Cloake and Cloake
[2011] FMCAfam 784
•20 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLOAKE & CLOAKE | [2011] FMCAfam 784 |
| FAMILY LAW – Interim parenting orders – allegations of family violence – complaint against family consultant – allegations of bias against family consultant – challenge to use of family report – admission of report on limited or conditional basis – clear & uniform views of children – best interests considerations. |
| Evidence Act 1995 (Cth), ss.79, 135, 136 Family Law Act 1975, ss.11F, 38N, 60B, 60B(1)(b), 60CA, 60CC(2), 60CC(3)(a), (c), (i), (j) & (k), 62G(8), 69ZT Family Law Rules 2004, rr.15.41(1)(d), 15.43 Federal Magistrates Court Rules 2001, rr.15.06A, 23.01A |
| Collu & Rinaldo [2010] FamCAFC 53 Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; [2011] HCA 21 Ebner v Official Trustee (2000) 205 CLR 337 Goode v Goode (2007) 36 Fam LR 422 Re JRL; ex parte CJL (1986) 161 CLR 342 Johnson v Johnson (2000) 201 CLR 488 McCall v Clark (2009) 41 Fam LR 483 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 MRR v GR (2010) 240 CLR 461 R and R: Children’s Wishes (2000) 25 Fam LR 712 In the Marriage of R (Children’s Wishes) (2002) 29 Fam LR 230 Sigley v Evor (2011) 44 Fam LR 439 VW v J (2006) 34 Fam LR 499 |
| Applicant: | MR CLOAKE |
| Respondent: | MS CLOAKE |
| File Number: | CAC 180 of 2011 |
| Judgment of: | Neville FM |
| Hearing date: | 22 June 2011 |
| Date of Last Submission: | 5 July 2011 |
| Delivered at: | Canberra |
| Delivered on: | 20 July 2011 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms M Reid |
| Solicitors for the Applicant: | Phelps Reid, Canberra |
| Solicitor/Advocate for the Respondent: | Ms L Strong |
| Solicitors for the Respondent: | Strong Law Pty Ltd, Canberra |
ORDERS
The Family Consultant Report, dated 27 May 2011, is admitted into evidence pursuant to s.62G(8) Family Law Act 1975 but, at this stage, only in relation to the views of the children.
The parents have equal shared parental responsibility for the children, [W]and [X] born [in] 1998, [Y] born [in] 2011, and [Z] born [in] 2005 (“the children”).
For the next three months the children are to reside with the Mother for nine nights per fortnight and with the Father for five nights per fortnight.
Thereafter, the children live with the Mother and the Father on a week about shared care basis.
In respect of Order 3, changeover will occur after school on Friday afternoons.
For Christmas Day the children will spend time with the Mother and Father as follows:
(a)from 5:00pm on 24 December until 9:00am on 26 December with the Father in even numbered years.
(b)from 9:00am on 26 December until 5:00pm on 27 December with the Mother in even numbered years.
(c)from 5:00pm on 24 December until 9:00am on 26 December with the Mother in odd numbered years.
(d)from 9:00am on 26 December until 5:00pm on 27 December with the Father in odd numbered years.
For Christmas school holidays the children will spend time with the Mother and Father as follows:
(a)for the first half with the Father in even numbered years.
(b)for the second half with the Mother in even numbered years.
(c)for the first half with the Mother in odd numbered years.
(d)for the second half with the Father in odd numbered years.
If one of the children’s birthday falls on a weekday then the children shall spend time with the parent with whom they are not living from 3:00pm until 6:00pm.
If one of the children’s birthday falls on a weekend then the children shall spend time with the parent with whom they are not living from 2:00pm until 6:00pm.
If the children are not living with the Father on Father’s Day then the children will spend time with the Father from 9:00am until 5:00pm on Father’s Day.
If the children are not living with the Mother on Mother’s Day then children shall spend time with the Mother from 9:00am until 5:00pm on Mother’s Day.
The non-resident parent shall have telephone time with the children from 5:30pm – 6:30pm on Sunday and Wednesday.
In respect of Order 11 above the resident parent will facilitate the telephone time free from distraction and with privacy.
If the children obtain mobile telephones the parents are free to contact the children on their respective mobile telephones at any time.
Changeovers are to take place at the children’s school or in the alternative at the respective parent’s residence.
Both parties are permitted to attend any specialist medical appointments for the children or any of them, and each party is to advise the other party of any such appointments not less than three (3) days in advance of such appointments.
Both parents are permitted to attend any school or preschool attended by the children or any of them for events and occasions which parents are invited.
The Mother and the Father shall do all this necessary to endure the other parent is kept informed at all times of their respective mobile telephone number, email address and residential address.
Neither the Mother nor the Father will denigrate the other parent or the other parent’s family in the presence of the children or allow any other person to do so in the presence of the children.
At least until the criminal proceedings are resolved, and except in cases of emergency, the parties should communicate only via a communication book.
The matter be adjourned for further directions to 27 October 2011 at 9:15am.
The parties are liberty to have the matter re-listed on providing 14 days notice.
AND IT IS NOTED THAT:
A.The Family Consultant is requested to provide the court with an Affidavit in relation to the matters set out in paragraph 15 of the Report and referred to in Order 1. It is requested that this be provided within 28 days.
IT IS NOTED that publication of this judgment under the pseudonym Cloake & Cloake is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 180 of 2011
| MR CLOAKE |
Applicant
And
| MS CLOAKE |
Respondent
REASONS FOR JUDGMENT
Introduction
Following (a) a brief but strongly contested ‘directions hearing’ on 22nd June, at which time I made orders, inter alia, for the provision of written submissions within 10 days, and (b) receipt of those submissions from both parties, this oral judgment was delivered on 20th July 2011. A relatively short time after its delivery a written version of the judgment was requested. These are those reasons, revised from the script of the judgment.
There are a number of preliminary matters to be addressed prior to dealing with the substantive interim parenting issues in this matter.
Preliminary Issues
The first issue is whether the listing of the matter on 22nd June 2011 was for directions or for an interim hearing. The Applicant Father contended vigorously for the latter; the Respondent Mother for the former.
This was an issue needlessly ventilated. The Orders of the Court, dated 6th May 2011, plainly state that the matter be adjourned for further directions to 22nd June 2011 at 4:15pm (emphasis added). This plain statement on the face of the Orders is sufficient to deal with the first matter of contest. I repeat: it should not have been pressed so as to demand of the Court that an interim hearing take place.
The second issue concerns a complaint made by the Mother via Victim Support ACT, in relation to the first of the interviews of the parties with the Family Consultant, Ms M. In consequence of this complaint, it was submitted that the Court should not receive or otherwise rely upon the report that was released to the parties on 17th June 2011. I simply note that although the report is dated 27th May, it was only received by the Court on the date it was released to the parties.[1] I understand that Ms M may have been either on leave and or unwell between the time of writing the report and its provision to the Court.
[1] I note later in these reasons that the Report was admitted into evidence, but only in a defined or confined respect for the disposition of the matters currently before the Court. Its ‘unconditional’ admission must await further evidence and submissions, among other things.
The concern about the conduct of the first interview related to an allegation of domestic violence on one occasion at the end of the relationship. That incident is the subject of criminal proceedings which have been adjourned already once this year and come back before another court in September. The concern was further expressed that in circumstances where a domestic violence order was taken out against the Applicant Father on behalf of the Respondent Mother, it was inappropriate for the Family Consultant to have had the parties in the same room for the purpose of assisting in the preparation of a report.
Further, it was submitted that in her report the Family Consultant either had no, or insufficient, regard to the allegations of domestic violence and their impact on the Mother when writing the Report.
I understand that the formal complaint, which has been lodged with the registry of the Court, has yet to be dealt with. I understand also that dealing with that complaint to some degree is dependent upon the outcome of these interim proceedings.
I make two comments in relation to the complaint involving the Family Consultant. First, at paragraph 15 of the Report, Ms M notes that “the parents agreed to be interviewed together with the intention that they would be later interviewed on their own.” While not a waiver or protection in relation to any possible breach of a domestic violence order, on its face, that clear statement plainly reads as though there was formal assent by both parties to be interviewed together, albeit for a limited purpose, by the Family Consultant.[2]
[2] I note too that in no submission was there mention of the ‘usual provisos’ in the Domestic Violence Order that is Annexure H44 to Ms Cloake’s affidavit filed on 12th April 2011. Those provisos or exceptions permit, among other things, the parties to attend counselling/mediation pursuant to orders made under the Family Law Act 1975. Such an order was made on 21st February 2011 by this Court pursuant to s.11F of that Act.
I might also note that neither case law nor statute was cited in support of, or in opposition to, the admission (or otherwise) of the Family Report. For example only, it may be that one or more of the following will need to be, or should be, considered at some stage in the course of this matter. Again I note that none of the following cases or sections were referred to in submissions provided to the Court on behalf of either party.
Thus, various comments made in Re JRL; ex parte CJL by Gibbs CJ, and by Mason J, in relation to the role of a family consultant, may need to be addressed at an appropriate stage.[3] Likewise, perhaps, relevant provisions of the Evidence Act 1995, such as ss.79, 135 and/or 136 in relation to the Court’s general discretion to exclude (or to receive) evidence, or s.69ZT of the Family Law Act 1975 (“the Act”), as well as Rule 23.01A of the Federal Magistrates Court Rules 2001, may all need to be considered in due course. Other sections of the Act, such as s.60CA and s.60CC(3)(a) are treated later in these reasons.[4]
[3] Re JRL; ex parte CJL (1986) 161 CLR 342 at pp.348-349 (Gibbs CJ) and pp.354-355 (Mason J).
[4] To the degree that the Family Report may, or should, be treated as one that comes from an expert (notwithstanding Rule 15.06A of this Court’s Rules, which seems to exclude a family consultant from the definition of “expert” cf. Rule 15.41(1)(d) of the Family Law Rules2004, which refers to evidence from a family consultant in the context of “expert evidence”, and Rule 15.43, which defines “expert” without exclusion; see also ss.11F and 38N of the Act in relation to the definition of “family consultant”), see the recent, detailed examination of relevant principle concerning expert evidence, including s.79 of the Evidence Act 1995 (Cth), by the High Court in Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611; [2011] HCA 21.
Secondly, I propose, through my Associate and the head of the Family Consultants in the Registry, to request the Family Consultant who prepared the Family Report to provide an Affidavit that deals specifically with the contents of paragraph 15 of the report to which I have referred. In due course, submissions can be made in relation to the contents of the affidavit filed by the Family Consultant. Whether or not cross-examination is required is an issue for another day.
Subject to what follows in relation to whether or not the Report may be relied upon, I do not propose commenting further on the complaint. However, I note here that I propose to admit the Report, pursuant to s.62G(8) Act, but only for the purposes of outlining the views of the children.[5]
[5] See also s.68G(3A), which provides that a family consultant must ascertain the views of the children and include them in the report. Thus, there is no discretion on the part of the consultant whether or not to include the views of the children in the report.
In addition to what I have already indicated, and subject to what is in Ms M’s affidavit and the submissions that may follow it, in my view ss.135 and 136 of the Evidence Act 1995 provide further warrant for the conditional admission of the Family Report. This is because, clearly in a parenting case, the views of the children are likely to be of critical importance. Thus the probative value of the report, at this interim stage, outweighs any possible prejudice that the Mother may suffer as a result of its [conditional] admission, whatever that prejudice may or may not be.
Interim Parenting Orders: Principles and Discussion
Perhaps curiously, perhaps not, neither of the detailed written submissions provided to the Court by the experienced solicitors who act for the parties addressed any of the statutory requirements prescribed in Part VII of the Act. Whether or not parties have formal regard to the legislative pathway is a matter for them. The Court has no such luxury. For better or for worse, it does not excuse or obviate the need for, or the requirement that, this Court have regard to that pathway and the relevant sections of Part VII, and any other relevant provisions of the Act.[6] The responsibility of the Court to do so is even more clear or pressing in circumstances where, as here, allegations of family violence are said to impact and play a significant part in the parenting orders. This is so notwithstanding the necessarily circumscribed nature of interim hearings and the constraints and limitations they necessarily involve in almost every respect – e.g. limited evidence, untested evidence (assertion and counter-assertion/`he said – she said’), incomplete evidence, unresolved proceedings in other courts.[7]
[6] So much has been made clear often enough, beginning with Goode v Goode (2007) 36 Fam LR 422 at [81] ff. and Keach & Keach (2007) FLC ¶93-353 at [24] ff. Whether or not parties can or should be able to complain about a particular court’s treatment of a case and determination of parenting issues if one or both parties do not address the legislative pathway is beyond the current scope of the issues for resolution.
[7] Cf. the Full Court’s recognition of the limitations inherent in interim hearings in Goode v Goode (2007) 36 Fam LR 422 at [81] & [82].
The outline provided by Brown J in Mazorski v Albright should be taken to be incorporated into these reasons as a convenient summary of relevant principle in relation to (a) children having a meaningful relationship with both parents, and (b) for them to be appropriately protected in terms of the prescriptions set out in the Act.[8] Respectfully and gratefully I adopt her Honour’s comments. The relevant sections of her Honour’s judgment are now included in these reasons for ease of reference, thus:[9]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[8] Mazorski v Albright (2007) 37 Fam LR 518 especially at [3] – [6] and [20] – [26]. Among a significant, and growing, number of Full Court “endorsements” of her Honour’s remarks, see McCall v Clark (2009) 41 Fam LR 483 at [121].
[9] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[10]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[10] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall v Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, the further Full Court decisions in Collu & Rinaldo [2010] FamCAFC 53 at [335], and Sigley v Evor (2011) 44 Fam LR 439 at [132] & [133], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Also, in accordance with both proper practice and authority, the respective orders sought by each of the parties should be taken to be incorporated into these reasons.[11] These orders have now also been included in these reasons and are set out below.
[11] See Goode v Goode (2007) 36 Fam LR 422 at [82].
The Applicant Father sought interim orders as follows:
Parental Responsibility
1. The Mother, Ms Cloake born [in] 1966 (“the Mother”) and the Father, Mr Cloake born [in] 1965 (“the Father”) have equal shared parental responsibility for the children, [W] born [in] 1998 (“[W]”), [X] born [in] 1998 (“[X]”), [Y] born [in] 2001 (“[Y]”), and [Z] born [in] 2005 (“[Z]”) (“the children”).
Residence
2. The children live with the Mother and the Father on a week about shared care basis.
3. In respect to Order 2 changeover will occur after school on Friday afternoons.
Christmas & Christmas Holidays
4. For Christmas Day the children will spend time with the Mother and Father as follows:
i. From 5:00pm on 24 December until 9:00am on 26 December with the Father in even numbered years;
ii. From 9:00am on 26 December until 5:00pm on 27 December with the Mother in even numbered years;
iii. From 5:00pm on 24 December until 9am on 26 December with the Mother in odd numbered years;
iv. From 9:00am on 26 December until 5:00pm on 27 December with the Father in odd numbered years.
5. For the Christmas school holidays the children will spend time with the Mother and Father as follows:-
i. For the first half with the Father in even numbered years;
ii. For the second half with the Mother in even numbered years;
iii. For the first half with the Mother in odd numbered years;
iv. For the second half with the Father in odd numbered years.
Special Days
6. If one of the children’s birthdays fall on a weekday then the children shall spend time with the parent with whom they are not living from 3:00pm until 6:00pm.
7. If one of the children’s birthday’s falls on a weekend then the children shall spend time with the parent with whom they are not living from 2:00pm until 6:00pm.
8. If the children are not living with the Father on Father’s Day then children shall spend time with the Father from 9:00am until 5:00pm on Father’s Day.
9. If the children are not living with the Mother on Mother’s Day then children shall spend time with the Mother from 9:00am until 5:00pm on Mother’s Day.
Telephone Time
10. The non-resident parent shall have telephone time with the children from 5.30pm - 6:30pm on Sunday and Wednesday.
11. In respect to Order 10 above the resident parent will facilitate the telephone time free from distraction and with privacy.
12. If the children obtain mobile telephones the parents are free to contact the children on their respective mobile telephones at any time.
General
13. Changeovers are to take place at the children’s school or in the alternative at the respective parent’s residence.
14. Both parties are permitted to attend any specialist medical appointments for the children or any of them, and each party is to advise the other party of any such appointments not less than three (3) days in advance of such appointments.
15. Both parents are permitted to attend any school or preschool attended by the children or any of them for events and occasions which parents are invited.
16. The Mother and the Father shall do all things necessary to ensure the other parent is kept informed at all times of their respective mobile telephone number, email address and residential address.
17. Neither the Mother nor the Father shall denigrate the other parent or the other parent’s family in the presence of the children or allow any other person to do so in the presence of the children.
The Respondent Mother sought interim orders as follows:
1. That the mother have sole parental responsibility for the children [W] born [in] 1998, [X] born [in] 1998, [Y] born [in] 2001 and [Z] born [in] 2005.
2. That the children live with the mother.
3. That the children spend time with the father as follows;
3.1 each alternate weekend from after school Friday to 5:00pm on Sunday.
3.2 each alternate Tuesday from the conclusion of school until 8:00pm to take place on the Tuesday prior to the children spending the weekend with their father.
Christmas
3.3 Each alternate Christmas from 12 noon on Christmas Eve to 12 noon on 26 December commencing in 2012 and each alternate year thereafter.
3.4 Each alternate Christmas from 12 noon on 26 December to 12 noon on 28 December commencing in 2011 and each alternate year thereafter provided that if the children would otherwise be spending time with the father they be returned to the mother from 12 noon on 26 December to 12 noon on 28 December commencing in 2012 and each alternate year thereafter.
Holidays
3.5 For half of each school holiday period being first half in 2013 and each odd numbered year thereafter and the second half in 2012 and each odd numbered year thereafter.
Birthdays
3.6 Notwithstanding any order herein commencing in 2011 and each alternate year thereafter the children are to spend time on [date omitted] ([W] and [X]’s birthday) with the father
3.6.1 If [date omitted] falls on a school day the children are to spend time with the father from 3:00pm until 8:00pm,
3.6.2 If [date omitted] falls on a weekend the children are to spend time with the father from 9:00am until 8:00pm,
3.7 Notwithstanding any order herein commencing in 2012 and each alternate year thereafter the children are to spend time on [date omitted] ([W] and [X]’s birthday) with the mother
3.7.1 If [date omitted] falls on a school day the children are to spend time with the mother from 3:00pm until 8:00pm,
3.7.2 If [date omitted] falls on a weekend the children are to spend time with the mother from 9:00am until 8:00pm,
3.8 Notwithstanding any order herein commencing in 2011 and each alternate year thereafter the children are to spend time on [date omitted] ([Y]’s birthday) with the mother
3.8.1 If [date omitted] falls on a school day the children are to spend time with the mother from 3:00pm until 8:00pm,
3.8.2 If [date omitted] falls on a weekend the children are to spend time with the mother from 9:00am until 8:00pm,
3.9 Notwithstanding any order herein commencing in 2012 and each alternate year thereafter the children are to spend time on [date omitted] ([Y]’s birthday) with the father
3.9.1 If [date omitted] falls on a school day the children are to spend time with the father from 3:00pm until 8:00pm,
3.9.2 If [date omitted] falls on a weekend the children are to spend time with the father from 9:00am until 8:00pm,
3.10 Notwithstanding any order herein commencing in 2011 and each alternate year thereafter the children are to spend time on [date omitted] ([Z]’s birthday) with the mother
3.10.1 If [date omitted] falls on a school day the children are to spend time with the mother from 3:00pm until 8:00pm,
3.10.2 If [date omitted] falls on a weekend the children are to spend time with the mother from 9:00am until 8:00pm,
3.11 Notwithstanding any order herein commencing in 2012 and each alternate year thereafter the children are to spend time on [date omitted] ([Z]’s birthday) with the father
3.11.1 If [date omitted] falls on a school day the children are to spend time with the father from 3:00pm until 8:00pm,
3.11.2 If [date omitted] falls on a weekend the children are to spend time with the father from 9:00am until 8:00pm.
3.12 If the children are not spending time with or living with one of the parent’s on their birthday then the children shall spend time with that parent;
3.12.1 If the parent’s birthday falls on a weekday the children are to spend time with the parent from 3:00pm until 8:00pm,
3.12.2 If the parent’s birthday falls on a weekend the children are to spend time with the parent from 9:00am until 8:00pm.
Father’s / Mother’s Day
3.13 If the children are not spending time with the father on the Father’s Day weekend then the children shall spend time with the father from 9:00am on the Saturday prior to Father’s Day until 5:00pm on Father’s Day.
3.14 If the children are not living with the mother on the Mother’s Day weekend then the children shall live with the mother from 9:00am on the Saturday prior to Mother’s Day until 5:00pm on Mother’s Day.
Easter
3.15 Notwithstanding any order herein the children are to spend time with the father on Good Friday and Easter Saturday in 2011 and each odd numbered year thereafter and on Easter Sunday and Easter Monday in 2012 and each even numbered year thereafter.
3.16 Notwithstanding any order herein the children are to spend time with the mother on Good Friday and Easter Saturday in 2012 and each even numbered year thereafter and on Easter Sunday and Easter Monday in 2011 and each odd numbered year thereafter.
4. Changeovers are to occur at the children’s school at the conclusion or beginning of the school day, changeovers that occur outside of this time frame are to occur at the [omitted] Woolworths entrance.
As already indicated, in her oral submissions and subsequent written submissions, the Respondent Mother submitted that the Family Report should not be read until the complaint is resolved. The Mother also contended that an interim decision should not be made until the criminal proceedings have been concluded and that the current arrangements in the terms set out in her interim orders sought should continue.
The Prescribed Pathway
I note that the four children involved in these proceedings are 13 year old twins, a 10 year old boy and a 6 year old girl. Having due regard to s.60CC(3)(a) and the question of ‘weight’ to be ascribed to them, the views of the children are conveniently set out in some detail in the report of Ms M.[12]
[12] As with many things in the written submissions, there was no discussion in relation to the “weight” that the Court should place on the children’s views. In this regard, generally see various Full Court consideration of such matters in R and R: Children’s Wishes (2000) 25 Fam LR 712; In the Marriage of R (Children’s Wishes) (2002) 29 Fam LR 230; and VW v J (2006) 34 Fam LR 499.
As I have already indicated, it seems to me that the Court should receive Ms M’s report into evidence at least to the extent that it records the children’s views. Whatever did or did not happen in relation to the conduct of the interview in relation to the parents, no question has been raised about what the children did or did not say to the Family Consultant, or that their views are not accurately recorded. That needs to be qualified by reference to a submission made in the written submissions of the Respondent Mother (which unfortunately are un-paginated and have no paragraph numbers) where, in the fourth paragraph from the bottom of page 3, it is stated: “it is the Mother’s position that when the children express a desire to see more of their Father they mean that when they are with him he should spend more time with them and give them his attention.” In my respectful view, I do not read the report as supporting that submission.
For example, at paragraph 19 of the Family Report, the youngest of the children, and supported strongly by her older siblings, confirmed that she “has not been able to spend adequate time in his [that is the Father’s] care since the parental separation. This is a feeling that was echoed by all the children.”
In paragraph 20 of the Report, Ms M stated “[X], [W], [Y] and [Z] spontaneously nominated a shared care arrangement as being their preferred option for maintaining the current close relationship that they feel they share with each parent.”
Significantly, and showing uncommon insight, the children sensitively related to Ms M as follows: “the children indicated that maybe, for a period of time, it would be acceptable if they just spent more time with their Father. The rational [sic] was that their Mother was currently under a great deal of stress and may find it difficult to implement a shared care arrangement.”
Also of significance in my view is the comment from Ms M of the children’s views (paragraph 21 of the Report) “that they find it difficult to carry information between their parents.”
There seems to be no question that the children enjoy a very close relationship with both parents. Nor does there seem to be much contest at all about the capacity of both parents to provide and care for their children. The contest is primarily about the level of discord between the parents.
One matter that was not addressed in any of the submissions – curiously perhaps – was that in fact a shared care arrangement would minimise the contact between the parents, as opposed to the multiple contacts that must take place under the current regime and which the Respondent Mother seeks to maintain. In such circumstances I would have thought that given how strong the children’s views are, and where a regime is proposed that would in fact lessen rather than maintain the level of contact or engagement between the parents, such would be both opportune and appropriate.
Accepting that there are always difficulties in relation to shared care arrangements in circumstances where there is conflict, nonetheless, in the circumstances in this case it would seem to work in the best interests of all – children and parents – and to ameliorate to some degree at least the difficulties between the parents.
In response to the submission that matters should wait until the criminal proceedings are concluded, it seems to me that there are two factors here, at least, to consider. First, there is no guarantee as to the time-frame in which those proceedings may conclude. In such circumstances, everyone – the parties, the children, and the Court – would remain in some state of suspended animation. Such a hiatus and the uncertainty that would go with it is in no body’s interest, least of all the children.[13]
[13] I understand that the criminal proceedings against Mr Cloake are due to return to the Local Court in September 2011. It is unclear whether that ‘return date’ is for hearing or for further mention or directions. In such circumstances, it is not appropriate for the Court even to consider whether judicial notice might be taken of the unfortunate delays that regularly arise in relation to proceedings in ACT courts. In saying this I do not, in any way, intend any criticism of those courts. That said, from this Court’s experience with other matters in the last few years, as well as from regular public reporting of delays, it is unfortunately somewhat common for there to be significant delays in the ACT court system.
Secondly, it remains the case that in this Court the proceedings are not criminal, and as important as family violence issues are to consider - and properly so - it is critically a case of making orders that are in the best interests of the children (in accordance with s.60CA) on the limited facts and circumstances that are before me, mindful, as always, of the Court’s protective and other responsibilities to which I have earlier referred.
I accept, of course, that the evidence remains untested. In such circumstances, it is proper that the Court proceed with appropriate caution, including refraining from taking any action that may be considered either pre-emptive, let alone punitive. What is paramount is the best interests of the children, and to pay proper regard to their strongly expressed views. If and when the criminal proceedings are resolved, and subject to what that result is, then if the parenting orders need to be revisited that can occur at an appropriate time, and in an appropriate way.
Again I note – and unfortunately so - that no provisions of the Family Law Act 1975 were referred to in any of the submissions.
I note the disparity, or otherwise opposed positions, of the parties in their orders sought in relation to equal shared parental responsibility. Again without diminishing the importance for a court to consider matters of family violence appropriately, particularly in parenting cases, in my view, with appropriate restraints in place, an order for equal shared parental responsibility should be made. Apart from the one, specific instance of alleged family violence at the end of the relationship,[14] it would seem to be the case that both parents have been very actively involved in the lives of all the children. That said, in her affidavit filed on 12th April 2011, the Mother disputes the degree of the Father’s involvement in the lives of the children for which he contends.
[14] I note that in the Mother’s affidavit filed on 12th April 2011, at paras.15, 21 and 22(10), Ms Cloake contends that, in effect, her life became increasingly controlled by Mr Cloake. Ms Cloake says (para.21) that she is scared of Mr Cloake. She also annexed a copy of a relatively recent domestic violence order, which was entered into on a ‘without admissions’ basis by Mr Cloake. See Annexure H44 to the affidavit in question.
I do not understand there to be any contention that there has been any violence directed by Mr Cloake towards the children. Her contention, at para.15 of her 12th April affidavit, that “Mr Cloake kept our lives in a constant state of chaos” does not, without much more detail and examination, suggest that there is any risk to the children spending time with their Father.
Moreover, Ms M stated in her Report (at para.24): “The children are struggling with their parents’ separation and the uncertainty that this brings with it.” And later, having noted (at para.25) “the many competing assertions made” by the parties, at para.27, Ms M said: “The children appear not to share Ms Cloake’s experience of Mr Cloake. The children feel supported and nurtured by each of their parents.”
In my view, there would be a risk of damage to the children if the Father was formally circumscribed from involvement in relevant decision-making in relation to any major long-term issues that are contemplated by the operation of s.61DA and s.4 in relation to such matters.
Again, I note that nothing was said in any submission to the Court about s.61DA, or any other relevant section of the Act to which I have referred, and to which the Court is required to have regard in parenting matters.
In circumstances where the Court proposes to make an order for an equal time arrangement the provisions of section 65DAA apply. Having due regard to the High Court’s comments in MRR v GR, none of the sub-sections or sub-paragraphs of that section, in my view, militate against making such an order.[15] Given that both parents live in Canberra and that the children have been spending regular time with their Father ever since the separation of the parties, there is nothing, in my view, that outweighs the best interests of the children spending more time with their Father and for that to occur at the earliest possible time.
[15] MRR v GR (2010) 240 CLR 461, especially at [13] & [15].
I should not be taken in any shape or form to be either commenting one way or the other on the criminal proceedings, or in anyway diminishing the significance of domestic violence as a factor for the Court to consider in this or in any other matter.[16]
[16] Among other places, see s.60B(1)(b).
The only matter that seems to me that needs to be considered in the current circumstances is that it may be in the interests of all, but especially the children (and as suggested by them), for there to be a transition period by which the children transition in the first instance to a 5/9 arrangement, that is five nights with the Father and 9 nights with the Mother for a period of 3 months, before the move to an equal time / shared care arrangement.
In the current circumstances, there are few if any other parts of s.60CC(3) to which the Court may have regard in a situation where the written submissions focus essentially on (a) the admission / relevance of the family report, and (b) the criminal proceedings and its effect upon the parenting relationship. Clearly, in addition to s.60CC(3)(j) & (k), the conflictual parental relationship is relevant to sub-paragraphs (c) and (i). However, for the reasons that I have already given, it seems to me that it is clearly in the best interests of the children for the increased time to occur with their Father and with less change-overs occurring. This should have a positive impact also on the parenting relationship insofar as it will minimise the frequency of contact between the parents.
There is one final matter to note. There is a further submission in the Respondent Mother’s written submissions (see page 3) where there is an allegation of bias against the Family Consultant. The submission in relation to bias refers to, or relies upon, the same circumstances in which it is alleged that the Mother was forced to attend the Family Consultant in the presence of the Applicant Father.
No case law, for example Johnson v Johnson, or Ebner v Official Trustee, was cited in support of that contention.[17] Rather than rule formally on it at such a preliminary and circumscribed time of the proceedings, it seems to me that, if pressed, that issue should be the subject of formal submissions after Ms M has provided the Affidavit to which I referred earlier in these reasons.
[17] Johnson v Johnson (2000) 201 CLR 488; Ebner v Official Trustee (2000) 205 CLR 337.
Conclusion
Formally, having regard to the best interests of the children, I make orders as sought by the Applicant Father, but amended so as to provide for a transition first to a 5/9 arrangement for three months, before a move to a shared care/equal time situation. This transitional arrangement should commence at the earliest opportunity. It also seems to me that, at least until the criminal proceedings are resolved, and except in cases of emergency, or otherwise agreed in writing, the parties should communicate only via a communication book.
In the current circumstances, subject to further submissions (either orally or in writing), I propose adjourning the matter until the end of October (a) to await developments in the criminal proceedings, and (b) to allow evidence regarding the parenting arrangements, as well as any further submissions in the light of Ms M’s affidavit. That affidavit will, of course, be provided to the parties as soon as it is provided to the Court.
The matter is adjourned to 27th October at 9.15 am, but with liberty to re-list on 14 days notice.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 23 August 2011
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