Clayton and Hacker
[2009] FMCAfam 114
•20 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLAYTON & HACKER | [2009] FMCAfam 114 |
| FAMILY LAW – Parenting – relocation – protecting children from harm – views expressed by the children – relationship between children, their parents and other significant persons – willingness and ability to facilitate and encourage relationship – likely affect of changes on the children – practical difficulty and expense – capacity of the parents to provide the needs of the children – maturity of the children – attitudes to the children – order least likely to lead to further proceedings – equal shared parental responsibility or sole parental responsibility – equal time or substantial and significant time – what order is in the best interest of the children. |
| Family Law Act 1975, ss.60B, 60CC, 61 DA, 65DAA |
| Bolitho & Cohen (2005) FLC 93-224 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4 |
| Applicant: | MR CLAYTON |
| Respondent: | MS HACKER |
| File Number: | SYM 590 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 20 November 2008 |
| Date of Last Submission: | 21 November 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 February 2009 |
REPRESENTATION
| Applicant: | Self Represented |
| Counsel for the Respondent: | Ms De Vere |
| Solicitors for the Respondent: | Hall Payne Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Alexander |
| Solicitors for the Independent Children’s Lawyer: | Verekers Lawyers |
ORDERS
That the mother have sole parental responsibility for the children, [X] born in 1995, [Y] born in 1998 and [Z] born in 2000 (“the children”) except as regards all decisions in relation to the children’s name and religious matters in respect of which the parents shall share parental responsibility.
That the children live with their mother.
That the parents communicate as follows:
(a)By email at any time, with the mother to provide to the father the email address of the children and the father to provide to the mother his email address;
(b)By telephone once per week (and otherwise on the father’s and children’s birthdays and on Christmas Day (the “special days”)), with the father to initiate a telephone call on either Friday or Sunday and on the special days between 6:00pm and 6:30pm and the mother to facilitate that telephone communication or, if such a call is not facilitated by the mother, the mother is to ensure the children make a telephone call to the father between 6:30pm and 7:00pm on the same day; and
(c)By maintaining email contact with each other for the purpose of providing information and seeking advice in relation to the children.
That the father spend time with the children as follows:
(a)For four (4) consecutive days in January 2009 between 9:00am and 6:00pm, with the father to give to the mother twenty one (21) days’ written notice of the relevant dates;
(b)For three (3) consecutive days commencing at 9.00am on the first day and concluding at 6.00pm on the third day during the Easter school holidays 2009, with such time to take place in Queensland and with the father to give the mother thirty (30) days’ written notice of the relevant dates;
(c)For four (4) consecutive days commencing at 9.00am on the first day and concluding at 6.00pm on the fourth day during the holiday periods at the end of terms two and three 2009, with such time to take place in Queensland and with the father to provide thirty (30) days’ notice of the relevant dates to the mother.
(d)PROVIDED THAT the father has spent time with the children at least twice in accordance with orders 4(a)-(c) above, then thereafter the father to spend time with the children for one (1) week during school holidays on each of four (4) occasions per year on the following conditions:
(i)Such time may take place at any location advised to the mother on at least thirty (30) days’ notice;
(ii)No more than two such weeks may occur during the Christmas holiday period; and
(iii)No more than one such week may occur in any other school holiday period.
(e)If the father fails to comply with paragraph (d) above, then orders 4(a) to 4(d) lapse.
(f)Such further time as agreed but from 9.00am Saturday to 6.00pm Sunday on one weekend each school term provided that the father provides thirty (30) days’ notice to the mother and such time occurs in Queensland.
Both parents are hereby restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s hearing or presence.
(b)Discussing any proceedings or the relationship between the parents in the presence or hearing of the children or permitting any other person to do so, except to the extent necessary to provide the children with an outline of the effect of these orders.
The parents provide the other parent with at least fourteen (14) days’ notice in writing of any proposed change in residential address, telephone number or email address or, if such notice is not possible, as soon as possible after such date.
The mother provide to the father the names and addresses of any of the children’s treating doctors, dentists and health care providers.
The mother authorise the children’s doctors, treating practitioners (including psychologists or counsellors) and school to release to the father any information or reports regarding the children or any one of them.
The father be restrained from being intoxicated or from consuming alcohol whilst the children are in his care.
The mother use her best endeavours to provide to the father a copy of any videos of the children, with the cost of doing so to be borne by the father.
The father make payment with fourteen (14) days of his contribution to the costs of the provision of Dr Quadrio’s report dated 10 September 2007, being the amount of $1,732.50.
That in the event the parents cannot reach a joint decisions about:-
(a)a major long-term issue involving the Child; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders; which involve the child,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
NOTATIONS
It is intended that the father bear the whole cost of transportation for the purpose of spending time with the children on the basis the father will be entitled to deduct such an amount from the child support obligation he would otherwise have.
Such time as these Orders provide for the children to spend with the father might not be in the best interests of the children if the father relocated to an area significantly closer to the children.
IT IS NOTED that publication of this judgment under the pseudonym Clayton & Hacker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM 590 of 2006
| MR CLAYTON |
Applicant
And
| MS HACKER |
Respondent
REASONS FOR JUDGMENT
Introduction and Background:
This matter relates to three children: [X], aged 13; [Y], aged 11 (as at the time of publication of judgment) and [Z], who is eight years old. The applicant is the children's father. He lives in Nowra in New South Wales. He is 44 years old and currently works as [omitted] on a full time basis. The respondent is the children's mother. She lives in a suburb of Brisbane with the children. She is an [occupation omitted] and is 41 years old.
The parents commenced cohabitation in 1985 and separated in April 2006. They did not marry. During this period the parents and the family lived in Sydney and then in Nowra, where they were living at the time of separation.
Whilst the circumstances surrounding the separation are somewhat contentious, the basic facts are not. The final separation took place on Anzac Day 2006, namely, 25 April 2006. The father left the home that day. There were a number of incidents that occurred at and shortly after the time of separation that are contentious. It is apparent that the wife obtained an apprehended violence order against the husband on 19 May 2006.
On or about 8 June 2006, the mother wrote to the father indicating that she and the children were in Brisbane staying with the mother's family. In the mother's letter to the husband annexed to the father's affidavit filed in the proceedings commenced by him in the Local Court at Nowra on 16 June 2006, she advises him that she believed that it would be in the best interests of the children for them to continue to reside in Brisbane.
It is not entirely clear from the evidence whether the mother moved to Queensland with the intention of relocating there permanently with the children, or whether she moved there initially on a temporary basis and subsequently formed that view. In any event, the mother and the children have remained there. It is not clear on the evidence whether the father, who was represented by a solicitor when proceedings were commenced in the Local Court on 16 June 2006, made any application for the return of the children.
The father remained in occupation of the former matrimonial home between the date that the mother and children moved to Queensland, and the date that the house was sold in June 2007.
Since the children and the mother moved to Brisbane the children have had limited contact with their father and the circumstances of this limited contact are matters that I will need to examine in these Reasons for Judgment.
By the time of the hearing, the father was representing himself and, despite having been given many opportunities to do so, had not filed any further evidence since the documents filed in Nowra Court on 16 June 2006. Thus, his only evidence consisted of an affidavit that he swore on 16 June 2006 together with the pro forma applicant's affidavit - interim residence, contact or specific issues order, also sworn on 16 June 2006.
In his application for final orders, filed on the date aforesaid, the father sought orders that the children reside with him and have contact with the mother during school holidays. After the father was sworn in I asked him some questions to establish what his current proposals were. He indicated that he wanted an order that the children come back to live with him in Nowra and that there be implemented an equal shared care arrangement in which the children would live with him one week, and with the mother the other week.
The father indicated to me that he expected that if the Court made the order returning the children, the mother would return. Accordingly, the father's proposal is that the children return to Nowra and live with him on an alternating week equal shared time arrangement.
In the mother's amended response, filed 11 June 2008, she sets out the detailed orders sought by her. However, in closing submissions her counsel, Ms De Vere, indicated that the mother accepted the orders proposed by the Independent Children’s Lawyer with the exception that the mother sought sole parental responsibility for the children.
The children were represented by an Independent Children’s Lawyer and by their counsel, Mr Alexander. On behalf of the children, Mr Alexander proposed that there be equal shared parental responsibility, that the children continue to live with their mother in Brisbane, that there be orders for communication, and that the children spend time with their father during school holidays on the basis of time which gradually escalates during the course of 2009. If these orders were implemented by the father, by the Christmas holidays in 2009/2010, the order would provide for the children to have time with him one week in each of the four school holidays.
A brief history of the proceedings is, I believe, necessary. Based on the evidence before me and the information contained in the Court's file the father's application came before Nowra Local Court on 30 June 2006. The learned Local Court Magistrate had before him the material filed on behalf of the father, as well as a response from the mother, her affidavit, and supporting affidavits from the mother's parents. As I indicated above, it is not clear to me whether an application for the children to be returned to Nowra was made before the Local Court. Certainly no orders were made to this effect. But it is clear that the matter was then transferred to the Federal Magistrates Court in Wollongong where it was first listed on 1 November 2006.
The matter came before Halligan FM in Parramatta on 13 November 2006, presumably listed by him on that date from 1 November. His Honour made orders in the following terms:
1. Pending further order, the parents of the children [X] born in 1995, [Y] born in 1998 and [Z] born in 2000 shall have equal shared parental responsibility for those children.
2. Pending further order, the children shall live with the father for the whole of the Christmas school holidays and shall live with the mother at all other times.
3. For the purpose at her expense at Sydney airport at the commencement and conclusion of the period the children are to live with the father unless otherwise agreed between the parents.
4. Both parties shall file and serve all further affidavit evidence no later than 22 January 2007.
5. The matter is listed for hearing before me on 20 February 2007 in Wollongong in relation to parenting issues. Estimated hearing time 2 days.
6. The mother’s application for change of venue is dismissed.
7. Order for a Family Report is made in accordance with exhibit C.
As can be seen his Honour ordered a family report, and the same was released on 14 December 2006. This short report was prepared by Family Consultant Sim. It is important to set out the relevant provisions of this summary report, at paragraphs 3-10:
3. During the Family Report interviews it was reported that the father in the matter has had a significant history of mental health problems in conjunction with a history of chronic alcohol abuse. In addition to the father having allegedly attempted suicide (approximately 6 years ago) by pouring petrol over himself and threatening to set himself alight with a lighter, (following which he was scheduled to Shellharbour Mental Health Unit), he has allegedly recently made numerous suicide threats in front of the mother and the children.
4. The father acknowledged that he is currently drinking at significant levels on an approximate daily basis.
5. The children reported that their father has made suicide threats in front of them and [X] reported that she had witnessed the incident involving petrol. The children reported that their father is often intoxicated and that they are fearful for their safety during, and after, his periods of drinking alcohol.
6. The father alleged that the mother made an overdose attempt when she was 20 years of age.
7. Due to the seriousness of the allegations, a notification has been made to the Department of Community Services.
8.Although the Family Consultant has completed the interviews and observations for the purposes of preparing a standard Family Report, a decision was taken to only prepare a brief summary report at this stage, on the grounds that the release of a comprehensive report could potentially trigger reactions in the father that might place the children at risk while they are spending time with him in the forthcoming Christmas Holidays. In making the decision not to proceed with the preparation of a comprehensive Family Report, the Family Consultant was also mindful that the Court might well require a further report from a suitably qualified Psychiatrist to assist with its determinations.
RECOMMENDATIONS
9. It is recommended that an expert child and family psychiatry / drug and alcohol report be prepared and that an Independent Children’s Lawyer be appointed.
10. It is recommended that the relevant medical, police and Department of Community Services records be subpoenaed.
On 21 December 2006, his Honour, Halligan FM appointed an Independent Children’s Lawyer and listed it before himself on 13 February 2007.
On 13 February 2007, there was no appearance by the father or on his behalf. His solicitors had ceased to represent him. Accordingly, Halligan FM vacated the hearing on 20 February and adjourned the matter for further mention. I note, therefore, that the father's first opportunity to have this matter heard on a final basis was on 20 February 2007, but it was vacated because of there being no appearance by him, or on his behalf.
On 2 April 2007, the father did appear in person and the matter was adjourned to enable the Independent Children’s Lawyer to make an application for an expert's report.
The matter came before me in Wollongong on 28 May 2007, and the father appeared in person. An order was made appointing Dr Carolyn Quadrio as the Part 15 Expert. That report was released on 24 September 2007.
The matter came before me on 28 September 2007 with the applicant father appearing in person. After hearing submissions I made the following relevant orders:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. The children spend time with father in Queensland between 2 October 2007 and 7 October 2007 each day between 9am and 6pm, with one overnight stay if the father has suitable accommodation.
2. In order to facilitate Order 1 above, the mother will deliver and collect the children from the father’s accommodation.
3. On a without admissions basis, the father is not to consume, or be under the influence of, alcohol when spending time with the children.
4. The matter be adjourned to 26 June 2008 at 10am for a two day final hearing.
On 19 June 2008, the matter came before me as a result of the applicant father seeking to vacate the hearing dates that had been allocated on
26 and 27 June. That application was granted as the evidence before me indicated that the father had been involved in quite a serious motor vehicle accident and I accepted his submissions that he felt he could not be ready for a final hearing in which he was representing himself. I, therefore, adjourned the matter to 20 November 2008 for a final hearing.
I note, however, that the father's second opportunity to have this matter heard on a final basis was vacated at his request, and through no fault of the mother's.
The matter came before me for hearing on 20 and 21 November 2008. At the conclusion of the hearing I made the following orders. Even though these orders were technically not by consent, I was of the view that the father did not oppose them. In any event, the orders were clearly in the best interests of the children having regard to the evidence as I had heard it. The orders were as follows:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. The parents communicate as follows:
a. By email at any time, with the mother to provide to the father the email address of the children and the father to provide to the mother his email address; and
b. By telephone once per week, with the father to initiate a telephone call on either Friday or Saturday between 6.00pm and 6.30pm and the mother to facilitate that telephone communication or, if such a call is not facilitated by the mother, the mother is to procure the children to make a telephone call to the father between 6.30pm and 7.00pm on the same day; and
c. By maintaining email contact with each other for the purpose of providing information and seeking advice in relation to the children.
Regrettably, the pressure of work meant that I could not produce these reasons, and final orders, until the date on which they were published. However, on 15 December, and again based on the evidence that I had heard, I made the following orders in Chambers:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. The father spend time with the children as follows:
a. For four (4) consecutive days in January 2009 between 9.00am and 6.00pm, with the father to give to the mother twenty-one (21) days’ written notice of the relevant dates.
As I have indicated above, Ms De Vere of counsel represented the mother, Mr Alexander of counsel represented the children, and the father represented himself. I wish to record my impression of the father as being an intelligent and articulate man who demonstrated to me that he was capable of representing and advocating for himself quite capably.
At the commencement of the hearing I sought to comply with the Full Court's guidelines as set out in Johnson v Johnson (1997) FLC 92-764 at paragraph 253. I also note that the proceedings were conducted as if they were proceedings under division 12A of part 7 of the Family Law Act, even though, technically, that division may not have applied to these proceedings having regard to when they were commenced in the Local Court. I am not sure that either counsel turned their mind to this, but I am quite sure of the fact that no prejudice was caused to any party to this case based on whether or not division 12A applied.
The evidence consisted of the affidavits filed by the mother and father, the oral evidence given by them, some short oral evidence given by the solicitor for the father, as well as two reports. The first one was prepared by Family Consultant Sim, and I referred to this above. She was not required for cross-examination. The second report was prepared by Dr Quadrio and was released to the parties on 24 December 2007. Her recommendations are contained in a paragraph at page 42 of her report, where she states:
If Mr Clayton were willing to accept limited contact for a period in order to work towards a rapprochement with his children, then I would recommend that over the next 12 months he have phone contact once a week and holiday contact of five days in the short holidays and two periods of block contact of one week each, separated, in the long holidays. If there are no incidents and if that progresses well I would suggest that in the second 12 months this be extended so that he has one week in each of the term holidays and two weeks block contact in the long holidays and continuing phone contact once a week. If that progressed well and without further incident then I would suggest that in the third year the children might spend half the school holidays with him and possibly a long weekend mid term and have continuing weekly phone contact.
One final matter by way of introduction and background, even though the parties conducted this case as if it were a relocation application, it needs to be re-stated that there is no specific category of relocation case. This is an application for parenting orders in relation to children, where one of the background facts is that over two and a half years ago the mother and children relocated from Nowra in New South Wales, to Brisbane in Queensland.
The competing proposals are quite clear. Both the mother and the Independent Children’s Lawyer proposed that the children remain in Brisbane with their mother and spend time with their father. The father proposes that the children return to Nowra and that an equal shared time arrangement be implemented. Each of these proposals, together with any other possibilities including that of the father relocating from Nowra to Brisbane must be considered in the context of part 7 of the Family Law Act.
Having regard to the amount of time that has elapsed since the relocation from Nowra to Brisbane, this is clearly a significant fact but, I would have thought, no longer determinative. This case does not, in my opinion, fall into the category of cases that Boland J, sitting as the Full Court in Morgan v Miles [2007] FamCA 1230, refers to at paragraph 88. Indeed, this is hardly the sort of case that was contemplated by his Honour Warnick J in the Full Court's judgment in C v S [1998] FamCA 66. This is clearly not a case where there is "a situation of recent development", and thus the case should not be determined solely by reference to the situation of the children at the time of separation or the time of relocation. This is a case that must be determined by reference to all of the matters going to what is in the best interests of the children.
The Issues
Whilst this case raises a number of specific issues, it should be noted that these issues inter-relate and often overlap. It is useful, in my opinion, to label the issues by reference to the primary and additional considerations referred to in section 60CC of the Family Law Act. Accordingly, I believe the issues in this case include the following:
(a) is there a meaningful relationship between the children and the father and, in any event, is there benefit to the children of having a meaningful relationship with their father?
(b) is there a need to protect the children from physical or psychological harm?
(c) have the children expressed any views, and if so, what weight ought to be given to them?
(d) what is the nature of the relationship with the children with each of their parents and other significant persons in their lives?
(e) are there issues about the willingness and ability of each of the children's parents to facilitate and encourage a close and continuing relationship between the children and the other parent?
(f) what is the likely affect on the children of changes in their circumstances including separation from parents or other significant persons?
(g) are there issues of practical difficulty and expense which substantially affected the children's right to maintain personal relations and direct contact with both parents on a regular basis?
(h) are there issues about the capacity of the parents to provide for the needs of the children?
(i) are there any issues about the maturity, sex, lifestyle and background of the children that are relevant?
(j) are there issues about the attitudes to the children, and to the responsibilities of parenthood demonstrated by each of the parents
(k) is there an order that is least likely to lead to further proceedings?
Once these specific issues have been discussed by reference to the evidence, and appropriate findings made, I will then need to consider whether the presumption of equal shared parental responsibility has been rebutted, and what the consequences of this are in terms of the time the children spend with their father. I will then need to formulate an order that, based on the evidence, is in the best interests of these children.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental conflict and shared parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Relocation
In my previous decisions of J & R [2007] FMCAfam 181, H & H [2007] FMCAfam 27, and M & K [2007] FMCAfam 26 I set out my understanding of the effect of this legislation on the law relating to relocation. There have been a number of later Full Court cases, and I discuss those below.
I adhere to the discussion in these earlier cases of the meaning of the term “meaningful involvement”, though I recognise that in the Full Court’s decision in Godfrey & Sanders (2007) FamCA 102 Kay J, sitting as the Full Court, made obiter comments at paragraph 36 suggesting a different interpretation. His Honour suggested that the legislation aspires to promote a meaningful relationship, not an optimal one, and that a diminution in the quality of the relationship does not necessarily mean it is no longer meaningful. I accept that the differences in approach are significant. One of the differences is that my interpretation of what constituted a meaningful relationship is based on social science research, as I set out in my earlier judgments. In each case it will be a question of assessing the nature and quality of the relationship between parent and child, and the degree to which the relocation diminishes that relationship. On the facts of some cases, the meaningful relationship is not diminished at all. An example of this is the decision of Dessau J in M & S [2006] FamCA 1408. In Godfrey & Sanders (2007) FamCA 102 Kay J obviously found that any post-relocation diminution of relationship was not, on those facts, significant. I very much doubt if His Honour meant his comments to apply generally. The children in that case were 11 and 7. But if the children were much younger, for example, relocation might have caused a greater diminution in the quality of the relationship between them and the non-relocating parent. It is also unfortunate that His Honour did not have the benefit of contrary submissions as to what constituted a meaningful relationship on the facts of that case.
It is also relevant to consider whether a meaningful relationship can be maintained through what has been described as “virtual visitation”. The term was used in two recent articles appearing in volume 36 Family Law Quarterly[5] and encompasses the use of telecommunications technology such as webcam and email. Innovation in telecommunications has resulted in children being able to communicate with their parents orally, visually, and in writing, almost at will. Virtual visitation orders are not uncommon, even in relocation cases. Dessau J in M & S (2006) FamCA 1408 accepted this form of communication at paragraph 93 of her judgment.
[5] Sarah Gottfried, Virtual Visitation: The wave of the Future Communication Between Children and Non-Custodial parents in relocation cases 36 Family Law Quarterly 475, Kimberly Shefts, Virtual Visitation: The next Generation of Options for Parent-Child Communication 36(2) Family Law Quarterly 303
On the facts of that case it was clearly appropriate as the child in question was not only familiar with but experienced in virtual visitation.
There is a real danger in relocation cases in putting too much weight on the availability of virtual visitation. Can a child have a meaningful post-relocation relationship with the non-relocating parent when that relationship depends on virtual visitation? The Family Law Council had some real concerns about virtual visitation at paragraph 4.12 of its Relocation report dated May 2006[6]. I doubt very much whether the social science approach to meaningful relationship, that emphasises emotional closeness and authoritative parenting in the diverse contexts of parent-child interaction, lends itself to virtual visitation.
[6] Family Law Council Report, “Relocation”, Canberra, May 2006.
From a legislative perspective, s.60CC(3)(e) seems to emphasise “personal relations” and “direct contact” rather than impersonal and indirect forms of contact. Moreover the definition of “substantial and significant time” in s.65DAA(3) emphasises not just the quantitative aspect of time, but the qualitative aspect of opportunities to be involved in daily routines and special events.
Virtual visitation, for some children, in some cases, may be a way of lessening the impact of relocation where relocation is otherwise in their best interests. The availability of virtual visitation is not a reason to allow relocation in and of itself.
A number of recent Full Court decisions on relocation establish the following principles:
a)If the presumption of equal shared parental responsibility applies, even in a relocation case the court must consider whether equal time or substantial and significant time is in the child’s best interests and is reasonably practicable: Morgan & Miles [2007] FamCA 1230 at paragraph 54, citing Goode & Goode (2006) FLC 93-286 and Newlands & Newlands [2007] FamCA 168; Taylor & Barker [2007] FamCA 1246 at paragraph 58.
b)
There is no “right” to relocate, in the sense that there is nothing in the legislation which provides that a parent who has an existing order which provides that the child spend
50 percent or more of their time with that parent has a unilateral right to move the child: Morgan & Miles[7].
c)For the time being, the Family Law Act does not treat relocation cases as a special category of parenting orders. The court is deciding with whom a child should live and spend time: Morgan & Miles[8].
d)In a relocation case there are no presumptions either in favour or against relocation: Morgan & Miles: paragraph 74.
[7] [2007] FamCA 1230 at at 55
[8] Ibid at 72
The impact of the most recent amendments to the Act in relocation cases has been described in the following terms in Morgan & Miles[9] at paragraphs 79-81:
[9] ibid
79. In considering whether the child should live with the parent who proposes to relocate a court:
· Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.
· Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.
· Be guided in its determination by the objects and principles underpinning the legislation. This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.
· If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.
· In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.
· When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.
· Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals. Depending on factors such as the age of the child, the wishes of the child, the relationship between the child and a parent, the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:
·that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;
·that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;
·that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;
·the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.
· Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance.
80. It follows from my exposition of the legislation, that earlier core principles:
· that the child’s best interests remain the paramount but not sole consideration;
· that a parent wishing to move does not need to demonstrate “compelling” reasons;
· that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child’s best interests; and
· the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement, [ remain valid].
81. What the legislation now requires is:
· consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
· if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
The distance involved in a proposed relocation does not necessarily involve different considerations. The Full Court in Morgan & Miles[10] described it in these terms at paragraphs 91-92:
91. The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.
[10] Ibid
In dealing with a relocation case, the court must consider the proposal for relocation as one of the proposals for a child’s future living arrangements. It is also relevant to consider other proposals and alternatives including, for example, that the parent opposing the relocation in fact relocate: U & U (2002) 211 CLR 238; (2002) FLC 93-112; Bolitho & Cohen (2005) FLC 93-224; Taylor & Barker [2007] FamCA 1246 at paragraph 53.
The obligation to consider equal time or substantial and significant time in s.65DAA does not require the court to consider reasonable practicality if it finds that a proposal would not be in the child’s best interests (Taylor & Barker[11] ).
[11] [2007] FamCA 1246 at paragraph 74
The obligation to “consider” equal time or substantial and significant time in the context of a relocation case clearly requires the weighing up of the advantages and disadvantages of a parent’s proposal to relocate against the advantages and disadvantages of the maintenance of the status quo: Taylor & Barker[12]. Each of the proposals needs to be considered through the framework of s.65DAA and its core concepts of “equal time”, “substantial and significant time”, “best interests” and “reasonable practicability”. In this regards the Full Court in Taylor & Barker[13] noted at paragraphs 82-83:
82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83. However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.
[12] ibid at 75
[13] Ibid
But these sections do not mandate the making of orders in one or other of the terms, only that genuine consideration is given to them. The ultimate question is one of best interests: Goldrick & Goldrick [2007] FamCA 1260 at paragraph 43.
In some cases, the happiness or unhappiness of a parent proposing relocation may be an important consideration. Whilst clear evidence about this is preferable, sometimes happiness is a state of mind to be inferred from the evidence eg based on reasonable inferences. See Taylor & Barker[14]. However, the Act does not prescribe parental happiness, as such, as a factor in determining the best interests of a child: see the dissenting judgment of Faulks DCJ at paragraph 127. In any event, if parental happiness is a relevant consideration, it must surely be that the happiness of both parents is relevant.
[14] Ibid at 106 and 109
In some relocation cases, s.60CC(4) may be relevant. However the focus is always on a person’s capacity to parent (Goldrick & Goldrick[15]).
[15] [2007] FamCA 1246 at paragraphs 40-41
Meaningful Relationship
Dr Quadrio makes a number of relevant observations about whether a meaningful relationship exists between the children and the father. At paragraph 35 she states:
All three children have an ambivalent relationship with their father: they have a bond of attachment and love and they also fear him. Mr Clayton was somewhat abrasive with them; it took him some time to relax and warm to the situation, which would indicate that he has difficulties in relating to the children. He will almost certainly attribute this to the situation of being in an assessment situation but parents who have a good familiarity and sound bond with their children generally do not have difficulties in the assessment setting after the first few minutes. Once he had relaxed Mr Clayton became more affable with the children. However his attitude towards the assessor clearly indicated that he is a very irritable person and would readily be roused to anger.
The experiences volunteered by [Z] suggest that Mr Clayton has been quite humiliating of him. This is a particularly damaging experience for a male child and could have extremely serious consequences particularly if [Z] feels a little insecure in his gender identity.
The children have not had a lot of contact with the extended paternal family but notably they spoke very warmly of the paternal grandfather and it is clear that they appreciate him keeping in touch with them.
Dr Quadrio also observed at pages 42-43:
The children have been traumatised by exposure to their father’s anger and they need time to build trust and confidence in him. It may be that Mr Clayton will not have the requisite sympathy or empathy to allow this to unfold. Instead, as he said, he is determined to challenge any Family Court decision that limits his contact and he sees primary residence with him as the preferred outcome. It seems likely that Mr Clayton may not have sufficient insight to appreciate that his pursuit of the legal process in that way may simply heighten their anxiety and undermine his relationship with the children.
The best course of action in terms of rebuilding a situation with children would be for Mr Clayton to accept a situation of brief contact initially so that over time it might be possible to establish trust and move towards more contact. However, it seems unlikely that he has the insight or empathy to appreciate this. If he is determined to challenge orders that limit his contact it is likely that the children will become increasingly fearful of and estranged from him. Mr Clayton would perhaps have difficulty recognising that this might be a result of his behaviour and may be more inclined to read it as further evidence that the mother is alienating the children from him and/or that the system has been unfair to him.
If Mr Clayton were willing to accept limited contact for a period in order to work towards a rapprochement with his children, then I would recommend that over the next 12 months he have phone contact once a week and holiday contact of five days in the short holidays and two periods of block contact of one week each, separated, in the long holidays. If there are no incidents and if that progresses well I would suggest that in the second 12 months this be extended so that he has one week in each of the term holidays and two weeks block contact in the long holidays and continuing phone contact once a week. If that progressed well and without further incident then I would suggest that in the third year the children might spend half the school holidays with him and possibly a long weekend mid term and have continuing weekly phone contact.
Even if Mr Clayton were to move so that he were in closer proximity to the children there would still be problems with contact. Were he to move to Brisbane and intrude upon
Ms Hacker or the family outside of court ordered contact then this could pose a serious risk to the psychological stability of the mother and the children. If he were prepared to abide by court orders then relocating would be acceptable. On the basis of his past history there would have to be some doubt about his self control. But if this were not an issue then if he resided closer to the children I would recommend similarly a slow and graded programme of building contact over a period of three years until, provided there were no incidents, the children would ultimately spend time with him perhaps from Friday to Monday on alternate weekends and half the holidays.
There was no serious challenge to the expert evidence given by Dr Quadrio and I accept her evidence. Even though the evidence indicates that the father's relationship with the children is presently troubled, I find that on balance there continues to be a meaningful relationship, albeit a tenuous one. However, even if there were no meaningful relationship I think the evidence points towards the value of trying to re-establish one between the children and their father. The greatest obstacle to this occurring comes not from the mother, or the children, but as Dr Quadrio explains in the passages above, from the father himself. If he is prepared to commit himself to re-establish, or to build on his relationship with his children, then, in my opinion, there is every opportunity for this to occur.
However, during the course of the hearing I found the father at times to be quite ambivalent about committing to re-establishing his relationship with the children. For example, he was not prepared to prioritise spending time with his children over his own work commitment, even though the disruptions would be minimal and infrequent. He was not prepared to persist in maintaining telephone communication with the children often describing the experience as frustrating for him, without acknowledging any benefits to the children.
The prospect of the meaningful relationship is clearly there, but the father needs to understand that according to the expert evidence that I accept, he has to invest time and effort, and persist in seeking to build this relationship. The Court cannot create or maintain a meaningful relationship by Court order. At best, it can put in place a number of structures by way of Court ordered time that the father then has to himself take advantage of so that he can build that relationship.
The father seems to believe that the only way in which a meaningful relationship can be re-established or maintained is on his proposal, i.e., for an equal time arrangement in Nowra. However, I cannot accept that that is the only way in which this can take place and, indeed, I am satisfied, having regard to all of the other evidence, that the mother's proposal does provide the opportunity for a meaningful relationship to be re-established or consolidated.
Protecting the children from harm
Dr Quadrio makes a number of important observations about this consideration. At page 39 she states:
It seems almost certain – since there are independent records from police and from health services – that the children have been exposed to a situation of domestic violence – this has not been so much physical violence as the father’s anger, volatility and threatening behaviour – some of this may relate to alcohol abuse but there are also mental health issues that are explicated below. This constitutes psychological abuse.
Documents were produced by the New South Wales Police and tendered in evidence, and these documents do confirm precisely what Dr Quadrio asserts - namely, that the children have been exposed to situations of violence in the form of the father's anger, volatility, and threatening behaviour. At page 41, Dr Quadrio makes the following observations:
There is a long history of anger, volatility and threatening behaviour, as referred to above, mostly on the part of Mr Clayton towards Ms Hacker but also towards other persons, including the police. Exposure to such a situation is highly traumatising for children and a serious risk to their psychological development and to their mental health.
Indeed, there was a comparatively recent incident in June 2008 when the police were called to intervene in what the evidence indicates was an alcohol related fight between the father and his sister at Glebe. The documents produced by the police again confirm the tendency of the father to become volatile, especially after consuming alcohol to excess, and expressing his volatility to others including the police, and sometimes in the presence of the children.
Finally, at paragraph 43, Dr Quadrio makes the following statement under the heading of "Risk of Abuse or Violence":
Although some of the evidence of risk relies on the mother’s history, there is also independent police evidence that Mr Clayton has been abusive and out of control and could potentially pose a risk to the family.
The context of the need to protect the children from harm seems very much to be related to the father's excessive consumption of alcohol, a matter that he clearly sought to minimise in the evidence so far as its affects on him but which, by any objective reference, points to very high and potentially dangerous levels of consumption. For example, in cross-examination, he agreed that after the children had left for Brisbane he had told Dr Quadrio that he was consuming up to
15 schooners of beer each day. He agreed that even since then there are some days when he can consume up to 10 schooners, but he then insisted that he might drink nothing for two weeks.
Later in cross-examination, he told Ms De Vere that his current level of consumption was three or four light beers each day. He agreed that this amounted to 28 beers each week but insisted that that did not necessarily mean that he was drinking each day. He insisted that sometimes he would drink twice a week, and sometimes five days per a week, though he never resiled from the evidence he gave about drinking up to 28 beers each week. When cross-examined about the police records of incidents when he was arrested in the context of alcohol fuelled violence he agreed, in cross-examination, that he was well affected by alcohol, even though he disputes the actual version of events suggested by the police.
The father admitted in cross-examination that "once or twice" he was intoxicated when communicating with the children by telephone, after separation. Whilst he denied that there was any harm to the children in doing so he did agree that if he was drunk it would have had a negative impact on the children and it would have added to his level of frustration. He agreed in cross-examination that his last drink driving charge was in 2007, but he thought that there was a legitimate excuse based on the circumstances that he was in at the time.
In cross-examination by Mr Alexander, he again agreed that he drinks 28 schooners of beer each week, on average, and that it was costing him at least $80 per week. When he was asked why he could not stop his response was to the effect that he enjoyed having a beer and it was not against the law.
From the father's perspective his evidence indicated to me that whilst he did not deny the levels of consumption of alcohol attributed to him, he certainly didn't accept that his consumption of alcohol had anything to do with the breakdown of the relationship between the mother and children on the one hand, and himself. Indeed, he sought to argue that the consumption of alcohol was a matter that was conveniently raised by the mother after she had relocated to Brisbane and in the context of seeking to justify her remaining there.
The basis of this argument by the father is that the mother's first affidavit in the proceedings does not contain the detailed evidence about consumption of alcohol that her later affidavits did. I accept that this is technically true, but a close examination of the first affidavit filed by the mother in the Local Court proceedings indicates that the statements that she gave to police, annexed to her affidavit, clearly highlighted issues about the father's consumption of alcohol and mental health concerns.
Indeed, the mental health concerns are very much linked to the consumption of alcohol. There is clear evidence from the subpoenaed documents and, indeed, the father's own admissions to Dr Quadrio, about an incident when the father was under the influence of alcohol, had doused himself in petrol, and threatened to light himself. The police were called and had to use capsicum spray to subdue the father. He was admitted to the mental health unit at Shellharbour Hospital. In his evidence he sought to minimise this whole incident which appears to have been witnessed not just by the mother but by the oldest child, [X], as well.
The father's mental health continues to be one of the unresolved issues in this case. In cross-examination he explained that he was consulting a psychiatrist following his motor vehicle accident on 29 April 2008.
A brief report tendered in evidence by Dr L, a psychologist, dated
17 June 2008refers to the father as presently suffering from major depressive disorder and post traumatic stress disorder from the motor vehicle accident.
However, the father agreed that the stress of these proceedings and not seeing the children was a contributing factor to the depression he was suffering. He agreed that he was still, at times, depressed and carried a continuing sense of burden. In cross-examination he disclosed that his last appointment with his treating psychologist was about a month before the hearing. I gave the father the opportunity to make an application for an adjournment to enable him to adduce further evidence about his current medical condition, but he declined to do so.
The totality of the evidence before me in this case raises real concerns in my mind about the very high level, indeed, alarming level of consumption of alcohol by the father and the impact this might be having on his mental health. Even he agrees that he is still depressed but it is not clear what, precisely, is the cause of this. These issues must give rise to concerns about protecting the children from harm as a consequence of these matters. And, yet, it must be noted, that if there is a risk to the children neither the mother nor the Independent Children’s Lawyer seek supervision of their time with their father so that, in effect, their reliance on this evidence only goes to the issue of the frequency of the father's time with the children, and precisely where and how that contact takes place.
It is also relevant to the question about equal shared parental responsibility, and this evidence, of course, informs many of the other primary and additional considerations to which I will shortly refer.
The evidence does enable me to conclude that there are unresolved issues about the husband's mental health and the precise impact on his parenting capacity of the depression that he suffers is unknown. Also, the father does not seem able to control his consumption of alcohol, but to be fair to him, there is absolutely no evidence that I am prepared to accept of any difficulties he experienced with refraining from alcohol whilst he had time with the children over Christmas 2006-2007. In my view, to accept the father’s proposal would be to expose the children to the risk of harm arising out of the father’s mental health and alcohol consumption issues.
Views Expressed by the Children
At page 35 of her report Dr Quadrio makes the following observations about this consideration:
The children were very consistent in what they said about their father: he was described as angry; they reported scary and/or hurtful experiences with him; they volunteered accounts that support the history of his irritability and drinking; they expressed some fearfulness of him. All wished to have limited contact, notably this was true of [Y] as well, who otherwise has the warmest and the closest relationship with the father but was still guarded about spending time with him.
Not only did the father not challenge Dr Quadrio's evidence in this regard, but he agreed that if Dr Quadrio records the children saying certain things, they probably said those things. Indeed, on occasions in cross-examination he was prepared to accept that if the children said things, it reflected what they were feeling at the time.
Accordingly, I find that the children have expressed views about having limited contact with their father and I am prepared to give weight to those views but not over and above the weight that I would give to any other consideration in this matter.
Nature of relationship between the children, their parents, and other significant others
This consideration of course overlaps with the discussion about meaningful relationship. At pages 35-36 of her report, Dr Quadrio states as follows:
The children are primarily attached to their mother. They have a warm, secure and loving relationship with her. They also have a warm and loving relationship with the maternal grandmother. They are enjoying the closeness to and support of the maternal extended family.
The mother was very warm and appropriate with the children and seemed prudent about not raising inappropriate material in their presence.
The grandmother was also very warm and supportive and also seemed at pains not be negative about the father. The impression is that the maternal grandparents would do their best to support the entire family, including the father and his future contact with the children.
All three children have an ambivalent relationship with their father: they have a bond of attachment and love and they also fear him. Mr Clayton was somewhat abrasive with them; it took him some time to relax and warm to the situation, which would indicate that he has difficulties in relating to the children. He will almost certainly attribute this to the situation of being in an assessment situation but parents who have a good familiarity and sound bond with their children generally do not have difficulties in the assessment setting after the first few minutes. Once he had relaxed Mr Clayton became more affable with the children. However his attitude towards the assessor clearly indicated that he is a very irritable person and would readily be roused to anger.
The experiences volunteered by [Z] suggest that Mr Clayton has been quite humiliating of him. This is a particularly damaging experience for a male child and could have extremely serious consequences particularly if [Z] feels a little insecure in his gender identity.
The children have not had a lot of contact with the extended paternal family but notably they spoke very warmly of the paternal grandfather and it is clear that they appreciate him keeping in touch with them.
The father did not challenge this evidence, or seek to lead contrary evidence. Dr Quadrio’s observations and comments are consistent with my impressions of the evidence overall. Clearly the children enjoy much stronger relationships with their mother and maternal grandparents than they do with their father. In my view this favours the proposal advanced by the mother in these proceedings.
Willingness and ability to facilitate and encourage relationship
The mother was skilfully cross-examined by Mr Alexander, counsel for the Independent Children’s Lawyer. At the end of this cross-examination, I was left with a number of strong impressions about the mother. For example, she agreed that she had a very negative attitude towards the father, and had no communication with him. It was patently obvious to all observers in Court that the mother could not even bear to look at the father when he was giving evidence, such was the level of enmity she feels towards him. She agreed in cross-examination that her attitudes towards the father had probably been conveyed to the children around the date of separation.
Her evidence was that she does not say anything negative to the children about their father, but she agreed she says nothing positive either. She agreed in cross-examination that the father played a significant role in the lives of the children before separation. She had little or no regrets about the lack of consultation with the father before deciding to remain in Brisbane. The circumstances of her travelling to Brisbane with the children are not flattering of the mother. I find that, in all likelihood, she manipulated the move to Queensland and had, at all relevant times, the intention of not returning unless compelled to do so. I find that the mother has probably understated the nature of the relationship that she had with Mr T, even though I accept that she has no close personal relationship with him, and probably had no relationship with him since separation. The nature of whatever relationship they had is manifested by the evidence of the 390 text messages she sent to him in a relatively short period of time.
The cross-examination of the mother also indicated that she knew that there was a risk of the children being estranged from their father, once they moved to Brisbane, that she did not try hard enough to prevent this. One example of this is the insistence by her of unreasonably high standards for the accommodation that she insisted the father provide for the children during contact visits with him.
She readily agreed in cross-examination that provided [X] had some privacy, and there was some basic bedding available to the children, she would not be concerned about accommodation. I find this to be in stark contrast to the requirements she imposed after separation.
In other cases, this might lead to the Court having significant concerns about the mother's willingness to facilitate and encourage an ongoing relationship between the children and the father. In this case, however, the situation is far more complex. I accept that she had genuine concerns for the psychological and emotional health of the children and herself as at the date of separation, and that she wished to remove herself from the source of this. I accept she still has these concerns. The source of her concern was the father’s alcohol-fuelled family violence.
I accept that she was genuinely fearful of the father and that even though there has not been physical abuse, there was clear evidence available to me to find that there had been emotional abuse, denigration and harassment. Even though the mother was somewhat less than diligent in facilitating telephone communication between the children and their father in the post separation period, this has to be understood in the context of the evidence she gave about the father's telephone calls, particularly, with [X].
I accept that the father used these telephone calls to denigrate the mother. I accept the mother's evidence that after these phone calls that [X] was "upset and distressed". The father had the opportunity to deny that. He said to [X] that:
Your mother had an affair. I have been a good dad and done nothing wrong. I'm your father and have the right to know. You have to pick between Nanny and Pa and me.
He did not challenge the mother's evidence about this and similar telephone conversations. Viewed in this context the mother's actions are not necessarily justified, but are more easily understood.
I am satisfied from the totality of the evidence that as at the date of separation, the mother was in a relationship with the father that was clearly dysfunctional. He was struggling with issues relating to the excessive consumption of alcohol which led him to often becoming aggressive.
I accept that she had, at the time, and there remain even today, serious concerns about the father's mental health. At the very least he suffers from depression. He had also demonstrated, through his actions up until the date of separation, that he lacked insight into the needs of his children. The mother's move to Brisbane was an escape from a situation that she believed was unacceptable for the children and herself.
At the end of the day these difficult parenting cases are not decided solely be reference to the actions or inactions of parents, but rather by reference to considerations going to the best interests of children. This consideration is but one of many I need to take into account.
More than anything else, however, I find that the mother would abide by any order that I make, whether it involves the children returning to Nowra, or the children remaining in Brisbane but having contact with their father. She gave clear evidence that if the children were ordered to return to Nowra, she, herself, would return. By contrast, I have much less confidence in the father's ability to accept the order of the Court.
As I have indicated above, he seems to lack commitment to making parenting arrangements work. He has an inflexible attitude about the priority to be accorded between his work, and spending time with the children. His proposal for equal time in Nowra is completely unworkable having regard to the circumstances of this case, and his own work commitments which, he told the Court involved working two shifts, 6 am to 3 pm, and 3 pm to midnight.
Having regard to all of these matters, whilst there are clear issues about the mother's past willingness and ability to facilitate and encourage an ongoing relationship between the children and the father, I am satisfied that there are no future issues in this regard.
Conversely, I have no concerns about the father's willingness to facilitate an ongoing relationship between the mother and the children. Indeed, inherent in his very proposal to the Court is a dependence on the mother being able to care for the children half the time. He unequivocally stated at least twice during his evidence that he no concerns about the mother's capacity to parent.
The likely affect of changes on the children
At page 36 of her report, Dr Quadrio makes the following comments:
The children have done well in the transition to Queensland and none of them expressed a desire to be reunited with their father or to return to Nowra. This would suggest that the situation at home must have been quite troubled. It is unusual for children to be so totally happy about having left their familiar context of home and school and friends.
The mother has been the primary carer of the children throughout their lives and it would be traumatic for them if this situation were altered. They are depressed and anxious and would be particularly vulnerable to a change in circumstances.
In his evidence the father acknowledged that the children are doing well in Queensland and, indeed, wish to remain there. His own proposal for the return of the children, and, for example, of the mother having to find suitable accommodation, and employment, and the children returning to their former schools, all minimises the impact on the children of the return to Nowra.
He does not dispute that the mother has been the primary carer of the children throughout their lives. The father did not dispute
Dr Quadrio's evidence about the children feeling depressed and anxious about a change in their circumstances. Accordingly, the mother's proposal is, clearly, the one that is least likely affect a change in the lives of the children.
Practical difficulty and expense
Dr Quadrio deals with this issue at page 37 where she states:
The geographic separation of the parents will make contact difficult. However, it would appear that it is not geography that is critical; the father’s problems with controlling his emotions and his behaviour and the fearfulness of the mother and the children are more important issues. Mr Clayton indicated that he has considered moving to Brisbane – possibly this would cause alarm and fear in the mother and the children unless there were some change in his pattern of behaviour. However, the fact that there were no major issues over the long summer holidays may suggest that Mr Clayton is capable of containing his behaviour. If there could be some confidence that this would continue then there may be some advantage in him relocating – if not to Brisbane then perhaps somewhere closer than Nowra.
There is no doubt that there are geographic issues involved here. For the father to travel to Brisbane he would firstly have to travel to Sydney, and then fly to Brisbane and then somehow travel to the mother's residence. The children would experience the same journey. From the father's perspective, his proposal puts the mother to quite significant practical dislocation and expense which arises from relocating back to Nowra, but the father would say that at the very least this restores his relationship with the children and provides the contact with both parents on a regular basis, whether that would be equal time as he proposes, or some other contact arrangement.
The mother's proposal, of course, involves the father travelling to Queensland initially, and otherwise bearing the cost of travel to New South Wales.
The father is not paying child support at the moment and, indeed, his record of doing so is quite inadequate, to say the least. The reasons that he gave in cross-examination were less than convincing. He agreed that his current assessment requires him to pay $12 per fortnight, an assessment made when he was unemployed. It is not clear to me whether he has notified the Child Support Agency about his current employment, and in this regard I note the father gave evidence that he earns $700 per week net.
When asked to explain why he is not even paying the $12 per fortnight, the father gave evidence that it is because he was trying to negotiate an arrangement with the mother and, indeed, he asserts that he sent certain forms to the mother's solicitor. The mother's solicitor gave evidence that this had not occurred, and I accept the mother's solicitor's evidence in this regard. It is almost incomprehensible to me that the father, who earns $700 per week net would want to negotiate (according to him) about the payment of child support with the mother when he is not paying the current assessment of $12 per fortnight.
I think the father's real position as regards the payment of child support was evident in a response to a question by Ms De Vere where he made a number of comments including comments to the affect that he has not seen the children regularly, and does not believe that the mother needs anything by way of child support from him.
The father indicated to Mr Alexander, in cross-examination, that he would be happy to pay a “fair and reasonable amount” by way of child support. He said that if the Child Support Agency directed him to pay $100 per week, he would, but that if he could afford $150 he would do so. I reject the father's evidence and find it to be utter nonsense. His own comments in evidence satisfy me that his real reasons for not paying child support are based on the fact that he perceives that he is not seeing the children, and the children's mother has no need for child support.
This evidence is relevant, not only because of the insight it gives into the father's responsibilities towards parenthood, and his lack of insight about the needs of his children, but it also informs any decision I make about the payment of costs associated with travel. If I order the children to return to Nowra, I would have little confidence in the father paying child support voluntarily. The rhetorical question may be asked: if he does not pay $12 per fortnight now pursuant to an assessment, why would he pay more? If the children remain in Brisbane, I have no confidence that he would pay child support and, accordingly, it is entirely appropriate that he would pay the costs of travel.
This is a convenient point to discuss the father's evidence about why he would not move from Nowra to Brisbane. In response to a question from Mr Alexander, the father said words to the affect that it would not be worth him uprooting all of his life in Nowra, all of his friends, just to get every second weekend with the children. He believed that every second weekend would simply not be meaningful.
This puts the father in a very difficult position because if I decide that equal time is not in the best interests of the children, he has himself certainly ruled out moving to Brisbane in order to spend substantial and significant time with the children, whether that be manifested in an order for alternate weekends, or a variant thereof. And, yet, the husband had no alternate proposal to put to the Court.
The father gave evidence that he had, in fact, also made inquiries about the availability of work in Brisbane and he concluded that there were better work opportunities in Nowra. The evidence I have discussed so far leads me to the tentative conclusion that equal time is not in the best interests of the children, whether that would be in Nowra or in Brisbane. I am not even sure that substantial and significant time is in the best interests of the children, but the evidence from the father himself leads me to conclude that he would not move from Nowra to Brisbane even if I did make an order for substantial and significant time.
Finally, and continuing with the consideration of practical difficulty and expense, the father gave evidence that his current employment gives him four weeks leave each year that he must take in minimum lots of two weeks. In addition, he works shifts of four days on, and two days off. Because of this, no doubt, he regarded Dr Quadrio's recommendations, and the orders proposed by the Independent Children’s Lawyer, as quite impractical.
It is clear that the father has simply not given adequate consideration to how he could make his own proposal work, let alone the mother's proposal or that of the Independent Children’s Lawyer or the Court appointed expert. In his evidence he said that he needed extended time with the children in order to restart and build on the parental relationship, but on his own evidence his employment would not give him the opportunity to do this and, quite frankly, the evidence leads me to conclude that he lacks the commitment to do so in any event.
By way of conclusion about issues of practical difficulty and expense, I accept that there are significant issues in this regard and that they arise because the mother and the children relocated to Brisbane two and a half years ago. Nonetheless, so far the evidence contra-indicates a return to Nowra, and even though I regard some of the father's own evidence about his employment with a degree of scepticism, I accept it will be difficult for him, and expensive, to spend time with the children. Nonetheless, it would not be impossible, and if there is commitment on his part to making it work, I am sure it will take place.
Capacity of the parents to provide the needs of the children
The father has no concerns whatsoever about the mother's capacity to meet the needs of the children. Indeed, he told Mr Alexander that the mother was a "terrific mum".
Conversely, I think there are real issues about the father's capacity to meet the needs of these children. Dr Quadrio makes the following observations in this regard at pages 37-38 of her report:
The mother relates very appropriately to the children. If the situation has been as difficult as she describes, it is of concern that she stayed for as long as she did, thereby exposing the children to considerable trauma. However this is a pattern that is regularly observed in situations of domestic violence. It is apparent that Ms Hacker is feeling much more happy and secure in Queensland because of the distance from Mr Clayton and also the support of family.
Mr Clayton’s parenting capacity is clearly limited by his irritability and it is clear that in a situation of stress he could be quite volatile. There is possibly also an issue of alcohol abuse. However, there were no major issues over the long summer holidays and this does provide some reassurance. It appears that in the past he has contributed a lot in terms of participating in school activities but it is notable that the children were more aware that this has been done in a rather egocentric fashion.
Dr Quadrio makes observations about the father's irritability and volatility in this section and, it should be noted, there are nine separate references in Dr Quadrio's report to this aspect of the father's personality (pages 8, 9, 20, 22, 23, 25, 26, 27, and 33). The father did not challenge this. The mother gives evidence about this and I accept her evidence about the father's character in this regard.
The children make comments about the father's irritability and volatility, and this was not challenged by the father and I accept the same. There is ample material amongst the documents produced by the New South Wales Police to confirm the finding that he is volatile and this is often fuelled by the consumption of alcohol, though it is by no means limited to situations where he has consumed alcohol, as is apparent from Dr Quadrio's observations.
The father's irritability and volatility are clearly consistent with the aggression that the mother gives evidence about, and which I accept. These are character traits which are inimicable to good parenting, and meeting the needs of children.
I accept Dr Quadrio's comments about there being the possibility of alcohol abuse and, indeed, I had the benefit of evidence from the father about his consumption of alcohol that she did not have at the time of the report interviews. I have referred to this evidence above. There is a risk that the father's consumption of alcohol will inhibit his capacity to meet the needs of the children.
Dr Quadrio makes further observations about parenting capacity at pages 39 to 40 of her report as follows:
Mr Clayton’s character structure as he describes it himself is quite rigid and irritable. He is highly dismissive on any emotional issues, tends to externalise the problems (ie attribute them to others) and accepts little responsibility for or minimises his behaviour. It is likely that the early loss of his mother has played a significant role in this but he is not a person who can show a softer or more vulnerable side of himself so it was difficult to get an account of the impact of this early trauma on his personality development. If the mother’s description is accurate then it would seem that there is a significant history of excessive drinking and irritability. The incident with the petrol seems to have been an extremely volatile and potentially very dangerous outburst. Mr Clayton is remarkably dismissive of this as ‘a brain snap’.
Each of the children has an account of their father’s behaviour which raised serious concerns about his personality structure and his parenting capacity: for example the dog incident; [Y] being thrown out of a car; [Z] being told to put girl’s clothes on.
This was Mr Clayton’s second family assessment and he was well aware that this was a situation in which he would be under scrutiny and he had time to prepare himself for it yet he was unable to contain himself. This shows a considerable lack of self control and very poor insight. Based on the history plus his observable behaviour in the interview situation, it is likely that Mr Clayton suffers from a personality disorder and is also suffering from depression. It is possible that there is also alcohol abuse, but it is difficult to be certain since Ms Hacker and
Mr Clayton give different accounts of his alcohol use. If it were the case that he has been hallucinating at times due to alcohol then this would suggest a very serious substance abuse problem. His sleep pattern suggests depression and it is common in characters like Mr Clayton that depression is manifest more as irritability and anger than as depressed mood.
The prognosis for personality disorder is limited; it is unlikely at this age that there will be any change in Mr Clayton’s character structure. His depression and, if it is the case, his alcohol problems, are both amenable to treatment but it is likely that his rather rigid and narcissistic character structure would make him resistant to the idea of participating in a therapeutic relationship with a clinician.
Ms Hacker describes a deterioration in her adjustment during the last couple of months - perhaps years - of living with Mr Clayton, including losing eight or nine kilograms in weight over the last months when she was in fear for the safety of herself and for the children. She was clearly extremely traumatised in a way that is characteristic in a situation of domestic violence. At that time she was probably suffering from depression and some posttraumatic symptoms. She has very few residual symptoms now that she is living in Queensland. However it was very obvious that both the mother and the grandmother felt quite intimidated by
Mr Clayton’s presence and his body language was manifestly intimidating so it is highly likely that the mother’s equilibrium would be adversely affected if he were residing in proximity to her.
Of particular concern are the incidents referred to by Dr Quadrio, and the evidence given by the mother, about the dog, [Y] being thrown out of the car, and [Z] being told to put girl's clothes on. Whilst the father, in his evidence, was somewhat dismissive of these incidents and sought to minimise them, he did not deny that they occurred.
At the very least these incidents demonstrate a real insensitivity by the father about the needs of the children and a lack of insight into how they might experience his actions.
There is at least one other concerning incident referred to in the evidence. During the time that the father spent seven weeks with the children in December 2006-January 2007, the father took the child [Z] to a police station so that they could talk to him about taking something from a shop. The father gave evidence that he believed that [Z] had stolen something and that the best way to deal with it was to take him to the police station.
Ms De Vere suggested in cross-examination that, perhaps, there were other ways to deal with this particularly given that [Z] was only 6 years old at the time. The father replied to the affect that at the time he felt it was the best way to deal with it and that "in hindsight I am sure it was the best way to deal with it." The father's response again indicates to me that he lacks insight and understanding about the needs of his children and leaves me with profound concerns about his ability to meet their emotional needs.
It is true that he would probably do a good job meeting their physical needs, and possibly even their intellectual needs, but I fear that this would come at the expense of the children's emotional and psychological well-being. In this regard, the mother's proposal better meets the needs of the children than that of the father.
Issues of maturity of the children
Dr Quadrio makes the following observation about this consideration, at page 38:
There is some cause for concern about [Z]. If his gender identity is a little insecure then exposure to a father who is aggressive and, especially, if he is also verbally abusive and shaming and humiliating, could be extraordinarily damaging to the boy. The themes of death and turmoil in [Z]’s play give cause for concern and suggest that he is suffering from depression and anxiety.
[Y] too has symptoms of anxiety and depression and even though of the three children he is the closest to his father he is also fearful of him. It is very likely that he will have difficulty resolving his ambivalent feelings towards his father and he will continue to be highly vulnerable to psychological difficulties.
[X] is pseudo mature in her adjustment and perhaps had had to become the responsible child in a troubled family. She is functioning reasonably well at the moment but it is likely that her ambivalent feelings towards her father will continue to trouble her during her adolescent years.
The father did not challenge any of this evidence other than explaining his version of the incident involving [Z]. The father recounted that [Z] was “sitting there playing and doing silly things, going on like a girl”, so he said words to the effect, "Why not put a dress on?"
It is notable that the father expressed no concerns about the matters referred to in Dr Quadrio's report. He did not suggest, for example, that the children needed to receive counselling or some other support arising out of the matters referred to. Clearly, these are significant issues and the totality of the evidence leads me to conclude that the mother is better able to meet the needs of the children referred to above, and that it is her proposal that will best facilitate this.
Attitudes to the children
In relation to this consideration Dr Quadrio states at page 41:
The mother has been a very responsible parent and has been strongly focused on raising the children. The father would claim that this is the case with him also but it may be, if the mother’s history can be relied upon, that he has spent a lot of time drinking and this has meant less involvement with the family and wastefulness of economic resources.
It appears that the extended maternal family are committed also to the welfare of the children.
I have referred to above to the evidence about the father's excessive consumption of alcohol and his failure to pay child support in circumstances where he is clearly able to. These reflect very poorly on his attitude towards the children, and to the responsibilities of parenthood. I am not satisfied that the father has availed himself of all the opportunities made available to him to spend time or communicate with the children since separation. From the father's perspective, he might seek to explain this by reference to his work commitments, but I find that hard to accept under the circumstances.
Clearly, the mother demonstrates a much better attitude to the children and to the responsibilities of parenthood, and it is her proposal that will best facilitate the continuation of this. And, yet, even on the mother's proposal, the father will have the opportunity to demonstrate to the children, to the mother, and indeed, to himself that he can be responsible. All he has to do is to avail himself of the opportunities that will be given to him to spend time with the children. If he fails to do so that will be to the detriment to the children, as well as to himself, but there is no doubt in my mind that it will be because of his actions, and not of the mother.
The order least likely to lead to further proceedings
To Dr Quadrio, the father expressed the view that he would appeal any decision that is made, other than a decision that leads to the order that he wants. Dr Quadrio may well be right given the impression he formed of him as being irritable and confrontational. However, that is not the Court's experience of Mr Clayton during the hearing who, it should be recorded, behaved himself at all times appropriately. If the father is, in fact, contemplating further action, the Court can only reinforce the observations made by Dr Quadrio to the effect that further litigation will have a serious adverse impact on the children.
I encourage the father to comply with these orders and to invest in his children's lives by the exertion of his time, effort, and expense. He will prove far more to the children by doing this, than he would be by taking further legal action. Nonetheless, the father is perfectly entitled to take further proceedings if he so desires and there is no evidence before me which would lead me to restrict such further proceedings, in any way. This consideration is, therefore, one I take into account in the general sense, but it is not determinative of the order that I make.
Equal shared parental responsibility or sole parental responsibility?
Mr Alexander, on behalf of the Independent Children’s Lawyer, submitted that there should be a declaration of equal shared parental responsibility even if there is no presumption in favour of the same. This was on the basis that the evidence indicated that the father was an involved parent, and that there were important symbolic and inclusive reasons why he should be included in decision making.
Mr Alexander, in particular, relied on the documents produced on subpoena by the children's counsellor that, I agree, presented a picture of a post-separation family which had decided to alienate or exclude the father from the family circle. Thus, Mr Alexander submitted, the requirement for consultation should be imposed in this case, though he recognised the communication problems that existed. He suggested, in order to accommodate these real communication issues, that the parents be obliged to consult but if there was no agreement, then the relevant decision could be made by the mother.
The mother's counsel, however, submitted that this was clearly a case for sole parental responsibility. She submitted that the totality of the evidence gave rise to concerns about whether there had been abuse of the children or family violence, and, in any event, it was not in the best interests of the children for there to be equal shared parental responsibility for the children.
I do not regard this as a case that is appropriate for equal shared parental responsibility. There is no communication between these parents and to impose the requirement for consultation in these circumstances invites further conflict, and further proceedings. There is a real risk that equal shared parental responsibility will embroil the children in the parental conflict and the risk of further psychological harm.
I have real concerns about the father's ability to focus on the needs of the children, and not on his own needs, and his attitudes towards the responsibilities of parenthood are severely wanting. For all of these reasons, an order for sole parental responsibility is appropriate, and equal shared parental responsibility is not in the best interests of the children.
I have considered Mr Alexander's proposal for the presumption of equal shared parental responsibility but with a default provision for sole parental responsibility if the parties are unable to agree. My fear is that the damage to the children will arise in the context of attempting to agree, something that these parents are simply not capable of.
Accordingly, I propose to make an order for sole parental responsibility, but modified as proposed by the mother herself to exclude sole decision making when it comes to the children's name and religious matters.
Equal time or substantial and significant time?
The father's proposal is for equal time in Nowra. The mother proposes holiday time only, and thus less than substantial and significant time. I am, of course, free to consider either, or neither, subject to the order being reasonably practicable and in the best interests of the children.
The totality of the evidence referred to above leads to the inevitable conclusion that equal time is not in the best interests of these children and, in any event, would be quite impracticable whilst they remain in Brisbane.
In theory, it would be reasonably practicable if the children returned to Nowra, but I do not consider that to be in their best interests.
Given that I consider the children to be better off in Brisbane, where they are now, substantial and significant time is not reasonably practicable and, in any event, I do not believe it to be in the children's best interests. All of the matters referred to above confirm in my mind that these children, and their father, are not ready for substantial and significant time as defined in part 7 of the Family Law Act. The time may well come when this order is appropriate, but only if the father rigidly commits himself to rebuilding his relationship with the children in the circumstances in which they find themselves in.
Accordingly, the evidence compels a conclusion that neither equal time nor substantial and significant time is in the best interests of the children or is reasonably practicable.
What order is in the best interests of the children?
The order proposed by the Independent Children’s Lawyer, and supported by the mother, provides to the father four days time in January, three days during the Easter holidays in 2009, and four days during the school holidays at the end of terms 2 and 3. Thereafter, the father would have time with the children for one week in each of four occasions per year.
During closing submissions, however, counsel for the mother strongly urged, and counsel for the Independent Children’s Lawyer agreed in part, that I should make an order the effect of which is that the father spend time with the children at least twice during the January school holidays and the holidays at the end of terms 1, 2 and 3, before proceeding to one week four times per year. I agree that the evidence indicates that this is appropriate. The children have a clear need for the father's relationship with them to be resumed, but equally important is for that relationship to then be maintained.
There is no benefit to the children in spending time with their father, for example, in January, but then not seeing him again until September, or not seeing him again until the following January. Whilst other children might be able to cope, these children would not cope with an ad hoc arrangement with a father coming into and out of their lives as he considers appropriate and convenient.
Accordingly, I propose to make this order and to further provide that if the father fails to comply with the proviso for consistency, then the orders for the children to spend time with him are to lapse. I recognise that the implication of this is that if the father fails to spend time with the children in accordance with the orders that I propose, then the orders will lapse. I recognise this as quite drastic in its nature.
I further recognise that Dr Quadrio did not explicitly state this in her recommendations nor give evidence to this affect orally. But I am satisfied, for example, where she makes her recommendations at paragraph 42, she impliedly recognised the necessity for a progressive reinstatement of time that built on preceding blocks of time. She says, for example, that if "there are no incidents and if that progresses well", thus signifying to me that she was at least contemplating the possibility that there would be incidents and that the matter would not progress well, and that some other alternative would need to take place in those circumstances.
I have expressed elsewhere in my judgment the real concerns I have about the father's commitment to making any parenting orders work and I am not sure that Dr Quadrio had the evidence before her of the husband's lack of commitment, as I did during the hearing. As I have indicated elsewhere in my judgment there is a meaningful relationship between these children and the father, but only just, and if the father fails to consolidate by taking advantage of the opportunities given to him, that meaningful relationship will disappear and it will be too traumatic, in my opinion, for it then be re-established unless there are very significant changes in the circumstances of the children, and/or their parents.
Having regard to the above, I think it is appropriate to include the proviso in the orders that if the father cannot be consistent in terms of spending time with the children, then the orders should lapse.
I note that the orders are, in effect, proposed by both the Independent Children’s Lawyer and the mother vary somewhat from those proposed by Dr Quadrio. There is some variation, but I am satisfied that the orders are in the children's best interests and reflect all of the evidence that was available to me at the hearing.
A number of other orders were proposed about non denigration, non discussion of the proceedings, providing notice about changes to residential addresses, information about medical treatment and education, restraints on intoxication, and so forth, none of which seem to be significantly in dispute.
The father has, apparently, still not paid his share of Dr Quadrio's report, and so I will make an order requiring him to do so within 14 days.
I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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