Christie and Balkin
[2008] FMCAfam 665
•3 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHRISTIE & BALKIN | [2008] FMCAfam 665 |
| FAMILY LAW – Parenting – best interests of the child – high conflict – lack of communication– willingness and capacity to promote child’s relationship with the other parent – meaningful relationship with both parents – relocation. |
| Family Law Act 1975, Part VII, ss.60B, 60B (1), (1)(a), (2), (2)(b), 60CA, 60CC, 60CC (1), (2), (3)(a), (c), (e) - (m), (4), (4A), 61DA, 65DAA (1), (2) |
| AMS v AIF (1999) 199 CLR 160 Cross on Evidence , Seventh Australian Edition (J.D. Heydon) (Sydney: Butterworths – LexisNexis, 2004) T. Altobelli FM, “A response to `A Cautionary Tale’: Learning to paint with a fine brush,” presentation to the 8th Annual Family Law Intensive, Sydney |
| Applicant: | MS CHRISTIE |
| Respondent: | MR BALKIN |
| File Number: | CAM 661 of 2006 |
| Judgment of: | Neville FM |
| Hearing dates: | 13 December 2007, 1 February, 22 May, 10 & 12 June 2008 |
| Date of Last Submission: | 12 June 2008 |
| Delivered at: | Canberra |
| Delivered on: | 3 October 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Haughton |
| Solicitors for the Applicant: | Evans Yeend Family Lawyers |
| Counsel for the Respondent: | Mr Blank |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson & McGuinness Eley Solicitors |
ORDERS
All previous Orders be discharged.
Until further order, the Mother have sole parental responsibility for the child, [X] born in 2003.
[X] live with his Mother.
Until further order, the Mother be permitted to relocate the residence of the child to [C].
Until further order, [X] spend time and communicate with his Father following the NSW Public School calendar as follows:-
(a)Each alternate weekend from 5pm Friday until 4pm Sunday, commencing the first weekend after the date of these Orders;
(b)For the first half of all school holiday periods in years ending in an even number commencing at the conclusion of the school term and concluding at 5pm on the middle day of the school holiday period;
(c)For the second half of each school holiday period in years ending in an odd number commencing at 5pm on the middle day of the school holiday period and concluding at 4pm on the day before the following school term;
(d)On the weekend including Father’s Day, at the times in Order 5(a) above;
(e)From 9am Christmas Eve until 12pm Christmas Day in years ending in an even number;
(f)From 12pm Christmas Day until 5pm Boxing Day in years ending in an odd number;
(g)From 9am Good Friday until 5pm Easter Saturday in years ending in an even number;
(h)From 5pm Easter Saturday until 4pm Easter Monday in years ending in an odd number;
(i)By telephone each Wednesday between 5pm and 5:30pm, with the Father to telephone the child; and
(j)At any other times as agreed between the parties.
Notwithstanding the above Orders for [X] to spend time with his Father, [X] will spend time with his Mother on the weekend including Mother’s Day each year.
For the purpose of Orders 5 and 6, changeover will take place at a mutually agreed independent changeover service near Canberra or [C], but failing agreement, at [omitted] in Canberra. Both parents are directed to contact [omitted] (or the chosen changeover service) as soon as practicable to arrange for any necessary intake and assessment. Neither party, nor any relative, is to attend at the changeover location/service when the other party is in attendance.
The Father is not to come within 200 metres of the Mother’s usual residential address.
The Mother shall provide an authority to each of [X]’s treating medical professionals authorising the release of information to the Father in relation to [X]’s medical health and treatment.
Each party shall advise the other as soon as practicable in relation to any medical emergency involving [X] or any prescription medication or treatment that [X] requires.
The Mother shall provide an authority to [X]’s day care, preschool or school authorising the release of information to the Father in relation to care or educational activities, reports, photographs and invitations.
The parties shall exchange a communication book through the changeover service at the commencement and conclusion of the Father’s time with [X], with the communication book to advise the other parent of matters concerning the care, welfare and development of [X] while in the other party’s care.
Both parents shall keep the other informed of their current residential address and a landline and/or mobile telephone number in writing, and shall provide 7 days notice to the other parent should these details change.
Each party shall enrol in and complete a parenting course (specifically one relating to improving communication between parents) and shall provide written evidence of the completion of that course to the other party and to the Court.
Each party shall arrange and attend individual personal counselling as soon as practicable, at a duration and frequency to be determined in consultation with the chosen registered counsellor or service. It is requested that prior to the next Court event, the counsellor or service provides written evidence to the Court certifying that the counselling recommended by them is being or has been undertaken.
It is requested that Ms Connor, or another Court appointed Regulation 7 expert, produce an updated family report in this matter in 12 month’s time. In this respect, I direct that the parties contact Ms Connor on 0438 810 942 (or contact the appointed expert) in August 2009, to make the appropriate arrangements.
The matter be adjourned to a date to be advised in 2009, following the release of the updated family report.
IT IS NOTED that publication of this judgment under the pseudonym Christie & Balkin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 661 of 2006
| MS CHRISTIE |
Applicant
And
| MR BALKIN |
Respondent
REASONS FOR JUDGMENT
Introduction
If the seminal section 60CC of Part VII of the Family Law Act1975 (Cth) (“the Act”) might be parsed a tad unusually, the “CC” part in its application to this case would actually refer to “conflict and communication.” They are the central issues in these protracted proceedings, which concern parenting orders for 5 year old [X], and whether his Mother should be permitted to relocate to [C] from [Q].[1] There is much of the former [conflict] and precious little of the latter [communication].[2] But before getting to them and the reasons therefore, some legal context and judicial infrastructure will be helpful.
[1] In one sense, the relocation issue could be viewed as somewhat academic because Ms Christie’s Counsel confirmed that the applicant had already moved to Cootamundra, although she maintained a small bed-sitter apartment in [Q]. Transcript (22nd May 2008) p.157. See also Ms Haughton’s comments, Transcript (10th June 2008) p.5.
[2] In his closing submissions, Counsel for the respondent Father, Mr Blank, bluntly stated that “there is a terrible relationship between the parents.” Transcript (12th June 2008) p.215. I accept that submission.
Legal Context & Basic Judicial Infrastructure
In Mazorski v Albright (a recent relocation case)[3] Brown J summarised neatly the objects and principles of the Family Law Act. Respectfully and gratefully I adopt her Honour’s remarks where she said, at [3] – [6]:
The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[3] (2008) 37 Fam LR 518.
A little later in her judgment, Brown J continued, at [13] & [14]:
Nevertheless, amendments to that part of the Act dealing with applications for parenting orders could be said to place far more emphasis on the importance of substantial parental involvement in their children’s lives, as noted by the Full Court in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286. For example, s.60B(1)(a) now provides that an object of Part VII of the Act is to ensure that the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interest of the child. This object is consistent with the introduction of the presumption in favour of equal shared parental responsibility, and is more specific about that meaningful involvement than was its predecessor.
The principles underlying the objects set out in s. 60B(2) are very similar to those they replaced, although s.60B(2)(b) is more specific about the right of children to spend time and communicate on a regular basis with parents and other significant people, such as grandparents and other relatives.
The final judicial observation to note, supported statutorily by Part VII of the Act, are Carmody J’s not infrequently cited comments, albeit in language that Parliament has formally decreed to be archaic if not obsolete, in W and G (No 2).[4] In that case, his Honour said, at [45]:
Australian family law is unashamedly pro-contact. Consequently, this court will bend over backwards to establish or preserve a worthwhile relationship with the poorest of parents provided adequate protective measures can be put in place to prevent any relevant risks. This approach is based on the assumption that a father is much more than the worst thing he has ever done.
[4] (2005) FLC ¶93-248. Although formally expunged from the lexicon, the language of former statutory regimes of course remains understandably common place among family law practitioners and not a few judicial officers from time to time. In this regard, see the increasingly recurrent linguistic explanations in judgments, typified, for example, by the recent Full Court decision in Chappell & Chappell [2008] FamCAFC 143, where their Honours (Warnick, Boland & Thackray JJ) said, at [5]:
The proceedings were instituted after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006. The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary: Carpenter and Lunn [2008] FamCAFC 128.
And a little later in the same judgment, at [48], his Honour said:
The starting point when contact is in issue is that there is a benefit for children in having a meaningful relationship with both of their parents and that for most children contact with a non-resident parent is important to their welfare and development in both the short and long term.
As already indicated, these proceedings involve parenting orders in relation to [X], who was born in 2003. His parents are Ms Christie and Mr Balkin, respectively the Applicant and Respondent in these proceedings. The parenting orders are complicated by at least two matters, in addition to more that will be noted shortly. First, the relationship between [X]’s parents has been significantly acrimonious and otherwise severely strained for quite some time. Secondly,
Ms Christie wishes to relocate to [C], which would thereby (as a matter of geography apart from anything else) impact adversely upon the current, relatively easy access that Mr Balkin has to spending time with his son [X].[5] Some procedural history is immediately helpful because it will enable some further relevant background issues to be presented straight away.
[5] Cootamundra is approximately 195 kilometres and a 2 hour plus drive from [Q].
Procedural History
When the first, and then scheduled only, day of hearing began, Counsel for the applicant, Ms Haughton, said optimistically that she was confident that the matter would conclude in one day. There were three issues “flagged” in Counsel for the respondent, Mr Blank’s, opening remarks: (a) the Mother’s relocation application, (b) the time that [X] spends with his Father, and (c) whether there should be an order for sole or equal shared parental responsibility. Throughout the trial those three issues remained formally the legal matters to be determined. However, the case took some unexpected detours, which led to the hearing ultimately spanning five days (not all of them fully utilised for reasons that will be explained) and over a not insignificant period of time. The trial commenced on 13th December 2007; the last day was 12th June 2008.
In between these dates, an allegation was made against Mr Balkin in early 2008 relating to [X] sustaining a large red mark on his leg.
Mr Balkin said it was sunburn; Ms Christie claimed otherwise and that it may have been the result of [X] being hit by his Father with a piece of wood. The scheduled hearing on 1st February 2008 was adjourned so that the Department of Community Services could investigate, and likewise the NSW Police Department. Two things may be noted here immediately.
First, no charges were ever laid against Mr Balkin in relation to this incident. Secondly, very curiously and most surprisingly, Ms Christie never had [X] examined by a doctor as soon as she became aware of the “mark” and the alleged incident. Thus, although I had the benefit of photographs of the “red mark”, there was no medical evidence in relation to it.[6] Indeed, by the time [X] was medically examined, the mark had dissipated so that it was very difficult (as proved to be the case) to state with any certainty what had caused it.[7] Certainly,
Mr Balkin strongly protested his innocence of the allegation, saying that he had not struck [X] and insisted that it was the result of sunburn from a long day at the beach. Although I do not need to decide the matter, certainly Mr Balkin’s explanation is more than plausible.[8]
[6] Ms Haughton confirmed that there were no medical reports about the “mark” before the Court. Transcript (10th June 2008) pp.43-44. Photographs of the “red mark” were formally tendered and became Exhibit K.
[7] See the comments by Ms Christie’s Counsel, Ms Haughton, confirming that no further action was taken in relation to the incident by any of the relevant authorities. She confirmed also that six doctors had looked at the photographs of [X]’s leg. There were no reports from any of those medical practitioners before the Court. Transcript (22nd May 2008) p.102. There was also a detailed discussion of the incident between Counsel and the Bench early in the resumed hearing in June. See Transcript (10th June 2008) pp.21 ff.
[8] For the sake of completeness, there were two other allegations raised in the proceedings. The first was against Mr Balkin that he had stuck his finger in [X]’s “bottom.” This allegation was also strenuously denied by Mr Balkin. It ultimately did not figure in the final submissions of Counsel for Ms Christie, nor of course in the final orders sought by the Mother. If she had any concerns in relation to [X]’s personal safety, presumably she would not have been seeking orders for him to spend time with his Father and for that time to be unsupervised. As well, Ms Christie confirmed that the [ACT] Child at Risk Unit did not take the matter further. She also said that there were not allegations, “just disclosures.” See Transcript (13th December 2007) pp.47 & 42 respectively.
The second allegation was that Ms Christie’s Father had abused her as a child and, therefore, there was some risk to [X] if he was left in Mr C’s care. Mr C provided an affidavit and was cross-examined. He denied any basis for such an allegation. Ms Christie also denied the allegation. However, there was a credible witness, Ms H, who testified that Ms Christie had told her about the [alleged] abuse. Transcript (10th June 2008) p.50. I do not accept that there is any risk to [X] being in Mr C’s care. I have more difficulty in accepting Ms Christie’s various accounts and denials of a number of her conversations about these allegations.
The Parties & Their Proposals
The applicant Mother, Ms Christie, is thirty four years old; Mr Balkin is forty two. The relationship between the two parties was, by any measure, quite short. On one part of the Mother’s evidence, the relationship commenced in August 2002 and ceased in January 2004. On another part of her evidence, the relationship ended in 2005. And in a Report from the Australian Federal Police produced on subpoena, the police record that Ms Christie told them that she was in a relationship with Mr Balkin “for about a year” and that she kept in touch with him after [X]’s birth “so that he could see his son and keep in contact with him.”[9]
[9] Australian Federal Police, Summary – Case 3577589. Incident Report 21 January 2007, p.2. There are a number of inconsistencies or other difficulties in the account from Ms Christie recorded in this Report. This also assumes the accuracy of the recording of the account.
On Mr Balkin’s evidence, the relationship ended in April 2006. In my view, nothing turns on the differences between the competing claims. On any version, the relationship was short. Nor do I have to decide whose version of events is the more credible, or which source of evidence is the more reliable (e.g. medical records from Ms Christie’s doctor). That said, there are some question marks over Ms Christie’s version(s) and explanations. But again, little turns on such matters for the purposes of the orders this Court is required to make that are, according to s.60CA of the Act, in [X]’s best interests.
Ms Christie deposes to having qualifications in `[omitted]’ and to have almost completed an [omitted] degree. She said that she can complete this degree “online” or otherwise, and that she would not be required to attend face-to-face classes which would impact on her ability to care for [X]. She has experience in [omitted]. She also can teach [omitted].[10]
[10] See Ms Christie’s evidence in relation to these matters at Transcript (13th December 2007) pp.28-29 & 34. What is comprehended by a degree in “[omitted]” was not explored. Similarly, in what field of [omitted] her almost completed degree is located was also not examined.
In the early stages of the hearing Mr Balkin confirmed that he worked permanently as a [omitted]. However, by the end of the trial he had been promoted to work in a [omitted], where he was responsible for [omitted].[11] He said he would, but did not, provide a letter from his employer to confirm his hours of work.[12] Provided or not, he confirmed that his hours of work were usually quite lengthy, thereby indicating that if I ordered a shared-care arrangement, [X] would be in the care of other people, either at a pre-school or some after-care facility, or with one or more of Mr Balkin’s friends, some of whom he named in the course of proceedings but whose details were rather lacking. Few if any of them were on affidavit to confirm either their availability and or experience.
[11] Transcript (10th June 2008) p.18.
[12] Transcript (10th June 2008) pp.28 & 29.
The respective proposals of the parties may be summarised as follows.
The applicant Mother, Ms Christie, seeks that (a) she have sole parental responsibility for [X], (b) [X] live with her, (c) she be permitted, with [X], to relocate to [C], and (d) [X] spend defined time with his Father essentially every second weekend. Once he commences school, [X] would have regular school holiday time with his Father. There is provision also for regular, but not overly liberal, telephone time between Father and son, as well as arrangements for changeovers.
For his part, Mr Balkin seeks that (a) there be a shared care arrangement and (b) an order for equal shared parental responsibility. Originally, Mr Balkin had not sought these orders but rather a more constrained arrangement which, to a certain degree, mirrored the orders sought by Ms Christie, excepting the order for relocation.
A genuine curiosity immediately arises: Mr Balkin’s Counsel [rightly] submitted that there was a “terrible relationship” between the parents. In his written submissions, the same Counsel observed [rightly] that a shared care/time arrangement “needs parents who can communicate.” The submissions are on their face, and in the light of the evidence, self-defeating or at least mutually exclusive. That, of course, does not obviate the need to examine both the evidence and the respective proposals in some detail, in the light of the almost infamous “legislative pathway” prescribed by statute and judicial authority.[13] I turn to those matters now, following which I will deal with the evidence of the Regulation 7 Consultant, Ms Connor.
[13] See the Full Court decisions in Goode v Goode (2007) 36 Fam LR 422 at p.445 [81] and Keach & Keach (2007) FLC ¶93-353, especially at [24] ff and [39].
The Evidence: Overview
In large measure the hearing was an extended examination of the discordant relationship between [X]’s parents. To a significant degree, therefore, not only did it occupy much of the time at the hearing but it necessarily became, and remains, the lens through which all other issues were and are primarily viewed.
Indeed, in many respects, the various positions of the parties – otherwise argued over a number of days - was captured well in the following brief, simple exchange between Ms Haughton, Counsel for Ms Christie, and Mr Balkin in the course of what was a long cross-examination of him, which I should note he withstood very well.
Ms Haughton: You have got her tap dancing to your music?
Mr Balkin: No.[14]
[14]This very small “discussion” exemplified the issues: Ms Christie submits that she is scared of Mr Balkin and that, in effect, he manipulates the relationship. Mr Balkin denies these allegations. He also contends that Ms Christie controls and stage-manages events, not least changeovers where there have been numerous instances and types of conflict.[15] As well, in the course of the hearing I said:
It is a question of where does this lead in terms of what are the appropriate orders in the best interests of [X]. So, it is not a question of “Is there conflict?” It is a question of the degree and the nature of it, and the impact on the child.[16]
[15] See, for example, Transcript (22nd May 2008) p.137, where Mr Balkin contended that Ms Christie “cries wolf” regularly, and that the police dealing with their various contests over time `know her game.’
[16] Transcript (22nd May 2008) p.153.
Later in his cross-examination, Mr Balkin made the admission, unremarkable in the circumstances, that he and Ms Christie `have been unable to negotiate.’ This remains the case even when the communication goes through each party’s solicitors.
This particular admission or concession was in the course of an extended series of questions relating to circumstances where Mr Balkin admitted to a range of times when he breached orders by keeping [X] either overnight or for a period longer than the orders allowed. He did so, he said, because of his frustration at not getting any make-up time on other occasions, and or because [X] expressed the view that he wanted to stay with his Father.[17] It is a curious but inappropriate judgment by Mr Balkin to accede to [X]’s “wishes” where to do so breaches orders of the Court.
[17] See, for example, Transcript (22nd May 2008) pp. 146 & 169-171.
I accent these matters to highlight the consistent issues of (a)
Mr Balkin’s frustrations about the time he spends with his son, (b) his breaching of previous orders in doing so, and (c) his admission of the incapacity of the parties to negotiate. I should stress that the incapacity to negotiate is a mutual problem.[18] Indeed, ironically, the only area of agreement between the parties is that they cannot communicate or agree! I accept, unfortunately, that this is indeed the case. I do not, however, for the purposes of these proceedings, make any formal finding of the degree of culpability of each party in their inability to negotiate.
[18] The breaching of orders related essentially to keeping [X] either for extra time (i.e. for some hours) or even overnight. Especially in the latter cases, as I have already observed, the explanation or justification was because `[X] wanted to spend extra time’ with his Father. See, for example, Transcript (22nd May 2008) pp.146, 168, 169 & 170-171.
Also by way of summary, from Ms Christie’s perspective the consistent issues from her evidence were (a) her fear of Mr C arising essentially from regularly contested changeovers and, in her view, for which there is at least more than an inference from the evidence, Mr Balkin’s stalking of her,[19] (b) her desire for family support in and around [C] (she also expressed the view that she wished to assist her Mother who does not enjoy the best of health), and (c) her improved (in her view) employment opportunities in that region compared to the Canberra-[Q] region, having regard to her qualifications (in `[omitted]’) and her experience in [omitted]. She also can [omitted].[20] Clearly, the need for [omitted] is not, and cannot be, confined to [C].
[19] This “inference” may otherwise be explained in terms of the Father’s ongoing and mounting frustration, to which I have already referred. As will be readily apparent, there has been a self-perpetuating cycle put in motion by the parties.
[20] See Ms Christie’s evidence in relation to these matters: Transcript (13th December 2007) pp.28-29 & 34.
I intend now to consider briefly some particular problems, as I see them, in the evidence of both parties.
First, in Mr Balkin’s case, he repeatedly noted three things: (a) he had recorded many if not most changeovers; (b) he had a number of people who could look after [X] when he was formally to spend time with his Father; and (c) there were people who could corroborate, for example, his version of events over the `January 2008’ incident that led to the allegation of Mr Balkin hitting [X] with a stick, and on his version of events, that it was sunburn, and that the late return of [X] to his Mother was due to Mr Balkin’s car breaking down on a couple of occasions.[21]
[21] I might note here as well as anywhere that in the light of Mr Balkin’s evidence he may not be as available to care for [X] as he would otherwise wish to be. He said that there was some travel in his new job and that, at times, he worked on some part of the weekend. Ms H, who was called on his behalf, gave evidence that she had looked after [X] on a couple of occasions when Mr Balkin had to work on part of a weekend. I otherwise refer further to her evidence later in these reasons.
In all of these instances, with almost no exceptions, Mr Balkin did not produce any (a) of the recordings, (b) affidavit evidence in relation to the people who could/would care for [X] while he was at work, and (c) of the people who could/would corroborate his version of events regarding the `January 2008’ incident. He did call one witness, Ms H, whose evidence (by way of affidavit and oral testimony) broadly may be characterised as an extended character reference.
Ms H confirmed that she had known Mr Balkin for many years, that he had regularly spent time with her five children without having any qualms about him with them or them with him, that she had often seen Mr Balkin and [X] consistently and happily together, and that she had looked after [X] occasionally when Mr Balkin had to work on weekends (that is, part thereof). I say all of this without in any way disparaging her evidence, which I accept. But none of her evidence went to the issues I have raised, especially given that Mr Balkin had the opportunity to produce the recordings of the changeovers, and he said that he could do so.
Ms Haughton (for Ms Christie) submitted that I should draw adverse inferences against Mr Balkin, because of his failure to produce these recordings. Although not formally stated, such a submission presumed the Court taking notice of the evidentiary rule in Jones v Dunkel.[22]
[22] (1959) 101 CLR 298.
That evidentiary rule, and its various features, is comprehensively detailed in the Seventh Australian Edition of Cross on Evidence, especially at [1215].[23] As set out in Cross, the learned author states:[24]
… unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence… may, not must, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case.
[23] Cross on Evidence, Seventh Australian Edition (J.D. Heydon) (Sydney: Butterworths – LexisNexis, 2004) pp.39-45.
[24] Ibid, at p.39: subject to what is next stated, internal citations have been omitted. In support of the proposition that the rule extends to the failure to tender documents, which presumably must include material, in my view, such as video recordings, Heydon J cites observations by Callinan J in Burke v LFOT Pty Ltd (2002) 187 ALR 612 at [134].
I emphasise the learned author’s accent on the rule being dependent on the exercise of the discretion of the presiding judicial officer. As well, on the facts of the case, and without it being taken in any way as fully rebutting the inference that might otherwise apply or be drawn, there is some inference the other way against Ms Christie.
Here I refer to evidence before the Court, previously referred to, from subpoenaed material from the Australian Federal Police. In that material (Summary – Case 3577589), the police record a changeover incident at McDonalds, Fyshwick, on 21st January 2007. Following Ms Christie’s account,[25] Mr Balkin was contacted and agreed to participate in a taped record of interview. The taped record of interview was also part of the material produced on subpoena.
[25] See [10] of these Reasons.
I should also note that a relevant part of the background to this and other incidents is that Ms Christie has an apprehended violence order against Mr Balkin, and had one at the time of this incident in January 2007.
In that interview, Mr Balkin admitted that he had pushed Ms Christie away `with an open hand.’ Her statement to the police was that he had “shoved me in the ribs with his left hand … I felt his fingers go into my ribs. I felt extreme pain to my ribcage….”
On 11th February 2007, he produced the video recording to the police. Mr Balkin’s statement to police also noted that his then solicitor had sent a letter to Ms Christie advising her that “she cannot enter his car.” Unfortunately, this is precisely what she appeared to do in order to get [X].
In any event, the AFP Report records the following after viewing the video recording produced by Mr Balkin:
It [the video recording] corroborates his story that he asked [Ms Christie] several times to move away from the vehicle as she had an AVO out against him. He only placed his hand up to stop her advancing towards him. At no time was he aggressive towards her or intentionally push or shove her. He did not breach his protection order.
Police contacted [Ms Christie] and advised her that they would not be proceeding with any charges against Mr Balkin. Police viewed the footage and observed Mr Balkin ask Ms Christie several times to move back and when she has advanced he has placed his hand up to stop her advancing.
Ms Christie was not happy with the outcome.[26]
[26] AFP Report, Summary – Case 3577589, p.5.
In the same Report, even by Ms Christie’s own account, initially
Mr Balkin was cautious and very conscious of the application and consequences of the AVO in place as she continued to approach his car. Her actions were, to some degree at least, unhelpful as the police record the incident. As well, it is clear that the police assessment of the video recording supported more significantly Mr Balkin’s account than that of Ms Christie.
As indicated above, this one incident does not, of itself, completely negative a possible Jones v Dunkel inference against Mr Balkin of the kind urged on me by Ms Haughton. In the light of the police Report, which is clearly favourable to him, it is even more puzzling why he did not produce it to this Court. It may otherwise be explained, perhaps, as Mr Balkin did in another context,[27] that for all of his persistence in seeking to spend time with his son he was genuinely wearied or concerned about the effect the proceedings and contest with Ms Christie was having on [X]. But this can only be, ultimately, speculation.
[27] See, for example, Transcript (23rd May 2008) p.148.
I should also note that on a few occasions Mr Balkin acknowledged that he could have handled changeovers better in a number of instances.[28] Not insignificantly, he agreed with Ms Haughton that taking a video of proceedings was not the most prudent or sagacious course to have pursued and would, in all probability, have served to inflame rather than to calm the situation between him and
Ms Christie.[29] On the police material, it would also seem that
Ms Christie could also have handled changeovers much better than she did.
[28] See Transcript (23rd May 2008) pp.124, 125 & 129.
[29] Among a number of places, and in addition to the references in the previous footnote, see also Transcript (23rd May 2008) p.137.
But to return to the Jones v Dunkel submission, for three reasons, I will decline to make such an inference. First, because of the material from the Australian Federal Police in Summary – Case 357789, to which I have referred in some detail, in my view it casts sufficient doubt on Ms Christie’s account of at least one significant incident, and because the police evidence is consistent with Mr Balkin’s account of it, I am disinclined to make a Jones v Dunkel inference against Mr Balkin. That said, I repeat that it would have been helpful if he had produced the material.
The second reason for not drawing such an inference is simply because the course upon which I have determined obviates the need to make any such inference, as will be seen from the orders made in these proceedings.
Thirdly, in the course of her evidence Ms Christie referred to difficulties in relation to telephone calls between [X] and Mr Balkin. She said that she taped some of them. But, just as Mr Balkin did not do so in relation to his video footage, so too did Ms Christie not produce the tapes of the telephone calls. In such circumstances, I have the discretion either to make adverse inferences against both parties or to make no inferences against either of them. I prefer the latter course.
Because the evidence of both parties was so focussed on their discordant relationship, and the evidence in this regard was both ample and credible and should be readily accepted, in my view it is unnecessary to consider their evidence further.[30] Again, if any more indication were needed, Ms Haughton submitted, in my view not completely unreasonably, “that even a birthday card from Mr Balkin at this stage would be harassing and intimidating to my client.”[31]
[30][31] Transcript (10th June 2008) p.12. In the same place, Ms Haughton continued: “… I think Mr Balkin in cross-examination here on the last occasion admitted that my client was in fear of him. Of course, he says she has no reason. But that is effectively her position.” That too was a reasonable summary of the evidentiary situation.
A few exceptions, however, should be noted. They relate, firstly, to Ms Christie’s acknowledgment (in a manner of speaking) of the importance of Mr Balkin’s involvement in [X]’s life, and that she would `work together’ with him for [X]’s interests.[32] While this might theoretically be true, in the light of the evidence, that reality will likely take quite some time to materialise.
[32] Transcript (13th December 2007) pp.24 & 31.
Secondly, both parties acknowledged that there had been no child support assessment. This should occur as soon as possible, whatever the anguish Ms Christie may feel about receiving money from
Mr Balkin. [X]’s interests must take priority.
Thirdly, in response to questions I put to him, Mr Balkin suggested that changeovers should take place at [omitted] (or presumably at some other contact centre) so as to ensure that there was no personal contact between the parties. This was a very sensible suggestion and will be ordered.
Fourthly, there was no evidence or submission that there was anything but a good relationship between [X] and his Father. Apart from these matters, I move to the evidence of Ms Connor, the Family Consultant.
Evidence of Family Consultant
Ms Connor is a very experienced family consultant. She provided the Court with two extensive Reports dated 16th June 2007 and 21st May 2008 respectively. She also gave evidence on 13th December 2007 and again on 12th June 2008, the last day of the trial.
In the first Report, Ms Connor recommended that (a) Ms Christie be allowed to relocate, (b) [X] spend time with his Father for 3 or 4 days every second weekend, (c) when [X] commenced school, he spend every second weekend with his Father, and (d) the parties use a communication book.
In her second, later Report, Ms Connor recommended that (a)
Ms Christie not relocate to [C] “at this stage,” (b) Mr Balkin’s time with [X] be increased to include a mid-week overnight time in the “off week,” (c) Ms Christie remain [X]’s primary carer, (d)
Ms Christie attend a parenting course, and (e) the matter be reviewed in 12 month’s time. I can indicate immediately that there will be a review as recommended by Ms Connor, together with a further report.
It is important to quote a significant section from her second Report. In large measure I agree with her observations. Ms Connor stated, at pars.7.7, 7.8 and 7.9:
The parties agree on little.
Ms Christie’s behaviour to date does not suggest she would readily facilitate contact if she relocates to [C]. Past history suggests that further allegations will be made against Mr Balkin. In my earlier report I commented “I did not gain the impression Ms Christie was being mischievous or malicious rather that she was very protective and concerned.” My impression now was that Ms Christie could not see Mr Balkin in anything other than a negative light and was totally unable to recognise the importance of his role as [X]’s father. Her perceptions that he is abusive colour everything that happens and will be very hard for
Mr Balkin to redress. I had hoped that being able to reside principally in [C] would assist Ms Christie and diminish her concerns. This has not eventuated.
Given my pessimism about Ms Christie’s ability to facilitate contact I am now less certain that a move to [C] is the best option in this matter. On the other hand these parties certainly do not demonstrate the co-operation required to implement a shared care arrangement. Denying or reducing Mr Balkin’s contact will only allow him to be demonised further.
In the course of her oral evidence, she confirmed that whatever time Mr Balkin was to have with [X], it would be very beneficial if he did a parenting course. She also said that wherever Ms Christie lived, whether it was in [Q] or [C], there would be similar problems.[33]
I agree with that assessment.
[33] Transcript (13th December 2007) p.92.
In her second time in the witness box, she also stated that if changeovers were to be facilitated by family members, especially on Ms Christie’s side, it could be beneficial but such a situation could also exacerbate the tensions. She also stated that, in her view, the deterioration between the parties and the various incidents that had taken place since her first report did not reflect well on either party. Again, I endorse her comments.
She confirmed that [X] and his Father have a good relationship. She also confirmed her concern that there would ever be any improvement in the relationship of the parties. The best that could be achieved, or certainly aimed at, was that they could communicate in a business-like manner.[34] To this fundamental end, she suggested (understandably hesitantly) that (a) both parties attend parenting courses, (b) both parties attend individual counselling, and (c) a communication book be used. Each of these recommendations will be part of the orders made.
[34] Transcript (12th June 2008) pp.197 & 198.
As already indicted, in large measure, and subject to what is said later in these reasons, I accept Ms Connor’s evidence and her recommendations.
In the remainder of this judgment I will deal with relevant materials (judicial and other) that comment on the effects of conflict on children, and then I will consider the “legislative pathway” by way of summary and conclusion. There will also be brief consideration of the “relocation” issue.
Parental Conflict & the Impact on Children
There are three recent articles that are of some relevance to these proceedings, precisely because there is such implacable opposition between the parties. Those articles are: “Shared Care and Children’s Best Interests In Conflicted Separation: A Cautionary Tale from Current Research;” the second article, in effect, a commentary on the first, is “A response to `A Cautionary Tale’: Learning to paint with a fine brush.”[35] The third article is by academic Rae Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation.”[36] To these Australian articles should be added the comments and detailed summary of a psychiatric report prepared for the UK Court of Appeal concerning the impact on children of domestic violence. Dame Elizabeth Butler-Sloss P summarised the essential findings of the report in her judgment in
In re L (A Child) (Contact: Domestic Violence).[37]
[35] The first article is by J. McIntosh and R. Chisholm, (2008) 20 Australian Family Lawyer 3-16; the second is by Dr T. Altobelli FM, being a presentation to the 8th Annual Family Law Intensive, Sydney. The articles will be referred to respectively as “A Cautionary Tale” and “Response.”
[36] (2007) 29 Sydney Law Review 131.
[37] [2001] Fam 260. The background to and summary of the report begins at p.268. Thorpe LJ agreed with the judgment of Butler-Sloss P. The focus of the report is on the psychiatric principles of contact between the child and the non-resident parent. Many of the matters referred to are also dealt with or otherwise captured by the remarks in the other articles.
The features of a high conflict parenting relationship are described by Dr Altobelli in his Response.[38] Those features include: intractable disputes (e.g. multiple and repeat users of the legal system; unwilling to listen to or respond to advice, adopting fixed views or positions in negotiations); ongoing disagreement over day to day parenting practices; expressed hostility, verbal abuse, physical threats; intermittent violence; poorly concealed acrimony; on-going denigration of one parent by another; insidious embroilment in supporting the separate views of each parent. Unfortunately, a significant number of these features are present in the current proceedings.
[38] Transcript (12th February 2008) p.76; Response: par.5, p.7.
Of no less concern are the risks set out by the English Court of Appeal in re L. Although the context of the observations noted by the Court of Appeal from the Report before that Court is domestic violence, the concerns expressed, in my view, have wider application. I note a few of them summarily.
After highlighting a range of important reasons for a child spending time with his or her non-resident parent, Dame Butler-Sloss noted some of the more general risks, a number of which are patently present in the current proceedings. They include: failing to meet and actually undermining the child’s developmental needs or even causing emotional abuse; escalating the climate of conflict around the child which would undermine the child’s general stability and sense of emotional well-being. This could result in a “tug of loyalty” and the child assuming a sense of responsibility for the conflict. Added to these concerns are the risks of emotional blackmail, stress and more general fears that arise out of the ongoing conflict between the parents.[39]
[39] These and other matters are noted in [2001] Fam 260 at pp.269-270.
The risks to [X] are, in my view, very significant. Unless his parents work out some `business-like’ arrangement regarding communication and changeover, and do so sooner rather than later, I fear that the adverse effects on [X] will become increasingly manifest. Indeed, the risks for all are substantial. As well, I should note that although [X] is still quite young, there was more than a hint in the course of the evidence of him not only being conscious of the duel between his parents but also of him even manipulating or at least “playing off” both sides at different times. This will suffice for a consideration of the risks to [X], and to his parents if they do not resolve and work more constructively towards a working relationship for [X]’s benefit. I move to consider formally the matters prescribed in s.60B and s.60CC of the Act.
Statutory Considerations & the Best Interests of the Child
At the outset of this judgment I recounted and endorsed Brown J’s summary of the objects and principles set out in s.60B, and the primary considerations in s.60CC(2), of the Act in Mazorski v Albright. I need not repeat them save to highlight that the accent is and must remain on [X] having a meaningful relationship with both of his parents, them having a meaningful involvement in his life to the maximum extent consistent with his best interests, him having the right to know and be cared for by both of his parents, and regularly to spend time with them both. All of the above is also in the context of ensuring that [X] is protected from harm – physical or psychological of any and every kind.
For the purposes of the additional considerations in s.60CC(3), paragraphs (a) and (h) have no application.
The evidence confirms that notwithstanding the engrained antipathetic attitudes of the parties towards one another, [X] continues to have a good relationship with both of his parents.
For the purposes of s.60CC(3)(c), (i) and s.60CC(4), it is patently clear that there is not a large, or even a modest, amount of willingness or capacity to promote [X]’s relationship with the other parent – close or otherwise. I have already indicated that this must change. In my view, three steps that should immediately be undertaken to begin building some foundation for promotion of [X]’s relationship with the other parent are (a) for Ms Christie and Mr Balkin to focus on [X]’s best interests (rather than on the faults and failings of the other parent), and (b) for the parties to attend as soon as possible a suitable parenting course, especially one that focuses on basic communication skills. They should also attend personal counselling to deal with their entrenched antipathy toward each other.
Because Ms Christie has effectively been living and commuting between [C] and [Q] for some time now, I do not see that [X] will be affected unduly by the orders I propose. For that same reason I do not see that the practical difficulty and expense of the implementation of the orders I propose will pose any undue problems for the purposes of s.60CC(3)(e).
From the evidence before the Court, notwithstanding the problems between the parents to date, having regard to [X]’s age, the range of needs appropriate to him, set out generally in s.60CC(3)(f) and (g), seem to have been suitably met.
For the purposes of s.60CC(3)(j), (k) and s.60CC(4A), in the light of the evidence already canvassed, I do not propose addressing again either the risks identified for [X] or his parents in the light of their long-running contests, or the need for Ms Christie and Mr Balkin to attend to counselling and courses to help them deal with their own issues of fear, frustration, communication and acrimony.
I have already said that I accept Ms Connor’s recommendation that the matter be reviewed in 12 month’s time. Such an order accords with the evidence before the Court, s.60CC(3)(l) and (m), and [X]’s best interests.
Relocation
I consider it to be in [X]’s best interests if his Mother has a specified period, namely one year, with him in [C] so that she has the opportunity to re-establish her mental and emotional equilibrium rather more physically removed from Mr Balkin than is presently the case. Such a course is, in my view, supported by significant authority, from the High Court down. For example, in AMS v AIF, Kirby J, and Gleeson CJ, McHugh and Gummow JJ, and Gaudron J, all commented on the `right of freedom of movement’ “free from unnecessary interference from a former spouse or partner or from a court.”[40]
[40] (1999) 199 CLR 160 at [40] – [45] (Gleeson CJ, Mc Hugh & Gummow JJ), [96] (Gaudron J), [145] (Kirby J). See also my summary of relevant principles in F v F (2008) 38 Fam LR 52 at [7] – [8]. See also the review of relocation cases provided by Professor Parkinson in “The realities of relocation: Messages from judicial decisions,” (2008) 22 Australian Journal of Family Law 35.
The High Court and the Full Court have also commented on the risk of inhibiting movement on the happiness of the parent and the further risk of that negative influence impacting adversely on the child.[41]
[41] See, for example, Kirby J in AMS v AIF at [145] and the other authorities there cited, as well as the general observations of Bryant CJ and Finn J in Taylor v Barker (2007) FLC ¶93-345 at [84] – [113].
I am concerned about Ms Christie’s stability and other capacities in the current circumstances. She should have the opportunity to `re-group.’ She must do so fully conscious of the concerns I have expressed about ensuring that [X]’s relationship with his Father is appropriately encouraged. Time and due effort by both parties will tell. She is permitted formally to relocate to [C], conditional on the other orders regarding counselling, parenting courses, a communication book and changeovers taking place at a mutually agreed, supervised location, such as [omitted] in Canberra or a similar enterprise close to [C]. That location can alternate. And finally, there is the important review by Ms Connor, to which this Court will pay particular regard in one year’s time.
Conclusion
The orders in this case are designed to bring the parents to some realisation that, as a matter of law let alone common sense, they are [X]’s parents and because of that fact, they need to focus on his best interests rather than continuing with their war of self-absorption. They are faced, quite literally, with having to deal with each other for the rest of his life. It is in his and their best interests to “manage” that prospect and that reality maturely and co-operatively. If they do not, they risk harming their child.
In the light of the review from Ms Connor, if they continue down the path of potentially self-destructive antipathy and non-communication, they also risk very different orders when we meet again. For example, if Ms Christie does not genuinely facilitate [X]’s relationship with his Father, she risks being ordered to move back to [Q] without recourse to the so-called “bolt-hole” of [C]. Not only is the Court not bound by orders made today, but on the authority of the Full Court of the Family Court in Sampson v Hartnett (No 10),[42] there is authority for the making of such an order to relocate back to [Q] if that course was considered to be in [X]’s best interests.
[42] (2008) 38 Fam LR 315.
Ms Christie should also be rather more cautious about making her first and only response in relation to Mr Balkin a speed-dial call to the local police.
Likewise, if Mr Balkin fails to foster his relationship with [X] because of his work commitments, it will be to the almost certain detriment of their relationship. As well, if he continues to do imprudent things, such as film changeovers (which should not happen in any event because of the orders I make) or otherwise cause harassment (real or imagined) of any sort to Ms Christie, he risks further damage to the prospect of any reasonable and important communication with Ms Christie, which is essential in [X]’s long-term best interests.
Unfortunately, because of the high level of hostility, in my view it would be imprudent for the Court, in the current circumstances and at this time, to make an order for equal shared parental responsibility under s.61DA. This should not, however, be seen in any way as securing this responsibility for Ms Christie long-term. It will be re-visited when next we meet. Indeed, neither parent should take it that the orders made today are long term. Among other options the Court may have to consider on the next occasion is ordering Ms Christie back to [Q] with [X] if there is insufficient evidence of a significant change in her attitude to and promotion of Mr Balkin with their son.
Ms Christie should, by appropriate means, ensure that Mr Balkin is kept apprised of any and all developments regarding [X]’s education, health and welfare. This should extend to making sure that [X]’s school sends reports, notices and the like directly to Mr Balkin.
In my view, these parties essentially need something akin to a “cooling-off” period where they can (a) work on securing appropriate professional assistance with the range of issues – personal and parenting – they need to attend to, and (b) have what should amount to a truce in their hostilities by virtue of the appropriate intervention of third parties who are not family members.
While there is no doubt that Mr Balkin’s time with [X] will be somewhat more limited than it is at the moment because of
Ms Christie being permitted to move to [C], and being very conscious of Carmody J’s statement in W and G (No 2)[43] quoted earlier in this judgment,[44] he has not assisted his case by increasing his work commitments. It can hardly further or advance his relationship with his son by spending time at work while [X] is in the care of third parties, be they friends or otherwise.
[43] (2005) FLC ¶93-248.
[44] See par.[4] of these Reasons.
It is time for hostilities to cease. [X] is not a “prize of war.” Civility and common sense must prevail. Not only are such things in [X]’s best interests, they will do his parents no end of good either. I look forward to seeing their progress in twelve month’s time. The ball is in their respective courts. If they do not use it properly, the rules of the game will likely change significantly.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: R. Davidson
Date: 3 October 2008
Transcript (22nd May 2008) p.147. Arguably, a similar question could have been put to Ms Christie on the basis that her constant and seemingly immediate involvement of the police in disputes with
Mr Balkin could be seen, to speak colloquially, as `jerking his chain.’ Of course, she would doubtless deny this and argue that she was always simply being protective of herself and of [X].
Again for the sake of completeness, I note that the evidence on 10th June 2008 was concerned primarily with the most recent “incidents” of contest between the parties. They were: (a) a partly contested hearing in the [Q] Local Court in relation to an AVO. Ultimately, the AVO was granted by consent on a `without admissions’ basis for the rather astonishingly long time of 10 years. I was advised by Counsel for Mr Balkin that that matter was to be appealed. Leaving aside questions about how one appeals an order said to be made `by consent,’ I do not know if that appeal proceeded. It was also submitted by Mr Blank that Mr Balkin’s consent to the AVO was on the basis of it being for
12 months, not 10 years. See Transcript (10th June 2008) p.15. (b) An alleged stalking incident in October 2007. (c) The third incident, in June 2008, was another changeover problem.
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