CHATWIN and Eales
[2013] FCCA 1432
•4 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHATWIN & EALES | [2013] FCCA 1432 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – live with and spend time with arrangements – entrenched conflict. |
| Legislation: Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, Schedule 1 |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 MRR & GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424 |
| Applicant: | MS CHATWIN |
| Respondent: | MR EALES |
| File Number: | PAC 6995 of 2007 |
| Judgment of: | Judge Halligan |
| Hearing dates: | 27, 28 August 2012, 20, 21 May 2013, 18 September 2013 |
| Date of Last Submission: | 18 September 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 4 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Maddox |
| Solicitors for the Applicant: | Barber & Massey Solicitors |
| Counsel for the Respondent: | Mr Stenhouse (27, 28 August 2012) & Mr Cairns (20, 21 May 2013, 18 September 2013) |
| Solicitors for the Respondent: | Coast Law |
| Counsel for the Independent Children’s Lawyer: | Ms Druitt |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of New South Wales |
ORDERS
That the father have sole parental responsibility for the child
X born (omitted) 2012.
That the child live with the father.
That the child shall spend time with the mother as follows:
(a)During school terms on the first, fifth and ninth weekend of each school term from 6.00pm Friday to 6.00pm Sunday;
(b)The weekends in order 3(a) above shall commence at 6.00pm on a Thursday and conclude at 6.00pm on a Monday if the weekends are preceded or succeeded by a public holiday;
(c)For the holiday at the conclusion of Terms 1, 2 and 3 from 12 noon on the first Saturday of the school holidays until 12noon on the middle Sunday;
(d)The holidays at the conclusion of Term 4:
(i)In odd numbered years from 6.00pm 23 December to 6.00pm on 14 January, and
(ii)In even numbered years from 6.00pm on 26 December to 6.00pm on 16 January.
(e)On each mother’s day weekend from 6.00pm Friday until 6.00pm on Mother’s Day.
(f)On the child’s birthday in each year when the child is not otherwise spending time with the mother;
(i)If a school day, from after school until 9.00pm;
(ii)If not a school day from 10am until 9.00pm.
That for the purpose of the child spending time with the mother under Orders 3 above, the mother shall collect the child from and return the child to the father’s residence at the commencement and conclusion of her time, provided the father remains living in the suburb of (omitted) and if the father ceases living in the suburb of (omitted) (or within 5km radius) the father shall collect the child at the conclusion of her time, from the mother’s home.
That the mother and father may attend any sporting events in which X is to participate.
That each parent shall be entitled to speak to X by telephone and or have internet contact such as email and or skype at about 8.00am to 8.30am any day that he is in the care of the other parent and with respect to same:
(a)Each parent shall ensure that they have provided and continue to provide, should details change within 48 hours of each change, a telephone number at which X can be contacted
(b)The parent wishing to speak to X shall telephone that number;
(c)The parent with whom X is at the time shall ensure that the telephone is available (meaning unengaged, switched on charged and in credit) and available to receive calls at those times; and
(d)X shall be allowed to speak with privacy and without interruption or distraction by the parent then having the care of X.
That the mother has responsibility for the decisions as to the day to day care, welfare and development of X during periods when he is living with her and the father has responsibility at all other times.
That each party ensure the other party is kept informed of:
(a)Any medical problems or illnesses suffered by X while in that party’s care;
(b)Any medication that has been prescribed for X;
(c)Any school or religious functions which X is to attend;
(d)Any other major matter relevant to X’s welfare.
That the father shall give all necessary authorities to enable the mother to:
(a)Obtain copies of school reports, newsletters and school photographs of X;
(b)Obtain any information which she may reasonably request from X’s teacher or school principal;
(c)Obtain any information which she may reasonably request from any treating health professional of X.
That in the event of X being hospitalised for receiving medication attention for a serious illness or injury, the parent spending time with X shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.
That in the event that the mother commits to the payment of all costs associated with orthodontic, dental or other elective medical expenses or school excursion then the father shall not unreasonably withhold his consent to such proposal.
IT IS NOTED that publication of this judgment under the pseudonym Chatwin & Eales is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 6995 of 2007
| MS CHATWIN |
Applicant
And
| MR EALES |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested proceedings under the Family Law Act 1975 concerning the parenting arrangements for eleven year old X.
X’s mother ultimately sought orders that she have sole parental responsibility in relation to X’s education but that otherwise the parents have equal shared parental responsibility, that X live with her, and that X spend time with his father each alternate weekend during school terms from Friday evening to Sunday evening, for two weeks during the winter school holidays, for one week during each of the autumn and spring school holidays and for three weeks during the Christmas school holidays. The mother proposed that the father or his nominee collect X from her home at the commencement of his time and that she or her nominee collect X from the father's home at the conclusion of his time. It is about a four hour drive between the parent’s homes.
The mother also proposed that each parent have telephone, email and Skype communication with X at any reasonable time when the child is in the other parent’s care. She also proposed orders as to communication between the parents of information about the child’s health, education and extracurricular activities.
If the court determined that the child should live with the father, the mother sought an equal shared parental responsibility order and that X spend time with her each alternate weekend during school terms and during the winter school holidays, from Friday evening to Sunday evening, or Monday evening if a long weekend, for the whole of the autumn and spring school holidays, and for three weeks during the Christmas school holidays.
The father ultimately supported the orders proposed by the Independent Children's Lawyer, namely that the child live with him, he have sole parental responsibility, and that X spend time with the mother on the first, fifth and ninth weekends of each school term and on the Mother's Day weekend, from Friday evening to Sunday evening, but commencing on Thursday evening if Friday is a public holiday and concluding on Monday evening if it is a public holiday, for a week in the three short school holidays, and for three weeks during the Christmas school holidays. The Independent Children's Lawyer also proposed that X spend specific time with his mother on his birthday. The Independent Children's Lawyer proposed that the mother collect X from and return him to the father's residence provided he continues to live at his current residence or within three kilometres of it, and otherwise she collect the child from the father's home at the commencement of her time and the father collect the child from her residence at the conclusion of her time. The Independent Children's Lawyer also proposed each parent have telephone, email and Skype communication with X in the morning on any day he is in the care of the other parent. As with the mother's proposals, the Independent Children's Lawyer proposed orders as to communication between the parents of information about X’s health and education.
If the court determined that X should live with his mother, the father proposed that the parents have equal shared parental responsibility and that he spend time with X on the first, fifth and ninth weekends each term from Friday evening to Sunday evening, or Monday evening if a long weekend, for the whole of the three short school holidays, and for half of the Christmas school holidays. He proposed that changeovers occur at (omitted) railway station, with each party permitted to attend changeovers in person or to appoint an agent to attend on his or her behalf. He proposed communication between the child and the parent who did not then have the care of the child by phone each evening and via Skype two evenings a week.
Background
The mother is aged 32 (born (omitted) 1980) while the father is 46 (born (omitted) 1966). The parties commenced cohabitation in (omitted) 1999 and separated on 15 October 2002. X was born on (omitted) 2002. The father has had the primary care of X since separation, that is since X was seven months old, apart from the period September 2011 to September 2012 when X lived with his mother, as I will explain later.
Final parenting orders were made on 14 August 2007 by the Family Court of Australia after a defended hearing. They provided for the parents to have equal shared parental responsibility and for the child to live with the parents on an equal time week about basis in accordance with interim orders made on 5 July 2006 until the mother relocated to (omitted), and that on the mother relocating to (omitted), X to live with the mother-
a)on the first weekend of each month from about 6.00 pm Friday to about 5.00 pm Sunday;
b)at the mother's discretion, on one other weekend per month as nominated by the mother 14 days in advance, excluding the Father's Day weekend, from about 5.00 pm Friday to about 5.00 pm Sunday, to be spent in Sydney;
c)for seven days during the Autumn, Winter and Spring school holidays, from about 12 noon on the first Saturday of the holidays until about 12 noon on the middle Sunday;
d)from about 5.00 pm 23 December until about 12 noon 14 days later in odd numbered years;
e)from about 12 noon on 3 January until about 12 noon 14 days later in even numbered years; and
f)otherwise as agreed.
Otherwise, X was to live with the father. These orders provided for the child to travel between Sydney and (omitted) by air at the mother's expense, with the mother to accompany the child until the child turned seven.
Those orders were varied on 21 March 2011 to make clear that the time X was to spend with the mother when she moved to (omitted) continued to apply with the mother then living in (omitted) and the father living on the (omitted), but changeovers were to occur at the (omitted) ticket office at Central Railway Station. Those orders permitted the parents to effect changeovers personally or by a nominee, provided that the parent using a nominee notified the other parent by SMS to the other party’s last known mobile phone number at least 48 hours in advance of the full name of any nominee attending on their behalf.
On 7 July 2011, after a defended hearing, the father was found to have contravened the orders of 14 August 2007 without reasonable excuse on 1 April 2011, 9 April 2011, 6 May 2011, 20 May 2011 and 1 July 2011. The father had failed to deliver the child to the changeover point, insisting instead that the mother collect and return the child from and to his home. Orders were made consequent on the findings of contraventions that the child spend additional time with the mother in the July 2011 school holidays, the child to be returned to the father at 1.00 pm on 17 July 2011, and on three additional weekends on the mother giving the father 14 days’ notice of her intention to have an additional weekend.
At the time of the contravention hearing, an application by the mother to reverse the primary care of the child was on foot, and up to that point the father had not filed a response to it. Those proceedings were adjourned to 26 August 2011, on which date I formally noted that if the father failed to collect the child from the mother in accordance with the then current orders and the mother retained the child in her care, there would be no contravention of the orders then in force unless the father subsequently attended the mother's home to collect the child by prior arrangement through the parties’ legal representatives and the mother failed to deliver the child to the father. That notation was made against the background that the father repeatedly refused to abide by the changeover provisions of the then operative parenting orders and repeatedly insisted that the mother had to return the child to him at his home.
At the end of the mother's school holiday time with X in early October 2011, the mother retained the child when the father failed to attend the changeover venue to collect him, and refused to return the child to the father when he subsequently sought to arrange to attend her home to collect the child. She also refused to return the child to the father when both parties and the child attended interviews with the Family Consultant for the Family Report in late April 2012. Nor in that time did she seek to arrange for X to spend any time with his father. Other than for the Family Report interviews in April 2012, X did not see his father from September 2011 until July 2012, when the mother agreed to the father's request to see him for a weekend.
On 28 August 2012, the second day of the final hearing, I ordered the mother to return the child to the father at his residence on
29 September 2012, the end of the then current school term, and made interim orders that thereafter the child live with the father, that the father have sole parental responsibility for the child, and that the child spend time with the mother on two weekends a month during school terms from 4.00 pm Friday to 4.00 pm Sunday, such time to be spent in the Sydney, (omitted) or (omitted) areas, for seven days in the autumn, winter and spring school holidays, and for 14 days during the Christmas school holidays. So long as the father remained living at (omitted), I ordered that changeovers occur at the father's home, but if he moved from that location, changeovers were to occur at (omitted) railway station. Those parenting arrangements have worked satisfactorily.
The Family Report
The court ordered a Family Report be prepared for this matter, and the Family Report is in evidence.
The interviews for the Family Report were conducted in late April 2012, after X had been in the mother's de facto sole care for nearly seven months without seeing his father.
The Family Consultant who prepared the Family Report described X as “a very confident, sociable boy”. She said X advised her that he was worried that his father missed him, because his father told him he did on the phone. He said his mother would be alright if he returned to live with his father because he had lived with her “for quite a while”, but is reported to have advised the Family Consultant that he had decided to ask his father to see his mother more often, “so I think it will be OK”.
The child is reported to have told the Family Consultant that he liked living with his mother except that the mother's partner’s nine year old son, with whom he sometimes had to share a bedroom, annoyed him. He is reported to have expressed a preference for the school he attends while living with his mother over the one he attended when living with his father. However, the Family Consultant stated that “X is missing his father and was quite unequivocal in stating a wish to return to his care”, and expressed the view that “as X is ten years old and is expressing strong wishes, (she) would like to support his wishes if at all possible”, commenting that “X’s wishes are informed ones as he has had the benefit of comparing living in two households in the recent past”.
The Family Consultant expressed the opinion that X misses his father in his mother's household. There is a large culture gap between the lifestyle the child was used to with the father, with a focus on stereotypically male outdoor activities, and the mother's environment, where among other things X appears not to have a lot in common with the mother's partner’s children.
The Family Consultant commented on the father's reported precarious financial position. He is reported to have told the Family Consultant that he resides on a ten acre property next to the primary school the child attended when he lived with the father, that he lived there at a relatively cheap rental of $700 per fortnight through the generosity of a former employer who wanted to help the father provide a healthy environment for X to grow up in, and that if X was not living with him, his tenure was at risk. In any event, he is reported to have advised the Family Consultant that he was on a very low income of $550 per fortnight, raising questions about how he could support himself and X and pay $700 per fortnight in rent.
I note the Family Report does not indicate that the Family Consultant asked X his views about the parent with whom he would prefer to live if the father had to leave the acreage he has lived on.
The Family Consultant expressed the opinion that the father “is somewhat self absorbed and struggles with a child focus”, although there was no doubt he loves X and X loves him. She reported that the father had been “extremely negative” about the mother, while acknowledging “the importance of X having a relationship with (his mother)”. However, he refused to take the child to the changeover point for the child to spend time with the mother under the previous parenting orders because, he said, the mother failed to turn up three times, and he had a “three strikes and you’re out policy”. I note the father has been found to have contravened the previous parenting orders without reasonable excuse by not delivering the child to the mother on a number of occasions. The Family Consultant said that her “main concern” about the father was “his apparent lack of commitment to fostering X’s relationship with his mother”.
The Family Consultant expressed the opinion that the mother may be the more responsible parent, and the parent better positioned to foster X’s educational attainment. X is reported to have advised the Family Consultant he wanted to be either a motor bike racer or a doctor when he grows up.
Nonetheless, the Family Consultant recommended that X return to live primarily with his father, but if the father thereafter failed to make the child available to his mother in accordance with court orders, she recommended that X live with his mother. She recommended that X spend time with his mother on one weekend a month from Friday afternoon to Sunday afternoon and for half of school holidays. The Family Consultant recommended that changeovers occur at McDonalds (omitted), and that the father personally attend changeovers and not delegate the task to others. Finally, the Family Consultant recommended the parties share parental responsibility.
In cross-examination the Family Consultant said that X’s wish to live with his father was not solely because of the outdoor activities available with his father. She referred to the stronger bond between X and his father, a result of the father being X’s primary carer since shortly after his birth. She said that nothing in the affidavit evidence filed subsequent to the interviews for the Family Report caused her to change her opinions.
The applicable law
The proceedings come under Part VII of the Family Law Act 1975, being proceedings for parenting orders. As these proceedings commenced before the commencement of Schedule 1 of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 on 7 June 2012, most of the amendments to Part VII effected by that Schedule do not apply to these proceedings. In particular, the definition of family violence and s.60CC applicable to these proceedings are those provisions as in force immediately before 7 June 2012.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). There have been no parenting plans about these children, so s.65DAB is not relevant.
In deciding what parenting order to make, the children’s best interests are the paramount consideration (s.60CA). Section 60CC indicates how the court determines the children's best interests. Section 60B sets out the objects and principles of Part VII.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the court is to make an equal shared parental responsibility order made, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA, and see MRR & GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC ¶93-424). In relation to each of these options, the court must consider whether such an arrangement would be in the children's best interests (S.65DAA(1)(a) and (2)(c)) and is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)). If so satisfied, the court must consider making such an order (s.65DAA(1)(c) and (2)(e)).
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
There is no issue that X should continue his relationships with each parent, and hence at least inferentially that he can benefit from having a meaningful relationship with each parent. I draw that inference as the common position of both parties despite their trenchant criticism of each other, and in the case of the father, despite his refusal to acknowledge anything positive in the mother or anything positive she could offer the child.
The greatest impediment to X gaining the greatest benefit from his meaningful relationships with both parents is the entrenched and deep seated dislike of one another and the way both parents use (in fact abuse) X in the way they prosecute their ongoing conflict. The greatest contribution both parents could make at present to X’s welfare and future wellbeing is to shield him from the way their conflict plays out, and to focus on what is best for X, rather than continuing to use him as a means of punishing or visiting retribution on the other parent, which is a feature of the father's approach in particular.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It was the common position of both parents and the Independent Children's Lawyer that there are no currently relevant issues of family violence, although the mother in the past received an award of criminal injuries compensation for which the father was ultimately liable.
Assessment of additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
There was no challenge to the evidence of the Family Consultant as to the views X expressed to her. At the time of his interview with the Family Consultant, X had been in the mother's care for about seven months, and had not seen his father. Before that, he had been in the father's primary care since shortly after his birth and had spent time with his mother, albeit there were interruptions to him doing so as a result of the mother's mental health issues and the father's contravention of parenting orders. Thus, while he had spent the vast majority of his life in the father's primary care, when he saw the Family Consultant he had current experience of living with the mother and going to school in her local area.
Despite expressing a preference for the school where the mother lives over the school he attends when living with the father, X nonetheless expressed a clear wish to return to live with his father. While that decision seems to have been influenced by X’s love of outdoor activities in which he can participate with the father but which are not available with the mother, I accept the opinion of the Family Consultant that there are other issues at play that support X’s view being respected and given weight, including the closer bond he has with his father, who has been his primary carer for almost all his life.
I am satisfied X’s view is one to which the court should attach significant weight, taking these matters and his age into account.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
While X has a close and loving relationship with both his parents, I am satisfied that he is closer to his father, who has been his primary carer for almost all his life.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I am not satisfied either parent is committed to facilitating and encouraging X’s relationship with the other parent.
The father has been found to have contravened the orders for X to spend time with the mother on five occasions. He simply refused to undertake the travel required of him to make X available to the mother as required by court orders. He demanded that the mother instead collect X from and return him to his home. His reasons for doing so were inconsistent. He said he applied a “three strikes and you’re out” rule to the mother. He said she failed to attend the changeover venue when she should have three times, so he was not going to undertake any travel after that, and the mother would have to undertake all the travel. On the other hand, he sought to assert he could not afford the cost of travel. While I am satisfied the father's finances are somewhat precarious, he nonetheless has the funds to regularly pursue his trail bike riding both on the property on which he lives and travelling away with friends. While this is an activity X enjoys and participates in with his father and his father's friends, it is nonetheless the case that the father is prepared to spend money on this activity but not on taking X to the changeover point for him to see his mother.
For the mother's part, she took no steps at all to initiate any time for X to spend with his father during the time she retained him between September 2011 and September 2012. She refused to return him to the father when the father sought to arrange his return in late 2011, and again when both parents and X attended on the same day for interviews with the Family Consultant in late April 2012. For the mother to roundly criticise the father for not facilitating her time with X under court orders, and then for no good reason refuse to return X to the father in circumstances that wold entail no additional travel for her in contravention of the very same orders is hypocritical.
Both parents are warranting of criticism for their self-centred attitude and lack of a child focus in their actions. This consideration is neutral to the determination of the appropriate parenting arrangements for X.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
X is well settled in the father's primary care and spending time with the mother. This is the arrangement he prefers.
If X were to live primarily with the mother, it would frustrate the realisation of X’s wishes about his living arrangements, and in time may engender a sense of resentment which may adversely affect his relationships with his mother, and perhaps also with his father. He would not be able to engage in the outdoors activities he clearly enjoys as frequently as he can living with his father.
On the other hand, I am satisfied that the mother has a greater appreciation than the father of the valued of education for X and would be more likely to encourage and assist X with his school work, and hence I am satisfied a change of primary residence may improve X’s educational prospects, provided the frustration of his wishes did not engender the resentment I have referred to an extent that demotivated X academically, and I am satisfied there is a risk of this occurring. The prospects of X doing better academically living with the mother than the father is also subject to some doubt as the mother criticised the father for the fact X did not know his times table, but after having him in her care for twelve months he still did not know his times table, suggesting either the mother did not help him to learn them or that this deficit in his knowledge is a question of ability, not lack of parental support and involvement in his education.
I am not satisfied changing X’s primary care to the mother would increase the prospects of X’s relationship with the other parent being better promoted and facilitated than if he remains with his father.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The geographic separation of the parents raises practical difficulties in X spending time with both his parents on a regular basis. This is compounded by the father's refusal to share the travel involved in X passing between the parents’ homes. The mother understandably objects to having to undertake all the travel for X to pass between the parents’ homes. However, if required to do so she will if she has to see X, as evidenced by the occasions she did so when the father refused to bring X to the changeover point in accordance with previous parenting orders, and as she has done since I made the interim orders in August 2012.
A requirement that the mother undertake all the travel is unfair between the parents, and rewards behaviour by the father which is to be roundly condemned for using the child to punish the mother for behaviour he does not like while totally disregarding the effect on X of denying him a relationship with his mother. Nonetheless, from the perspective of X’s best interests in seeking to ensure he can maintain his relationship with both parents, a requirement that the mother undertake all the travel is the option most likely to ensure the child spends regular time with both parents.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Both parents can meet the child’s needs in a broad sense, with some reservations.
Neither parent has demonstrated a proper appreciation of the child’s need for a relationship with the other parent, and hence neither has demonstrated an ability to properly and consistently meet that need. Both parents, I am satisfied, have compromised X’s emotional needs by their petty, vindictive and punitive attitude to facilitating the child’s relationship with the other parent, thus exposing X to the parental conflict and using him as a weapon against the other parent in that conflict. This behaviour of both parents is to be roundly condemned. Continuing exposure of X to the parental conflict may cause him serious long term psychological harm, and it is imperative in X’s best interests that both parents fundamentally change their attitudes to each other as parents of X, and carefully shield him from open displays of their conflict.
As previously mentioned, I am satisfied that the mother has a better appreciation than the father of the benefit to X of an education and is better able than the father to meet the child’s intellectual needs. On the other hand, the father is better able to meet the child’s interests in and need for healthy outdoor activities.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I note X’s age, and his keen interest in outdoor activities, with which he strongly identifies.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right
This is not relevant.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have already commented on both parents’ exposure of X to the parental conflict and their use of him as a weapon in that conflict, in total disregard of the potential adverse impact of this on the child emotionally and psychologically.
(j) Any family violence involving the child or a member of the child’s family
Both parents submitted that there are no issues of family violence that are relevant. I accept this submission.
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
There are no current family violence orders.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
There has been considerable litigation between the parents about X’s parenting. This is the second defended hearing on the issue, and there have been contravention proceedings. I am satisfied that this is potentially unsettling for X, and I am satisfied it would very much benefit X if the risk of further litigation could be minimised by any orders now made. This in my view is relevant to two particular aspects of the parenting arrangements I am asked to determine.
First, I am satisfied that any order for parental responsibility other than that one parent have sole parental responsibility is highly likely to lead to further litigation. These parents cannot civilly communicate with each other, and the father quite clearly said he was not prepared to discuss with the mother the high school X should attend next year. An order other than a sole parental responsibility would either result in unilateral decisions in contravention of the parental responsibility order and the risk of further contravention proceedings, or further proceedings for the court to make decisions the parents together cannot or will not make jointly. A decision about X’s high school education must be made before the end of this year, and if the matter had to return to court for a decision to be made, it could not be made before the start of the 2014 school year, potentially leaving X in limbo and jeopardising the continuity of his education.
Second, the arrangements for X to travel between the parents’ homes have been a bone of contention between the parents for some time. The father obdurately and quite unreasonably has refused to share in the travel, despite court orders that he do so. I am satisfied this is driven by his deep seated resentment of the mother and his punitive approach to her, and he has shown himself quite unconcerned about any possibly adverse impact on X of him not seeing his mother regularly. He excuses and justifies his attitude on the basis that the mother did not attend the changeover venue on three occasions, a fact I am not satisfied he has proved, and has the attitude “three strikes and you’re out” so that it is the mother's fault if X does not see her because she does not undertake all the travel to do so.
This attitude is wrong. I do not accept the father's evidence that he cannot afford the cost of travel to the changeover venue. I found his evidence unsatisfactory in a number of respects, and I am not satisfied he is a truthful witness. His suggestion he could not afford the travel, and his assertion he does not use public transport cannot excuse him from his obligation under the prior orders to share the travel.
Nonetheless, the father maintains this attitude, and I have the task of framing orders most likely to promote X’s best interests given the parents he has. The court cannot change a person’s attitudes. And given the father's attitude to sharing the travel for X to pass between his parents’ homes, I am satisfied that the order least likely to lead to further litigation, and in fact most likely to have X spending the time with each parent I am satisfied it is in his best interests he should spend, is for the mother to undertake all the travel.
(m) Any other fact or circumstance that the court thinks is relevant
I am not satisfied there are any other relevant matters not previously adverted to.
Consideration of s.60CC(4) and (4A)
While both parents have taken opportunities to spend time with X, neither has facilitated the child spending time with the other. I am satisfied that given their highly conflictual relationship, these parents cannot civilly and respectfully discuss decisions about X’s upbringing. I am satisfied the considerations under these subsections are neutral in the decision I must make.
Assessment of competing proposals
Parental responsibility
In my view both parties adopted inconsistent approaches in relation to the parental responsibility orders they seek. Both sought equal shared parental responsibility if the child lived with the other parent, but not if the child lived with them. I could not understand any rational basis for this approach by either parent, given the provisions of s.61DA.
It was submitted by counsel on behalf of the mother that any allegations or suggestions of family violence in the mother's case were too remote in time to now be relevant, s.61DA(2) was not enlivened, and that the rebuttable presumption under s.601DA arose. He submitted that the presumption was not rebutted. Yet the mother's position was that the court should not make an equal shared parental responsibility order if the child lived with her.
Counsel for the father submitted that the presumption arose but was rebutted as not being in X’s best interests. Yet the father sought an equal shared parental responsibility order if the child was to live with the mother.
A shared parental responsibility order requires that if a decision falls to be made in the exercise of parental responsibility, the decision must be made jointly by those on whom shared parental responsibility is conferred, and they are required to consult one another in relation to the decision and make a genuine effort to come to a joint decision (s.65DAC).
These parents cannot civilly discuss anything. They cannot agree on anything. Both have either used the child as a weapon in their entrenched conflict, or have been unable or unwilling to differentiate between what is in X’s best interests and the prosecution of the ongoing conflict between them.
To confer equal shared parental responsibility on these parents would be to put in place a regime that would prevent the exercise of parental responsibility other than in contravention of the order or by further order of the court in subsequent proceedings. I am satisfied these parents cannot and will not discuss parenting issues civilly and respectfully, I am satisfied these parents cannot and will not agree on decisions that must be made about X’s upbringing, most immediately the high school he should be enrolled in next year, and that an equal shared parental responsibility order would result in an anarchic situation with each party making unlawful unilateral decisions, or the matter returning to court for the court make the necessary decisions after yet more hearings.
This is obviously not in X’s best interests. It may not be possible for the court to hear and determine disputes about the exercise of parental responsibility in the time frame required. For example, if one of the parents brought an application next week to resolve a dispute about what high school X should attend next year, it is highly unlikely the congestion of matters in my docket would permit me to hear and determine the matter until long after the start of the 2014 school year, even as an expedited matter.
I am therefore satisfied than an order sharing parental responsibility or any aspect of it between the parents would not be in X’s best interests, and that the parent with whom he lives should have sole parental responsibility.
Live with arrangements
I am satisfied it is in X’s best interests to remain living with his father. He has a stronger relationship and bond with his father, he wishes to live with his father, and his father can better facilitate X’s participation in an outdoors lifestyle, with which the boy strongly identifies. While the father is unlikely to do anything to actively encourage or facilitate X’s relationship with his mother, I am not satisfied the mother would actively facilitate the boy’s relationship with his father if X lived with her. While I am satisfied the mother would provide greater encouragement and support for X’s education than the father if X lived with her, I am not satisfied X’s overall academic achievements would necessarily be better as a result, and in fact if frustrating X’s wishes as to the parent he lives with lead to resentment against the mother, her influence on him in this and other areas may significantly reduce.
Spend time arrangements
I am satisfied that given the distance X must travel to pass between the parents’ homes, given his age and level of development, and given his developing interests in extracurricular activities, including his wish to play soccer, fortnightly time with the parent with whom he does not live is too frequent, and I am satisfied the regime proposed by the Independent Children's Lawyer and supported by the father is in X’s best interests. For reasons already mentioned, I am satisfied the mother should undertake all the travel to collect and return X at the commencement and conclusion of her time, provided the father remains living in close proximity to his current address.
Decision
I am therefore satisfied that the orders as proposed by the Independent Children's Lawyer and supported by the father are in X’s best interests, and I will make those orders.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Halligan
Date: 4 October 2013
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