Christie and Balkin (No.2)
[2011] FMCAfam 259
•13 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHRISTIE & BALKIN (No.2) | [2011] FMCAfam 259 |
| FAMILY LAW – Parenting – significant conflict between parties – review of earlier parenting orders. |
| Family Law Act 1975, ss.4, 60B, 60CA, 61B, 61C, 60CC(3)(a), 61D, 65DAA(1) – (5) |
| Collu & Rinaldo [2010] FamCAFC 53 MRR v GR (2010) 240 CLR 461 McCall v Clark (2009) 41 Fam LR 483 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 |
| Applicant: | MS CHRISTIE |
| Respondent: | MR BALKIN |
| File Number: | CAM 661 of 2006 |
| Judgment of: | Neville FM |
| Hearing date: | 15 December 2010 |
| Date of Last Submission: | 22 December 2010 |
| Delivered at: | Canberra |
| Delivered on: | 13 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Gray |
| The Respondent: | Self Represented |
| Solicitors for the Independent Children’s Lawyer | Jeanine Lloyd & Associates |
ORDERS
The Mother and the Father have equal shared parental responsibility for the child [X] born [in] 2003.
[X] live with his mother.
[X] shall spend time and communicate with his Father as follows:
(a)Each 4th weekend from 5:00pm Friday until 4:00pm Sunday, commencing on Friday 4 February 2011 and then monthly (being every four weeks) thereafter;
(b)
At the option of the Father (to be exercised during the telephone contact as outlined below) the Father may visit the child in [C] from after school Friday until 4:00pm on Sunday, or such other shorter times as he may elect, on more than one visit every
4 weeks;
(c)For the second half of each school holiday period in years ending in an odd number commencing at 5:00pm on the middle day of the school holiday period and concluding at 4:00pm on the day before the following school term and for the first half of each holiday period in years ending in an even number commencing at the conclusion of the school term and concluding at 5:00pm on the middle day of the school holiday period;
(d)On the weekend including Father’s Day, at the times in Order 3(a) above;
(e)From 9:00am Christmas Eve until 12:00pm Christmas Day in years ending in an even number;
(f)From 12:00pm Christmas Day until 5:00pm Boxing Day in years ending in an odd number;
(g)From 9:00am Good Friday until 5:00pm Easter Saturday in years ending in an odd number;
(h)From 5:00pm Easter Saturday until 4:00pm Easter Monday in years ending in an odd number;
(i)For the purpose of Order 3(a) changeover will take place at a mutually agreed changeover service or locality. Failing that, as Marymead Canberra;
(j)By telephone each Wednesday between 7:00pm – 7:30pm and such calls to be facilitated by the Mother, be private and for a minimum of 10minutes;
(k)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 purposes of Order 3(a), changeover will take place at a mutually agreed independent changeover service near Canberra or [C], but failing agreement, at Marymead in Canberra.
For the purposes of order 3(b) and 3(c) if the Father is unable to collect the children from school he should collect him at [C] Police Station or as otherwise agreed and return him to the [C] Police Station or as otherwise agreed.
In order to facilitate these Orders the mother shall do all acts and things necessary to ensure that the father’s contact with [X] is facilitated and encourages, including leaving the contact centre as soon as practicable upon delivering the child.
So as not to undermine the Father’s relationship with [X] the Mother is hereby restrained and injuncted from the following:
(a)Making any further reports involving suspected abuse either physical or sexual to the Police or any other Care & Protection Authority including the Office for Youth, Children and Family Support (ACT) and the Department of Human Services (NSW) or by encouraging any friend or family member to do so.
The mother shall obtain a medical certificate for the child in the event of cancellation due to the child’s health or illness.
Each party is hereby restrained from saying any unkind or unpleasant things or remarks about the other in the hearing or presence of [X] or allowing other persons to do so.
The father shall not 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 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 parents 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.
That the mother shall authorise [X]’s school to provide to the father with copies, as the father’s expense, of all notices, newsletters, information, records, reports, photographs and invitations and the father shall provide to the mother at least 3 hours notice of his intention to attend any such function. The mother shall facilitate [X] spending a minimum time of 15 minutes in private with his Father and the Mother shall not interfere or prevent [X] spending time with his Father for this period.
The mother is restrained and is hereby injuncted from causing [X] to be known at school or any official records or documents as any other name than [X] and in particular the Mother shall not permit or cause the child to be known by her surname of Christie.
The Court will not hear any contravention application from either party:
(a)within six months of the date of these orders; and
(b)without the prior leave of the Court.
IT IS NOTED that publication of this judgment under the pseudonym Christie & Balkin (No.2) 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
In October 2008 I delivered reasons and made orders that permitted the Applicant Mother to relocate from the ACT/[Q] region to [C], in country New South Wales, and that she have sole parental responsibility for the only child of the relationship.
The orders then made provided for that child, 7½ year old [X], to live with his Mother and to spend each alternate weekend with his Father from 5pm Friday until 4pm Sunday. The orders also provided for regular school holiday time between Father and son, time on special days (e.g. Father’s Day, Christmas and Easter), and for regular telephone “contact” each Wednesday between 5 and 5.30pm.
Part of the orders made on that occasion also required the matter to be reviewed by a Regulation 7 expert (with an attendant report) in twelve month’s time. That Report was prepared and released in September 2009.
The matter came on for mention and directions on 21st October 2009, at which time the matter was listed for further hearing on 29th January 2010. As things transpired, in January 2010, orders were made only for the filing of updating material and the appointment of an Independent Children’s Lawyer. The matter was re-listed for a limited hearing on 24th May 2010.
Between the mention/directions held on 29th January and the hearing scheduled for 24th May, a contravention application was filed by Mr Balkin. By orders made on 31st March, that matter was adjourned to be dealt with at the May hearing.
Because of very unfortunate circumstances that led to the unavailability of Counsel for Ms Christie, the hearing of 24th May could not proceed, and a new hearing date of 28th July was fixed.
On that date, orders by consent were made in relation to the time that [X] spend with his Father. As well, on the application by the Independent Children’s Lawyer in the light of concerns about the Mother’s compliance with the orders and promotion of the child’s time with the Father, the matter was further adjourned until 15th December 2010 for further hearing. The object here, as submitted by the Independent Children’s Lawyer, was to see if the current orders could, in fact, work better and the Mother could parent in a more co-operative way.
Orders Sought
The orders sought by each of the parties, and by the Independent Children’s Lawyer (“the ICL”), are as follows.
Applicant Mother’s orders sought
1. Until further Order:
1.1 The Mother have sole parental responsibility of [X] born [in] 2003.
1.2 [X] live with his Mother.
1.3 [X] shall spend time and communicate with his Father as follows:
a) From the weekend commencing February 5th 2011 during school period for changeover at Marymead from 10:00am Saturday until 4:00pm Sunday and then monthly being every four weeks or if changeover is at [Y] Police Station then Friday 5:00pm until Sunday 4:00pm monthly being every four weeks.
b) For the first half of each school holiday period in years ending in an even number commencing 5:00pm on the first day and concluding on the middle day at 5:00pm.
c) For the second half of each school holiday period in years ending in an even number commencing at 5:00pm on the middle day and ending at 4:00pm the day before the following school term (following NSW school calendar).
d) Christmas Day from 12:00pm until 5:00pm Boxing Day in years ending in an odd number and from 9:00am Christmas Eve until 12:00pm Christmas Day in years ending in an even number.
e) Easter from 9:00am Good Friday until 5:00pm Easter Saturday in years ending in an odd number and 5pm Easter Saturday until 5:00pm Sunday in years ending in an even number.
f) At the option of the Father (to be exercised during telephone contact as outlined below) the Father may visit the child in [C] after school from Friday until 4:00pm Sunday, or such shorter period as he may elect, on more than one visit every four weeks.
g) On the weekend including Father’s Day at the times in Order a).
h) At any other times as agreed by the parties. All other contact is to be arranged and agreed upon.
i) The Father is to express his intentions to attend any school items so the can be informed and any contact intended is to be arranged during phone contact.
j) Telephone calls – The Father is to telephone the child on Wednesday each week between 7:00pm and 7:30pm such calls shall be facilitated by the Mother and be private in nature.
1.4 For the purpose of Orders 1.3(a), (b), (c) & (d) changeover will take place at a mutually agreed independent changeover service or locality halfway between Canberra and [C] failing agreement Marymead in Canberra, during Marymead’s closed hours and [Y] Police Station.
1. 5For the purpose of Orders 1.3(e) if the Father is unable to collection the children from school he shall collect him at [C] Police Station or as otherwise agreed.
1.6 Notwithstanding the above Orders for [X] to spend time with his father, [X] will spend time with his Mother on the weekend including Mothers Day each year, and will spend time with his Mother Christmas Day from 12pm until 5pm Boxing Day in years ending in an even number and from 9am Good Friday until 5pm Easter Saturday in years ending in an even number.
1.7 Orders 8, 9, 10, 11, 12 & 13 or orders dated 3.10.2008 shall continue.
1.8 In order to facilitate these orders the mother shall do all things necessary that the father’s contact with [X] is facilitated and encouraged.
1.9 Obtaining a medical certificate for the child in the even of cancellation due to the child’s health or illness.
1.10 Each party is hereby restrained from saying any unkind or unpleasant things or remarks about the other in the hearing or presence of [X] or allowing any other person to do so.
2. During the father’s holiday contact the child is permitted phone calls to and from his mother 3 times a week between 7pm and 7:30pm and be private in nature.
3. During the child child’s birthday [date omitted] if in the father’s contact phone contact to the mother is permitted between 7pm and 7:30pm. If in the mother’s care phone contact to the father permitted between 7pm – 7:30pm.
4. Mr K is hereby restrained from any contact whatsoever with the child [X]. He must under no circumstances be in possession of the child [X].
Respondent Father’s orders sought
1. The Mother MS CHRISTIE and the Father MR BALKIN have equal shared parental responsibility for the child of the relationship [X].
2. The child of the relationship [X] born [in] 2003 live with the Father from 6.00pm on Friday until 6.00pm on Friday in each alternate week.
3. The said child live with the Mother at all other times.
4. Notwithstanding orders 2 and 3, the said child spend time with the Father as follows:-
(1) For the first half of each gazetted NSW government school Christmas holiday period in 2010 and in each alternate year thereafter;
(2) For the second half of each gazetted NSW government school Christmas holiday period in 2011 and in each alternate year thereafter;
(3) On Father’s Day each year
5. Each parent shall facilitate the child’s communication with the other parent while the child is in the care of the respective parent by telephone, in writing and/or by electronic means at all reasonable times.
6. Each parent shall keep the other parent informed of the address at which the child lives whilst in the care of that parent.
7. Each parent shall keep the other parent informed of their current mobile telephone number.
8. Each parent shall keep the other informed in a timely manner of matter relating to the health, education and well-being of [X], via telephone in the case of an emergency and in writing, including email, in any other case.
Independent Children’s Lawyer’s orders sought
1) The Mother have sole parental responsibility for the child [X] born [in] 2003.
2) [X] live with his mother.
3) [X] shall spend time and communicate with his Father as follows:
a) Each 4th weekend from 5:00pm Friday until 4:00pm Sunday, commencing on Friday 4 February 2011 and then monthly (being every four weeks) thereafter;
b) At the option of the Father (to be exercised during the telephone contact as outlined below) the Father may visit the child in [C] from after school Friday until 4:00pm on Sunday, or such other shorter times as he may elect, on more than one visit every 4 weeks;
c) For the second half of each school holiday period in years ending in an odd number commencing at 5:00pm on the middle day of the school holiday period and concluding at 4:00pm on the day before the following school term and for the first half of each holiday period in years ending in an even number commencing at the conclusion of the school term and concluding at 5:00pm on the middle day of the school holiday period;
d) On the weekend including Father’s Day, at the times in Order 3(a) above;
e) From 9:00am Christmas Eve until 12:00pm Christmas Day in years ending in an even number;
f) From 12:00pm Christmas Day until 5:00pm Boxing Day in years ending in an odd number;
g) From 9:00am Good Friday until 5:00pm Easter Saturday in years ending in an odd number;
h) From 5:00pm Easter Saturday until 4:00pm Easter Monday in years ending in an odd number;
i) For the purpose of Order 3(a) changeover will take place at a mutually agreed changeover service or locality. Failing that, as Marymead Canberra;
j) By telephone each Wednesday between 7:00pm – 7:30pm and such calls to be facilitated by the Mother, be private and for a minimum of 10minutes;
k) At any other times as agreed between the parties.
4) 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.
5) For the purposes of Order 3(a), changeover will take place at a mutually agreed independent changeover service near Canberra or [C], but failing agreement, at Marymead in Canberra.
6) For the purposes of order 3(b) and 3(c) if the Father is unable to collect the children from school he should collect him at [C] Police Station or as otherwise agreed and return him to the [C] Police Station or as otherwise agreed.
7) In order to facilitate these Orders the mother shall do all acts and things necessary to ensure that the father’s contact with [X] is facilitated and encourages, including leaving the contact centre as soon as practicable upon delivering the child.
8) So as not to undermine the Father’s relationship with [X] the Mother is hereby restrained and injuncted from the following:
a) Making any further reports involving suspected abuse either physical or sexual to the Police or any other Care & Protection Authority including the Office for Youth, Children and Family Support (ACT) and the Department of Human Services (NSW) or by encouraging any friend or family member to do so.
9) The mother shall obtain a medical certificate for the child in the event of cancellation due to the child’s health or illness.
10) Each party is hereby restrained from saying any unkind or unpleasant things or remarks about the other in the hearing or presence of [X] or allowing other persons to do so.
11) The father shall not come within 200 metres of the Mother’s usual residential address.
12) 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.
13) 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.
14) 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 parents of matters concerning the care, welfare and development of [X] while in the other party’s care.
15) 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.
16) That the mother shall authorise [X]’s school to provide to the father with copies, as the father’s expense, of all notices, newsletters, information, records, reports, photographs and invitations and the father shall provide to the mother at least 3 hours notice of his intention to attend any such function. The mother shall facilitate [X] spending a minimum time of
15 minutes in private with his Father and the Mother shall not interfere or prevent [X] spending time with his Father for this period.
17) The mother is restrained and is hereby injuncted from causing [X] to be known at school or any official records or documents as any other name than [X] Balkin and in particular the Mother shall not permit or cause the child to be known by her surname of Christie.
Legal Principle
In my earlier judgment I set out relevant sections of Brown J’s statements of principle in Mazorski v Albright.[1] I need not repeat them. They should be taken to be the legal touchstones for this review of the 2008 parenting orders. I will, however, note her Honour’s further statements from Mazorski in relation to what is comprehended by ‘meaningful relationship’ under the Family Law Act 1975 (“the Act”).
[1] (2008) 37 Fam LR 518.
Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[2]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[2] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Her Honour’s comments in relation to the appropriate distinction, but important relevance and correlation, between the quality of the relationship between parent and child and the quantity of the time that a particular parent and child spend together, are singularly important in this case.
The Evidence
On this occasion, there was no cross-examination. Both parties filed affidavit material, and the Court had the benefit of yet another report (dated 18th September 2009) from the experienced family consultant, Ms C, who had done two earlier reports. Summarily, the evidence before the Court suggested that little had changed between the parties. I note the following.
Evidence of Ms Christie: Ms Christie’s evidence might be described in terms very similar to that set out in my earlier, 2008, judgment. Annexed to her most recent affidavit, filed on 15th December 2010, was a diary record, she said, of all relevant events involving [X] and her regularly troubled relationship with Mr Balkin. As I have said, there is little that is new. The complaints are of a kind very similar to those which she made both when she lived in [Q], and since she moved to [C]. Such matters were examined in the course of the trial in 2008. Of course, in circumstances where there was no cross-examination on this occasion (primarily because the matter had previously had a final hearing, and the current aspect of the proceedings was more by way of review), the accuracy and veracity of her claims was not able to be formally tested.
Evidence of Mr Balkin: Not completely different comments may be made to those I have just offered in relation to Mr Balkin’s evidence. A singular difficulty he has is the tyranny of distance, with [X] living with his Mother in [C] and Mr Balkin continuing to live in [Q].[3] In a significant number of respects he is at the mercy of Ms Christie. As Ms C observed in her second report, which I quoted at [51] of the 2008 judgment, “Ms Christie’s behaviour to date does not suggest she would readily facilitate contact if she relocates to [C].”
[3] The distance between the two cities is approximately 196 kms, with a driving time between them of approximately 2½ hours.
Indeed, on Ms Christie’s own evidence, there remain significant and regular “issues” about the time and the arrangements for it between [X] and Mr Balkin. At one level, these same issues would be the same even if she was ordered to return to [Q], especially since they were also present prior to the relocation. At another level, if one was to make a formal finding that Ms Christie has not facilitated [X]’s time with his Father, and or that she has in fact under-mined it, and if she was permitted to remain in [C], it could be seen as tantamount to rewarding a miscreant parent.
In the same place in the 2008 judgment, I noted Ms C’s further observation: “Denying or reducing Mr Balkin’s contact will only allow him to be demonised further.” It would seem to be the case that, unfortunately, Ms C’s observation was prophetic.
Helpfully, Mr Balkin annexed to his affidavit filed on 20th May 2010 a number of documents from ‘outside sources’, which included a schedule of his times with [X] between October 2008 and March 2010 as recorded by Marymead. This document, dated 29th March 2010 (annexure E to Mr Balkin’s affidavit), also records on various occasions why any particular changeover (and therefore visit) did not go ahead. Thus, of the 11 changeovers that were cancelled, five were at the instigation of Ms Christie, five (as recorded) because [X] refused to go with his Father, and one was cancelled by Mr Balkin.
The 2008 orders required both parties to attend a parenting course.
Mr Balkin also confirmed that he had completed seven (7) different parenting and related courses. Those courses are itemised in his affidavit material. There is very limited evidence that Ms Christie has so attended.His last-filed affidavit (on 22nd December 2010) was an update on various matters, including an alleged incident involving a teacher at [X]’s school recorded in Ms Christie’s transcribed diary notes annexed to her affidavit. Mr Balkin deposed to the teacher involved effectively refuting Ms Christie’s account of events.
One matter is particularly troubling. In Mr Balkin’s May 2010 affidavit, he referred to his Mother and his sister endeavouring to telephone [X] for his birthday from South Australia. Mr Balkin’s sister provided a statutory declaration (annexure B to the affidavit in question), in which she recounts the attempt to do so, and the thwarted result. According to the contents of the statutory declaration,
Ms Christie prevented [X] from speaking with his paternal relatives because such things were not “in the Court orders.”If the account in the declaration to which I have referred is remotely correct, it is an appalling outcome, and shows an astonishing level of hatred for Mr Balkin and his family. It also shows an equally appalling level of appreciation about basic parenting skills, which depend (for the good of the child, as well as the parents) upon co-operation, common sense and flexibility. As I say, if the account is even slightly accurate, it reflects extremely poorly on Ms Christie. Were it to continue, one would think that a change of residence application might have some prospect of success. In any event, it is difficult to condemn such action any more strongly than I have. If it occurred as described, it was petty, vindictive, utterly counter-productive, and reflective of prodigiously poor judgement. It was not in [X]’s best interests.
It is as well to note here also that, in the event that the poor parenting relationship continues, and that one parent is shown to be the prime cause of same, fines and much worse (including gaol) are within the Court’s powers to ensure that there is compliance with Court orders. It should be remarked that there is something to be said not only for compliance with orders but also with the more ethereal concept of the ‘spirit of the orders.’ Unfortunately, the latter is not strictly enforceable. I would have thought that a birthday telephone call from a relative would come readily within the so-called ‘spirit of the orders.’ Common-sense judgement should be a guide. Thus far, unfortunately, such a commodity has been in very short supply, if not decidedly lacking.
In the light of this brief narrative, it will be readily seen why I have stated that little seems to have changed in terms of the troubled relationship between [X]’s parents. One thing does seem particularly clear: if it is not spelt out in absolute detail in the orders, little or no flexibility is shown by either party, but especially (so it would seem) by Ms Christie.
That said, my concern about the relationship between the parents also needs to be understood in the context of frivolous complaints. This is to say that, just as a parent who does not promote a child’s relationship with the non-resident parent risks sanctions being imposed by the Court, so too does a parent who needlessly brings contravention proceedings risk punitive action.
Although it may be a counsel of forlorn optimism rather than realistic expectation, one might nonetheless hope that parents (including the parents in these proceedings) will see sometime soon that it is a much more productive thing to parent co-operatively rather than to litigate. It is in [X]’s best interests that this occur, and the sooner the better; it would do each of the parties no end of good also. One might fear, however, that in disputes of this kind the paramount interest is not those of the child’s, but that of the parents to continue to engage in a war of attrition.
A final matter to note, by way of example of the pettiness that inhabits this particular matter, relates to Ms Christie’s complaint about what
Mr Balkin has and has not done by way of provision of clothes and financial support for [X]. In her affidavit filed on 15th December 2010, she highlights the extent of the clothes Mr Balkin has purchased for his son. She stated baldly in that paragraph (no.4): “In all the years that I have been separated from the father he has not provided any financial support for [X]’s care.” No evidence is provided for such an assertion.Mr Balkin responded, saying that the Child Support Agency (“CSA”) deducts weekly amounts from his wages. Such matters are able to be readily checked. No such check seemingly was made on this occasion. Moreover, Mr Balkin has long been a self-represented litigant. Respectfully, the evidence confirms that he is a man of modest, if not limited, means. At the time of the trial, he was employed. His affidavit of May 2010 also confirmed that he was working. At the brief hearing last December, he confirmed that he was no longer employed. Without independent evidence from Ms Christie to support her assertions, given the history of the matter, I have quite some difficulty in accepting her claims, certainly in this regard.
In the event that CSA records confirm regular child support payments, it strikes me as foolishly niggardly to criticise someone for not paying more but who is already paying child support from limited means. A basic factual proof would establish the truth of the situation.
Ms C’s Third Report: The following may be noted from Ms C’s third report, which was released to the parties on 18th September 2009.[4]
[4] I am conscious of the time between the date of this third report of Ms C and when the matter ultimately came before the Court for review in December 2010 – for the reasons set out earlier. That said, and applying an appropriate level of caution in relying on the Regulation 7 Consultant, there are significant consistencies in the review report in September and the two earlier reports by the same experienced consultant.
Ms C first observed that there has been very little co-operation between [X]’s parents since his conception. She said that she could not ascertain who was/is to blame for the on-going communication problems, but opined that “the fault lies in both parties’ personalities and immature attitudes.”[5]
[5] All of what follows is taken from the “Evaluation” section of Ms C’s report: para.8.1 (p.13) ff.
Next, Ms C noted (at para.8.4) that Ms Christie adopted a “completely inappropriate, inflexible attitude at Easter, for example, when she would not commence Mr Balkin’s contact earlier to suit Marymead’s opening hours.” In the same place, she observed: “These hours were not factored into the court orders but the intention of the orders to share the Easter break was very clear.” Respectfully, I agree.
In para.8.5, Ms C said:[6]
Missing time with a parent because of illness is problematic and overlooks the other parent’s capacity to also care for the child. From my observations I have no doubt that Mr Balkin would be an attentive, caring parent whether [X] was well or unwell. …It would appear that Ms Christie has been too ready to involve her local doctors in this dispute seeking medical certificates to avoid making [X] available. She impressed as a very possessive mother having problems separating from her only child.
[6] In relation to the matters addressed by Ms C in para.8.5 of her Report, I note that certain restraining orders were made in July 2010 to prevent Ms Christie from making further reports against Mr Balkin. Those restraints shall continue.
She also noted concerns about Mr Balkin and his, perhaps understandable but not always helpful, approach to seek or to take extra time with [X] without permission, sanction or notification to
Ms Christie.Ms C recorded that notwithstanding the conflict between his parents [X] continues to do well at school. In her view, she considered that if [X] was to return to the ACT/[Q] region, he would likely be exposed to even greater conflict between his parents. It would be more unsettling and generally counter-productive for [X] if this was to occur.
In her formal recommendations, with a somewhat but understandable level of frustration, Ms C suggested that more equitable travelling arrangements might assist. Rightly, and firmly, she stated that the hostilities between the parents needed to cease. Implicit in her warning are the risks to [X] should there be no ‘cease-fire’ in the parental hostilities.
It is commonly observed by Courts that, at some stage, the child will make up his own mind about the respective truths and false-hoods that are being promoted by his parents. Ultimately, at some stage, he will make up his own mind. Not infrequently he discerns, over time, the parent who particularly undermines and or makes more difficult his relationship with the other parent. Usually, adverse consequences flow from such a judgement. In the meantime, children in [X]’s position typically try to strike a median position, and they do this often (but not always) by telling each parent what that parent wishes to hear, thus endeavouring to minimise the friction and upset that will otherwise flow. It can also result in [X] indicating that he does not wish to spend time with the other parent precisely because to do so, at that time, would cause too great a disruption for the resident parent. Of course, such conduct places needless and inappropriate pressure on the child. But one or both parents do not see what is happening, or if they do, such perception takes place far too late and the damage is done.
The sooner the parents in this case recognise and appreciate the risks to [X] of their ongoing contests, the better. If they do not, the risks for them, and for [X], will only increase.
Jurisprudential Considerations
I have already outlined, or referred to, the statements of relevant legal principle by Brown J in Mazorski v Albright. I will not repeat them.
In my 2008 judgment, the so-called ‘legislative pathway’ was traversed and various comments and findings made. To a significant degree, in the light of what is treated in these reasons, what was said there remains the situation today. That being so, it is unnecessary to repeat what was said in 2008. It should be taken as continuing to apply here.
One critical factor, however, does need to be noted. It comes under s.60CC(3)(a). The ICL helpfully noted to the Court that in her discussions with [X] he was adamant that he wished to continue to go to school in [C]. Accepting his age and the relative weight that a Court could, or should, give to the views of a child of this age, in the circumstances of this case, in my view, quite significant notice should be taken of [X]’s comments. Among other things, to remain at his current school would, in my view, do two things. First, it would mean that at least in relation to this aspect of his life there would be no further disruption. Secondly, the may infer (to some degree at least) that the school provides something of a haven (or refuge) for [X] where he can be shielded to some degree from the on-going contests between his parents.
What is formally of some moment, however, is to consider whether (a) an order for sole parental responsibility in favour of Ms Christie should continue, and (b) in the light of the High Court decision in MRR v GR, s.65DAA has any specific work to do here given the geographic limitations on the parties.[7]
[7] MRR v GR (2010) 240 CLR 461.
Section 61DA provides for a resumption of equal shared parental responsibility when making parenting orders. To speak somewhat generally, it is qualified by, for example, circumstances where there is family violence or risk of abuse, or where the Court considers that it is not in the best interests of the child for such an order.
The 2008 orders provided for Ms Christie to have sole parental responsibility. She seeks that order to continue. The Independent Children’s Lawyer also seeks such an order. Mr Balkin seeks an order for equal shared parental responsibility.
It needs to be highlighted that equal shared parental responsibility deals specifically with major long-term issues, as defined in s.4 of the Act. Subject to the express terms of the Act and the orders themselves, it does not deal with day-to-day parenting matters.[8]
[8] See also the detailed provisions in ss.61B, 61C & 61D in relation to what is legislatively contemplated by “parental responsibility.”
A question or two arises in this case in relation to the appropriate order concerning parental responsibility. On the one hand, it might be suggested that where, as here, there is poor communication, it could (or would) only further inflame hostilities between the parents if equal shared parental responsibility was to be ordered. Moreover, equal shared parental responsibility could be taken to be predicated upon there being some basic capacity to communicate. On the other hand, it might also be argued that the estrangement between the parties is such that such an order is unlikely to make any discernible difference in matters in any event. Therefore, so the argument would run, even if it is only an almost ephemeral hope, there might still be a chance of the cessation of hostilities and a break-out of civility and rudimentary, business-like communication so that such an order might help or promote the most modest of positive developments, for [X] in particular, in the parental relationship. It would be difficult to dispute in this case that, thus far, the previous sole parental responsibility order has not assisted anything, and has only led to further cause for grief and disruption, at least on the part of Mr Balkin.
Given that (a) I have had the benefit of observing these parents over a number of years, and (b) the stern and ultimate (or last) warnings in these reasons to both parents, I propose ordering that there be equal shared parental responsibility. In a number of respects, it might be said that this will shift the onus to Mr Balkin not to abuse such an order. For example, it should not be used to make relentless inquiries of [X] or his Mother about day-to-day matters. The order, as I have said, deals only with major long-term issues such as schooling, health, religion and such things detailed in the Act. Day to day matters will largely remain the preserve of
Ms Christie, given that [X] will continue to live predominantly with her and go to school in [C].As with all orders, it is up to the parents to make them work. Otherwise, it is likely that “we” will be seeing more of each other. It is unlikely that they will be happy encounters.
Turning then to issues relating to the time that [X] spends with his Father, the Court needs to heed the High Court instruction in MRR. In that case, the High Court said, at [13] and [15] (internal citations omitted):
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The geography and limited parental capacities involved in this case militate against any shared care arrangement, as it does also in relation to ‘substantial and significant’ time.[9] The ‘reasonable practicality’ of the situation tells against such ‘time with’ orders. Accordingly, the Court must make orders that it considers to be in the child’s best interests.[10]
[9] Cf. s.65DAA(5).
[10] S.60CA.
Save for the order in relation to equal shared parental responsibility, the orders as proposed by the Independent Children’s Lawyer meet, to the Court’s satisfaction, those that are in [X]’s best interests in all the circumstances.
One would also hope that things like simple birthday calls from relatives to [X] should not need to be particularised in orders. There has to be some opening or opportunity for common-sense to break in. To this end, there will be a further order that no further proceedings are to be filed unless and until the parties have attended mediation.
It remains only to note – again – that these reasons, and these orders, should be taken by both parties as something of a last chance, if not formal warning: make them work or the risks for [X] will only increase, as they will also for each parent. On both counts, the risks are high.
Indeed, for more abundant caution, (a) to allow the parties to attempt to let these orders run without undue interruption, and (b) in turn (more importantly) to enable the parties ‘to get on with their lives’ relatively free from court processes, I will also order that, absent a matter of genuine ‘life and death’, the Court will not entertain (let alone hear) any contravention application from either party (a) within six months of the date of these orders, and without the prior leave of the Court.
One final matter needs to be addressed: it relates to a proposal by
Ms Christie to change [X]’s surname. In my view, such a course is not supported by any, or any appropriate, evidence. Such a proposal is not in [X]’s best interest. Fortunately, any proposal in relation to a change of name was not pressed at the review hearing on 15th December 2010. This was, at least, encouraging.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 13 May 2011
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