y]’s age group “fare better in a primary residence situation ... regardless of whether there’s conflict between the parents or not.”[25]
[25] Transcript (24th May 2010) pp.5-6.
She also confirmed that, according to her recommendation for there to be a primary residence for the children, in her view, Ms Capps would promote (and has promoted) the children’s relationship with their Father, and that the children’s relationship with their older brother [Z] was also an important consideration. She confirmed that all three children have a close bond, which should be encouraged and maintained. She also confirmed that, if I found that Mr Gates was unwilling or unable to promote the children’s relationship with [Z], that would also be a consideration that would militate against a shared care regime.[26]
[26] Transcript (24th May 2010) p.8.
In answer to questions from Counsel for Mr Gates, Ms Tonkin, Ms L confirmed that Ms Capps being [Y]’s primary carer, and [Y]’s young age, were factors that ‘weighted the scales’ in favour of Ms Capps’ application. She repeated that the children’s relationship with [Z] was a significant consideration.
Ms L again confirmed that the children have a very positive and trusting relationship with both parents. She also confirmed the common-sense approach to minimise the possibilities of confrontation between the parents that there be a neutral venue for changeover. She also stressed the need to reduce the number of changeovers, and for the children to be given time to settle in their homes.[27] In this context she also observed (in my words) that a parental focus or pre-occupation on the quantity of time, as opposed to the quality of the relationship, was important to consider. Put another way, it was more important to focus on the time with the children across a broad spectrum of experiences, rather than on any reduction of time with Mr Gates. Indeed, Ms L agreed with my inquiry/proposition that [X]’s time (in particular) with his Father could or would most likely become even more special in a situation where the actual quantity of time was somewhat reduced.
[27] Transcript (24th May 2010) p.10.
Again she stressed that children of the ages of [X] and [Y] do not fare very well with shared care arrangements. She elaborated on this point, noting that the children are, in effect, being forced to tune in to the respective and quite different parenting environments in the respective households. This is a struggle for the children.[28]
[28] Transcript (24th May 2010) p.11.
The experienced independent children’s lawyer, Ms Burgess, asked
Ms L about a statement in her Report, at par.22, where she said that placing [X] and [Y] in a shared care arrangement, in circumstances where there was such conflict between the parents, would place their well-being at risk. Among other risks that could flow from such an arrangement being implemented in such circumstances, Ms L said that depression, extreme behaviour issues, and the children becoming withdrawn from internalising the stress, could all develop. She said that [X] seemed to be exhibiting some of these things even now, and that “their energy tends to go into coping, rather than having freedom just to be kids.”[29]
[29] Transcript (24th May 2010) p.14.
Ms L also confirmed that, with time and appropriate preparation, children understand the reasons why there is a change in routine such that there is [now] a primary residence, rather than regular transitions between two different households.[30] She also agreed that, if handled appropriately, and with the children having a more settled routine, with less changeovers and being less involved in any disputation, the quality of their relationships would actually increase. And she confirmed that the children were very well supported by their brother [Z].[31]
[30] Ibid.
[31] Transcript (24th May 2010) p.15.
I move to consider the legislative pathway.
D. The Legislative Pathway
Both parties seek an order for equal shared parental responsibility, subject to Ms Capps also seeking that she have sole responsibility in relation to “health issues” for the children. I need not repeat the issues of parental conflict in this matter. Save for the issue of medical treatment, notwithstanding the level of conflict, in my view, the Court should make an order as sought by the parties in relation to equal shared parental responsibility.
In relation to Ms Capps having sole parental responsibility in relation to health issues, I agree with the ICL’s submission, which stated that it was “surprising in the circumstances that the Father was unable to trust the Mother in relation to the child’s [[X]’s] treatment [for asthma] at the time.” [It] seems to me that it would be a common-sense order for Ms Capps to have sole parental responsibility in relation to all medical issues concerning the children. That said, she is to inform (and keep informed) Mr Gates as soon as convenient of any medical treatment required by, and or proposed for, the children. Obviously in cases of emergency, the information to which I have referred would and could only be provided after the event.
In the light of the above, an order as sought by Ms Capps in relation to equal shared parental responsibility, qualified in relation to medical issues for the children remaining her responsibility, will be made, but qualified further by the requirement to keep Mr Gates informed of any medical or other therapeutic intervention (proposed or otherwise).
The objects and principles in s.60B, and the primary considerations in s.60CC(2), summarised by Brown J in Mazorski v Albright to which I have referred earlier in these reasons, might also be concisely stated in terms of the paramount interests of the children referred to in s.60CA being a manifestation of the virtue of justice, classically understood as ‘rendering to them what is their due.’[32] In the light of the statutory refinement of what is ‘due to the children’, it might even more simply be stated that they are due, as a matter of justice, is appropriate care and protection. Put in the negative, not to provide the care and protection to children that is their due is to render injustice to them. Indeed, it may be that the infamous, if not sometimes dreaded, legislative pathway is nothing more than a series of considerations to ensure that justice to the children is achieved. Before I move to negotiate that “pathway” as it appears in s.60CC(3), three other comments are in order.
[32] See, for example, Aristotle, Nicomachean Ethics Bk.V.5.
First, in speaking – even briefly - about “justice” in the context of the relationship of parent and child, I note that related matters have been considered by eminent scholars overseas who are renowned for their incisive discussion of the rights of children. I have in mind here recent work by Professor Michael Freeman, from the University of London, and others, whose work is collected in the helpful study, Responsibility, Law and the Family.[33] Accepting that Freeman’s remarks, and those by others also to be noted, are not in an Australian context, the basic principles are worth considering.
[33] M. Freeman, “The Right to Responsible Parents,” in Responsibility, Law and the Family, (eds. J. Bridgeman, H. Keating & C. Lind) (Aldershot: Ashgate, 2008) pp.21-39
One of Freeman’s basal points, for which he draws on the work of John Eekelaar and his theories of communitarianism, and that of John Finnis and his long-time labours in relation to human flourishing and natural law, is as follows:[34]
To exercise parental responsibility is to put the interests and welfare of children ... above one’s own needs, desires or well-being. There may be disputes as to what is in a child’s best interests, but there is an irreducible minimum content to a child’s well-being, and this must be satisfied by anyone carrying out the role of, or purporting to become, a parent.
[34] M. Freeman, “The Right to Responsible Parents,” in Responsibility, Law and the Family, op. Cit., p.34. See further J. Eekalaar, “Are Parents Morally Obliged to Care for their Children?” (1991) 11 Oxford Journal of Legal Studies 340; J. Finnis, Natural Law and Natural Rights, (Oxford: Clarendon Press, 1980 [reprint 1986]) especially Ch.IV.
Another way of putting Freeman’s point is simply to say that parenting requires a significant degree of self-sacrifice.[35] So much has also been recognised and stated by the High Court, albeit in a slightly different context, where Gummow and Callinan JJ observed that “... maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.”[36]
[35] I discuss this and other virtues in more detail in Monds & Mullan [2009] FMCAfam 58 especially at [12] – [34]. Respectfully, I commend these paragraphs to the parties’ for their consideration.
[36] U v U (2002) 211 CLR 238 at p.263 [92]. Emphasis added.
The second point I wish to make is that the basic objects of law are to protect, to regulate and to educate members of the community. However, because law is such a blunt instrument, in the context of family law proceedings, more often than not, the best the law can achieve is to ensure (as far as that is possible in human endeavour) is to make orders that will protect children and to regulate to some degree the relationship between the parents and the relationship between the children and the parents.[37] And also because it is such a blunt instrument, the level of education it can achieve is necessarily somewhat limited or at a significant level of generality.
[37] It is hopefully useful, or at least apposite, to note Professor Cane’s observation (again in a different context) in relation to what law can achieve. In relation to what the law can achieve in terms of future responsibilities, he distinguishes between what is directed to producing good outcomes and those aimed at preventing bad outcomes. See P. Cane, Responsibility in Law and Morality (Oxford: Hart Publishing, 2002) p.31. In the context of the present discussion, “good outcomes” in family law proceedings may, indeed often will, be nothing more than the prevention of bad outcomes, such as making orders that seek to limit the opportunities where adverse factors, such as conflict, can impact on the children – and the parents too.
The third and final matter to note here is that, in the light of the very brief discussion just outlined about the efficacy or utility of law, especially in a family law context, it will be rare if not impossible for any law or any order to ensure, or to provide the circumstance, for children to “flourish.” Such flourishing of human beings can only be provided by the environments created by parents.
Rightly, Mr Gates confirmed that he wanted the children to grow up to be the best they can be “emotionally, morally, intellectually [and] academically.”[38] Conflict, of any sort, but especially sustained conflict between parents, provides only a stultifying and ultimately corrosive environment for children. In such an environment, as with other negative milieus, children cannot flourish in the way Mr Gates seeks. At best, as Ms L indicates, they expend their energy in coping – not flourishing. And to state the obvious, conflict does not assist parents to flourish either. At best, they, too, expend their energies in coping – not flourishing.
[38] See Transcript (16th March 2010) p.108.
It is time to move to ‘the statutory pathway.’ Unless otherwise required or noted, I should be taken as following sequentially the order of sub-paragraphs in s.60CC(3).[39]
[39] The following sub-paragraphs of s.60CC(3) have no application to these proceedings: (h), (j) & (k).
Given the ages of the children, there are no relevant views to consider.[40]
[40] s 60CC(1)(a).
I have already noted, as recorded in the independent material before the Court, that the children have a good and close relationship with both parents, as well as with their older brother [Z].[41]
[41] s 60CC(2)(a), (3)(b)(i), (ii).
In relation to the matters embraced by s.60CC(3)(c), Ms Burgess submitted that Ms Capps had a “strong history in this regard”, and she set out summarily the evidence for this submission. The Independent Children’s Lawyer also submitted: “There are question marks about the Father in this area.” Likewise, she outlined the evidence for this submission. I accept her submissions on both counts. In my view, the evidence clearly supports the greater capacity of Ms Capps to promote the children’s relationship with their Father.[42]
[42] The comments in relation to sub-paragraph (c) should also be taken to apply to sub-paragraph (i) and to s.60CC(4). Should it need to be stated, in referring to submissions from Ms Burgess here and later in these reasons, I should not be taken as ignoring, or not having had regard to, the respective detailed submissions from Counsel for each of the parties.
Concerning the likely effect of any changes in the child’s circumstances, again Ms Burgess highlights the evidence of Ms L, to the effect that it was important not to lose sight of the fact that the number of nights is less significant to a meaningful relationship than being able to spend time together in a broad spectrum of experiences. In my terms, it is in the children’s best interests to be removed, as far as that is possible, from occasions of conflict, discord and disruption so that they become much more settled in one household. From this more settled base, it is more likely than not that their relationship with their Father, which is good and secure in any event, will [it is to be hoped] become even better.
Given the relative proximity of the parents’ residences, in my view, no issues of practical difficulty and expense arise. Certainly no such issues were canvassed either at all or to any significant degree during the trial.[43]
[43] s 60CC(3),(d), (e).
Concerning sub-paragraph (f), Ms Burgess submitted: “While both [parents] are capable it seems that the circumstances of [Y]’s primary attachment to her Mother, and the presence of [Z] in the Mother’s household, tip the balance in favour of the Mother being most able to meet the wider range of the children’s needs. This is not a criticism of the Father, but rather an acknowledgement of circumstances important to the best interests of the children.” Respectfully, I agree.
Finally, I also agree with Ms Burgess’ submission that, especially in the light of [X]’s transition difficulties, it is in the children’s best interests to be in a more settled environment. She states: “A settled environment means a primary home.” That primary home, on the evidence, should be that of Ms Capps.
I next must consider s.65DAA because of my ruling that the parents are to have equal shared parental responsibility. The section has been the subject of recent discussion, determination and direction by the High Court in MRR v GR.[44] That case has already been the subject of formal comment – doubtless with more to come.[45]
[44] MRR v GR (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC¶93-424.
[45] See, for example, R. Chisholm, “The High Court Rules on s.65DAA and, Perhaps, an [sic] Relocation: MRR v GR,” (June 2010) 237 Australian Family Law Bulletin 7-8.
In MRR v GR, at [13], the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. (Internal citations omitted.)
The Court went on to say, at [15]: “Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s.61DA(1) is not determinative of the questions arising under s.65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
For the reasons already narrated at length, an order for equal time is not appropriate in the circumstances of this case. The issue then becomes whether an order for substantial and significant time should be made in the best interests of the children and, if so, whether such an order is reasonably practicable.[46] What constitutes “substantial and significant time” is set out in s.65DAA(3); what constitutes “reasonable practicability” is set out in s.65DAA(5).
[46] See s.65DAA(2).
The analysis previously undertaken in relation to the ‘pathway’ in s.60CC(3) militates against not only an equal time arrangement but also against a substantial and significant time order. The independent children’s lawyer submits similarly. She submits that because of the significant communication issues already outlined at length, and because “communication” is an issue that must be considered under s.65DAA(5)(c), together with the other matters set out in s.65DAA(5)(b) relating to parental capacity, in the light of the evidence, an order under this section (s.65DAA(2)) cannot and should not be made. In the light of the evidence set out in these reasons, I agree with the ICL’s submissions.
E. Conclusion
In Goode v Goode, the Full Court said:[47]
... if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC...
[47] (2007) 36 Fam LR 422 at p.445 [82(i)]. Although their Honours’ comments are formally in the context of and in relation to an interim hearing, the principle has wider application to embrace all parenting matters.
Such a statement of principle echoes the primary statutory touchstone in s.60CA, which enjoins the Court to make orders it considers to be in the children’s best interests and to do so putting those interests as the paramount consideration.
In the light of the above consideration of the evidence before the Court, and in the light of the jurisprudential analysis undertaken, in my view, the orders sought by Ms Capps are those which should be made. In my view, they are in the best interests of the children. It is time for the contest, tumult and conflict to cease – for the sake of the children, at least. It would do the parents, and all others affected by it, no end of good either.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 30th July 2010
Dr S’s Report, dated 24th August 2008, records (at par.6) Mr Gates confirming that while he and
Ms Capps “initially got on well, there had been stress in their relationship from its early stages.”
Although regularly exhibiting a certain optimism about being able to work things out with Ms Capps, and notwithstanding that (a) the proceedings have been on foot since mid-2008, and (b) the parties have seen six different counsellors in an endeavour to resolve parenting issues, in cross-examination
Mr Gates plainly, and matter-of-factly confirmed that there is acrimony, distrust, lack of communication, and different parenting styles between the parties. See Transcript (16th March 2010) p.76.
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