CHARLTON & PEARSON (No.2)
[2018] FCCA 2861
•5 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHARLTON & PEARSON (No.2) | [2018] FCCA 2861 |
| Catchwords: FAMILY LAW – Final arrangements for parenting of child aged seven – parties separated when child was infant – high conflict – parties have engaged in protracted litigation – father seeks either equal time or substantial and significant time – application of presumption of equal shared parental responsibility – best interests – reasonable practicality – cultural issues – matters to be considered. |
| Legislation: Family Law Act 1975, ss.11F, 60B, 60CA, 60C, 60CC, 61DA, 65DAA Evidence Act1995 (Cth), s.140 Racial Discrimination Act 1975 (Cth) |
| Cases cited: Fox v Percy (2003) 214 CLR 118 T & N [2001] FMCAfam 222 |
| Applicant: | MR CHARLTON |
| First Respondent: | MS PEARSON |
| File Number: | ADC 1081 of 2012 |
| Judgment of: | Judge Brown |
| Hearing dates: | 14, 15 & 16 May & 7 August 2018 |
| Date of Last Submission: | 7 August 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 5 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent | C G Family Law |
| Counsel for the Independent Children’s Lawyer | Ms Horvat |
| Solicitors for the Independent Children’s Lawyer | Legal Services Commission |
ORDERS
That the Orders made on 26 November 2013 be discharged.
That all Orders made subsequent to 26 November 2013 be discharged.
That the parties have equal shared parental responsibility for the child [X] born 2011.
That the child live with the Mother.
That during school term time, the child spend time with the Father as follows:
(a)In each alternate weekend from the conclusion of school on Friday (or 5.00pm if it is a non-school day) to the commencement of school on Monday (or 9.00am Tuesday if the Monday is a public holiday or non-school day);
(b)At such other times as may be agreed between the parties by way of email communication.
That during short term school holidays, the child spend time with each of the parties as follows:-
(a)With the Father for one period of seven consecutive nights from the conclusion of school on Friday (if it is the last day of the school term) or 5.00pm if it is a non-school day to 5.00pm on the following Friday to commence on the Friday on which the child would ordinarily spend time with the Father pursuant to paragraph 5(a) of these Orders;
(b)With the Mother at all other times,
NOTING THAT the child's time with the Father pursuant to paragraph 5(a) hereof will recommence in each school term pursuant to the 'usual cycle'.
That during Christmas school holiday periods, the child spend time with each of the parties on a 'week about' basis from the conclusion of school on Friday (if it is the last day of the academic year) to 5.00pm on the following Friday with the intention that:-
(a)The child spend time with the Father for the first week of the Christmas school holidays in 2018 and in each alternate year thereafter;
(b)The child spend time with the Mother for the second week of the Christmas school holidays in 2019 and in each alternate year thereafter NOTING THAT by operation of this order, it is the intention of the parties that the child will spend the occasion of Christmas Day with each of his parents on an alternating basis AND FURTHER NOTING THAT the child's time with the Father pursuant to paragraph 5.1 hereof will recommence on the first weekend of Term One in each academic year.
That notwithstanding paragraphs 4 to 7 (inclusive) hereof, the child spend special occasions with each of his parents as follows:-
(a)With the Mother from 9.00am to 5.00pm on Mother's Day;
(b)With the Father from 9.00am to 5.00pm on Father's Day;
(c)During each Easter period as agreed between the parties or in default of agreement as follows:-
(i)With the Mother in 2019 and for the same period in each alternate year thereafter from 5.00pm on Easter Thursday until the commencement of school on the following Tuesday (or 9.00am on Tuesday if it is a nonschool day);
(ii)With the Father in 2020 and for the same period in each alternate year thereafter from the conclusion of school on Easter Thursday (or 5.00pm if it is a non-school day) until the commencement of school on the following Tuesday;
(d)With the child on each of the child's birthdays as agreed between the parties or in default of agreement:-
(i)In the event that the child is not otherwise in the care of the Father then with the Father as follows:-
A. If the birthday falls on a school day then on that day from the conclusion of school until 7.00pm;
B. If the birthday falls on a non-school then on that day from 2.00pm to 6.00pm;
(ii)In the event that the child is not otherwise in the care of the Mother then with the Mother as follows:-
A. If the birthday falls on a school day then on that day from the conclusion of school until 7.00pm;
B. If the birthday falls on a non-school then on that day from 2.00pm to 6.00pm.
(e)With the child on each of the parent's birthdays pursuant to the arrangements described at paragraph 8.5 of these Orders.
That on the occasion of the birthday(s) of any of the child's siblings, and in the event that the child is not otherwise in the care of the Father, then with the Father as follows:
(a)If the sibling's birthday falls on a school day then on that day from the conclusion of school until 7.00pm;
(b)If the sibling's birthday falls on a non-school then on that day from 2.00pm to 6.00pm.
That handovers occur as follows:-
(a)If it is a school day then at the child's school;
(b)If it is a non-school day then at the McDonalds Restaurant located at Suburb A, Adelaide.
That for the purposes of paragraph 10 hereof, each party is at liberty to have one person accompany him/her at handover AND FURTHER, and in the event that the Father is unable to personally attend at handover, then he is at liberty to request Ms Jto attend on his behalf.
That the child remain enrolled at the School 1 Primary School for the balance of his primary school education.
That by June 2023, the parties do all things necessary and sign all such documents as may be necessary to enrol the child at a secondary school as may be agreed between them or in default of agreement as follows:-
(a)At the public secondary school, which the child would ordinarily be required to attend having regard to the location of the Mother's residence and the 'zoning' requirements of the Department for Education, South Australia; or
(b)In the event that the child is granted a scholarship on academic grounds then at the School 2 High School or the School 3 High School.
That each party be at liberty to provide a copy of this Order to the principal of any educational institution at which the child may be attending.
That the parties facilitate the said child communicating with the other parent by telephone, Skype or Facetime (as may be the child's election) at any time that the said child reasonably requests to telephone the other parent.
That when in the care of the Mother, the child communicate with the Father by telephone, Skype or Facetime (as may be the child's election) each Thursday at 7.30pm with the Mother to do all things necessary to facilitate the same AND to afford the child privacy during such communication.
That when in the care of the Father, the child communicate with the Mother by telephone, Skype or Facetime (as may be the child's election) each Thursday at 6.30pm with the Father to do all things necessary to facilitate the same AND to afford the child privacy during such communication.
That each of the Father and the Mother:-
(a)Communicate by email in relation to any issue pertaining to the care, welfare, development, health and education of the child that should reasonably be brought to the other parent's attention;
(b)Keep the other parent informed via email as to all medical issues concerning the child and any significant illness or medical condition suffered by the child;
(c)Each be at liberty by operation of these orders to consult with and obtain advice from the said child's treating medical practitioners, specialists or allied health professionals;
(d)Each be at liberty by operation of these orders to obtain copies of all records and reports relating to the child, which may be maintained by the child's treating medical practitioners, specialists or allied health professionals;
(e)Forthwith advise the other parent by telephone or SMS text message in the event of any illness or accident suffered by the child requiring hospitalisation and permit the other parent to attend at any hospital or other facility to which the child has been admitted or treated;
(f)Be at liberty to attend at all of the said child's school functions and activities including parent/teacher nights, sports days, school concerts, excursions and any other activities or events to which parents are normally invited to participate and attend;
(g)Be at liberty to obtain from any school at which the said children attends from time to time to provide to the other parent at that parent's sole expense in all things copies of all school newsletters, school reports, photographs and the like;
(h)Use each of his/her best endeavours to ensure the child's attendance at all agreed extra-curricular, sporting or social activities which are required to be undertaken by him at times when the child is in his/her care.
That the Mother do be at liberty to:-
(a)Take the child to any Sunday School of her election;
(b)Take the child to any Church or place of worship for the purposes of Easter and Christmas celebrations.
That each party be permitted to take the child on travel outside of the State of South Australia during the child's time with that parent PROVIDED THAT the travelling parent provide to the non-travelling parent seven (7) days' notice by email of the same and provide the non-travelling parent with the following:-
(a)Details about the location or locations to which the child may be travelling;
(b)Information about when the child is to depart from and return to the State of South Australia.
That the Mother be restrained and an injunction is hereby granted restraining her from knowingly or deliberately providing the child with pork or products, which are likely to contain pork for his consumption AND use her best endeavours to ensure that no third party does so.
That the Father and the Mother be restrained and injunctions be granted restraining each of them from:-
(a)Discussing the proceedings (including any allegation made in these proceedings) with the child or allowing any other person to do so;
(b)Denigrating the other parent or any member of either parent's immediate or extended family to or in the presence of the child or permitting any other party to do so;
(c)Approaching or remaining within 500 metres of the other parent's residence SAVE AND EXCEPT with the express and written consent of the other party NOTING THAT each party agrees to such an injunction but says that the same is not necessary;
(d)Changing the child's principal place of residence to a distance greater than thirty (30) kilometres from the Adelaide Central Business District.
That the appointment of the Independent Children's Lawyer be discharged.
That all extant parenting applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Charlton & Pearson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1081 of 2012
| MR CHARLTON |
Applicant
And
| MS PEARSON |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Charlton and Ms Pearson are the parents of [X] born 2011. These reasons for judgment are concerned with final parenting arrangements for [X], particularly whether he should be cared for in an equal time regime or something close to it. Issues also arise about some sensitive religious issues, touching on [X] and his parents.
The parties married, in Adelaide, on 2006. Their marriage certificate indicates that their marriage was solemnised according to the (Religion omitted).[1] They are now divorced.[2] They separated, in difficult circumstances, which still remain highly controversial between them, in late March of 2012, when [X] was around eight months of age.
[1] See Marriage Certificate filed 8 April 2013
[2] See Divorce Order made 22 June 2013
The effluxion of time, since that separation has had no practical effect in improving relations between them or in helping them to communicate more constructively as parents. They have been more or less in a state of legal hostilities, since then. As a consequence, one of the more significant factors in this case focuses on whether the parties’ relationship is sufficiently functional to allow an extensive regime of time spending with each parent.
In the alternative, notwithstanding the constraints in parental communication, is it feasible for [X] to be parented in parallel by his mother and father – that is the child moves regularly backwards and forwards between them, with each having complete autonomy in their particular periods of time but otherwise communications between them are kept to an absolute minimum.
Ms Pearson contends that the relationship between the parties is dysfunctional and will remain so. As such, it is her position [X] must live more with her than his father, as she has been the child’s main provider of emotional support since separation. She further asserts that [X] is suffering emotional stress under the current regime and any attempt at parallel parenting will exacerbate this level of stress.
Mr Charlton contends otherwise. He asserts that [X] needs to spend as much time as possible, with his father and younger siblings, as this will be of inestimable benefit to him. It is his position that the mother, in cahoots with members of her family, are intent are disrupting his warm and intimate relationship with [X]. He asserts that any deficits in parental communication have been exaggerated by the mother for her self-serving purposes.
The parents are not the only parties to these proceedings. An independent children’s lawyer has been appointed, by the court, to safeguard [X]’s interests in the case. The independent children’s lawyer is under a statutory duty, arising as a consequence of section 68LA of the Family Law Act, to examine all relevant evidence and advocate the position which he believes will best serve the interests of the child represented.
In this case, the independent children’s lawyer advocates for the position proposed by the mother, currently, which is that [X] spends alternate weekends with his father during school terms. Mr Charlton wishes the child to spend at least five days per school fortnight in his care but preferably the arrangement be week about. Ms Pearson that the existing regime of alternate weekend time continue.
A number of family reports have been prepared over the course of the various proceedings between the parties. In the most recent report, the expert concerned opines as follows:
“Parallel parenting with shared care in the manner Mr Charlton[3] proposes is more akin to [X] living in an environment characterised by ‘silent warfare’ than a functional arrangement, let alone one that could be characterised as being in his best interests. The writer is not saying it is ‘fair’ that [X] live with one parent, but it is the arrangement the writer believes will be least stressful for [X].”[4]
[3] I have referred to the father as Mr Charlton. This is his preference. By profession he is a (occupation omitted) and adopts the tradition of it that he take the title of “Mr” rather than ”.
[4] See Family Assessment Report of Ms A dated 8 March 2018 at page 18
Clearly, [X] is not some form of commodity to be divided equally between his parents. Such a notion is anathema to the ethos of the Family Law Act, which mandates the best interests of the child concerned, rather than those of his parents, as the paramount consideration, for the court, in deciding any case before it.
These reasons for judgment are directed towards resolving this dispute between Mr Charlton and Ms Pearson and, as far as possible, putting in place a concluded regime for his care. In so doing, the court must focus on the best interests of [X], within the legislative matrix provided by Part VII of the Act, particularly section 60CC, which lists the considerations to which the court must have regard in determining a child’s best interests.
Background
Concurrently with the parties’ separation, Mr Charlton first commenced proceedings in this court, in March of 2012, seeking orders that [X] live with him. He requested that his application be listed urgently on the basis that [X] was at risk of suffering harm if he remained in his mother’s care. Mr Charlton’s application did not envisage [X] spending any time with his mother.
Ms Pearson responded to this application a fortnight later, seeking orders that [X] live with her and spend only professionally supervised time with the child. This extreme level of dichotomy, in orders sought, reflected the parties’ different views about the nature of their relationship.
From the mother’s perspective, she asserted that she had been the victim of Mr Charlton’s coercive and controlling behaviour. On the other hand, Mr Charlton characterised Ms Pearson as an emotionally unstable person, who was dishonest and manipulative. As such he asserted that she would stop at nothing to destroy his character and interfere with his relationship with [X].
The parties have not been able to mitigate their polarised views of one another in the several years which have followed. Currently, a gulf exists between them in respect of what parenting regime will best serve [X]’s needs. The parties’ past history with one another seems to indicate that they do not have any resources to bridge this gulf.
Essentially, Mr Charlton aspires to parenting [X] in what is commonly called a shared parenting regime or something as close to it as possible. From his perspective, such a regime will best ensure that [X] has an appropriately meaningful level of relationship with each of his parents.
On the other hand, it is Ms Pearson’s position that [X] struggles emotionally, when spending time with his father. In these circumstances, she asserts that the current regime in place through which [X] spends from after school on Friday until the commencement of school the following Monday, in alternate term time fortnights, is at the upper end of what [X] can sustain. Currently, [X] also spends half of each school holiday period with each of his parents.
The six years since the parties finally separated have been marked by a series of bitterly contested and protracted episodes of litigation between them. During this period, it is the father’s position that he has had to struggle, at great personal cost to himself, to extend his relationship with [X], in the face of the mother’s unreasonable and entrenched opposition.
On the other hand, it is Ms Pearson’s position that she has been equally burdened by the litigation, in which she has been solely motivated by what she believes will be best for [X]. It is her case that she has attempted to be conciliatory towards Mr Charlton and keep him informed about significant issues to do with [X], particularly his educational and extramural activities, through the mechanism of extensive and respectful email communications.
However, she asserts Mr Charlton has been aggressive towards her in the meagre responses which he provides to her and generally dismissive of her attempts to improve the parties’ parenting relationship with one another.
For his part, Mr Charlton asserts that the mother does not keep him informed about issues to do with [X]’s care, particularly in respect of his extramural activities. Rather, he alleges she acts in a high handed manner, which is also highly insensitive to his own cultural and religious proclivities.
In this context, issues have arisen in the current proceedings regarding Mr Charlton’s preference that orders in the nature of injunction be made, which would result in [X] not being permitted to consume pork or pork products.
Mr Charlton also promotes this position, on health grounds, given his professional opinion that the nitrates used to prepare processed meats, particularly in such things as ham and bacon, are potential injurious to the health of the digestive track.
In addition, Mr Charlton is opposed to [X] being exposed to any proselytising form of Christianity. In this context, although he is not opposed to [X] attending the high festive days of the Christian calendar, such as Easter Sunday and Christmas Day, he is opposed to [X] attending any other Christian services or at Sunday school. For Ms Pearson, the particular Sunday school, which she favours, is more a secular occasion for [X] and a supportive one for her than a religious one.
The parties stem from quite different backgrounds and religious and ethnic traditions. Mr Charlton was born in (country omitted) on 1972. He came to Australia, where he successfully sought asylum in 1999 on the basis that he was a victim of religious and political persecution in (country omitted). He is a (religion omitted) but describes himself as a “(religion omitted)” who does not actively practice any religion. He does not attend (Church) and does not wish [X] to do so.
Ms Pearson was born in Sydney, New South Wales on 1975. Her background is (nationality omitted). She was brought up a (religion omitted). She professes to believe in God and to pray from time to time. However, she is not a regular Churchgoer, apart from attending a (religion omitted) Sunday School, with [X], where she asserts she gains great emotional and social support and at which [X] has made many friends.
Ms Pearson wishes to be able to continue to attend the Sunday school, with [X]. Mr Charlton is bitterly opposed to this course. However, in order to assuage Mr Charlton’s concerns regarding pork, she has agreed to abide an injunction in this regard. In addition, she also proposes that [X] attend a secular Government school for his secondary education. He currently attends School 1 Primary School.
By occupation, Mr Charlton is a (occupation omitted), who has a (business omitted) in Suburb B. He completed his training in Australia. It is his case that he has flexible work hours and is fully available to parent [X], along the lines which he proposes, whilst still being able to earn a comfortable income.
Ms Pearson is a (occupation omitted). Currently, she works on a part-time basis. She relies on assistance from her family to balance responsibilities for parenting [X] with the need to earn an income. Mr Charlton strongly disapproves of Ms Pearson’s family, particularly her mother and sister, whom he believes attempt to influence [X] against him and have misinformed the child about the true circumstances surrounding the parties’ separation.
Since the parties divorce, Mr Charlton has remarried. His current wife is Ms J. She is a (occupation omitted). Mr Charlton and Ms J have two other children besides [X]. They are [F] born 2015 and newly born [G], born 2018. It is another theme of Mr Charlton’s case that [X] will derive great benefits from being able to engage as much as possible with his two half-siblings. It is his case that [X] has a good relationship with Ms J and [F].
I presided over the first portion of litigation between the parties, which occupied the period between March 2012 and November 2013. During this period, each party was represented by eminent and skilled counsel. The proceedings cost many thousands of dollars.
Ultimately, although the matter proceeded to a trial, which occupied four days of hearing, the parties were able to resolve all issues then in play between them, including the division of matrimonial property and ostensibly at least, final orders for [X]’s parenting.
At this stage, the parties were assisted by an independent expert report, which had been compiled by a psychologist, Ms A on 18 December 2012. It had also been ordered that [X] be independently represented in the proceedings. This was in response to the significant level of conflict between the parties and the issues in dispute between them regarding his cultural orientation.
The independent children’s lawyer appointed for [X] was Ashley Kent, an experienced family lawyer employed by the Legal Services Commission. Mr Charlton has subsequently expressed some level of disquiet in respect of Mr Kent’s involvement in the case and a significant level of resentment at the suggestion that he may have to contribute towards the cost of Mr Kent’s appointment.
At the time of Ms A’s first report, [X] was a child of tender years. As a consequence of an interim order, made on 14 May 2012, [X] was living, with his mother in the parties’ former marital home, in Suburb C, a suburb of Adelaide. In addition, at this stage, the difficulties surrounding [X]’s tender years, were compounded by the fact that Mr Charlton was then based in Town 1, where he was employed as a (occupation omitted) at the (employer omitted).
In these circumstances, he was only able to spend time with [X] at weekends, when he would travel to Adelaide, at some expense, by commercial airline to spend time with [X], whilst he stayed in a hotel.
At these early stages, the significant area of dispute between the parties concerned Mr Charlton’s desire to move to overnight time with [X], as quickly as possible. It was his case that he had been significantly involved in [X]’s nurture, prior to the parties’ separation, and given this fact, when coupled with his (occupation omitted) training, it was clearly appropriate for the child to spend an extended weekend in his care.
On the other hand, Ms Pearson was of the view that it would be emotionally destabilising for [X] to be separated overnight from his primary carer, particularly given he was not yet two years of age. In this context, in her report, Ms A recommended as follows:
“[X] continue to live with Ms Pearson and spend regular daytime with Mr Charlton. If Mr Charlton was living in Adelaide, the writer would suggest [X] see him two times per week. Given the travel involved for Mr Charlton, the writer supports two or three weekend visits (on both Saturday and Sunday) each month (as per the current arrangement).
The introduction of overnight stays around the time [X] turns three. The writer recognises this is a cautious recommendation, but it is based on the extremely limited co-parenting relationship. As noted above, a child who is developing well and whose parents are communicating easily and frequently may manage an earlier start to overnight stays, but this is not the situation for [X] on the basis of this assessment.”[5]
[5] See Family Assessment Report of Ms A dated 18 December 2012 at [16]-[17]
Ms A’s report was prepared against the background of Mr Charlton’s then position that either [X] should live with him in Town 1, or in the event Ms Pearson moved to live in Town 1, the child should live week about with each of them. On the other hand, Ms Pearson was opposed to there being any significant change in arrangements for [X]’s then care, which saw him spending only weekend days with his father when Mr Charlton travelled to Adelaide.
As indicated above, Ms A was not in favour of there being any dramatic changes in arrangements for [X]’s care, regarding him as being developmentally vulnerable. She was also concerned at the significant controversy remaining between Mr Charlton and Ms Pearson, regarding the circumstances surrounding their separation.
This controversy centred on Mr Charlton’s allegation that Ms Pearson had fabricated claims of being the victim of family violence to discredit him and was intent, with the connivance of her sister and mother, on alienating [X] from him.
In contrast, Ms Pearson described herself as the victim of Mr Charlton’s explosive temper, which led to him being physically and emotionally violent towards her. She alleged that she had been the victim of many serious assaults, one of which had resulted in her suffering hearing loss in one of her ears.
Ms A did not perceive it to be her role to resolve these issues. She did, however, administer the personal assessment inventory to each party – a battery of psychometric tests. This returned the result that Ms Pearson was sensitive in nature and easily slighted; whilst Mr Charlton was self-focussed and insensitive to inter-personal relationships. My own impression of the parties is that they are chalk and cheese. In generic layman’s terms, the inventory administered by Ms A coincides with this impression.
Ms A was further concerned that Mr Charlton’s self-focus had the potential to be problematic for [X], as it might prevent him from prioritising [X]’s needs. She also considered it unrealistic that Mr Charlton proposed that he would be able to care for [X], whilst running a (business), notwithstanding the fact that he had the assistance of Ms J. Ms A did not consider that this was the behaviour of a “tuned-in parent”.
Significantly, however, Ms A noted a positive and affectionate interaction between [X] and his father. She also considered that Ms Pearson presented as a competent parent. However, Ms A did not rule out the possibility that there were some “unhealthy aspects to her relationships with her mother and sister”.
The release of Ms A’s report in December of 2012 did not assist the parties to resolve the complex issues between them. Accordingly, the trial commenced. The first four days of the trial took place in February of 2013. The proceedings were bitterly contested. The time put aside for the hearing proved to be woefully inadequate.
The four days in February was largely utilised in the cross-examination of Mr Charlton, particularly in testing the allegations of family violence made against him. A further four days of hearing was allocated for November of 2013, which was anticipated would be utilised largely for the cross-examination of Ms Pearson.
However, this time was not utilised, given the resolution of the case. Accordingly, Ms Pearson was not cross-examined by the father. In these circumstances, it was not necessary for the court to make findings of fact about the issues of controversy, arising between the parties, which centred on allegations of family violence.
In factual terms, the major controversy centred on who of the parties had assaulted the other, on the weekend prior to their separation, in March of 2012. Each asserted that the other had struck him or her violently, whilst feeding [X] with a bottle.
From Ms Pearson’s perspective, this had led her to leave the relationship and seek the sole occupation of the parties’ family home in Suburb C, a suburb of Adelaide, which she occupied whilst Mr Charlton returned to the parties recently purchased home in Town 1. It being the case that Mr Charlton had only recently taken up his position at the (employer omitted).
In this context, Ms Pearson had applied for an ex-parte family violence order, in the Adelaide Magistrates’ Court, against Mr Charlton. The order also named [X] as a protected person. It was her position that she needed the protection of an order as she was frightened Mr Charlton might enter the Suburb C property.
On the other hand, it was Mr Charlton’s position that Ms Pearson had been behaving in an increasingly erratic manner, in the period leading up to their separation, to such an extent that he believed she was psychiatrically unwell.
He asserts that Ms Pearson violently lashed out at him, whilst he was feeding [X] his bottle. He further asserts that Ms Pearson, under the influence of her mother and sister, fabricated allegations to the police, so that she could retain both the Suburb C home and [X], putting him at a significant level of disadvantage, whilst he had to work in Town 1.
Mr Charlton contested the family violence order proceedings in the Magistrates’ Court. Ultimately the prosecution withdrew the application and costs were awarded in Mr Charlton’s favour. From his perspective, this is unequivocal evidence that his version of events had been vindicated.
Given that I did not hear all the evidence concerning the issue, particularly that to be provided by Ms Pearson, I was not in a position to resolve this controversy in the context of the 2013 proceedings. It is my perception that, although the parties resolved the proceedings between them, in November of 2013, they did not do so with a mutual sense of closure that the conflict in their relationship had been put behind them or was in some way resolved. Rather, up to this stage and indeed afterwards, both Mr Charlton and Ms Pearson see themselves as the victim of the other’s behaviour, both during their relationship and otherwise.
In addition, Mr Charlton is not the sort of personality who would easily surrender his aspiration for the parenting regime, which he perceives is the most equitable one for him personally. Accordingly, for these reasons, the orders of November 2013 represent an uneasy armistice between the parties before an inevitable resumption of hostilities between them.
In addition, it is my perception that this prelude to the resumption of further proceedings between the parties, has been marked by a level of cold rather than hot hostilities between them. In this context, one of the central issues for the court, at this stage, is what are the emotional implications of this state of affairs for [X], who has been at their fulcrum for almost the entirety of his life? In addition, given their protracted nature, it seems unlikely that there will be any diminution of the tension in the parties’ parenting relationship in the foreseeable future.
The 2013 orders were carefully crafted. Their salient features can be summarised as follows:
·The parties have equal shared parental responsibility for [X];
·[X] live with the mother;
·[X] spend time with the father on weekends, commencing with day time only, but as from March 2014, on three out of four weekends from noon Saturday to 2:00pm the following Sunday, or 2:00pm the following Monday, in the event that it is a public holiday;
·For increasing periods of time, during school holidays, building up to week about in the December 2017/January 2018 school holiday;
·[X] spend time with each of his parents, on special occasions, particularly Christmas Day, Easter, Father’s Day and his birthday;
·[X] communicate with his father regularly by telephone and other electronic means;
·The child be exchanged between the parties at the McDonald’s Restaurant, Suburb A, with each party being entitled to have an accompanying person and with Ms J being authorised to effect handover if Mr Charlton is unavailable.
The current round of proceedings
Mr Charlton re-commenced proceedings on 15 December 2015. In support of his application, he deposed that he had resigned from his position, at the (employer omitted), on 2015 and he and Ms J would complete their move back to Adelaide on 18 December 2015.
In his application, Mr Charlton proposed that [X] should live, week about with each of his parents, moving between their respective homes, at 5:00pm each Sunday. He also proposed that [X] should live with each of his parents for alternating halves of each school holiday period.
Significantly, Mr Charlton also sought orders in the nature of an injunction, restraining Ms Pearson from taking [X] to Sunday school at any Christian Church or place of worship and changing the child’s religion from (religion omitted).
The mother responded to this application on 4 April 2016. She sought the dismissal of the father’s application, on the basis that there was a reasonably recently made final order dealing with arrangements for [X]’s care and implicitly there had not been any change of circumstances, in the period since the order had been made, which warranted its re-visiting.
Ms Pearson refuted Mr Charlton’s assertion that [X] was a (religion omitted), which was how he had been designated in the enrolment form for School 1 Primary School, completed by Mr Charlton. Rather, Ms Pearson deposed as follows:
“I say that [X] has attended Sunday school at Church which he commenced from age four. I believe that this teaches good values and is educational and is not focussed on converting him to any particular religion. I am (religion omitted) by faith but notwithstanding this, I believe that [X] gets many benefits from attending at the Church.”[6]
[6] See mother’s affidavit filed 4 April 2016 at paragraph 2.41
The issue of [X]’s attendance at this Sunday school, assumed great importance during the proceedings. From each parties’ perspective, notwithstanding their shared orientation of being secular people, who were not strong adherence of any particular religion, this was an issue which was incapable of compromise.
In this context, Ms Pearson denied Mr Charlton’s assertion that [X] was (religion omitted). She pointed to the School 1 Primary enrolment form, which she had completed for [X], on which she had indicated that [X]’s cultural background was (nationality omitted) and so far as the school was concerned, there was no need for it to be aware of any particular cultural and/or religious requirements for [X], although it was noted that “the father is (religion omitted), the mother is Christian – there is no agreement pertaining to child’s religion”.[7]
[7] Ibid at Annexure P4
Interestingly, in their respective notices of risk, neither party made any allegations of family violence or child abuse in respect of the other. However, this state of affairs did not prevent each of the parties re-stating their respective positions in respect of the nature of their previous marital relationship.
Given the time that had elapsed, since the making of the 2013 order and the fact that the parties had been able previously, in what were very difficult circumstances, to agree on arrangements for [X]’s care, which had necessarily involved a young child and the distance between Town 1 and Adelaide, I was hopeful that there might be some prospects of the parties being able to reach an agreed outcome on arrangements for [X]’s care, now that Mr Charlton had moved back to Adelaide.
It was also my impression that individually both parents were capable professional people, who would want to avoid a further protracted hearing, if at all possible. In these circumstances, I referred the parties to a child dispute resolution conference, pursuant to the provisions of section 11F of the Family Law Act 1975 with Family Consultant Ms K, in May of 2016. At the time, [X] was four years and ten months of age.
Ms K described Mr Charlton as being focussed on denigrating Ms Pearson and reported Mr Charlton as saying to her in respect of [X], “he’s my son, we have to go shared custody.” In these circumstances, Ms K reported as follows:
“[Mr Charlton] appeared focused on achieving parity of time in a way that seemed to be motivated by his perceived rights as a father. He seemed to have little insight as to how [X] would respond to a dramatic change in his living arrangements. He did not seem to consider [X]’s perspective in this matter, nor his need for stability, routine and consistency …”
In contrast, Ms K described Ms Pearson as appearing child focussed. She described to Ms K Mr Charlton’s mode of communication with her as relentless and knit-picking. In these circumstances, Ms Pearson indicated that she kept her communication with Mr Charlton to the minimum amount possible.
Given these circumstances, it was readily apparent that I had been naïve to consider that there was any possibility of the case being consensually resolved. In these circumstances, I also considered that it would be appropriate if Ms A was re-engaged to assess the issues arising in the case from the perspective of [X]’s development and the nature of his relationship with each of his parents.
Ms A’s second family assessment report was released to the parties on 10 November 2016. Interestingly, in her second report, Ms A observed that both parents reported to her some resentment that a full trial had not occurred in 2013.
From the father’s perspective, this resentment stemmed from the perception that he had not been given an opportunity to confront Ms Pearson formally in respect of what he asserted were her false allegations; on the other hand, Ms Pearson’s feelings stemmed from her perception that she was compelled to settle because she felt emotionally isolated at the time.
In October of 2016, Ms A observed [X] to interact with his mother in a warm and loving fashion. Similarly the interactions between [X], his father, [F] and Ms J impressed Ms A as being warm and loving.
In interview with him, Ms A was concerned that [X] seemed stressed about his family situation, “worried about telling his father positive things about his mother and his mother positive things regarding his father.”
Ms A attempted to canvas [X]’s views with him. He was reticent about the prospect of spending more time with his father and indicated that the arrangement for him to spend time, with his father, in school holidays, was too long.
Ms A also noted many positive aspects to [X]’s presentation, which indicated to her that he was well cared for by both his mother and father. [X]’s kindergarten also reported that he was a kind, clever and confident child, who is generally happy.
However, Ms A also noted some concerning aspects to the case. These centred on her perception that each party remained fixed in respect of their perception of the negative aspects of the other, which she opined was having a negative emotional impact upon [X]. Co-parenting issues in dispute included [X]’s involvement in the (religion omitted) faith and/or Sunday school and concerns relating to the consumption of pork.
During the course of the evidence before me, Mr Charlton also expressed his concern about what [X] reported to Ms A in respect of things said to him by his maternal grandmother and aunt about the nature of the relationship between his parents.
These centred on statements, made by [X], that his maternal grandmother had told him that his father had smacked his mum, when she had been pregnant with him. In addition, Mr Charlton was concerned that [X] reported that [F] was not really his brother. From Mr Charlton’s perspective, this was evidence of the child being coached and influenced against him by either the mother or those associated with her.
In her interview with him, Ms A observed signs of stress in [X] arising from both his physical presentation and what he said to her. These observations can be summarised as follows:
· The child’s posture was rigid and he blinked rapidly;
· He indicated his concern that what he said to Ms A might get him into trouble with one or other of his parents;
· In particular, [X] conveyed to Ms A that he was worried about telling his father positive things about his mother and vice versa;
· In this context, [X] expressed concern about raising issues, with his father, about God and pork because he did not want his father to be angry.
It was Ms A’s view that [X]’s closest emotional relationship was with his mother. Following the administration of a family relationship test, Ms A noted that the mother was ascribed only positive attributes by [X], whilst as well as some positive attributes, Mr Charlton received some negative ones from the child, particularly relating to [X]’s perception that his father got angry with him.
As was the case in the first round of proceedings (and indeed to date) both parties conveyed an essentially negative view of the other to Ms A. Ms Pearson described Mr Charlton as coercive and controlling; whilst Mr Charlton viewed Ms Pearson as manipulative and dishonest, particularly in the context of what he regarded as malicious allegations of family violence made against him.
Ms A interviewed Ms J and formed a positive view of her. Ms A described her as calm and child-focused. Ms J indicated to Ms A she would like to normalise [X]’s experiences of parenting. Ms J expressed a view that a week about arrangement would force co-parenting on the parties, which would achieve this objective.
In short, at the end of the second family assessment report, Ms A saw a mixture of positive and negative factors at play in [X]’s life. So far as the positive features were concerned, [X] was described as being a well-cared for child, who had transitioned appropriately to kindergarten. He was described as being kind and, clever, confident and generally happy. He interacted comfortably with both of his parents, who had a sound understanding of his personality.
So far as the negative aspects of [X]’s presentation were concerned, Ms A was concerned at the child’s perception that his father felt angry towards his mother and could be cross. She was also concerned that it appeared to be the case that Ms Pearson’s mother had denigrated Mr Charlton to [X]; whilst Mr Charlton had similarly denigrated Ms Pearson to the child. In this context, Ms A was struck by both parents fixation on their shared history of conflict and inability to move beyond it.
At the conclusion of the second family report, Ms A reported as follows:
“At this time neither Mr Charlton nor Ms Pearson present as genuinely having developed insight into their own contribution to the poor co-parenting relationship, and to [X] as a result of that poor relationship. [X] was observed to become rigid and blink rapidly when discussing family matters, especially areas of conflict, during his interviews. He also conveyed being afraid of upsetting either parent. While the extent of the co-parenting conflict has not yet compromised [X]’s healthy development, this remains a risk factor for [X]’s mental health, if Ms Pearson and Mr Charlton cannot become more relaxed about each other being in [X]’s life, and the different approaches they have to [X]’s upbringing. If accurate, the “nit picking” and frequent questioning of those different approaches needs to stop if there is any chance of developing a functional co-parenting relationship.
Mr Charlton is seeking shared care. The co-parenting relationship does not support this. The risks of introducing shared care in these circumstances are that the co-parenting relationship will not evolve as Mr Charlton hopes, and [X] will be even more caught up in the conflict and affected by the lack of communication (e.g., there would not be the consistent routine and stability that he needs at this young age, particularly as he starts school… [X] is doing well in his mother’s primary care and it is with her that he shares his strongest relationship. [X]’s next developmental task is to adjust to starting school. This needs to be the priority, while also making gradual changes to the parenting time to allow for a more meaningful relationship between [X] and his father to develop, now that Mr Charlton is more available for this.”
As a consequence of these observations, Ms A recommended that [X] should start spending every second weekend, with his father, from Friday to Sunday. She also recommended that a midweek visit in the intervening week be inaugurated. Clearly, Ms A did not favour an equal time regime for [X], given the defects in the parties’ parenting relationship and the child’s close relationship with his mother. In addition, [X]’s tender year also played a part in Ms A’s recommendations.
I was hopeful that Ms A’s clear recommendations would lead to the parties being able to agree on the next step forward. This did not prove to be the case. Ms Pearson resisted any increase in [X]’s time with his father, which led to Mr Charlton becoming more frustrated. It was in this context that the order was made for [X] to be independently represented. I was hopeful that such an intervention might facilitate a more productive approach to the case, which would avoid the corrosive consequences of litigation.
In these circumstance, it fell to the court to implement Ms A’s recommendations. On 17 March 2017, an order was made extending [X]’s time with his father, on alternate weekends from after school on Friday until 4pm the following Sunday. On this occasion, the parties competing applications were fixed for final hearing in May 2018.
The respective positions of the parties at trial
Both parties significantly moderated their positions during the course of the hearing. At the outset, Mr Charlton sought an equal division of the child’s time with each of his parents. At the end of the proceedings, he proposed a gradual transition to a 5 night per fortnight regime, with him, during school terms, with a week about regime to begin in 2022, when [X] would be ten and a half. He remained resolute in his opposition to the child attending Sunday school.
Ms Pearson proposed that the parties be conferred with equal shared parental responsibility for [X], who should live with her and spend time with his father, during school terms, from after school on Friday until the commencement of school the following Monday. In addition, she proposed an equal division of the school holidays, on a week about basis.
Significantly, Ms Pearson, during the course of the hearing, made concessions regarding Mr Charlton’s concerns regarding the child being exposed to pork. In this context, she proposes that the court make the following order:
“That the Mother be restrained and an injunction is hereby granted restraining her from knowingly or deliberately providing the child with pork, or products, which are likely to contain pork for his consumption and use her best endeavours to ensure that no third party does so”.
As previously indicated, in somewhat difficult circumstances, the parties were able to agree on [X] attending School 1 Primary School, a government funded school, from the start of the 2017 academic year. In this context, Ms Pearson proposes that the court continue the child’s enrolment at this school, during his primary education and the issue of his secondary education be determined by the following order:
“That by June 2023, the parties do all things necessary and sign all such documents as may be necessary to enrol the child at a secondary school as may be agreed between them or in default of agreement as follows:
At the public secondary school, which the child would ordinarily be required to attend having regard to the location of the mothers residence and the zoning requirements of the Department of Education of South Australia; or
In the event that the child is granted a scholarship on academic grounds at the Adelaide High School or the School 3 High School”.
Essentially, the mother proposes that the child attend a secular government school for his secondary education, which will not involve the child being exposed directly to any aspect of the Christian faith.
However, notwithstanding this concession, Ms Pearson resolutely opposes any order which would prevent her from taking [X] to Sunday school. From her perspective, this is an unwarranted intervention in her life with [X] and would not be in his best interests because of the friendships he has developed at Sunday school.
Ms Pearson concedes that arrangements for [X]’s exchange between the parties are likely to remain problematic for the indefinite future. In these circumstances, she proposes that the child be exchanged wherever possible, at his school or otherwise at a McDonald’s in the Adelaide CBD, which is a location of long standing use by the parties concerned.
Accordingly, the issues for the court, in determining this case, centre on the containment of long standing parental conflict in the context of the specific periods of time the child spends with each of his parents.
Mr Kent has briefed a barrister to appear on his behalf at the trial. The barrister concerned is Ms Horvat. She was fully engaged in the proceedings – cross-examining each of the parties and Ms A extensively and making considered submissions in respect of the outcome she and Mr Kent viewed as the best one for [X].
Ms Horvat agrees that the case is largely concerned with parental conflict. In these circumstances she does not support any extension of [X]’s time with his father. Her view of the evidence, particularly that emanating from Ms A is that [X] is a lovely young boy, who is sensitive by disposition and who emotional resilience is currently somewhat fragile. She submits that the evidence indicates that he is currently struggling to meet the expectations placed on him arising from both his parents’ households.
She agrees with Ms A’s view that the current regime is at the upper end of what [X] can cope with in terms of spending time with his father. In these circumstances, she does not support the child spending an additional one or two night, per fortnight, in his father’s household during school terms.
Ms Horvat indicates that she and Mr Kent guardedly support the parties having equal shared parental responsibility for [X]. It was her view of the parties, following their oral evidence, that Ms Pearson was the more reflective parent, who was the able to make concessions. This was particularly so in respect of the pork issue.
She was relatively neutral about the Sunday School issue, but as I recall, favoured the injunction proposed by the father as being appropriate as an aid to neutralise some of the high levels of antipathy between the parties, which she considered would be of assistance to [X].
The evidence
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[8] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[9]
[8] See Evidence Act1995 (Cth) at section 140
[9] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
In the past, Mr Charlton has been legally represented. I accept that his representation cost him a significant sum of money, which he is likely to perceive now was ill spent. During the recently concluded proceedings, he elected to represent himself.
This is, of course, his entitlement. It did not, however, aid in the easy facilitation of the case, which was often difficult and highly charged emotionally. I do not wish to be unduly critical of him but Mr Charlton proved to be an inept advocate.
I acknowledge that how a person presents in court, including in the witness box, may not necessarily provide an accurate means of assessing either the credibility of that person or what sort of individual he or she is, particularly in terms of their parenting capacity.
These deficits in the process may well be exacerbated if a witness comes from a non-English speaking background or is unfamiliar or intimidated by the environment of the courtroom. However, it is the only tool available to me in the current case to assess the veracity and level of insight of each of the parties concerned.
Mr Charlton speaks excellent English, as one would expect from a (occupation omitted), who both trained and works in Australia. However, it is readily apparent that English is not his mother tongue. He is also, for obvious reasons, firmly enmeshed in the long standing and endemic conflict between the parties, of which he, rightly or wrongly, perceives himself to be the innocent victim.
Mr Charlton sees the case in black and white terms. He is categorical in denying any inappropriate conduct on his part. In addition, he presented as a person who was accustomed to getting his own way. In my assessment, these factors led me to question the overall objectivity of much of his evidence.
A sense of entitlement permeated much of Mr Charlton’s evidence. His focus was on obtaining more time with [X] not only because this would assist the child or benefit him but more importantly because it was his right as a father. In this context, he viewed Ms Pearson in essentially negative terms. In his self-penned trial affidavit, he deposed as follows:
“The Mother decided to deny the rights of [X] to have meaningful time with his Father and the extended family and elected to proceed to the court following the Father’s relocation to Adelaide…
The Father has represented himself due to the cost of the lawyers which was exuberant in addition to daily costs of living, commencing self-employment in a new state and the cost of full child support payments to the Mother. The Mother continued to be represented by a Solicitor and a Barrister by using the child support money to fund her legal fees which she has admitted on the child support correspondence on many occasions”.[10]
[10] See the Affidavit of Mr Charlton filed 7 May 2018 at [6] & [9]
Mr Charlton has been somewhat coy about his financial circumstances, indicating that his income is no business of either the court or Ms Pearson. In independent child support proceedings, brought by the mother in the AAT, he conceded a salary of $300,000.00 per annum – the ceiling for the assessment of child support – to avoid any scrutiny. As indicated above, he maintains that the mother is intent on exploiting him financially through the use of [X]. I do not accept that this is the case.
I accept that Mr Charlton is not experienced in court proceedings and therefore is to be approached as a fish out of water in the court environment. I also accept that the proceedings are not culturally congruent with his experience, particularly given his non English speaking background. These issues were the cause of comment during the proceedings.
In particular, I noted that Mr Charlton speaks loudly and forcefully. He was also inclined, as indeed are many self-represented litigants, to make long impassioned submissions, during the evidence, rather than direct himself to asking questions of the witnesses concerned. This did not assist in the presentation of his case and raised the risk of the court forming an adverse impression of his personality on flimsy grounds.
In addition, Mr Charlton is not backward in voicing his criticisms of those representing Ms Pearson and the Independent Children’s Lawyer. On occasion, he asserted that the proceedings were unduly Anglo-centric in nature and so biased against him because of his ethnicity and background.
These are significant criticisms, which must be examined. During the hearing, I indicated to Mr Charlton that I accepted that his mannerisms and mode of interaction with others, particularly his loud voice, were to be regarded as manifestations of cultural tropes, rather than being indicative of his personality, particularly given that he was required to represent himself in the alien circumstances of the courtroom.
However, notwithstanding the allowances which must be made for Mr Charlton, on account of these factors, the fact remains that he did present as a difficult and argumentative person, who seemed accustomed to achieving pre-eminence through bluster.
I mean Mr Charlton no disrespect but he did not strike me as being a particularly consultative or empathetic person. Rather, he seemed to be person who was accustomed to telling others what to do and obtaining their adherence to it by dint of his hectoring personality.
Ms Pearson presented as a more thoughtful and consultative person, who was prepared to concede that she had made mistakes in the past. Hers is a softer and less assertive personality. She did however utilise the proceedings to launch a long tirade against Mr Charlton, the effect of which was to indicate to him that she was no longer prepared to view herself as being subservient to him.
In these circumstances, on any view, the personal dynamic between the parties is poisonous and marked by a massive cultural gulf, which I doubt will ever be effectively bridged. The parties are likely to view each other through a distorting prism of hostility, for the indefinite future. However, on balance, Ms Pearson is the parent who is more capable of being focused on [X]’s best interests and of providing the more objective evidence regarding the child’s nature and needs.
This is a significant finding. I am aware of the cultural sensitivities which may surround it. However, on balance, I am satisfied that Mr Charlton approaches these proceedings from his personal perspective of what are his entitlement as a parent; whilst Ms Pearson is more able to analyse what is best for [X] rather and is not utilising the proceedings in an effort to satisfy her own personal emotional requirements.
Mr Charlton elected not to call Ms J as a witness in the proceeding. However, she attended court on each day of the case. I was not advised why Mr Charlton did not wish her to give evidence and he was not cross examined about the topic by counsel for the wife. On any view, she was potentially a significant witness, given the important role she has and will continue to play in [X]’s life.
Besides the parties themselves, the only other witness called in the proceedings was Ms A. I accept that she is a highly qualified and expert witness. Ms A had a significant advantage, over me, in these proceedings. She was able to engage directly with [X] and see him interact with each of his parents. As such, she was able to gain a firsthand impression of the child, which is likely to be an invaluable tool in providing evidence to the court about how [X]’s best interests are to be served.
In my view, Ms A approached the case in a scrupulously even handed manner. It cannot be said that she viewed the dynamic of the parties through any particular ideological lens, which was influenced by any personal doctrinaire view or opinion. In my assessment, Ms A cannot be regarding as either pro father or pro mother. Rather, she approached the dynamic of the parties’ relationship objectively from the perspective of what was the best outcome for [X]. As such, I accept her evidence and recommendations, which appeared to me to be sensible; evidence based; and child focused.
The evidence available to me indicates that both prior to the parties’ separation and after it to the present time, Ms Pearson has had primary responsibility for caring for [X]. It is she who has attended to his everyday need and currently takes him to and from school. In this context, I accept that she has been integrally involved in arranging issues to do with the child’s education, including his extramural activities.
In part, this has been as a consequence of the fact that, until recently, Mr Charlton has been based in Town 1 and has maintained a busy work schedule there. In practical terms, he was not as available for [X] as was his mother. In stating this fact, I am not making any pejorative comment about Mr Charlton, rather I am stating an objective fact.
It is Ms Pearson’s case that, in the context of her having primary responsibility for [X]’s care, she has found it extremely difficult to engage with Mr Charlton in respect of the implementation of any practicalities regarding the child’s parenting including the best means to ensure he passes regularly and easily between their two households. From her perspective, this difficulty is most eloquently demonstrated by the emails which have passed between her and Mr Charlton.
In my assessment, Ms Pearson’s emails are generally short, courteous and business like. They are also informative. In response, the father’s emails, are at times, hectoring and opinionated. In these circumstances, in general terms, I accept Ms Pearson’s evidence that she finds it extremely difficult to deal with Mr Charlton in respect of any issue to do with [X], no matter how mundane or inconsequential. Regrettably, every issue, no matter how anodyne, has the potential to become problematic.
Mr Charlton expressed himself to be a (religion omitted), who was not greatly interested in religious matters. From his perspective, the issue of the child attending any Christian institution or being exposed to pork was a matter of Ms Pearson being respectful of his background and culture.
I did not sense that Ms Pearson was disrespectful of these matters. In my view, it is indicative of her sensitivity to these issues that she has agreed to the injunction sought by Mr Charlton in respect of the pork issue. In this context, I am concerned that there has been little, if any, reciprocation in respect of issues which are important to Ms Pearson.
Like Mr Charlton, Ms Pearson portrays herself as not being a person of strong religious affiliations. She is nominally a (religion omitted) but currently chooses to attend a Sunday school near to her home. It is her evidence that she began to attend this Sunday school in the aftermath of the parties’ difficult separation because it provided her with a source of emotional support from a group of friendly women, who met there and who were also parents.
Accordingly, she views the Sunday school as important for her ongoing emotional equilibrium and is resentful at the prospect that Mr Charlton might be able to dictate to her what she does in her time with [X], whilst she does not reciprocate so far as the father is concerned.
It is further Ms Pearson’s evidence that [X] has attended the Suburb C Sunday school since 2015. She deposes that [X] has made friends with other children in the church community. In her trial affidavit she deposes as follows:
“I am not a practising member of the (religion omitted) Church but am rather (religion omitted). I chose to send [X] to Sunday School as it teaches him good values and is educational and not focused on converting him to any particular religion. I consider that [X] gets many benefits from attending at the Suburb C Church. As he does not attend whilst he is in the father’s care he has not attended on any regular basis and in particular when the father was residing in Town 1 he was largely in the father’s care on weekends and therefore would not attend”[11]
[11] See mothers affidavit filed 7 May 2018 at [69]
Individually, in my assessment, the parties are each likely to be fine parents, who are entitled to hold strong personal views about all manner of things. In tandem however, these strong views become problematic, for [X], particularly given that they themselves have no shared strategy to defuse matters of controversy between them, when they have the potential to impinge on [X].
The difficulty being for [X] is that the parties’ tumultuous past history renders each of them liable to view any action of the other as an attempt to thwart him or her in some way. Accordingly, such innocuous things as the child attending a church hall to learn (hobby) are seen as an act of subtle provocation. In my estimation, this tendency, whilst shared, is more marked in the father’s household than that of the mother.
The recent family report and the evidence of Ms A
Ms A, in her oral evidence to the court, described both parties as intelligent and highly educated individuals. However, in her assessment, the parties’ dysfunctional level of communication was stark and had been since their separation in 2012.
Ms A did not consider that there were great prospects of the parties’ level of communication becoming unstuck in the foreseeable future. From the emails provided to her, Ms A considered that the parties’ written communication did not indicate any level of cooperation, flexibility or reflection.
In her third report, Ms A alluded to her earlier involvement with the family, particularly the concerns noted by her in November 2015, when [X] was a little over 5 years of age. At that stage, she described [X] to be generally doing well, but also to be a child who was caught in the conflict of an extremely poor parental relationship. In this context, Ms A was keen to tease out [X]’s current perception of his situation.
Once again, Ms A observed [X] to interact warmly and comfortably with his mother and his father, step mother and [F]. However, from his comments, Ms A was of the view that [X]’s closest relationship continued to be with his mother. She also accepted that he felt close to his maternal aunt and grandmother.
The time of her earlier interaction with [X], in November 2016, Ms A continued to observe signs of emotional conflict in [X]. In particular, [X] continued to worry that his father might become angry or do something mean. In addition, the child reported feeling uncomfortable about some of his interactions with his father, perceiving he could not wave to his mother at handover.
It is a strong element of Mr Charlton’s case that Ms Pearson has, in some way, influenced [X] against him, particularly in regards to what he said to Ms A. For her part, Ms A could find no evidence of this. Rather she regarded [X] as an honest child, who spoke freely to her, without any reference to any pre-ordained script originating with this mother or indeed anyone else.
In this context, Ms A reported [X]’s views about the time spending arrangements, with each of his parents, in the following terms:
“[X] consistently indicated he is okay with the term time arrangement, but he struggles with the week-about arrangement during the school holidays. He said he understands that it is the same time with each parent, but it feels longer with his father, and he would prefer to have more time with his mother over the holidays”. [12]
[12] See Family Report dated 8 March 2018 at page 6.
[X] also spoke happily about his current school, where he reported he had many friends. Significantly, he indicated he loves doing (hobbies and sports), going to Sunday school and learning the (hobby). As previously indicated, issues such as (hobbies) have been controversial between the parties in the past, as has, to a very significant degree been the issue of Sunday school. Each of these issues has been approached from the perspective of what Mr Charlton would prefer, rather than what are the child’s own preference.
It was Ms A’s view, at the time of the third family assessment, that there had been no improvement in the parties’ co-parenting relationship, notwithstanding Ms Pearson’s apparent attempts to broker a more friendly approach.
Rather, Ms A was of the view that ongoing areas of significant disagreement remained between the parties. In these circumstances, Ms A opined as follows:
“Shared care with effective co-parenting in circumstances where both parents are skilled, emotionally resilient themselves, and the child is developing well and similarly close to both parents, can offer a child many benefits, including a meaningful relationship with both parents. However, the fewer of these underlying factors that exist, the more risks for a child in a shared-care arrangement. Exposure to stress/conflict is the most significant risk factor for children’s mental health post-separation. Mr Charlton has not in the years since separation been able to move on from the trauma and stress associated with the conflicted nature of the separation, and as such, that stress is felt by [X]. There was no indication in [X]’s presentation that he has been coached, his comments were careful, considerate and as balanced as possible, while noting he feels closer and more comfortable with his mother, something that is understandable given their familiarity and easy relationship. It is of concern to the writer that [X] continues to worry about his father being angry: while all parents experience anger, they need to manage this in a way that does not put further stress on children, particularly a sensitive child like [X].
In these circumstances shared care cannot be supported, and the writer recommends that proceedings are finalised as soon as possible, ideally by consent, as children can benefit enormously from understanding that their parents have agreed on the parenting arrangements. With Court-imposed parenting time, both parents can be unhappy, and the child will often be aware of this and experience further stress”. [13]
[13] Ibid at page 12.
During the course of evidence, Ms A remained resolute in her conviction that shared care was not a viable option for [X], given the entrenched dynamic of the relationship between his parents. In this context, the question arose as to whether it was likely to be beneficial for [X], to increase his time with his father, in some other way – either extending the current alternate weekend arrangement or allowing another discreet block of time in the other week of each school fortnight.
In this context, during the oral evidence to the court, Ms A indicated that she did not believe it would be in [X]’s best interest to increase his time with his father. In her evidence, she said as follows:
“Given the high conflict, and entrenched conflict in this matter, I believe that [X] will benefit from having a primary home base and time with his father in a block of time with minimal transitions, preferably indirect, such as, you know, what can occur through school. But it – the general literature supports that the more – the closer towards a shared care arrangement that you get without the foundations in place to support that, the more risk on the child and my recommendations are ultimately about attempting to minimise the load, the developmental load, placed on [X] and allow him to develop his potential”.
A little later, Ms A further indicated her view that [X] was to be regarded as an emotionally vulnerable child, who was just managing the current arrangements for his care and to extend time would be potentially risky for him. In this context, Ms A deposed as follows:
“…: you know I can’t say with certainty that increasing to a four night block would cause a problem. My recommendations are cautious and with the aim of not overwhelming him which then we have developmental compromise and the need for repair.”
I did not gain the impression that Ms A doubted the sincerity of Mr Charlton’s desire to spend more time with [X]. However, she opined that if he pushed too hard at this stage it might have the consequence of doing more harm than good to the child’s paternal relationship and cause [X], in the longer term, to drift away from him emotionally.
I accept Ms A’s evidence that [X], although doing well in many aspects of his life, is nonetheless a child beset by some aspects of anxiety, which stems from his awareness of the highly conflicted relationship between his parents.
In this context, Ms A was of the view that a shared care arrangement was not suitable for [X] because he needed a secure base, which was likely to be best provided, by his mother, with whom he shared his closest emotional connection.
The legal principles applicable
Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:
(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.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(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.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(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).”
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[14]
[14] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[15] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[16]
[15] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[16] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
In addition, as I have already observed, Mr Charlton reported to Ms K his view that it was his entitlement to have an equal time regime, so far as [X] is concerned. In these circumstances, I do not discount it as being a very real possibility that, if Mr Charlton does not achieve his objective in these proceedings, he will regroup before making another attempt. Indeed, part of my motivation in closely examining with Ms A, the possibility of extending the term time nights [X] spends with his father, was to avoid this situation.
However, once again, the paramount consideration is [X]’s best interests not the desires or aspirations of his parents. In addition, it would be inappropriate for me to make orders as a form of sop to appease the feelings of a parent.
Summary of best interest considerations
In my view, the evidence indicates that [X] has a meaningful level of relationship with each of his parents. The central issue arising in this case is how those respective relationships can be preserved and, at the same time, he is protected from the conflicted and acrimonious relationship between his parents.
It is essentially Mr Charlton’s positon that this relationship is not too bad and, in any event, has had little impact on [X]’s development. In these circumstances, he contends that it is in the child’s best interests for his time with his father to be extended. Ms Pearson, supported by Ms A, portrays a child who is struggling with the current arrangement.
On balance, I think the mother is likely to have the greater degree of insight into how [X] is travelling emotionally at this stage of his development. As previously indicated, I accept Ms A’s assessment of the family dynamic.
As such, at this juncture, it is not likely to be in his best interests for there to be any significant change in ongoing arrangements for his care. In addition, although he is a child of tender years, it appears to be his preference that the current status quo be maintained.
The presumption of equal shared parental responsibility – section 65DAA
The parties agree that they should have equal shared parental responsibility for [X]. Accordingly, it is not necessary for me to consider the application of section 61DA, particularly whether the presumption is rebutted by any of the circumstances of the case, relating to considerations of family interests or the best interests of the children concerned.
Accordingly, the next part of the court’s exercise is to consider what should follow from that presumption. The exercise of the presumption is mandated by section 65DAA(1) & (2). I am required, by these provisions, to consider an equal time arrangement first.
It is only when that arrangement is ruled out, on the basis of a proper consideration of the best interests of the children concerned and/or reasons of practicality that the court is directed to turn to consider a substantial and significant time arrangement.
The applicable terminology used in the sections is must consider. Accordingly, the ambit of the court’s considerations, pursuant to section 65DAA, is strictly stated. This is in keeping with the overall legislative intent of the Family Law Amendment (Shared Parental Responsibility) Act 2006, which favours the substantial involvement of both parents in their children’s lives.
The Full Court in Goode & Goode has made it clear that this process of consideration is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act. It is of significance that the applicable legislation requires[33] the court must first consider making an order for equal time before turning to consider substantial and significant time.
[33] This occurred because of the word “must” in the relevant part of the section
In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”[34]
[34] See Goode & Goode (2006) FLC 93-286 at 80,898 [paragraph 64]
Accordingly, the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time.
This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome. Essentially an equal time arrangement is the normative outcome from proceedings brought pursuant to Part VII of the Act.
In Taylor & Barker[35] the Full Court indicated that the options of children spending equal time or substantial and significant time, with each parent, must be given separate and real consideration by the court. As such, the court must be careful not to potentially devalue the legislative imperative placed upon it, to consider the alternative outcomes arising under section 65DAA, in cases where the presumption applies.
[35] Taylor & Barker (2007) FLC 93-345 at 81,916 [83]
MRR, to which reference has already been made, indicates that the presumption of equal shared parental responsibility is not of itself determinative of whether there should be either an equal time or substantial and significant time regime. The outcome is dependent on the application of the considerations specifically arising under section 65DAA.
Both such outcomes (equal time and substantial time) require an affirmative answer to be reached to both the questions arising from section 65DAA – namely, firstly, will these outcomes be in the best interests of the child concerned and secondly, are the outcomes objectively feasible to put in place, in all the circumstances of the case.
Having determined that it is not likely to be in [X]’s best interest for there to be either an equal time or substantial and significant time regime, at this juncture, for the sake of completion I now turn to consider whether either such outcome would reasonably practicable to implement.
For multifarious reasons, the parties have an extremely unhappy relationship with one another and are likely to continue to do so for the remainder of [X]’s childhood. Since the parties separated, now over six years ago, they now lead different lives with different preferences and priorities. In addition, Mr Charlton has re-partnered and has fathered two more children. These eventualities must also have significant implications for the direction of his life.
As is also readily apparent from these lengthy reasons for judgment, the parties also bring very different backgrounds to the parenting of [X]. Inevitably, this must result in these having different priorities and agendas in respect of his care.
As a consequence of these matters, inevitably it must lead to a situation which renders the parties likely to have more differences of opinion and more divergent emphases in their parenting, particularly since the relationship between them has ended, an occurrence, which for obvious reasons, is likely to extenuate, rather than diminish, the potential for differences of opinion to arise between them.
Every case, involving the care arrangements for children, which comes into court, must involve issues of this kind to some degree or other. After all, the parties concerned are seeking an adjudication, from the court, given the absence of consensus between them. It cannot be the legislative intent that shared parenting be ruled out in all of these cases.
Astor & Astor[36] O’Reilly J said as follows:
“…it is not as if, as soon as communication difficulties between the parties, or other difficulties between them are identified, the discretion ought not be exercised in favour of an equal time parenting order. Rather, the matter is one of balancing all relevant factors…”
[36] Astor & Astor [2007] Fam CA 355 at [195]
In an earlier decision, concerning the application of section 65DAA(5) of the Act and what was reasonably practicable, I said as follows:
“In my view, I must be careful not to adopt an unduly utopian standard for the parties communication skills or expect them to adhere to a standard, which is clearly untenable, given that they separated in difficult and acrimonious circumstances, as many couples do, particularly those that seek the courts assistance to resolve their parenting disputes.”[37]
[37] Liddle & Liddle [2016] FCCA 2751
Many parents, who have deficits in their relationship as parents, stemming from difficult or acrimonious separations, are, nonetheless able to parent their children in equal time arrangements or something akin to them.
This is achieved through what can be summarised as a process of parallel parenting – that is each parent has full authority to make decisions about the child concerned, relating to his or her time with the child, independent of the other and with a minimum degree of consultation.
Essentially, each parent is in charge with what happens in their respective periods of time and the child concerned moves between their two households with as little interaction as possible between them. Thus care responsibilities, for a child, are discharged in two parallel but effective streams of responsibility.
No doubt it is Mr Charlton’s perspective that this is what he and Ms Pearson have done since [X] was a baby and it is has worked reasonably well. Ms Pearson perceives it differently, submitting that the parties’ relationship, as parents, is at the upper range of what it can sustain safely for [X], who is struggling emotionally.
In MRR the High Court directed trial courts, such as this one, in applying the shared parenting legislation, to look to the reality of the situation confronting the particular family concerned. Basically, the matters delineated in section 65DAA(5) are practical ones, directed to what is or is not likely to work for the family concerned. For some, parallel parenting will work; for others it may not.
In this context, I turn to consider the matters specifically delineated in section 65DAA(5) in order to determine whether the second essential precondition for both an equal time and substantial and significant time regime are met.
a) How far apart the parents live from each other
Mr Charlton was remarkably reticent to indicate to the court what his current residential address is, preferring instead to endorse, on his affidavit material, his professional address. He indicated that he was reluctant to provide his address because he was fearful of being the subject of some form of intimidation from either the mother or members of her family.
My own impression was that he adopted this stance as a tit for tat in response to Ms Pearson’s assertion that he had been violent and controlling towards her, in the past. In my view, regardless of where the truth actually falls about this issue, the controversy is emblematic of a deep level of dysfunction. Notwithstanding the fact that the parties live in relative proximity to one another, in suburban Adelaide, there remains a vast chasm between them, which [X] must regularly cross over.
In blunt terms, there is nothing easy about the relationship between the parties. However, in purely logistical terms, distance alone is not likely to be an issue. In addition, up to this point, [X] has either been exchanged between the parties at his school or at a neutral convenient location.
b) The parents’ current and future capacity to implement a shared time regime
From Mr Charlton’s perspective, to extend his time with [X] will have no practical implications as it will merely mean there is a different configuration of [X]’s time with each of his parents, which will have no implications for the nature of their (the parents’) relationship with one another.
I accept that, in logical terms, there is much to be said for this submission. If there are the same number of handovers but the father’s time with [X] is increased by one or two days, the scope for conflict and problems to occur between his parents may well stay the same, albeit at its current unacceptably chronic level.
From Ms Pearson’s point of view, the argument is flawed. It is her case that emotionally, [X] is more attuned with her household and therefore to extend time in the other household will inevitably create more tensions and disputes between them. As such, she contends that the parties’ irredeemably conflicted relationship with one another, renders them incapable of inaugurating either an equal time or substantial and significant time regime for [X]’s care.
In my view, given the vigour with which these proceedings have been conducted and the potential for the parties concerned to disagree about very many things, Ms Pearson’s assessment of the situation should be given precedents. In my assessment, the parties simply do not have any capacity to implement the regime advocated by Mr Charlton, either now or in the foreseeable future.
c) The parents’ current and future capacity to communicate with each and resolve difficulties
In my assessment, every mode of communication, between the parents concerned in this case, is fraught with difficulty. In my view, the evidence supports Ms Pearson’s view that many of the attempts she makes to communicate with Mr Charlton, in a formal but polite manner, are either ignored or responded to in a querulous manner.
Regrettably, it is my view that many of the problems or issues, which will inevitably arise in respect of [X]’s care, including such things as his extramural activities or sports, will become flashpoints in the parties’ competitive relationship with one another.
The evidence indicates that the parties have little capacity to communicate with one another, either practically or certainly with empathy. The issues about which they have disagreed include [X]’s attendance at (hobbies and sports); the rearrangement of weekend time.
As [X] grows older and becomes involved in more activities and his school life becomes more complex, these contentious issues can only increase. In my view, factors such as this militate in favour of the child living more in one household than the other, in order to reduce areas of controversy between them.
As I have already observed, the parties’ email correspondence does not strike me as being particularly effective. At this juncture, neither can envisage speaking directly to the other. Accordingly, the practical tools for the parties to communicate with one another and solve problems are extremely limited in this case.
d) Impact on the child
I accept Ms A’s assessment that [X] is currently at the upper range of what he can sustain emotionally in terms of spending time with his father. In my view, the most significant aspect of Ms A’s third family assessment was her directive to all concerned to consider what was least stressful for [X] as opposed to what was fair for Mr Charlton.
e) Any other issue
In T & N,[38] a case which pre-dates the shared parenting amendment legislation by several years, Ryan FM (as her honour was then) drew up a list of matters, considered to be useful indicia as to whether or not a shared parenting regime was likely to be workable. Some of the matters on the list were as follows:
·do the parents agree or disagree on matters relevant to the child’s day to day life in respect of such things as methods of discipline; attitudes to homework; health and dental care; diet and sleeping patterns;
·do the parents share similar ambitions for the child in respect of such things as religious adherence, cultural identity and extracurricular activities;
·do the parents respect on another, as parents;
·can the parents address, on a continuing basis, the practical considerations which arise when a child lives in two homes, in respect of such things as necessary school work or sporting equipment left behind at the other home.
[38] T & N [2001] FMCAfam 222 at 34
In my estimation, the parties have very different backgrounds and although they are likely to share the aspiration that [X] have a happy and fulfilling childhood calculated to ensuring that he is a well-adjusted and socially productive adult, they are likely to fundamentally disagree as to the best means to achieve such an outcome.
More importantly, as these proceedings eloquently demonstrate, the parties do not respect each other, either as parents or otherwise. The father regards the mother as a dishonest and manipulative person; the mother, as she indicated in her speech to the court, regards the father as an unmitigated bully. These factors alone render any equal time parenting regime, or something close to it, for [X], highly problematic.
Conclusions
In my view, the evidence indicates that [X]’s best interests will be served if the regime and orders advocated by Ms Pearson are made. I am satisfied that such a regime will ensure [X] continues to receive the benefits of maintaining a meaningful level of relationship with his father, step-mother and siblings; whilst at the same time protecting him from the worst aspects of his parents poor and conflicted relationship. These being, in my view, the central issues around which the case turns.
Although it is a matter rarely explicitly mentioned, in cases concerning arrangements for the care of a child, it is frequently the situation that the exact arithmetical calculation of time, between a parent and a child, runs like a powerful current through them. Clearly, such calculations have significant administrative implications, so far as financial issues are concerned. They also resonate strongly in terms of how parents perceive what is fair both to them and their child. Fairness very often is a highly subjective concept.
The arrangements, so far as [X] is concerned, which have been proposed by Ms Pearson and which I consider to be in [X]’s best interests, will see him spending exactly half of each school holiday period, together with at least three days per fortnight, during the school term and possibly more, when public holidays are taken into account. On my rough and ready calculations, this amounts to about 102 nights per annum, or just under 28 percent of the year.
The orders will also provide for [X] to spend time with each of his parents, on occasions which are significant to all concerned. It is trite, but true nonetheless, that meaning in parental relationships arises through what occurs in them and it is the quality of these interactions, which adds significance to the relationship between parent and child.
I am satisfied, given the extent of the time, which the orders provide and the love and affection, which Mr Charlton holds for [X], that the regime envisaged will support [X] having a meaningful level of relationship with his father, in the sense envisaged and promoted by the applicable legislation.
In my view, [X] will be spending substantial and significant periods of time, in his father’s care, which will allow the two to interact with one another in a variety of settings and contexts. These periods will include Ms J, [F] and [G] and so will ensure that [X] has a sense that he is part of a modern blended family.
At the same time, the orders will ensure that he is provided with one firm domestic base, centred on his mother which, on the basis of Ms A’s evidence, accepted by me, is his current preference and emotional need. An equal time parenting regime is calculated to be in neither [X]’s best interests nor, at this juncture, reasonably feasible to implement.
The orders do not envisage any special arrangements for the significant solemn days, which arise in the (religion omitted) year. This is because Mr Charlton, as a (religion omitted), has not sought them. However, I will insert into the order a provision that will allow the child to spend time, with his father, on any other occasions as agreed between the parties.
This is intended to allow some potential flexibility to the arrangements. I concede, however, that given the parties difficult relationship with one another and poor history of communication, they are likely to have continuing difficulty in making such a provision work in practical terms.
The orders make arrangements for handover, including the ability to appoint Ms J, as Mr Charlton’s proxy at them. In my view, this is a useful innovation. I would urge the two women concerned – Ms Pearson and Ms J – to at least consider the possibility of meeting with one another, perhaps over a cup of coffee, to ascertain whether they can create some rational but formal basis for future cooperation between them which, for axiomatic reasons, would be of assistance to [X], who is destined to have to transition between the two opposing households, for the remainder of his childhood.
The orders also envisage for a mechanism to appoint [X]’s secondary school, given it is agreed that the School 1 Primary School is currently appropriate for him. The provision provides for a neutral school, which will be government funded. Accordingly, it cannot upset the cultural/religious sensitivities of either party.
The orders also deal with the father’s sensitivities – both cultural and medical – regarding [X]’s exposure to pork products. Having agreed to them, Ms Pearson is bound to ensure that both [X] and those around him understand that he is not to eat ham, bacon, small goods or anything remotely suspected to have a porcine origin.
The orders also allow Ms Pearson to continue with her practice of attending at Sunday School with [X]. It seems inevitable that the parties will continue to parent [X] in parallel. In my view, in these circumstances, it is appropriate that the influence of the other parent not unduly trespass into the ambit of the other parent’s periods of responsibility for [X]. In any event, I am not persuaded that the Sunday School will result in the child being exposed to any extraordinary or unacceptable level of potential proselytisation in respect of the Christian faith.
Finally, the orders detail standard provisions, in respect of [X]’s electronic communication, with each of his parents; and how the parents are to keep the other informed of significant decisions regarding such matters as his health, education and extramural activities.
These provisions are important given that the parties have been conferred with equal shared parental responsibility for [X], which entails them having to make a genuine effort to come to a shared position in respect of all major long term issues to do with [X]’s care.
As I have indicated, throughout these somewhat lengthy reasons for judgment, I accept that both Mr Charlton and Ms Pearson fervently love [X]. As such, they are interested in everything to do with him. In these circumstances, it is clearly appropriate that an order be made authorising each of them to attend at the sorts of occasions, that are routinely attended by parents, such as school concerts; sports days; and the like.
Accordingly, although the parties come from very different backgrounds and so are likely to bring different talents and emphasis to [X]’s care, they both have one fundamental thing in common – they both want [X] to be a happy and fulfilled child, who grows into a happy and productive adult. I hope that these orders assist in Ms Pearson and Mr Charlton being able to meet this aspiration.
Costs
The conduct of these proceedings was difficult for all concerned. This is understandable given the longstanding tensions between the parties concerned and the fact that Mr Charlton was acting on his own behalf. As I have indicated, these tensions spilled over, from time to time, with Mr Charlton complaining at his perception that he was subject to excessive cross-examination and the proceedings themselves were culturally insensitive to him.
I am satisfied that both Mr Anderson, counsel for the mother and Ms Horvat, counsel for the independent children’s lawyer behaved with appropriate professionalism throughout the case. They were each entitled to cross-examine Mr Charlton. In particular, it was the statutory obligation of Mr Kent and Ms Horvat to advocate the outcome which would they considered would best meet [X]’s interests.
As such, they were not obliged to adopt any position advocated by Mr Charlton. In addition, I am satisfied that it was not unreasonable for Mr Kent to have obtained a further report from Ms A. I do not consider that there is any cogent evidence to suggest Mr Charlton was not given an appropriate level of opportunity to present his case, although he did not do so with any great degree of accomplishment.
In these difficult circumstances, an issue has arisen regarding the payment of the daily court hearing fee, which is ordinarily levied, by way of administrative fiat, on the applicant concerned in any proceeding. Its payment can be waived on means grounds.
The Federal Circuit Court is a busy first instance court with many demands on its time and services. Those legal practitioners, who practice within it, are subject to the same pressures and demands on their time as is the court.
For these reasons, trial listings allocated a 10:00am commencement time are not always started at the time allocated bur rather commence later in the day after shorter interlocutory matters have been disposed of.
In this particular case, on one particular morning, the resumption of the trial hearing in this case was delayed by the absence of Mr Anderson, who was dealing with a matter before one of my colleagues. When he appeared, I expressed my dissatisfaction that the case had been delayed, which Mr Anderson accepted in good graces. No further sanction was applied to him.
At the conclusion of the proceedings, Mr Charlton applied to be reimbursed for the hearing fee, levied against him, for the day in question. The application took Mr Anderson by surprise. However, in my estimation, he is a decent person and accepted that fault had been allocated to him, by me, for the lateness of the case resuming, on the relevant day.
In these circumstances, he offered to pay the fee involved personally. I do not propose to make such an order. In my view, the levying of the fee is an administrative matter, which falls within the remit of the court’s registrar, not on the court itself.
In addition, the case concerned was completed within the time allocated for it. In these circumstances, in my view, it would not be fair for the hearing fee to be levied against Mr Anderson, which is not its administrative function, as it is a fee levied on court users/litigants, not legal practitioners.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and thirty-seven (337) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 5 October 2018
Key Legal Topics
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Family Law
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Civil Procedure
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Injunction
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Remedies
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Procedural Fairness
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