Chalmers & Moffat
[2021] FamCA 633
•31 August 2021
FAMILY COURT OF AUSTRALIA
Chalmers & Moffat [2021] FamCA 633
File number(s): AYC 339 of 2018 Judgment of: MCGUIRE J Date of judgment: 31 August 2021 Catchwords: FAMILY LAW – PARENTING – Interim application by father to spend more time with the child now that the child has commenced school – Application opposed by Mother – Application granted. Legislation: Family Law Act 1975 (Cth) ss 60B and 60CC Cases cited: Goode & Goode (2006) FLC 93-286
Eaby & Speelman (2015) FLC-93
Mazorski & Albright [2007] FamCA 520
Division: N/A Number of paragraphs: 55 Date of hearing: 25 August 2021 Place: Hobart Counsel for the Applicant: Mr Hogg Solicitor for the Applicant: Orman Solicitors Solicitor for the Respondent: Skinner & Associates Counsel for the Respondent: Mr Nicholson Counsel for the Independent Children's Lawyer: Ms Southey Counsel for the Independent Children's Lawyer: Victorian Legal Aid Commission ORDERS
AYC 339 of 2018 BETWEEN: MR CHALMERS
Applicant
AND: MS MOFFAT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
31 AUGUST 2021
THE COURT ORDERS THAT:
1.Orders 3 and 6 of the Interim Orders made by consent on the 18 November 2019 be discharged.
2.Until further Order the child X born in 2015 spend time with the father Mr Chalmers (‘the father’) as follows:
(a)Each alternate weekend from after school or 3:30pm Friday to before school or 9.00am Monday commencing 24 September 2021.
(b)Each other alternative Thursday from after school or 3:30pm to before school or 9.00am Friday, commencing 2 September 2021.
(c)For Father's Day weekend, in the event that X does not ordinarily spend time with the father, from after school or 3:30pm Friday to before school or 9.00am Monday in lieu of the following weekend.
3.Changeovers that do not occur at X’s school shall take place at B Services (‘the Contact Service’) (at the equal expense of the parties, if any) and in the event that the Contact Service is not available, and until the Contact Service accepts the parties’, at C Shop.
4.Until further Order, the father’s ordinary time with X shall continue to occur during all school holiday periods.
BY CONSENT
5.Each parent forthwith enrol in and complete the Parenting Orders Program, and provide a copy of the Certificate of Completion to the solicitor for the other parent and the Independent Children’s Lawyer.
6.The Independent Children’s Lawyer have leave to and shall within 7 days provide a copy of the affidavit of Mr D filed 27 July 2021 to Ms F.
7.That pursuant to s 62B of the Family Law Act 1975 (Cth) information about counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
8.That pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
9.Pursuant to rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chalmers & Moffat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGuire J:
Application
This is an interim parenting application brought by the father Mr Chalmers in respect of the one child of the parties namely X born in 2015 (aged six years).
Both the father and the Independent Children's Lawyer (‘ICL’) propose the following orders:
(1)Order three and six of the interim orders made by consent on 18 November 2019 be discharged.
(2)Until further order, the child X born in 2015 spend time with the father as follows:
(a)Each alternate weekend from after school or 3:30pm Friday to before school or 9.00am Monday commencing 24 September 2021.
(b)Each other alternative Thursday from after school or 3:30pm to before school or 9.00am Friday, commencing 2 September 2021.
(c)For Father's Day weekend, in the event that X does not ordinarily spend time with the father, from after school or 3:30pm Friday to before school or 9.00am Monday in lieu of the following weekend.
(3)Changeovers that do not occur at X’s School shall take place at B Services (‘the Contact Service’) (at the equal expense of the parties, if any) and in the event the Contact Service is not available, at C Shop.
(4)Until further order the father's ordinary time with X shall contact (sic) during all school holiday period.
(5)Each parent forthwith enrol in and complete the Parenting Orders Program, and provide a copy of the Certificate of Completion to the solicitor for the other parent and the ICL.
(6)The ICL have leave to and shall within 7 days provide a copy of the affidavit of Mr D filed 27 July 2021 to Ms F.
I am now able to make orders 5 and 6 above by consent.
The mother, Ms Moffat, opposes the application and asks that it be dismissed thereby continuing the interim orders of 18 November 2019, but which have themselves been amended with the consent of the parties and apparently to accommodate X commencing full-time school.
Relevant Background
The parties have been litigating both parenting and property matters for some three years. The substantive applications are listed for trial before her Honour Justice Hartnett as soon as December 2020 with an estimated hearing time of five days. Counsel for each of the parties and the ICL agree that the trial will occupy all of the available five days.
Pursuant to the interim orders of 18 November 2019, but as amended by the parties themselves X currently lives with mother and spends time with the father as follows:
(1)in week one from Friday at 8.00am until Sunday at 5.00pm; and
(2)in week two on each of Tuesdays and Fridays from 8.00am until 6.00pm.
I calculate, therefore, the X currently spends the two nights per fortnight with his father, but equally spends time with his father on five separate days per fortnight, albeit also attending school for a substantial period of the Tuesdays and Fridays.
The father's proposal would have X spending four nights per fortnight with him.
It is generally agreed that the parties’ relationship has been, and continues to be, extremely acrimonious. These proceedings commenced in the Federal Circuit Court in mid-2018, but were effectively discontinued by reason of an attempted reconciliation with the parties finally separating in January 2019. The history suggests a number of prior separations and reconciliations.
In his substantive application the father's position, at its highest, is that X should live primarily with him for nine nights per fortnight and five nights with the mother. The mother’s position is that X live with her and spend only 'identity time' with the father supervised on four occasions per year.
The father's case
The father relies on his affidavit sworn 15 April 2021. He also relies on the report of Mr D, psychologist, who has prepared a report on this family dated 16 July 2021.
Essentially, the father argues that there has been a change in circumstances since the making of the interim consent orders in November 2019 and namely that the X now attends full-time school thereby impacting on the quality of the time between the father and X on Fridays. The father relies on Mr D’s recommendations, albeit untested, and most clearly evident at [67] of his report as follows:
It may be that the course of least resistance is the most prudent approach. Within the model of parallel parenting, it may be that the most sensible option available for this family is for X to reside with his mother and to spend 4 or 5 nights with his father in a 14 night cycle, probably from either Thursday or Friday from the completion of school until the commencement (sic) school on a Monday morning, and overnight on the alternative Thursday. It may be that a sensible first step in the process is for X to have 4 nights with the father increasing to 5 nights at the beginning of the 2022 academic year. There should be a sharing of holidays and significant dates.
The father also relies on the Mr D’s reporting as to both the comfortable relationship between X and the father and X’s own preferences as to his regime of time between his parents. At [49] Mr D reports:
X indicated that he would like to be able to spend more time with his father, and told me that he liked spending time in his father's home, that they had a special relationship, that his father gave to him lots of hugs and cuddles, and that they play together. X told me that he cared about his father, that his father cared about him, but that his mother was reluctant for him to do so.
At paragraph [51] and [52] Mr D observes:
X was also seen in the company of his parents separately. In the company of his father, there was an unmistakable sense of warmth, positive affection and comfort. Mr Chalmers and X shared a real sense of connection, joy and pleasure with each other. Mr Chalmers easily immersed himself into play and activity with his son, that was both imaginary and symbolic. Mr Chalmers easily and cooperatively played with X… X and his father entered into easy conversation and they understood each other; they maintained a very active dialogue and an abundance of physical affection that was spontaneous and unconscious.
As a clinical observation, Mr Chalmers and played easily and cooperatively, there they were in synchrony, they maintained an almost constant dialogue, and were immersed in their activities cooperatively to the exclusion of me, such that my observation of them was irrelevant. Together, they interacted in a relaxed, warm, spontaneous and reciprocal manner. X was observed to initiate both physical and emotional contact…
Relevantly [59] Mr D observes, and the father relies upon, the following:
My observation of X in the company of his parents was remarkably reassuring, as they shared an unmistakable reciprocal sense of warmth, affection and enthusiasm. X reported to me that he loved his father, felt safe with his father, felt well cared for by his father, described his father as a special person upon which he could depend on and rely, and he struggled to understand what the time available for him with his father was being so limited. X conveyed little in the way of apprehension, anxiety, awkwardness, or avoidance of his father, and to the contrary, my observations of them together was warm, spontaneous, affectionate, reciprocal and conveyed a serve and volley quality.
The father conceded that the relationship with the mother has been a mutually antagonistic one. He denies many of the allegations, but has made some limited admissions. The father argues that the untested allegations of family violence are of limited relevance within the context of this interim dispute where he is already enjoying unsupervised and overnight time with X.
The mother's case
Counsel for the mother argues firstly that a further determination of the interim time for X is unnecessary and hence the father’s application should be dismissed. She argues that the X is already spending time and substantial time with the father over some five separate days per fortnight, including a period of two consecutive overnights. She says that the substantive applications are listed for trial as early as December of this year and it is for that process to properly test the competing proposals of the parties and the evidence in support of each where she emphasises she will be seeking orders that that the father's time with X be limited to 'identity time' on four supervised visits per year.
Whilst acknowledging the report and recommendations of Mr D, counsel for the mother emphasises that this is simply another piece of evidence yet to be tested and that Mr D's conclusions and recommendations will be the subject of such testing. In this sense, the Court was alerted to a previous family report by family consultant Ms F prepared in the H Town Registry in 2019 where the author concludes at least in part that ‘… If evidence of the wife is accepted then there should be identity time only for X with the father’.
Counsel for the mother further points out that the Court is not yet appraised of all of the relevant material including some further 850 pages of DOCS (New South Wales) material subject to a recent subpoena.
The mother acknowledges X's comments to Mr D, but urges caution in the Court placing too much weight on the comments of a six-year-old where the admitted relationship between the parents is of extreme animosity.
Essentially, however, the emphasis of the argument of the mother is that the Court should not readily intervene to alter arrangements that have been on foot for a considerable period of time and which give the child frequent time with the father, including overnight time, and also where the parents themselves have been able to address the issue raised by the father namely this child's attendance at school by adding the Tuesday time to the orders of 18 November 2019 as well as adding an hour to the time on Fridays.
The ICL case
The ICL puts a position supportive of the father's application. She relies to a high degree on the untested report of Mr D, but with emphasis on matters of immediate interest and impact in respect of X and, in particular, protecting him from exposure to the antagonistic relationship between his parents.
Whilst the father in his affidavit at [25] seems to believe there is a calming of his relationship with the mother, the ICL and Mr D urge more caution. Mr D's report at [10] describes the father thus:
[The Father] presented as an extremely tense and anxious man, who proved to be an extremely poor historian. He presented as overwhelmed by the history, and consumed by an external locus of control, that is, the tendency to place blame and responsibility for the current difficulties, these proceedings, and the lack of settlement upon [the mother] and her recalcitrance. [The father] showed a disarming rationalisation for the multiple Breaches of Intervention Order, the allegations of family violence and his own contribution to these difficulties, that gave the very clear impression that he either understated, under emphasised, or failed to appreciate the active contribution made to his own problems.
Further, at [56] Mr D continues:
It is almost impossible to provide a clear and concise summary of this dispute given the chronically conflicted and chaotic nature of the history, the overwhelming amount of detail in the subpoenaed documents, and the extensively reported concerns regarding the parental conflict. The sheer weight of material reflects the enormity and complexity of this dispute. It seems to me inescapable that there has been severe family violence, and that it is likely this has been of a coercive and controlling nature. However, the family’s presentation is multilayered, it is complex, there are historical child protection issues involving [the mother’s] other children, embedded within the spousal conflict, highlighted by the numerous Intervention Orders, Breach of Intervention Orders, and the multiple allegations and counter allegations. In a matter where there are so many claims, so many counterclaims, so much conflict and so much litigation, it is difficult to pull together a meaningful formulation.
Against this background, Mr D, perhaps with not complete optimism, suggests at [63]:
They very clearly fall into the category of high conflict, with a significant overlay of family violence and probably substance abuse. There are multiple layers of difficulty that is both historical and ongoing. It may be that the most helpful way to proceed is to fully embrace the reality of the situation, and to implement Court Orders that seek to impose as much as possible, clear boundaries, unambiguous guidelines, and the clearest and most unambiguous sanctions should intervention orders be breached.
Further, at [65] Mr D casts doubts on the utility of the current arrangement and then continues:
At the very least, I would suggest that the Court implement an arrangement whereby X is collected from school and delivered to school, and that as much as possible, the transition between his parents be buffered by the school experience.
Finally, at [71] to Mr D opines:
X clearly needs to spend time with both his parents, needs a relationship with his extended family, and needs to be spared the unrelenting intrusion into his psychological functioning as a consequence of his parent’s (sic) conflict. X also needs to be spared the exposure to his parent’s conflict and exposure to his father's denigration of his mother. [The mother] needs to be able to parent her son unimpeded by the abuse of [the father] and [the father] needs to be allowed the opportunity to positively contribute to his son's development. Notwithstanding the overarching ideal of have having both parents actively and constructively involved in X's life, this will require structure, certainly in parallel parenting. Court orders will be a necessary part of X's family live moving forward.
The ICL argues that the orders as suggested by her attend to a degree to Mr D's concerns and specifically as limiting if not, if not avoiding, for X the exposure to his parents conflict.
The Relevant Law
The orders that I am asked to make are parenting orders and, as such, I am to have X's best interests as my paramount consideration pursuant to s 60CA of the Family Law Act 1975 (Cth) (' the Act ').
The process of consideration for the Court is a mandatory one of referencing the proposals of the parties and the ICL together with the probative evidence to the many considerations set out in s 60CC(2) and (3) of the Act against the background of the Objects and Principles of the legislation set out in s 60B as follows:
(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).
As emphasised in the submissions of counsel for the mother, the nature of interim hearings the are such that they do not have the considerable advantages of a final trial in that the evidence of the parties, their witnesses, and the experts is untested by cross examination. Experience suggests that the testing and challenging of the evidence at the trial is a crucial and perhaps fundamental aspect of a process ultimately of determining the best interests of children as to their living and parenting arrangements. This interim hearing, however, and is the norm, was conducted on the face of the affidavit material untested and supported only by submissions from counsel. It follows that the Courts at this stage are often are unable to make findings of disputed fact and credit with a tendency, therefore, to rely upon the agreed or uncontroversial facts to assist the determination. Nevertheless and despite these limitations of a truncated the hearing, the Court remains mandated to conduct the hearing by a course of statutory consideration set out in the well-known decision of the Full Court in Goode & Goode[1] where their Honours say at [68]:
… the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
[1] (2006) FLC 93– 286.
However, the above should not be understood as courts at this interim stage being relieved of the obligation of considering all of the evidence. In Eaby & Speelman[2] the Full Court elaborated:
[2] (2015) FLC 93-654 at [18].
It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122]In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123]Later, at [100] their Honours amplified their comments and said:
[100]The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Neither party in this interim hearing raises the issue of parental responsibility. The orders that that each party seeks sit comfortably within the definition of 'substantial and significant time' pursuant to s 65DAA (2) and (5).
THE S 60CC FACTORS
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child's parents
The evidence of Mr D suggests that X has an established, meaningful and supportive relationship with each of his parents. The discrete nature of the application now before me is unlikely to impact in any great sense on those relationships whether the application is granted or refused.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Mr D’s report is striking in respect of both the history and nature of the conflictual relationship between these two parents. The sources of the conflict and family violence will undoubtedly be explored in great detail at the trial. At this point, however, it is, firstly, reasonable to expect that X, although only six years of age, has experienced and been exposed to this conflict and, secondly, that it is the duty of the Court to make orders which will limit or remove such exposure.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child's maturity and level of understanding) that the court thinks relevant to the weight which would be given to the child's views
X is just six years of age. I accept the submission of counsel for the mother that the Court, particularly in such an interim stage, should be cautious in giving too much weight to the views and preferences of such a young child. That caution is emphasised and compounded by this six-year-old child living between the two such highly conflictual parents and where the levels of information, voluntariness, and rationality behind such statements of preferences by X's is yet to be tested.
Nevertheless, X was able to express positive comments in respect of his relationship with his father which was corroborated by Mr D’s observations of the two together. In such circumstances it is perhaps not unexpected that X would express a wish to spend more time with his father. Nevertheless, I remain loath to place any great weight on X’s statements at this stage.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) any other persons (including any grandparent or other relative of the child)
X’s relationship with each of his parents is one of relatively high frequency. He lives with his mother but spends time with his father currently on five separate days per fortnight including a block of two overnights each second weekend. It follows that, as observed by Mr D, X has a high degree of comfort and familiarity in the presence of each of his parents. Unfortunately, Mr D's report also indicates some exposure for X to parental conflict in that he seems to attempt to attribute some blame to one or other of his parents.
The nature of the X’s relationship with his father will be little impacted, if any, by the discrete change sought by the father in this application. That is high frequency of time with each parent will be maintained. The father argues with some merit that the changes he asks for would give greater quality to his time with X in that his daytimes at the moment are impacted by X attending school. It is well-established that the Court’s focus is on the quality of parent – child relationships rather than simply an allocation of the quantity of time.[3]
Section 60CC(3)(c) the extent to which it each of the child's parents has taken, or failed to take, the opportunity ;
(i) to participate in making decisions about major long – term issues risk in relation to the child; and
(ii) to spend time with the child; and
[3] Mazorski & Albright [2007] FamCA 520.
(iii) to communicate with the child; and
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil the parent’s obligations to maintain the child
Issues under this factor are not agitated at this hearing before me.
Section 60CC(3)(d) the likely effect of any changes in the child 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 person (including any grandparent or other relative of the child), with whom the child has been living;
As set out above, the orders sought by the father are relatively discrete in the changes anticipated for X. X is observed as being comfortable with each of the parents and it is not argued that there would be any negative impact on X if the Court were to accede to the father's application.
Section 60CC(3)(e) the practical difficulty and expense of the 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
The ICL emphasises the actual and potential impact on the X of the practical aspects of face-to-face changeovers between these two highly conflictual parents. Put simply, it is argued that X's best interests are served by face–to–face changeovers for him between his parents being avoided. The historical and continuing conflictual relationship is set out in appalling detail in Mr D's report.
Section 60CC(3)(f) the capacity of each of:
(i) 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, and including emotional and intellectual needs
Almost perversely, Mr D's report indicates that individually each of these parents are adept and child focused thereby each establishing individually a successful relationship with their son. They have even shown a capacity to agree and be flexible outside of the court orders. Their personal views and reactions of each other, however, remain extremely conflictual and antagonistic with a continuing potential to impact on their son’s emotional and psychological welfare.
The current interim orders demonstrate a capacity in each of the parents to attend to X’s physical needs.
Section 60CC(3)(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
X is just six years of age. His personality is developing as his capacity to establish and maintain relationships both within and outside of his family. In this sense he is very much a vulnerable child. The continued hostile relationship between his parents suggests that neither has developed a full understanding and insight into the needs of a six-year-old and those vulnerabilities.
Section 60CC(3)(h) if the child is an Aboriginal child Torres Strait Islander child;
(i) the child’s right to enjoy his 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;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
On the material before me, each of these parents is culpable in respect of the actually or potentially exposing the six-year-old X to their own manifestly toxic relationship.
Section 60CC(3)(j) and (k) any family violence involving the child or a member of the child's family and any family violence orders
These issues have been canvassed above and are exposed in detail in Mr D's report with emphasis on Mr D having little or no confidence that these two parents have the ability to address these issues or to quarantine their young son from them.
Section 60CC(3)(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 the child
The mother’s counsel expresses caution in the Court making the orders sought by the father in that the mother should not be seen as in any way acquiescing to any further time for X with the father. I found this submission rather odd where the evidence suggests that this mother and the father, surprisingly, have been able to negotiate variations from the 2019 orders. Nevertheless, I am fully understanding of the position to be argued by the mother at the trial in December 2021 and, in my view, the Court making orders of the type sought by the father would not and should not prejudice in any way the prosecution of her of her application.
Findings and Considerations
I have rarely read a family report which is so explicit and damning of the culture of family violence and antagonism between two parents despite such issues being aired almost inevitably in parenting matters coming before this Court. The report gives virtually no optimism towards any co-operative parenting regime for X moving forward. The evidence suggests that each parent is culpable to a degree and I expect that the forthcoming five day trial will focus much of its time and energy on these unfortunate and unsavoury issues. It is reasonable to expect that that young X has been exposed to his parents’ family violence and their negative further views of each other. It is equally reasonable to expect that a continuation of this situation will potentially be extremely damaging to X who as a six-year-old child deserves care and support of his parents rather than involvement in their personal adult disputes and conflict.
Despite my comments as to the culpability of these parents, to their credit they appear to have been able to negotiate consent orders and subsequent flexibility in an arrangement for X which has him enjoying a relationship of high-frequency and some quality with each of the parents.
The orders of November 2019 were made whilst X was at pre-school and prior to him attending full time school. Whilst it is again to the credit of the parents that they have been able to negotiate some amendments to those orders since X has commenced school, the fact remains that X's time with his father often occurs during school days and, as mentioned above, where the Court’s focus is on the quality of relationships between children and parents rather than simply the allocation of time. I am of the view that the father's proposal attends to a greater degree for X's relationship with the father in the sense of this quality whilst not impacting in any way on the quality of X's relationship with the mother.
I also accept the submission of the ICL that the X must be spared the potential for manifest conflict between his parents. The current arrangements have a high potential for such conflict where the parents are obliged to meet for changeovers. The ICL's proposal and that of the father would effectively eliminate the face – to face meetings of the parents save and except for occasions during school holidays.
Consequently, where I see the changes sought by the father to be discreet and where they do not effectively diminish or negatively impact on X’s relationship with his mother but where there are the positives for X set out in these Reasons, I am of the view that the father's proposal attends to the best interests of X. Whilst I am mindful that these parents will face a full trial over a number of days as soon as December of this year, I also share the concerns of the ICL and Mr D that the in the interim the Court should attend to any potential exposure for X to his parents conflictual and potentially violent relationship.
For these reasons, there will be orders in the terms of the minute sought by the ICL and supported by the father noting that orders five and six of that to the minutes will be by consent.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 31 August 2021
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