Culpin and Trouton
[2014] FCCA 3176
•26 November 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CULPIN & TROUTON | [2014] FCCA 3176 |
| Catchwords: FAMILY LAW – Interim parenting – where the parties are in agreement with respect to interim arrangements regarding the two elder children – where there is a live dispute as regards the younger child’s arrangements – where both parties allege that the children have been enlisted as “co-conspirators” – allegations of drug use. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAA(5), 65DAC, 65F, 67ZBA, 67ZBB |
| Amador & Amador (2009) 43 Fam LR 268 State v A.M.R., 147 Wash 2d 91, 94, 51 P3d 790, 791 [2002] Johnson & Page [2007] FamCA 1235 |
| Applicant: | MS CULPIN |
| Respondent: | MR TROUTON |
| File Number: | NCC 664 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 26 November 2014 |
| Date of Last Submission: | 26 November 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 26 November 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Payne of Sharon Payne Family Lawyers |
| Solicitors for the Respondent: | Ms Flick of Turnbull Hill Lawyers |
ORDERS
By consent make Orders in accordance with the Terms of Settlement executed by the parties marked Exhibit ‘A’ attached hereto.
Direct the solicitor for the Applicant to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
Pending further Order, the child [Z] born in 2010 shall live with her mother.
Pending further Order, [Z] shall spend time with her father during school terms as follows:
(a)Until 5pm Friday 28 November 2014;
(b)Thereafter each alternate weekend from 5pm Thursday until 5pm the following Monday (such weekend to occur on the weekend when [Z]’s elder brothers are in the father’s care); and
(c)In each intervening week (i.e. the week that [Z]’s brothers are to pass into the mother’s care) from 5pm Thursday until 5pm Friday.
Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit C hereto.
Pursuant to s.62G a report is to be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services in accordance with Exhibit D.
The matter is adjourned for further mention and directions to 21 August 2015 at 11.30am.
Direct the parties attend in person whether legally represented or not on 21 August 2015 at 11:30am and subject to the Family Report having been released in a timely fashion then each of the parties are to have read the report and are to have considered any recommendations contained therein prior to that appearance and be in a position to:
(a)Provide full and proper instructions to their legal representatives;
(b)Advise the Court of orders proposed by them (if different to those proposed in their respective Application and Response);
(c)Identify the judiciable issues that may require hearing;
(d)Address means by which the proceedings might be brought to a conclusion other than by hearing (such as further Family Dispute Resolution, family counselling or other action);
(e)Advise their position as regards any recommendation/s made by the report writer as to family counselling or participation in any course program or service; and
(f)If hearing time is sought, to advise the witnesses proposed to be called and a realistic estimation of the hearing time required to complete the matter to Judgement.
Grant leave to the Independent Children’s Lawyer to relist the proceedings on 7 days’ notice in the event that they require any further procedural order from the court to facilitate their representation of the children’s interest and or they wish any amendment to be made to the Family Report order.
Pursuant to section 13C of the Family Law Act1975, the mother shall forthwith and within seven (7) days contact the intake officer of Family Relationship Centre, Sydney and the father to contact the intake Officer of Family Relationship Centre, Newcastle, for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.
In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.
Pursuant to section 13C of the Family Law Act1975, the Independent Children’s Lawyer (if appointed) and the parties and each of them shall forthwith and within seven (7) days contact a Family Dispute Resolution Practitioner agreed between them for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and subject to the assessment of suitability each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
to participate in and complete Family Dispute Resolution prior to the next Court event.
Pursuant to S.65DA (2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
EXHIBIT A
That the parties have equal shared parental responsibility of the children, [Z], born in 2010 (“[Z]”), [Y], born in 2006 (“[Y]”) and [X], born in 2001 (“[X]”) (collectively referred to as “the Children”).
That [Y] and [X] live with the Father.
That during school terms, while [Y] and [X] live with the Father, they spend time with the Mother on each alternate weekend, starting from the first weekend immediately following the date of these Orders, from 5.00pm on Friday afternoon until 5.00pm on Sunday afternoon.
That during school holiday periods, the Children spend time with each parent respectively on each alternate week, and for the purposes of this Order, the Mother shall spend time with the Children commencing 10.00am, 26 December 2014, and the Father shall spend time with the Children in the first week.
That for the purpose of facilitating time with the Children as provided in these Orders, changeover shall occur at the [omitted] turnoff on the M1 Freeway.
That the Father is hereby restrained from changing [Y]’s school, unless agreed between the parties in writing.
That both parties are hereby restrained from denigrating the other party, or a member of either party’s household, in the presence of the Children or any of them, or within hearing distance of the Children or any of them, and each party must use their best endeavours to ensure no other person does so.
That each party notify the other as soon as possible and in any event within 12 hours of any medical emergency, urgent medical treatment, serious injury or illness suffered by the Children or any of them while in the care of that party.
EXHIBIT C
APPOINTMENT OF AN INDEPENDENT CHILDREN’S LAWYER
Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the children the subject of these proceedings, [Z] born in 2010, [X] born in 2001, [Y] born in 2006.
The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.
Each of the parties shall within seven (7) days of any request complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.
Each of the parties shall within seven (7) days (or forthwith upon filing) forward to the Legal Aid Commission (Parramatta) copies of all any documents filed by them in these proceedings together with:
(a)Any medical reports they hold relating to the child/ren;
(b)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child/ren;
(c)Any school reports they hold for the child/ren;
(d)Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.
Each of the parties shall present the child/ren to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child/ren.
Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.
The appointment of the Independents Children’s Lawyer is made on the following bases:
(a)There are issues of drug and/or alcohol abuse in relation to either party or other persons having significant contact with the child/ren which are alleged to impact negatively upon that parent’s capacity to care or otherwise negatively affect the child/ren;
(b)The child/ren is/are of tender years and require protection from conflict;
(c)The elder child/ren are of an age and apparent maturity whereby the International Convention on the Rights of the Child would require that the child/ren have a voice in the proceedings and with respect to decisions that will affect their future and that they participate in the proceedings to the extent that it is consistent with their best interests;
(d)It is suggested that the elder child/ren is/are expressing clear views to which weight would be attached and/or with respect to which there are allegations that such views have been influenced such as to not warrant the attachment of weight and/or are suggested not to accord with their best interests;
(e)There are allegations of Family Violence and/or abuse suggested to impact upon the child/ren’s best interests.
EXHIBIT D
FAMILY REPORT
Pursuant to s.62G of the Family Law Act 1975, a report be prepared for the Court by a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia.
The Report writer is requested to consider and comment upon the following:
(a)Any view/s expressed by the child/ren and any opinion the Report Writer can offer as to the weight which might be attached or afforded to such views having regard to the age and apparent maturity of the child/ren, the content of those views and any factors which might otherwise influence or have influenced or impacted upon same;
(b)The nature of the relationship of the child/ren with each of the child/ren's parents with each other and with any other persons (including any grandparent, partner of a parent or other relative of the child/ren or other person’s living within either parent’s household;
(c)The likely effect of any changes in the child/ren 's circumstances, including the likely effect on the child/ren of any separation from either of his or her parents or any other child/ren, or other person (including any grandparent or other relative of the child/ren or member of either parent’s household), with whom he or she has been living or spending time on a regular basis noting, the two elder children presently live primarily with their father and the youngest child primarily lives with the mother and each party seeks to change those arrangements and further the mother lives in Sydney and the father in the Newcastle area;
(d)The practical difficulty and expense of a child/ren spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child/ren's right to maintain personal relations and direct contact with both parents on a regular basis and, if so, what arrangements might be made to seek to address such affects;
(e)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren's parents and/or members of a parents household or other care givers;
(f)The parents' current and future capacity to communicate with each other and resolve difficulties that might and with respect to same:
(i)any specific course, program or counselling service that might be of assistance in supporting, encouraging and/or assisting the parents (jointly and/or severally) in addressing any such difficulties as are apparent; and
(ii)the impact upon future parenting arrangements (including the allocation of parental responsibility) of such apparent difficulties (if not addressed) and/or upon the child/ren;
(g)Such other matters as the Report Writer considers relevant.
The Report Writer is requested to identify and provide appropriate citations for any social science literature that has been referred to and/or relied upon in expressing opinions within the report.
The Family Consultant is requested to complete the report not less than 4 weeks before the adjourned date.
The parties shall attend all appointments with the Family Consultant and shall ensure that any other member of their household or other relative (as the Report Writer may request) as well as the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to the parties and/or the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Culpin & Trouton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
NCC 664 of 2014
| MS CULPIN |
Applicant
And
| MR TROUTON |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing interim parenting Applications with respect to three children, being:
a)[X] born in 2001, (he will shortly turn 14 years of age);
b)[Y] born in 2006, (he is presently 8 years of age); and
c)[Z] born in 2010, (presently 4 years of age).
The parties to the proceedings are the children’s parents being their mother Ms Culpin, who is the Applicant, and their father Mr Trouton, who is the Respondent.
The proceedings come before the Court today for the first occasion.
Prior Proceedings
The only previous Court processes in which the parties have engaged is an Application for Divorce made jointly to the Newcastle Registry of the Court on 20 March 2014. The Divorce has been granted, although it would appear from any cursory examination of that Application that little, if any, of the information contained within it, notwithstanding that it is verified as accurate by each of the parties on their oath, is, in fact, accurate.
The Divorce Application suggests, at least at the time that the Application was made, that the parties agreed that the children lived and would live in an equal shared care arrangement between them. That was in the context, however, that the parties each gave as their residential address an address different to the other whereas they were in reality, living under the one roof at that time.
The father now suggests that separation did not occur until May 2014 being when he alleges that the sexual relationship between the parties ceased. That is a date some weeks after the Application was filed. In any event the Application for Divorce or any review of it is not before the Court today. The parenting Application is.
Proposals and orders sought
The mother by her Application filed 31 October 2014 seeks Orders for equal shared parental responsibility for the three children, for all three children to live with her and for them to spend time with their father each alternate weekend as well as periods during school holidays (of at least one half, if not more) and additional Orders.
The father by his Response filed yesterday 25 November 2014, seeks Orders that the children live with him, that the parents have equal shared parental responsibility and that the children spend time with their mother each alternate weekend and for periods during school holidays of approximately one half.
The Applications of the parties are diametrically opposed.
Notwithstanding the Orders sought by each parent the parties have reached agreement as to interim arrangements for the two elder children, the two boys. A document, Exhibit A is tendered, signed by the parties and which provides that:
a)The parents will have equal shared parental responsibility for all three children;
b)[Y] and [X] will live with their father and during school terms will spend time with their mother each alternate weekend. During school holidays the parents agree that all three children will live with their parents on a week about arrangement;
c)Changeovers will occur at an area at the [omitted] turn off of the M1 Freeway; and
d)[Y] will not change the school he presently attends without written consent of both parents first having been obtained.
There remains live the issue as to [Z]’s interim arrangements.
The mother seeks that she have primary care of and that [Z] spend time with her father each alternate weekend from Friday afternoon until Monday morning. The mother also seeks an Order restraining a young person, [C], otherwise known as [C], from driving a motor vehicle with the children as passengers once she obtains her provisional licence. There is no evidence with respect to that issue. However, on the basis that the parents would have equal shared parental responsibility, that would be a determination to be made by each parent based on their knowledge of facts and circumstances at any given point in time.
The father proposes that [Z] would live in a week about shared care arrangement between the parents.
The dispute between the parties is thus broad. There is relative agreement that an Independent Children’s Lawyer and Family Report should be ordered by way of case management of the final issue and accordingly, those Orders will be made today. That will necessitate, due to delays in obtaining Family Reports, an adjournment of the proceedings until the latter part of August and review at that time. The matter will then be allocated hearing time, if required, as expeditiously as can be accommodated dependent upon resources at that time.
Prior to the proceedings being commenced it is also clear that the parties have not attended or attempted to attend Family Dispute Resolution. An exemption was granted by a Registrar, it would seem primarily on the grounds of urgency. The parties will need, following this determination today, to attend Family Dispute Resolution. They will also need to attend Family Counselling. Section 65F of the Family Law Act 1975 requires that the parties obtain such assistance prior to final hearing. If the matter is not resolved then attendance at Family Counselling will serve that purpose but more importantly may assist these parents, recently physically separated if not recently separated, (the date of separation being entirely unclear), in learning how to deal with and adjust to their present circumstances, whereby they are separated parents and with no love lost between them.
Material considered in dealing with the proceedings
I have read and considered each of the documents identified by the parties.
In the case of the mother I have read:
a)The Application Initiating Proceedings filed 31 October 2014;
b)Form 4 Notice of Abuse, filed 26 November 2014;
c)An Affidavit by the mother, sworn or affirmed 30 October 2014 and filed 31 October 2014;
d)An Affidavit of the mother, sworn or affirmed 24 November 2014 filed 25 November 2014; and
e)An Affidavit of the mother, sworn or affirmed this morning and filed today.
In the father’s case I have read and considered:
a)Response filed 25 November 2014;
b)A voluminous Affidavit sworn or affirmed 24 November 2014 and filed 25 November 2014.
Thankfully the parties and each of them have identified those portions of the Affidavits they seek to rely upon in dealing with the proceedings today. The material these parties have filed runs well over 150 pages. There is nothing particularly complex about the matter and the volume of material filed is entirely unnecessary.
The level of detail that the parties have included with respect to their past lives and arrangements is extraordinary, particularly in light of the brief period that has been available for the preparation of material. Much of the material as regards the past history related of the parties does not assist in the decision that must be made and I suspect it is included for purposes other than the Court’s elucidation.
The parties do not agree on much. They do not agree with each other as to the given point in time when they separated. The Application for Divorce suggests that the parties separated in June 2006, some five months after their marriage. That would not appear to be plausible in light of the fact that their youngest child, the child to whom this determination relates, was born in 2010. It is not impossible that separated parents might engage in coitus and have children even though separated, but that would not appear to be the evidence of either party. It seems clear that the evidence on oath of each party and as contained in the Divorce Application is false.
The mother, by her Affidavits asserts that the parties separated under the one roof in 2011, being after the birth of [Z]. The father is less clear in his assertion. He suggests that the parties, until May 2014, continued to share a bed and have sex with each other. While sexual congress is not the definition of marriage, nor should it be, the cessation of a sexual relationship is not the determinant of separation. There are other circumstances which might be considered. The father’s allegation is somewhat inconsistent with that alleged by the mother in her Affidavit and by both parties in the Application for Divorce.
What is clear is that by May 2014 the relationship had well and truly broken down to the point and to the extent that the father, some little time thereafter on 8 August 2014, had formed the belief and clearly expressed it to the mother:
I don’t want to see you anymore mainly because I can’t stand you and the sight of you makes me sick. You are a liar, a cheat and a thief, the three things I hate most in a person.
It is in this context that the parties are going to seek to navigate arrangements for their children over a significant distance, at least two hours drive between the mother’s home in [N] and the father’s home in the upper parts of the Central Coast and in which it is proposed, by at least the father, that there would be an equal shared care arrangement, and on the mother’s part something approaching, although falling slightly short of, a substantial shared care arrangement. On that basis alone the parties attending some Family Counselling services is somewhat irresistible.
Over the last little time, certainly since the parties moved to the Newcastle area in 2010, there is controversy as to care arrangements for the children. The mother asserts that she has, at all times, been the children’s “primary carer” deposing to her employment being largely home based and, when requiring her attendance at places outside of the home, her being able to do so with the assistance of day care and the flexibility brought through her own self-employment. The father puts that in issue.
The mother asserts that the father was rarely home, at least until about 2012, attending to employment and working long hours. She asserts that after he ceased full-time employment and commenced studies as a mature age student, that whilst he was at home he was rarely available, preferring to spend significant periods of time engaged in smoking marijuana, both within the home and within a shed at the home.
Each of these parents suggests that the children are, to some extent, enlisted as “co-conspirators” in the criticisms and allegations they make each of the other. Certainly, that is borne out by a letter annexed in whole or in part to the Affidavit of each of these parents whereby the father asserts in the penultimate paragraph of said letter, dated 8 August 2014:
…[W] and [X] wanted to give you more time so that you would make the right decision. Also they agreed that if [Z] is happy and settled then she should stay, I am against this but have agreed to comply with their motion during our family meeting.
[W] is an elder child of the mother from a previous relationship, although clearly he maintains a relationship with the father. It is suggested to be a close relationship. It is unclear the relationship between the mother and [W] at this point in time.
There is also another child of some relevance, being the child [C] who is the mother’s niece. That child had lived with the parties for some short time prior to separation, and has now returned to live with the father. She would appear to be somewhat aligned with him. The mother suggests that this alignment is a real cause for concern as there are now two children who, in a short space of time, have been co-opted by the father to his cause. She is concerned that the two boys, the children of these parties, will similarly be co-opted and that their relationship with the mother impacted.
What is clear from the father’s letter is that there was some form of family meeting involving at least some of the children - and at least [X] - to discuss matters relating to the mother and the preparation of said letter of which the children are clearly conscious and, one would assume and infer, aware of its contents. That in itself is concerning, the letter making threats as it does that if by a certain date the mother has not agreed to certain arrangements with respect to the children as proposed by the father to be designed to, “…protect my family from your evil ways and the dark energy that comes with it”, that certain actions would be taken by him making allegations to Centrelink, Australian Super and, importantly, [television station omitted], respectively.
Much has been stated in the material that has been considered of the mother’s engagement in a program recently aired on [television station & name of program omitted], meaningless drivel judging by the advertisements for it. I have not seen the program. Having seen the advertisements I have no desire to see it. It falls within that repugnant genre of erroneously named “reality TV” and comprising nothing more than uninteresting, egocentric and opinionated people being filmed expressing their uninformed opinions and suggested to be acting naturally and as though cameras are not present and in their faces.
Much is made of it because the father suggested it demonstrates as proof positive the mother’s “racist attitudes” and her general desire to behave in an inappropriate fashion. I have never seen the show and as indicated, have no desire to see it or any other reality TV show. It would appear to be dross.
The mother describes the program as a “documentary”. From that described by the parties it would appear to be nothing of the sort and the use of that description would be offensive to documentary makers. It is staged, contrived and uninformative.
The father suggests that the mother’s participation demonstrates the mother’s clear racist attitudes. That criticism is based on how the mother is portrayed in the program and by certain press clippings, Twitter comments and the like all annexed to his material and suggested to corroborate that allegation. The father suggests the children have seen all of this or, perhaps more correctly, have been permitted by him to see it.
The mother, for her part, criticises the father for permitting the children, including young [Z], four years of age, to watch the TV program. The mother’s criticism is as to the time that it was aired (after [Z]’s bed time) and having regard to its content and the children’s suggested reaction to it. The father suggests that one of the children called out to the father “mum is a racist”. The mother’s further criticism is that the father has done nothing whatsoever to seek to limit the children’s access to the associated social media material and nothing to disabuse the child of that view or to address it with him.
The material annexed to the father’s Affidavit is of no assistance whatsoever to the decision that I am to make. It reflects an online dialogue on various social media sites regarding the program, its contents and expression of views by anonymous people with respect to the mother, describing her as “lazy” and “a slut” and depicting her, for example, in her underwear. There is nothing at all to be gained from this material. It is puerile titillation. One wonders why it is annexed. It is simply irrelevant and erroneous to these proceedings and the children’s welfare especially in light of the proposals that each raises.
The mother might have been better advised to not participate in the program (resulting in her being absent from the children for a month if nothing else). She complains that editing occurred to make her look worse, “more racist” than she really is. But the mother is depicted using words that came from her mouth whether edited or not. Editing may have sensationalised her statements but they remain her statements.
The father certainly might have been more discreet in what he permits the children to view (perhaps he should not permit them to watch reality TV programs at all, they being devoid of any educational or even entertainment value). One wonders why he was not reading young [Z] a bedtime story.
One can well understand that the children would have a desire to watch a television program in which their mother is a participant. I do not propose to make anything of any of that material whatsoever. It is best disregarded both in the public domain and for the context of these proceedings.
When one turns to the past arrangements for the care of these children, and in particular young [Z], there are again few areas of agreement. What is clear is that the mother and father have each had an active involvement in this child’s life. I have expressed it in those terms as I feel there is little to be gained from seeking to mathematise the parents’ involvement and determine who has had more or less involvement. The mother’s evidence certainly has a greater degree of internal plausibility as to her allegation of primacy of care, particularly in the first two years of young [Z]’s life.
The father, by his evidence, makes concessions with respect to aspects of the mother’s evidence particularly, in relation to his employment. I hasten to add that I am not critical of any parent and certainly not the father in this case for engaging in employment. It is what parents do both in intact families and, one would hope, separated families. They engage in employment for their own betterment and that of their children, and they set an important standard, they are a role model for their children in demonstrating how members of a civilised society conduct themselves. They work, they contribute, they pay tax and they fit in their child-minding arrangements and caring responsibilities around it.
Whilst these parents were together, whether they were “together” genuinely, (i.e. non-separated) or whether they were separated under the one roof but still living physically together, they clearly each had an active involvement.
The father concedes at paragraph 81 of his Affidavit that in late August 2010 he commenced employment and would stay away from the home during the week to participate in that employment. However, that employment did not last that long before he became tired of that arrangement and resumed living full-time with the family. Certainly, for that period the mother’s assertion that she was primarily responsible for the care of the children Monday to Friday must be accurate. The father concedes it.
It is suggested otherwise that the parties moved between a variety of different accommodations in the Newcastle/Upper Central Coast area between 2010 and the eventual demise and cessation of common cohabitation and accommodation in May 2014. Until mid-2011 the father was clearly in full-time employment. Thus, for that period, important and formative years of these children’s lives, the primacy of care, at least chronologically, was provided by the mother.
The father asserts that in mid-2011, when made redundant from his then employment, that he “again took on the role as primary parent”, inferentially conceding that the primacy of care had to that point been provided by someone other than him, presumably the mother. The father suggests that whilst the mother had this primacy of care, that she was “not coping very well”. There is nothing to suggest how she was “not coping well”.
At one point in time the parties engaged some assistance in the care of the children through a housekeeper or nanny. They are described by both terms in the material. That was an arrangement that lasted for some months. The father is critical of the mother for terminating it. What I am to make of the engagement or termination is unclear.
These children have otherwise performed quite well. Academically, as the father has described, they are doing at an average level but they have extracurricular pursuits at which they excel, particularly soccer and dancing. There must be some support for the children in that regard. They must be taken to training, practices, performances and the like. Whilst the father suggests that following the termination of his employment in mid-2011 that he played a significant role in those arrangements clearly, whilst he was not living with the family or whilst he was working lengthy hours Monday to Friday, it is in all probability the mother who attended to the majority of those arrangements. Again, however, there is little to be gained from mathematising the parents’ degree of past involvement.
Each parent sets out in some detail that which they undertook for or with the children but each is somewhat more frugal or less generous in referring to anything that the other did.
The father suggests that by the latter part of 2013 things had broken down very substantially within the home, and importantly that the children became increasingly cognisant of that reality and increasingly involved in disputes. It is regrettable that these parents have allowed that to happen. Indeed if, as the Divorce Application would suggest, they had lived separately and apart for many years it is surprising these children have not been more deeply affected by the parents’ arrangements.
The mother was absent from the home for a period of four to six weeks whilst engaged in filming of the TV show referred to above, or engaged in the filming of the show and then, having departed early being in “hiding” as she was not contractually permitted to allow anyone to be aware that she had left the show. That is clearly a period that the father cared for the children with little or no engagement with the mother. Once that period had finished in or about April of 2014 both parties then resumed active and daily involvement in the children’s care substantially in the same home it would seem.
Following the physical separation of the parties, what has happened is highly regrettable and casts no positive light on either parent. The mother has re-partnered. That of itself is not a criticism but it has led her to move away from the Newcastle area to Sydney with her new partner. The father is highly critical that the mother has introduced one or other of the children to the new partner at different points in time at an early point. However, that is a simple reality of what happens when parents separate and re-partner. There is, on some level, no “right time” for that introduction to occur. In any event, clearly it now has.
Clearly, from the language that the children use in referring to the mother’s “new man”, identical language to that used by the father, the children have some awareness of their father’s attitude towards this new relationship.
The mother is pregnant to her new partner and is due to give birth next March. The father has referred to that circumstance in his material, in somewhat pejorative terms, but more curiously he predicted it Jules Verne or H G Wells like in his letter referred to above, suggesting that this would occur as a “deliberate action” by the mother to “trap her new man”. Whether that is so or not need not be determined. It is a simple reality that there is a pregnancy.
The mother suggests that following the recent and dramatic deterioration of the relationship between she and the father and the physical separation that there have been significant problems with the children’s arrangements. They are connected, she opines in her evidence, to the violence to which she was subjected in the latter part of the relationship. That is violence which the father denies in its totality.
No finding can be made with respect to the allegations of violence today but it must be taken into account as a possibility as alleged. The mother gives detailed evidence with respect to that which she alleges. That is not to suggest that the mother’s allegations can be rejected absent specific detail or corroboration, particularly at interim hearing, (see for example the Family Violence Best Practice Principles Edition 3.1 – April 2013 and the cases discussed therein, particularly Amador & Amador (2009) 43 Fam LR 268). Nor does the provision of detail when the allegations are denied and untested allow me to accept them. They must be “weighed” and considered on the alternate hypothesis.
The allegations are raised and thus the possibility that the children have been exposed to family violence in the past, either directly through its observation or perception, or through the detritus of events, (seeing their mother distressed and certainly on at least one occasion seeing the Police attend, although from that described on that occasion the involvement of the Police might best be described as a waste of Police resources reflecting the attempts by each party to engage the Police in assisting to resolve a parenting dispute rather than address criminal behaviour). The mother has attended upon Police on one occasion suggesting assaults and injuries occasioned thereby. That is not intended to be included with a description of a waste of Police time. The investigation of assaults and domestic violence is entirely appropriate and a good use of those resources. Resolving disputes as to whom children should be with is generally not.
The parties have each engaged in some regrettable behaviour in the latter part of this year. Since August things have deteriorated badly between the parties as anticipated by the father’s letter. As a consequence there has been grabbing of children, one from the other, and for about five to six weeks now the retention of all of the children by the father with the mother having no real interaction with them.
It is suggested that the father is wholly supportive and encouraging of the relationship between the children and each of them and their mother, however, it would appear that these proceedings were initiated as a consequence of the children’s retention or withholding. Since the proceedings were commenced that situation has not resolved. The children have been kept from the mother. That is concerning when one has regards to the children’s rights to which I will turn shortly as part of the legislative pathway.
Each parent raises criticisms of the other but, as was observed to them when the matter was first called much earlier today, neither seeks Orders that could be described as responsive to or protective of the children in relation to those concerns.
To the extent that the mother alleges the father has engaged in family violence of a coercive controlling nature and has a chronic difficulty with use of marijuana and alcohol, she proposes that he have periods of up to four weeks during the Christmas holidays, one to two weeks in the shorter holidays and alternate weekend time. Presumably, the behaviours complained of will not occur in those times.
The father for his part, whilst he suggests a catalogue of criticisms, which in his eyes, make the mother a reprehensible person and a risk to the children’s emotional wellbeing if nothing else, proposes that the children spend significant time with her, half of school holidays and alternate weekend time in relation to the two boys (who will, by consent, continue to live primarily with their father during school terms) and in relation to young [Z], four years old, his proposal is for a week about care arrangement. Presumably, the mother will not expose the children to her suggested racist attitudes and will bite her tongue during these periods.
One is left with the impression that the arrangement proposed for [Z] by the father is perhaps intended to ensure best advantage to him. I do not go so far as to infer that it might suggest that he is conscious of some deficiency in his case and thus seeks to obtain maximum advantage for himself, but the proposal would appear to be less focused upon the child’s needs and interests, developmentally and otherwise, than other considerations.
The proposal which each parent puts does not address, in any fashion, the behaviour they complain of by the other parent and one wonders why the complaint was thus raised. Presumably, the Court is just to be informed of these matters.
I do not propose to canvass the evidence in further detail at this time. There is nothing to be served at 6:20pm in enumerating each and every allegation these parties make. There are many of them. Suffice to say that all of the evidence to which I have been referred in the various Affidavits filed by the parties has been read and considered and will be used to inform the decision in this case.
What will not be used to inform the decision in this case is the mother’s involvement in a television program. That involvement, indeed, the program, would appear entirely irrelevant. Perhaps the only relevance of the program is that suggested of our society by the fact that such a program is made or considered relevant in 2014. To the extent that it might be suggested that the label “racist” be attached to the mother and that she be judged by that, which might be perceived by the mother as invoking a response or “getting a rise” from this Court, I make clear that it will not. The case will be determined on the totality of the evidence and by application of the legislation.
A parent’s attitudes to life and the role model they represent for their children are relevant. In the words of African American choreographer Alvin Ailey “One of the worst things about racism is what it does to young people”.
Parents parent young people (to use both the noun and adjective form of the word). Parents instill within children their attitudes and beliefs. Thus, role modelling is relevant. However, they are matters that can be properly explored, placed in a context and weighed with all other considerations at final hearing.
Legislative Pathway
In turning to the legislative pathway, I must commence with section 60CA of the Act, a factor which I am concerned the parties may not have fully addressed or turned their attention to, being the direction to the Court to regard the best interests of the child as the paramount consideration.
I am called upon in these proceedings today to deal with and determine only issues relating to the best interests of [Z]. The arrangements for the boys are agreed. The arrangements for the boys remain relevant in that the relationship between the three children is important.
I must then turn to the objects and principles in section 60B and I incorporate them herein.
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).
I must ensure, as best as can be done, that the children’s best interests are met by ensuring that the children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and that they are protected from physical or psychological harm through exposure to abuse, neglect or family violence.
To the extent that it might be suggested by the parties (and in reality each of them, although neither has filed a Form 4), that the children might be exposed to physical or psychological harm, I must have regard to that in the context of the Applications they prosecute. Each proposes that the other parent will have significant involvement in the care of the children and neither proposes that there is any need for any protective Order to be made by this Court through supervision, injunction or otherwise. In those circumstances, I am satisfied that I need not be overly concerned as to the protection of these children as the parents do not in reality, propose any arrangement that would make that consideration valid.
To ensure that the children have and, in this case, [Z] in particular, the benefit of a meaningful involvement with both parents, I have proposals from each parent that will allow and permit that to be so.
The father proposes equal time or, in the alternative, that a primacy of care be with him and that [Z] spend alternate weekends with the mother.
The mother proposes alternate weekends with the father, although when I have raised it with her Counsel during submissions, the mother is not averse to the concept of more expansive time, including time each week. The mother particularly supports any arrangement that will allow these children to maximise their time and relationship with each other.
The Court must ensure that the children receive adequate and proper parenting. Notwithstanding the criticisms each parent raises, their proposals and, to a large extent, their evidence as to past arrangements, suggests that these children’s needs – physically, practically and emotionally – have been met perfectly well by both of them.
I can understand that parents recently separated, the mother re-partnered and pregnant in that relationship, might, whether equally or not, have certain tensions and frustrations that predispose them “demonising” the other. Separation and the ending of a relationship is, in the vernacular, a “big deal”, an “emotional train wreck”. One would expect that parents would react to it poorly and that parents would react to it emotively. But to suggest, as the mother does, based upon the father’s evidence that he is stressed and could no longer continue with his studies and thus, discontinued them for the time being, that the father somehow lacks “parenting capacity” is not helpful. It also begs the question of why she is then consenting to the two older boys living with him full time. It is illogical and incongruous.
If the father is stressed as a consequence of the changes in circumstances which have landed in his lap it is, perhaps to be expected. Stress and incapacity do not necessarily equate. The father finds himself with:
a)The mother departed and living with another person, (and she is not criticised for that, it is simply acknowledging the perception and reaction of the father);
b)The arrangements for the children being somewhat in turmoil, whether through the actions of the parties jointly or severally or through the simple action of physical separation; and
c)The children no doubt upset by those circumstances and arrangements let alone their reaction to arrangements prior to separation when their parents were separated under the one roof, bickering and the mother engaged in a new relationship and introducing the children to that partner. It would have been very confusing for these children.
That the father or, for that matter, both parents are not at their best at this point is entirely explicable. However, explicable and appropriate are not the same thing.
The father may be upset but to engage in “family meetings” whereby the drafting of a letter suggesting to create mischief in the mother’s life through allegations, true, false or otherwise, of serious misdoing and with the stated intent of causing the mother maximum embarrassment by having such matters publicised through national media, is entirely inappropriate on any level. Henceforth, hopefully the father will realise that.
Similarly, a number of the actions that the mother has engaged in and a number of the comments that she has made to and about the father might be viewed in the same light. There is nothing to be gained from mathematising who has made the worse or more inappropriate comments and complaints, other than to observe that it is a real and a significant issue, as will be addressed in the additional considerations.
The principles underlying the objects create rights for these children. There are difficulties with the rights of children including:
a)Firstly, those who are seized with meeting and thus responsible for ensuring the rights of children are their parents, the disputants in the context of this case before the Court. Parents are not always ideally placed to do so and with the real potential, as I am satisfied has in all probability occurred in this case, to conflate their needs and interests with those of their children;
b)Secondly, rights are applied only through application of the Family Law Act 1975 to children of separated parents. If one is to genuinely engage in a rights dialogue, one would hope that the International Convention on the Rights of the Child might have some enforceable application to children of intact families, yet such intrusion within the family would not be countenanced. Accordingly, the rights are not uniformly applied as rights and should be if they have meaning;
c)Rights have corresponding duties yet children are not ascribed “duties” only rights. Generally duties are considered to be “in exchange”[1] for rights. As is noted in Black’s law dictionary, “So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties” [emphasis added].
[1] See for example State v A.M.R., 147 Wash 2d 91, 94, 51 P3d 790, 791 [2002]
In any event, the legislation dictates that these children have certain rights created by the International Convention on the Rights of the Child and incorporated in the principles set out in section 60B(2) of the Act.
Importantly, children have a right to know and be cared for by both of their parents, regardless of whether they are separated or not. That these children have spent no time with their mother for six weeks when there is a proposal that they would spend substantial and significant time with their mother, is concerning. It is one thing, as it were, to “talk the talk” but one needs to “walk the walk”. Unless there is a confluence of action and will, then each is hollow. If one forms intent but does not act, it is hollow talking. If one acts but without any intent to support it –as also discussed by the plurality of the Full Court in Stevenson & Hughes (1993) FLC 92-363 – then it is meaningless, hollow and mischievous. In this case it is concerning and demonstrates a focus on parental position and interests rather than the rights of these children.
There are concerns raised with respect to both parents in that regard but, certainly, the seizure and retention of the children, and in particular [Z], for no better reason than concern that she might not be returned when there would appear to have clearly and previously been an agreement to an arrangement for something in the nature of shared care seems needless. It is certainly a clear disregard of the child’s right to a relationship with both parents. It is upsetting and concerning for these children to see their parents falling apart before their eyes and their relationship disintegrate without that being compounded for them by being held back from one parent or the other.
Children have a right to spend time on a regular basis with both of their parents and with other people significant to their care, welfare and development. One simple reality, although he is not on oath in these proceedings, is that the mother has re-partnered and her partner will, accordingly, become a person of significance in the mother’s life and household and will be the father of the mother’s soon to be born child, a sibling for these three children. No one is more significant for these children than their parents, however.
The Family Law Act 1975 provides that children have the right to have their parents share duties and responsibilities and agree about future parenting of their children. That is achievable in the future.
The Court must also consider the children’s right to culture. The only reference to anything “cultural” is the pejorative material attached to the father’s material comprising the social media pages regarding the mother’s involvement in the [omitted] program and her derisive attitudes to Aboriginal and Torres Strait Islander culture.
The father is Maori. That is only gleaned from the above material. The father does not lead evidence about it. There is no suggestion that these children cannot maintain connection with their various cultures as the parents have expressed as their own. There is no evidence that the children have engaged in any specific cultural practice in the past, whether Anglo-Saxon, Maori or otherwise. One would hope that they would as they are cultures which would bring great benefit to them as regards self-meaning, self-esteem and ultimately, a development of a broader view of the world.
The Court must then turn to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies. The parents each consent to an Order for equal shared parental responsibility. That does not, however, obviate against the Court’s consideration of the issue.
I am satisfied that I need not cavil with the consent of the parties and that which they propose, that they continue with equal shared parental responsibility. I have some reservations, particularly the expressions contained in the letter of 8 August 2014. To suggest that the other parent makes one “sick” and that there is to be no communication and that is desired would suggest that the effective operation of equal shared parental responsibility would, absent change in those attitudes, become problematic if not impossible.
Section 65DAC of the Act requires that if an Order for equal shared parental responsibility is in force that parents must consult with each other and make a “genuine effort” to arrive at consensual decisions. How that can occur between parents who describe that they “can’t stand each other” or that “the sight of [the other person] makes them sick” is difficult to comprehend.
Family Counselling assistance for these parents in the early days of adjusting to their present circumstance might be of some assistance. Ultimately, if it is not, communication and attitude will be judged at final hearing as it is an important factor, indeed potentially far more significant than the time these children will spend with either parent.
I have recently had cause to comment in a published Judgment as to the dangers to children represented by their parents rather than strangers. Those comments are applicable here. If the attitudes that are presently demonstrated by the parents towards each other and expressed towards each other and to the children as regards each other continue they can expect that they will significantly harm their children – perhaps not to the extent where the Department of Family and Community Services will become involved. The children will not be at immediate risk of harm as defined in the Children & Young Persons (Care & Protection) Act 1998 NSW but those behaviours will most assuredly harm their children. Harm would be caused to these children through enlisting as co-conspirators either these children or [W] the mother’s elder child. To interfere in relationships that are important to these children is to interfere with their welfare.
With those reservations I am satisfied that the parties should not, either of them, face the difficulty of being cut out of decision making for these children and that it should be “given a go”. I am not satisfied that the presumption is rebutted. Accordingly, I will make the Order they each accede to being equal shared parental responsibility.
That being so, I am obliged to consider equal and substantial and significant time by reference to section 65DAA of the Act. I must consider those arrangements before any other time arrangement. I propose to consider all time arrangements at large, as the Full Court has expressly approved in Goode & Goode (2006) FLC 93-286 and Marvel [2010] FamCAFC 101 through a consideration of section 60CC of the Act and incorporating therein section 65DAA(5) of the Act.
I must commence with the primary considerations being:
a)The benefit to the child of having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm through exposure to abuse, neglect or family violence.
I can largely leave aside the need to protect the children, not because it is unimportant but because the proposals of both parties would suggest that they do not perceive a need and thus, I am satisfied I need not pursue it further.
I am then left with the benefit to these children and, in particular, [Z], the subject of this determination, of having a meaningful relationship with both parents. I again make clear, for the benefit of these parents, that the single greatest determinant of whether these children can or will have a meaningful relationship with their parents and each of them is not the time they spend with them. It is what they do with that time. It is how they feel about each other; it is how they express that in speaking about each other and how they treat each other. It also is connected with how available they are – practically, physically and emotionally – to be engaged with the children whilst in their care.
If there is any truth to the mother’s allegation with respect to the father’s chronic and long running use of marijuana (and the father denies it and suggests that it has been, at best, infrequent and historic, although that will be tested through Orders for testing made today), then it is difficult to understand how he would be able to meet the children’s needs, emotionally in particular, whilst they are with him. It is also, for children the ages of these boys, 13 and 8, an incredibly poor role model to set for them.
The mother describes that the children and the eldest in particular are clearly aware of the father’s marijuana habit (which habit the father denies). Should it ultimately be found to be so or has been so in the past then it is a poor role model for these children who will have enough difficulties in life in their teenage years purely as a consequence of puberty, peer pressure, the role of social media in causing them to be under scrutiny 24 hours a day and the like, without the need of distraction through illegal drugs which would, firstly and at worst, bring them into contact with the criminal justice system and those who are engaged in the illegal drug trade, unsavoury characters by and large, and, secondly, expose them to a potential range of disadvantages, not the least of which are a record, which might impact upon their future employment or travel, such as being barred from entering the United States, which for one of these children, suggested to be a gifted performer and thus the USA a necessary “Mecca” for him, through to and including impact upon their mental health and general health.
The father replies by saying that when he has used marijuana, infrequently and in the past, that it has been bought for him by the mother through people that she knows and when she has been buying what might be described as “harder” drugs, cocaine and the like, for her own consumption. The father describes, albeit as something of a throwaway line in one paragraph of his 202 paragraph Affidavit that the mother is prone to use of cocaine on special occasions and for parties. Whether that is so or not can be determined at a later time.
The parties’ attitudes towards those allegations are best reflected by their proposals, which are in no way protective against those suggested concerns.
The benefit to these children of having a meaningful relationship, and focussing specifically upon [Z], is that she will be able to develop as a person with the input of both of her parents from diverse backgrounds and with different things to offer her.
I have no doubt whatsoever that these parents have different parenting styles, they describe it as such. I have no doubt whatsoever that these parents have different positives and negatives to their personalities and character. They have, perhaps, been complimentary of each other to a large extent while they have been together and the task for these parents is to negotiate how to maintain their parenting as complimentary or, at least, not conflictual now that they are separated.
The benefit to [Z] of a relationship with both parents is manifest. It will assist young [Z] in developing a sense of self. It will enable her to grow and develop as a person, as the objects require, and it will enable her to maintain relationships with an array of people of importance and benefit to her.
The proposal by each party, on its face, is equally valid as a means of enabling [Z] to receive benefit from each parent and having time to practice that relationship. What perhaps impacts that ability the most is the emotional ability of the parents and child to maintain a relationship and to transition between two different households freely and without opposition or conflict.
To that end one factor is, again, the letter of 8 August 2014. Whilst that letter is now some months of age and it is suggested that the father has resiled from those thoughts and actions, it demonstrates an extreme attitude by him towards the mother. It was written at a time very close to physical separation, very close to his finding out about the mother’s new relationship and at a time when he was, no doubt, deeply hurt, angry and frustrated. But engaging the children in that anger and frustration is the concern rather than the fact he got himself into that state. It lends some support to the mother’s position but is far from dispositive.
In turning to the additional considerations, which both inform the primary considerations and speak to the child’s best interests and which may, whether individually or cumulatively, outweigh the primary considerations, I must consider each individually.
Views
There is no evidence as to [Z]’s views.
[Z] is suggested in the father’s case to demonstrate upset and disquiet at changeovers, a reluctance to leave him and clinging to him when she returns. That may be suggestive of some upset on her part in leaving the father and some joy in returning. It could also be a reaction to conflict, a reaction to change and upset. It could, in fact, be perfectly normal and appropriate behaviour by a child with a secure attachment to each parent when moving between them. I do not read anything into those behaviours as suggestive of views or a preference by the child.
Nature of the relationship of the child with each parent and each other person important to the child, including grandparents and other relatives
One obvious attraction of the father’s position, whether his primary position or that put in the alternative, is that it will maximise [Z]’s time with her brothers. They are siblings and their relationships are important. There is nothing in the evidence to suggest that they have other than a good relationship.
The mother’s proposal also allows a substantial interaction between those children in different contexts, albeit not for the same quantity of time. There is for this child, four years of age, the issue of what she is used to and her bonding and attachment, (although the latter cannot be accurately assessed).
There is no issue on the evidence that the mother has had the primacy of care and care of responsibilities for this child, leaving aside any criticism as to the extent or quality of the child’s needs being met. One might speculate that this would suggest a primary attachment with the mother but there is no evidence which would support a finding. The best that can be drawn is an inference suggestive of a preference as between the parents of who, in all probability, would likely have such an attachment. [Z] is clearly comfortable with both parents. Both parents are clearly comfortable with the security of her relationship with them and with the other or they would not otherwise propose a week about arrangement during school holidays.
There is a particular temptation to observe that if a week about arrangement can happen during school holidays, that it would presumably also meet the child’s needs in each and every week of the school term. I am not satisfied that this simple extrapolation can be made. I am satisfied that the comfort of the parents with a week about arrangement in the holidays supports the proposition that whatever arrangement is in place, this little girl needs to see each of her parents each week, she needs to see her brothers each week and she needs to be in a care arrangement that is stable, settled and allows and permits this little girl to be absent of conflict. Each proposal will, to varying degrees, allow that and neither is obviously preferred.
The extent to which each parent has taken or failed to take the opportunity to participate in decision making, spend time or communicate with the child
Neither parent is critical of the other for failing to participate. Prior to the June 2012 amendments this subdivision was contained in section 60CC(4) of the Act which also directed the Court to consider the extent to which each parent had interfered in the other’s capacity to participate. That, clearly, is a criticism raised of the father by the mother and with some validity.
Also prior to the June 2012 amendments the Court was required to consider by the then section 60CC(3)(c) of the Act the extent to which each parent had actively supported, encouraged and facilitated the other’s relationship with the child. To that end, the mother is, albeit slightly, ahead, if only by a run or two.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
Each raises a number of broad criticisms but there is no specific evidence and, in any event, it would be so far from dispositive or determinative that I am not satisfied it need be considered further.
Likely effect of change, including separation from either parent or other child
The mother’s evidence asserts that the parties had agreed to certain arrangements. The parties’ actions would suggest that has some basis in reality, at least in August/September, 2014. Her evidence has some force and can be accepted. Certainly, the penultimate paragraph of the father’s letter, 8 August 2014, suggests that not only he but the boys agree that [Z] is “happy and settled [in the mother’s care] and should stay there”, (although if that circumstance changed that she should come back). What is clear in that regard is that the boys were fully aware when the father wrote that letter and the family meeting that led to it that [Z] was living primarily with her mother and that agreed with or that at least acquiesced.
The extent of change in this young girl’s life has been significant over the last few months. She has been with her mother, she has been in a shared care arrangement, she has had many comings and goings until, ultimately, some five weeks ago, she was simply retained in the father’s care and has since had little to do with the mother and no face-to-face or physical contact with her.
I am satisfied that there would be a positive effect for this child of moving to an arrangement that is clear, settled, predictable, reliable and allows her to have a settled home base for some little time until the matter can reach a final hearing. That arrangement would best be supported by the mother’s proposal. That would not cause significant separation between this little girl and her brothers and father. Her brothers are at school Monday to Friday and the father will have his hands full dealing with their needs, particularly if they are as upset and unsettled by the separation of their parents, which has now physically occurred, as is suggested.
Practical difficulty and expense
I incorporate section 65DAA(5).
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.
The parents now live some distance apart being two hours or so by car. They have agreed on a midway meeting point and one would hope that it will not be particularly hot or wet on any of their meeting days, as they intend to meet in a car park at the side of a freeway. However, it is a pragmatic arrangement to address the distance between their respective homes. It will mean that the children, whenever they are travelling to spend time with one parent or the other, will have two disadvantages:
a)Firstly, they will have significant travel, which the elder children will probably cope with quite well, in all probability sitting in the back of the car with ear buds listening to music or playing games as opposed to past days when they would spend the time communicating with a parent;
b)Secondly, it means for the boys, (although I need not make a determination in relation to their care arrangements, as they are agreed), that their ongoing commitments to performing and soccer will be impacted, or at least potentially so, and one would hope some flexibility can be found between the parents.
For [Z], those difficulties are confined to the travel that will be involved. She will need to undertake that travel and it should be minimised as much as possible. I am satisfied that she needs to spend time with each parent on a weekly basis. The travel is not that onerous as to obviate against it.
The parents’ current and future capacity to implement an arrangement for equal, substantial or any other time arrangement is demonstrated as they have done all three. They have implemented equal time, substantial shared time and no time. There is no reason why they could not implement any arrangement should they wish to.
The parents’ current and future capacity to communicate and resolve difficulties is problematic. One would hope it will improve over time and particularly with Family Counselling input. It needs to improve from the stated position of the father feeling nauseous at the thought of having to deal with the mother. That will bode poorly for these children and will guarantee them significant disadvantage. That disadvantage will be brought about by their parents in a wealthy and privileged class of society, in a first world country, and through their own lack of insight and actions.
If these parents feel that they are not wealthy and privileged they need to consider themselves within the context of the entire world population. With their incomes and earning capacity they are in the top 10 per cent of wealthy people in this world. They and their children do not face the disadvantage of the very Aboriginal communities the mother has recently visited, disadvantaged purely as a consequence of their birth into a race which experiences such extreme disadvantage and generational disadvantage.
These children will have a roof over their heads. The mother describes that her new partner has recently purchased a home at [N] – not a cheap place to buy a home. The father is accommodated and the parties have previously enjoyed a relatively high standard of living, albeit within a comfortable middle class range. But these children are accommodated, have clothes on their back, food on their table, and are not fearful of being abducted, press-ganged into conflict or in any way having their lives ruined through the actions of anyone, save their parents.
These parents, instead of focusing upon and obsessing about their relatively minor criticisms of the other, might reflect upon those privileges and benefits that they have, that so many people in the world and within Australian society do not have. If they do, it may aid them in seeking to improve their communication, wishing to avoid the disadvantage which is unavoidable for so many but which they will inflict on their children if they keep going as they are.
The impact of the arrangement I am satisfied is already addressed.
Capacity of each parent to meet the child’s needs, including emotional and intellectual needs
The engagement of these children in family meetings to discuss the writing of threatening letters to their mother is inappropriate – full stop.
The engagement of these children in adult disputes, conflict or knowledge of aspects of their parents’ lives which are not age appropriate for them is, again, inappropriate – full stop.
These children do not need to be engaged in discussions about their parents’ sex lives, their parents’ past or their parents’ failings and shortcomings. They will recognise them for themselves in years to come if they in fact exist.
These children require emotional support at this time. If this is a difficult time for these parents, having recently separated from each other, they need to perhaps reflect on how difficult it is for their children. The children had no choice or say in this. It has simply occurred. They doubt that they would have desired to have been born into a household where, since either 2006 or 2011, their parents have lived together under the one roof in a loveless relationship and have fought and bickered and, on the mother’s evidence, been exposed to family violence and the father’s drug and alcohol use and, on the father’s case, exposed to similarly injurious albeit different behaviours.
Each parent has the capacity to meet these children’s needs, practically, physically and emotionally. They just need to dig within themselves, put to the fore that which is relevant and important and address it.
The maturity, sex, lifestyle and background of the child
[Z] is four years of age. She needs parents who are capable not only individually but collectively.
These parents need to work together. They need to have a parental alliance, a capacity to support each other.
Notwithstanding their views of the other as a partner they need to recognise that each is important to [Z] as a parent.
These parents need to parent. They need to meet this little girl’s needs and ensure that her needs are to the fore, not crushed or suppressed as a consequence of the parent’s inability to recognise her needs or to prioritise them over their own. They should not conflate their own needs with hers. They should ensure that she is permitted the childhood she deserves and that these parents brought her into the world to enjoy a childhood with as much happiness as possible, surrounded by as many people and things that are beneficial and as few people and things, if any, that are not.
Aboriginality
Neither parent identifies as Aboriginal or Torres Strait Islander.
The attitude to the child and the responsibilities of parenthood demonstrated by each parent
Each parent is highly critical of the other and yet, ironically, each proposes arrangements that will see a shared care arrangement within its broader definition. The criticisms are irrelevant to that which each proposes. What is relevant is that to make it work they will need to find a way of addressing, within their own heart, mind and soul, those criticisms, placing them in a perspective and a context which does not permit them to impact upon the child’s needs and which does not impact upon their functioning or capacity to meet the child’s needs either. Each parent, from the objective evidence, has demonstrated an adequate albeit flawed attitude.
Family violence
I do not, for one moment, dismiss the allegations raised by the mother of family violence. However, they are denied and thus a finding cannot be made absent concession or irresistible overwhelming proof or corroboration.
The allegations are important and they must be addressed. The legislation says so. Section 67ZBA of the Act requires that the Court take prompt action. Section 67ZBB of the Act prescribes a number of steps the Court must take upon the filing of a Notice of Abuse or risk of family violence, including expedition of the proceedings, obtaining appropriate evidence, making Orders for the children’s protection and the like.
I must proceed with those allegations at this time on the basis of “what if they are true and what if they are not?” If they are true I am satisfied that the proposals of either parent, particularly with the support of Family Counselling services, would enable the children to be transitioned between their parents and parented by each parent without an unacceptable risk within the Johnson & Page [2007] FamCA 1235 discussion of same. If the allegations are ultimately found to be so it will have profound impact not the least of which will be that the presumption of equal shared parental responsibility will not apply and it is then likely that there will need to be some significant consideration given to the role that either parent is to play in decision-making, and thus the role that either parent is to play in the children’s lives.
On balance I am satisfied that the mother’s proposals will give the best protection.
Family violence orders
There are none.
Whether it is preferable to make the order that will least likely lead to institution of future proceedings
I am satisfied that I must make case management Orders today appointing an Independent Children’s Lawyer and commissioning a Family Report. That will best move this matter towards a conclusion and avoid delay, as much as can be avoided in the present resource environment. That will also minimise further interim Applications and, one would hope, Applications for enforcement.
One would hope each of the parents will do everything required of them to ensure that the Orders that are made, including those made by consent, are not only complied with on their face, but complied with as to their spirit. I would commend to the parties for their consideration the discussion of the plurality of the Full Court in Stevenson & Hughes, detailing the obligations created by parenting Orders, being to do all within their power to support and encourage the children’s relationship with the other parent and to address difficulties when they arise.
I am satisfied that future proceedings can best be avoided by making clear, stable and certain arrangements for young [Z] and being arrangements that will allow her a home base and also a substantial and significant time arrangement with the other parent.
I am not satisfied that an equal time arrangement would be beneficial or as beneficial to [Z] at this time. That is based, in very small part, upon her age and some concern for her capacity to transition so frequently on a weekly and week about basis between households that are so different. It is a different matter for her during school holidays. They are special times when both of her brothers will be home from school and the operation of that regime is of limited duration.
I am not satisfied that between now and the final conclusion of this matter, realistically not until the early part of 2016, that a week about arrangement would, could or should be endured by this little girl. I am satisfied substantial and significant time arrangements are appropriate. She is used to them and she should, having only recently moved from the experience of her parents living in the same home, be able to live with both of her parents for substantial periods of time, and importantly, with her brothers.
On balance, I am satisfied that the child’s overall best interests favour acceptance of the mother’s proposal, with modification, such that time will occur each week and time will occur for the period proposed by the mother each alternate weekend, Thursday to Monday and in the other week from Thursday to Friday. Accordingly, I make Orders as follows (see Orders).
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 4 September 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Consent
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Remedies
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Jurisdiction
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Procedural Fairness
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Standing
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Costs
0
2
5