CARROW & VINCENT
[2013] FCCA 1732
•8 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARROW & VINCENT | [2013] FCCA 1732 |
| Catchwords: FAMILY LAW – Parental responsibility. |
| Legislation: Family Law Act 1975 Federal Circuit Court of Australia Act 1999 Federal Circuit Court Rules 2001 |
| Lennon & Lennon [2011] FamCA 571 |
| Applicant: | MR CARROW |
| Respondent: | MS VINCENT |
| File Number: | MLC 11251 of 2009 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 16 - 18 October 2013 |
| Date of Last Submission: | 18 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 8 November 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Williams |
| Solicitors for the Applicant: | Barbayannis Lawyers |
| Counsel for the Respondent: | Mr Hoult |
| Solicitors for the Respondent: | Law 554 |
| Counsel for the Independent Children's Lawyer: | Mr Ambrose |
| Solicitors for the Independent Children's Lawyer: | Kenna Teasdale Lawyers |
ORDERS
That the applicant father and the respondent mother have equal shared parental responsibility for the child [X] born [in] 2008.
IT IS NOTED that publication of this judgment under the pseudonym Carrow & Vincent is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11251 of 2009
| MR CARROW |
Applicant
And
| MS VINCENT |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving the one child of the parties being [X] born [in] 2008 (aged 5 years).
The only issue now left for my determination is that of parental responsibility for [X]. The applicant father seeks an order for equal shared parental responsibility. The mother seeks sole parental responsibility to be vested in her.
The Court had the benefit of an Independent Children’s Lawyer at the trial of this matter which included a major issue of whether [X] should spend time with the father. The Independent Children’s Lawyer’s Case Outline filed 15 October 2013 sought an Order in accordance with the mother’s proposal being for sole parental responsibility. However, by the end of the evidence and, in particular, after cross-examination of the Family Reporter who had the assistance of a psychiatric assessment of both parties prepared by Dr E, the final submissions of Counsel for the Independent Children’s Lawyer were in accordance with the father’s proposal of equal shared parental responsibility of [X]. The Family Reporter recommended equal shared parental responsibility.
At the conclusion of the evidence which proceeded over two days, I made Orders accompanied by ex-tempore reasons in respect of [X]’s time with the father. The mother had proposed that there be no time. There had previously been supervised time for [X] with the father. The father proposed unconditional time in a relatively traditional regime. Orders were made effectively in the terms of the father’s proposal as it stood at the end of the evidence.
Background
Both parties are 35 years of age. [X] is the only daughter of their relationship and of either of them. The parents commenced cohabitation in 2004 and were married in 2007. They separated in February 2009. Family Law proceedings have continued between these parents from 2009 when [X] was just an infant. A lengthy trial was conducted in 2010 with final Orders made in September of that year whereby [X] was to live with the mother and spend limited time with the father on three weekends out of four but such time to be supervised by a member of his family. Serious issues were raised in that trial as to the psychiatric health of the father and my reasons are detailed in respect of the Court’s concerns in respect of Mr Carrow at that time.
There followed Contravention proceedings instituted by the mother. The father was seriously injured in a car accident and a combination of these factors caused a lengthy hiatus in time for [X] with Mr Carrow. He commenced these proceedings by an Initiating Application filed 23 May 2012 following which [X]’s time with Mr Carrow was reinstated by interim Orders.
At the end of the evidence I indicated that I would then give reasons in respect of the issue of [X]’s time with the father but would reserve my reasons as to the discrete controversy of parental responsibility.
Relevant Law
Division two of Part VII of the Family Law Act 1975 (“the Act”) provides the jurisdiction and power to make parenting Orders. The Order I am asked to make in respect of [X] is a parenting Order. As such, I must, pursuant to Section 60CA of the Act, have [X]’s best interest as my paramount consideration.
Section 61B of the Act defines parental responsibility as:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61C of the Act provides that each of the parents of a child who is not 18 years of age has parental responsibility for that child whether or those parents become separated.
Section 61DA of the Act provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
…
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In determining [X]’s best interests I am obliged to address the various considerations in Section 60CC(2) and (3) of the Act which provides as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The father’s Case
Mr Carrow argues that he is a willing and able parent of [X]. He says that he has consistently sought to have a full and meaningful relationship with his daughter evidenced by the consistent proceedings before this Court. Mr Carrow says that the most recent evidence of
Dr E is that any prior concerns in respect of Mr Carrow’s mental health have been alleviated. He argues that he is in a stable and committed domestic relationship and has strong family support. The evidence suggests that he has an involvement in [X]’s life and extra-curricular activities insofar as previous Orders have allowed. His Counsel argues that the nature of the obligations of “parental responsibility” are such that they are not exercised on a daily basis and that Mr Carrow has indicated a willingness to communicate, cooperate and respect the mother’s role as primary parent of [X] and to work on improving his relationship with the mother.
To the contrary, the father’s Counsel argues that the psychiatric evidence of Dr E raises concerns as to the mother’s emotional and psychological health in that it may be she who is unwilling to equally discharge the obligations of parental responsibility and to be unwilling for her own personal reasons rather than those of [X]’s best interests to be cooperatively involved Mr Carrow.
The mother’s Case
Counsel for the mother argues that Mr Carrow has a history of psychiatric illness and that this has impacted on the mother’s ability to trust him in any relationship with [X]. Further, he argues that the mother herself “fears” Mr Carrow and is simply unable to be involved with him in any parenting responsibilities for [X]. That argument continues that the mother’s own parenting of [X] will be negatively impacted by her being directly exposed to Mr Carrow. Interestingly, the mother would rely on the very same comments and observations of Dr E and the Family Reporter as cited by the father in support of his argument including the Family Reporter at paragraph 55:
Ms Vincent’s negative view of Mr Carrow has influenced [X]’s current ability to transition from one parent to the other without stress. Also, Ms Vincent’s emotional fragility around viewing Mr Carrow’s and Ms B’s actions as a personal attack affects her ability to support an ongoing relationship between [X] and Mr Carrow.
And Dr E at …
It is readily evident that her anxieties makes it very difficult for her to contemplate Mr Carrow being a part of [X]’s life. Further it is readily apparent that Ms Vincent’s anxiety is transmitted to [X].
The Independent Children’s Lawyer’s Case
As indicated above, by the end of the evidence, the Independent Children’s Lawyer supported an Order for equal shared parental responsibility and essentially adopted and agreed with the submissions of Counsel for the father.
Discussion and Conclusions
I have previously made findings which raise serious concerns as to Mr Carrow’s psychological or psychiatric health. Dr E was not required in the matter now before me for cross-examination. As such, I take the observations and conclusions in his report as unchallenged. That report is generally positive as to the improvements made by Mr Carrow. Dr E does not diagnose any psychiatric illness. He does not recommend any stringent conditions on Mr Carrow’s time with [X]. Dr E does, however, raise concerns as to the mother’s willingness and ability to involve Mr Carrow in the parenting process.
I have had the advantage of seeing and hearing both parties give their evidence in Court and be cross-examined. Whilst I accept the conclusions of Dr E, my observations of Mr Carrow remain of a person who feels empowered and entitled in the parenting process. His evidence at times was rambling and convoluted and he had a tendency to deflect blame onto the mother.
Ms Vincent initially presented as a timid and vulnerable mother against the overt confidence and assertive nature of Mr Carrow. However, as her evidence progressed, I gleaned a certain stoicism in her. In my interruption of her cross-examination, Ms Vincent conceded that her case for no-time between [X] and Mr Carrow was based to a large degree on her own desire to have nothing to do with Mr Carrow and her ideal of him not being involved in [X]’s life.
It is true these two parents come to Court bearing a high degree of animosity to each other. They have been relentless litigators in respect of their daughter. My observation is that their respective families have become entrenched supporters of each. There has been virtually no communication between these parents since separation and when [X] was an infant. I am satisfied that the mother’s ideal would be to simply obliterate Mr Carrow from [X]’s life. As such, but perhaps with some understanding of the difficulties that Mr Carrow’s particular personality might impose on her, Ms Vincent has not been a mother who encourages and facilitates [X]’s time with the father.
I have little doubt that Mr Carrow is a difficult person to communicate with. He is assertive and entitled by nature. Nevertheless, he gave evidence under oath of being willing to work with the mother for the benefit of his daughter.
I must make Orders which, so far as they are in the child’s best interest, give [X] a meaningful relationship with both parents into the future. This is a prospective consideration. The issue for the Court is not one of “joint parental responsibility” but rather of “equal” responsibility in the sense of input into the important decisions for their daughter. These are not issues which arise on a daily basis but will do so in respect of matters such as [X]’s education. Prima face, [X] will benefit by seeing and understanding her parents both being productive and interested in these important matters in her life as she travels through her childhood and her adolescence.
Counsel for the father concedes that the issue for the Court is whether the presumption is rebutted as being contrary to [X]’s best interests. He did not argue that the presumption does not apply in respect of issues of family violence or abuse.
[X] is not of an age where she could rationalise and form a view in respect of the issue now before the Court.
The responsibilities for important decisions in [X]’s life thus far been made by the mother and unilaterally. This has been within a context of her being the primary parent and for [X] spending no time with the father for a lengthy period and otherwise such time being supervised. The time-with Orders I have now made for [X] with the father are of a completely different nature and provide for regular, frequent and unconditional time. The evidence of the father and his partner is of a successful relationship for [X] with the father currently and against the background I have described above. To the contrary, the evidence of the mother is of [X] being reluctant to leave her to go to the father and of being anxious on her return. As indicated to the mother during her evidence, it is entirely probable that the evidence of both parents is honest as to their observations. The mother’s anxiety, angst and reluctance to have [X] enjoy a relationship with the father were palpable in Court. I expect that there is a real likelihood that this child feels and takes on the anxieties of her own mother but that she soon settles when in the company of the father and his partner.
It is not uncommon (in fact it is the norm) for parents litigating in this Court have difficulties in communication, trust and respect of each other. This in itself is not, in my view, a reason to make an Order for sole parental responsibility of a child in favour of one or the other of the parents. To the contrary, it is incumbent on parents to work on and improve their communication and cooperation skills in respect of their children. It is for these parents to differentiate between their own personal and residual animosities with their obligations as parents. Decisions in respect of children’s education, medical procedure and the like can and should be made in an objective, considered and informed fashion with a focus on the child’s best interest. It is not a necessary pre-condition that the parents must like each other. It is not surprising therefore, that Part VII of the Act applies a presumption of equal shared parental responsibility whilst anticipating argument between parties as to the day-to-day living arrangements for their children. It follows that the issue of parental responsibility is not at large. Rather, there must be evidence of sufficient probity and weight to satisfy the Court that it is not in the child’s best interests for the parents to have equal shared parental responsibility. In this sense it is a serious matter indeed to remove the responsibilities and rights of parental responsibility from one parent. As Murphy J observed in Lennon & Lennon[1]
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for a child is, it seems to me, a very significant step being a very serious interference with the fundamental rights of a person. There is no doubt that the exercise of that discretion ought to be resolved in favour of an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration, nor that the legitimate fundamental rights of a parent are irrelevant.
[1] [2011] FamCA 571
In all of the circumstances, I am of the view that [X]’s best interests are served by there being an Order for the parents having equal shared parental responsibility. More properly, I am not satisfied that there is evidence such that the presumption is rebutted. The evidence before me in respect of Mr Carrow is of a parent who has consistently pursued a full and beneficial relationship with his child. I am satisfied he has done so without any ulterior or improper motives in respect of [X]’s mother. I am satisfied he has much to offer [X] and that she should benefit by him exercising parental responsibility just as she does by spending time with him. It is for the mother now to be objective in respect of parental responsibility. She cannot simply rely upon her own personal dislike of Mr Carrow and sit back and say, “I can’t or won’t deal with him”. The presumption provides obligations and responsibilities and not simply rights. I am not satisfied that the mother is unable to exercise those responsibilities or distinct from being unwilling to do so.
There will be an order that that parents have equal shared parental responsibility of [X].
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 8 November 2013
Key Legal Topics
Areas of Law
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Family Law