D and C
[2007] FMCAfam 392
•26 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & C | [2007] FMCAfam 392 |
| FAMILY LAW – Parenting – equal time or substantial and significant time – mother’s subjective concerns – family report. |
| Family Law Act 1975, ss.60CC, 65DAA |
| Applicant: | D |
| Respondent: | C |
| File Number: | SYM7529 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 11 May 2007 |
| Date of Last Submission: | 11 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Rees |
| Solicitors for the Applicant: | Abrams & Associates |
| Counsel for the Respondent: | Mr Macpherson |
| Solicitors for the Respondent: | Harris Friedman Hyde Page |
ORDERS
The parents have equal shared parental responsibility for the Child A born 8 June 2002 (“the Child”).
The Mother be responsible for the Child’s day to day care, welfare and development while the Child lives with her.
The Father be responsible for the Child’s day to day care, welfare and development while the Child lives with him.
The interim Orders made 16 October 2006 by Judicial Registrar Johnson remain in force until Monday 3 September 2007.
From 3 September 2007 until 4 September 2008, the Child live with her father on a fortnightly cycle as follows:
(a)In the first week of the fortnightly cycle from 4.00pm on Friday to 9.00am on Monday; and
(b)In the second week of the fortnightly cycle from Wednesday afternoon to before preschool on Friday and from 6.00pm on Sunday night to 9.00am Monday morning.
(c)On Wednesdays when the Child is to live with the Father, the Father will pick the Child up from pre-school, or from the Mother’s house after work, with 24 hours notice to be given to the Mother as to the site of the pickup.
On the Child commencing formal schooling, Order 5 above will be suspended during school holidays with the Child to live with the Father during one half of the gazetted school holiday periods, such half to be as agreed between the parties, but failing agreement, for the first half during even numbered years, and the second half during odd numbered years.
The Child is to live with her Mother at all other times.
From 4 September 2008, Caitlin is to live with her Father as follows:
(a)During school term time on a fortnightly cycle:
(i)In the first week of the fortnightly cycle from 5.15pm on Wednesday to 5.15pm on Friday, and 6.00pm on Sunday to the beginning of school on Monday; and,
(ii)In the second week of the fortnightly cycle, from 5.15pm on Thursday to the beginning of school on Monday.
(iii)During school holiday periods Order 8(a)(i) and (ii) to be suspended during such time with the Child to live with the Father one half of each school holiday period, such half to be as agreed between the parties, but failing agreement, for the first half during even numbered years, and the second half during odd numbered years.
(b)The Child is to live with the Mother at all other times.
Notwithstanding the above Orders, commencing 25 December 2007, the Child is to spend holidays and special occasions with her parents as follows:
(a)From 10am Christmas Day to 10.00am Boxing Day with her Mother commencing in 2007, and every odd numbered year thereafter.
(b)From 10.00am Christmas Eve to 10.00am Christmas morning with her Mother, commencing in 2008, and every even numbered year thereafter.
(c)From 10.00am Christmas Day to 10.00am Boxing Day with her Father commencing in 2008, and every even numbered year thereafter.
(d)From 10.00am Christmas Eve to 10.00am Christmas morning with her Father, commencing in 2007, and every odd numbered year thereafter.
(e)From 10.00am on New Years Eve to 10.00am on New Years Day with her Father, commencing in 2007, and every odd numbered year thereafter.
(f)From 10.00am on New Years Even to 10.00am on New Years Day with her Mother, commencing in 2008, and every even numbered year thereafter.
(g)Where Father’s day falls on a weekend where the Child is not living with her Father, the Mother shall cause the child to be delivered to the Father at 6.00pm on the Saturday preceding Father’s Day and the Father will return the Child to the Mother at 9.00 am on the following Monday.
(h)Where Mother’s Day falls on a weekend where the Child is not living with the Mother, the Father shall cause the Child to be delivered to the Mother at 6.00pm on the Saturday preceding Father’s day and the Mother will return the Child to the Father at 6.00pm on Mother’s Day.
(i)If the Child’s or the Father’s birthday falls on a day when the Child is living with the Mother, then the Father will spend time with the Child for a period of up to four (4) hours on that day, such hours to be agreed between the parents, but failing agreement to be from 2.00pm if a non-school day, and from after school to 6.00pm on a school day.
(j)If the Child’s or the Mother’s birthday falls on a day when the Child is living with the Father, then the Mother will spend time with the Child for a period of up to four (4) hours on that day, such hours to be agreed between the parents, but failing agreement to be from 2.00pm if a non-school day, and from after school to 6.00pm on a school day.
That the parents are to collect the Child and return the Child to preschool, school or after-school care at the commencement and conclusion of the time the Child is to live with them.
That when the Child is not attending preschool, school or after-school care, changeover shall be facilitated by the Mother delivering the Child to the Father at the conclusion of the Mother’s time with the Child, and the Father delivering the Child to the Mother at the conclusion of his time with the Child.
That each party will, whilst the Child is in their care:
(a)Facilitate telephone communication between the Child and the other parent, on an unlimited basis at the Child’s instigation or, if instigated by the non-residential parent, no more than once per day; and
(b)Notify the other parent as soon as practicable of any serious illness or injury suffered by the Child while in their care; and
(c)Notify the other parent of their home, mobile and work telephone numbers, with notification of any change therein to be given to the other parent within 48 hours; and
(d)That both parties be notified as to the name, address and telephone number of the Child’s treating doctor, and all necessary authorities be given to that doctor to authorise the release to both parents of particulars of the Child’s health or treatment upon request by the parent.
That the parties authorise the Principal or Co-ordinator of any school or preschool which the Child shall attend to provide each of the parents with any reports, photographs, notices of parent/teacher meetings, assemblies, sports carnivals and any other school activities to which parents are invited and any other correspondence or notification otherwise relevant to the Child, with the parties to share equally in any costs associated with the costs of making duplicate copies of the above.
That each parent will notify the other of any school or preschool or school-related extra-curricular event in which the Child is to be involved as soon as reasonably practicable.
That both parents are entitled to attend any preschool or school activity to which parents are invited.
That both parents are entitled to participate in any parent volunteer activities at the Child’s preschool or school.
That in the event either parent wishes to travel interstate with the Child, the travelling parent will provide to the other parent the following details regarding the travel, no later than two weeks prior to departure:
(a)The destination; and
(b)The dates and times of departure and return; and
(c)The mode of transport, including, where relevant, flight numbers; and
(d)A contact telephone number and address for the Child for the duration of the travel.
That in the event either parent wishes to travel overseas with the Child, the travelling parent will give six months notice to the other parent of the proposed trip (including approximate dates and destinations), with a final itinerary to be provided no later than two months prior to the proposed departure date. In this case, notwithstanding orders (6) and (8) above, the parent proposing to travel may nominate that during the mid-year school holiday period when it may be intended to travel, that parent will be entitled to spend the whole of the two week school holiday period with the Child, provided that the other parent will have the whole of the two week school holiday period during the next mid year school holidays.
That within seven days of receipt of a request from the other parent, the parents will do all acts and things necessary to renew or replace the Child’s passport in the event that it expires or is lost.
Both parties are hereby restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Child’s hearing; and
(b)Speaking or permitting any other to speak to or about the other parent’s cultural and/or ethnic background in a negative, offensive or unpleasant fashion in the Child’s hearing.
(c)Using physical discipline in relation to the Child.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM7529 of 2006
| D |
Applicant
And
| C |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This matter relates to A, who was born on 8 June 2002 and who is now five years old. A’s parents have been unable to reach agreement about the time that she will spend with each of them.
Mr Macpherson, who was the mother's counsel, fairly summarised the nature of these proceedings as at the point at which they commenced in the following terms. There are, in effect, four possible outcomes in this case: ‑
a)The father seeks orders that, in effect, provide for A to spend equal time as between each of her parents.
b)The mother seeks orders that, in effect, provide for A to spend three days with her father, and 11 with her mother, in each 14‑day period.
c)The current interim orders made on 16 October 2006 provide, in effect, for A to spend five days with her father and nine days with her mother, in each 14‑day period.
d)The family consultant says that during her meetings with both parents, they had, in fact, agreed that A would spend six days with her father and eight days with her mother, in each 14‑day period.
As the hearing progressed, it seems as if the mother's position changed to one where she would accept a shared parenting arrangement that had the same effect as the current interim orders – i.e., five days with the father, and nine days with the mother, in each 14‑day period. Nothing turns on this.
From the legal perspective, it was common ground that the presumption of equal shared parental responsibility in s.61DA of the Family Law Act should apply. It was further common ground between the parties that both equal time, and substantial and significant time, as defined in s.65DA of the Act was reasonably practicable.
Accordingly, the main issue in this case is whether equal time is in A's best interests and, if it is not, whether substantial and significant time is in her best interests. Indeed, having regard to the proposals of the parties, unless I was prepared to depart from those proposals, the only outcome of the case would be that A would spend either five, six or seven days per fortnight with her father. Having regard to how s.65DA is framed, if I consider that, having regard to the evidence, equal time is in her best interests, then that is the order I would probably make. If, however, I decide that having regard to the evidence equal time is not in her best interests, then an order for substantial and significant time would be made, and that would mean either five or six days per fortnight.
There was further common ground between the parties. It was agreed that A had a meaningful relationship with both of her parents and thus s.60CC(2)(a) was not an issue.
A's father, D, is the applicant in these proceedings. A's father is 45 years old and is of Irish background. C. She is 36 years old and is of a Filipino background. They were in a relationship between 1999 and December 2003, and thereafter until about October 2006 they continued to live under the same roof, but did not consider themselves to be in a relationship.
It became quite apparent that the level of conflict between A's parents was, and is, very high. Notwithstanding that, I was very surprised that the matter could not be resolved by them, without my having to impose an order of the Court. Their respective positions in relation to A were really not that far apart. The interim orders made on 16 October 2006 which provided for A to live with her father five nights per fortnight after 6 January 2007, was in fact a consent order, and it became apparent that the mother was represented by both solicitor and counsel when that order was made.
The family report prepared by Family Consultant Gabriel and released 30 April 2007 contained very clear recommendations that A should spend six nights with her father. Notwithstanding these clear recommendations, the mother's position continued to be, at the commencement of this hearing, that she wanted A to only spend three nights with her father each fortnight.
This matter should have been resolved by the parents themselves. It is, of course, the role of this Court to determine those disputes that parents are unable to resolve themselves, even with the expert assistance they receive from their solicitors, barristers, and the family consultants and other professionals who have assisted them. Even though that may be the role of the Courts, it does not absolve parents from responsibility to put aside whatever conflict exists between them, and whatever mistrust one may have towards the other, and instead try to focus on finding a solution that is in the best interests of their child. Parents have the right to access this Court and invoke the Family Law Act to determine their disputes in relation to children, but that does not mean it is either the right thing, or the best thing to do for their children. As it turns out, there was ample evidence from which I can safely conclude that A is a very lucky girl who is much loved by both of her parents, each of whom I am sure will do everything within their capacity to parent A, and she will enjoy every opportunity that life has to offer which is some how attributable to the love and care provided by her parents. Even though I am now comfortably able to reach that conclusion after hearing this case (and on the basis of the reasons I set out below), it still does not justify this litigation. This matter should have been resolved between the parents, with the assistance of their professional advisers. The hearing of this matter was a self‑indulgent luxury as a result of the actions of either one or both parents. There were far more needy cases that needed to be heard. There were other children, far less lucky than A, whose case or cases could have been dealt with in the time that was used in this case.
Applicable law
In a case like this where the issue is whether either equal time or substantial and significant time is in the best interests of A, determining what is in her best interests is based on the provisions of s.60CC of the Family Law Act.
Issues and findings
Identifying and understanding the real issues in this case was made much more difficult because of what seemed to be the changing positions of the mother. Since the father filed his application on 18 September 2006 he has consistently maintained the position that he should have equal time with A, though the amended application filed 7 May 2007 implements that equal time arrangement in a different way. Of course, he was a party to the interim consent orders made 16 October 2006, which gave him five nights each fortnight. Also, as will shortly become apparent, he and the mother reached agreement that A should spend six nights out of 14 with him during their meetings with the family consultant. The mother's response filed 4 October 2006 contained a detailed proposal that commenced with supervised daytime time for three months followed by unsupervised time two evenings during the week and each alternate fortnight from Saturday to Sunday, for six months, followed by each alternate weekend from 9.00am Saturday to 6.00pm Sunday, together with one evening during the week through to 7.00pm, such arrangement to continue until A turns eight. Once A turns eight, the proposal was that she spend time with her father from after school on Friday to before school on Monday each alternate weekend and one other evening in the other week through to 7.00pm. This was the mother's position immediately before 16 October 2006. In any event, by 16 October 2006, the mother's position had changed from that set out in her response to one which enabled A to spend five nights each fortnight with her father. Moreover, as I will discuss below, during involvement of the family consultant between October 2006, and March 2007, it seems as if the parents have agreed that A would spend six nights per fortnight with her father.
By 3 May 2007 the mother had filed an amended response the effect of which was that A spend three nights per fortnight with her father. As I indicated above, the mother opened the case from that position but seems to have shifted, at some stage, to adopt the position that the current interim order should be made final. The other relevant event in this chronology, of course, is the recommendations contained in the family report of Family Consultant Gabriel. Those recommendations, whilst independently supported by the family consultant, nonetheless reflect the agreement reached by the parents during the consultation process, to the effect that A would spend six nights per fortnight with her father.
My purpose in reciting this rather complex chronology is to demonstrate the difficulty in identifying and then seeking to understand, what the precise issues in this case are. The concerns that a parent has about a child, helps the Court to identify and understand what the issue is. However, what provides the Court with an even greater insight into a parent's concerns is to consider the position they have adopted in the litigation. For example, if a parent expresses strong concerns about a child coping with overnight stays with the other parent, then the Court will assess the seriousness of those concerns by reference, amongst other things, to whether that parent has consented to overnight stays. The position adopted by the parent, therefore, provides insight into the nature of the concerns. Hence, the issue to be identified might not, in fact, be how the child copes with overnights, but rather how the mother copes with the child going on overnights.
The present case may well be an example of what is referred to above. As will be seen, the mother has expressed a series of concerns, but these concerns are quite inconsistent with her own actions, both in agreeing to the consent interim order on 16 October 2006, and then agreeing with the father as a result of the involvement of the family consultant.
Accordingly, I need to identify whether an agreement was reached between the parents after the interim consent orders were made and, if so, what concerns led the mother to resile from the same? All of those issues need to be understood and located within the broader framework of what was in the best interests of A, particularly having regard to the considerations set out in s.60CC.
Prior Agreement and recommendations
I find that the parties did reach an agreement. The evolution of this agreement is recorded at paragraphs 13 and 14 of the family report.
13. As a result of the positive developments that have occurred between Ms C and Mr D since I first conducted several Child Dispute Conferences with them in October 2006, and due to the relatively minor outstanding areas of difference between them, they were encouraged to explore possible settlement options. I felt that such an approach was preferable to a Court hearing. From A’s perspective, and her young age, I also considered that any attempts the parents could make to reduce or manage their conflict (which is often difficult during a Court hearing) would be in her interests.
14. Mr D advised that, in the spirit of a potential settlement, he would be agreeable to a six day per fortnight arrangement regime. Because Ms C indicated that she would like some more time to consider possible proposals, a further appointment was scheduled. At this additional appointment, Ms C advised that she would agree to a regime of A spending six nights per fortnight with her father and an agreement was reached, Unfortunately, however, on 17 April 2007 correspondence was received from Ms C’s legal representative (Ms Wilson) to advise that the parents were no longer in agreement. This was confirmed via telephone discussions with the Legal Representatives for both parents.
The agreement reached, no doubt as a result of the facilitation by the family consultant, was a comprehensive one. The actual details are contained at paragraph 16 of the family report:
16. The following is an outline of the agreement that was reached during the Family Report interviews:
· That both parents will have equal shared parental responsibility.
· Fortnightly Regime
i.That, until September 2007, the current parenting regime will remain.
ii.That, commencing September 2007, A will live with her father at the following times: in the first week per fortnight from 4.00pm Friday until 9.00am Monday; in the second week per fortnight from Wednesday afternoon (either pick up from preschool or school or when father finishes work) until before preschool or school on Friday morning and from 6.00pm Sunday night until Monday morning.
iii.That A will live with her mother at all other times.
· That both parents may communicate with A via telephone at any time.
· School Holidays
i.That, if the child support issues are resolved (because Ms C feels that if Mr D can afford and overseas holiday he should be able to afford child support payments), Ms C will consider agreeing to Mr D spending a two week holiday with A in Ireland in July 2007.
ii.That, from when A commences school in 2008, the school holidays will be shared equally between the parents.
iii.That, from July 2008, A will spend the whole of the July school holidays with her father to allow him to visit relatives in Ireland.
iv.That the parents will negotiate the times for the rest of the school holidays. Failing agreement, in even numbered years the mother will spend the first half of the holidays with A and, in odd numbered years, the father will spend the first half of the school holidays with A.
v.That both parents may take A on overseas holidays, preferably with six months notice to be give to the other parent.
vi.That each of the parents will be given the first option to care for A in the event that the other is unable to do so due to work or other commitments.
vii.That each parent will be responsible for the cost of any school holiday care during the times that A is with them.
· Special Occasions
i.That the parents will spend alternating Christmas times with A. These times will be from 10.00am Christmas Even until 10.00am Christmas Day (commencing with Ms C in 2007) or 10.00am Christmas Day until 5.00pm Boxing Day (commencing with Mr D in 2007).
ii.That the parents will spend alternating New Years Eve with A from 10.00am NewYears Eve until 10.00am New Years Day (it was not decided which parent would spend New Years Eve 2007 with A).
iii.That if Father’s Day falls on a weekend when A is living with her mother, she will spend time with her father from 6.00pm on the Saturday preceding Father’s Day until 6.00pm on Father’s Day.
iv.That if Mother’s Day falls on a weekend when A is living with her father, she will spend time with her mother from 6.00pm on the Saturday preceding Mother’s Day until 6.00pm on Mother’s Day.
v.That if A’s birthday or the father’s birthday falls on a day when A is living with her mother, then A will spend time as agreed, or, from 2.00pm until 6.00pm on a non-school day, or from after school until 6.00pm on a school day.
vi.That if A’s birthday or the mother’s birthday fall on a day when A is living with her father, then A will spend time with her mother as agreed, or from 2.00pm until 6.00pm on a non-school day or from after school until 6.00pm on a school day.
The final recommendations made by the family consultant included the principal one that the agreement reached be made final orders. The family consultant made the following observation in relation to the agreement, at paragraph 19:
It was my assessment that the agreement reached by Ms C and Mr D during the Family Report process was a further positive step towards their co-parenting of A and it is most unfortunate that this agreement now appears to have broken down. From the parents’ accounts of A, it was my assessment that A would be likely to manage (especially if her parents do) the progressive arrangement that was agreed.
During Mr Macpherson's cross‑examination of the family consultant, she readily conceded that her recommendation was based on the agreement that was reached between the parents. The agreement at six days per fortnight seems to have represented a compromise between the parents. According to Ms Gabriel, from A's perspective "it does not matter whether it's five or seven days ‑ that is a parental issue". From this I inferred that, in the opinion of the Family Consultant, A could cope with both of the proposed arrangements and anything up to equal time.
On behalf of the mother, therefore, there was no challenge to the fact that an agreement had been reached in the terms described by the family consultant. It was also clearly a part of the father's case that this agreement had been reached, so it is not surprising that there was no challenge to the family consultant in cross‑examination by the father's counsel, Ms Rees.
So what caused the mother to resile from the agreement, as late as 17 April 2007? To be fair to the mother, rather than describe her action as resiling from an agreement, what I am in fact attempting to do is to understand what her concerns were, and to relate that back to the issues I need to decide in this case.
The mother's evidence about her concerns are set out quite extensively in her affidavit filed 8 May 2007. I will refer to these concerns, albeit briefly. In paragraph 4 she asserts that the father has been late in collecting A on Wednesday afternoons and has often arrived to collect her at 4.30 pm, instead of 3 pm. At paragraph 5 the mother asserts that when A is dropped off after spending time with her father she is usually hungry. At paragraph 8 the mother asserts that on almost all occasions the father forgets to return something with A, and at paragraph 9 she asserts that even though she has been prepared to swap days to assist the father with his commitments, he has not been willing to reciprocate.
At paragraph 11 of the mother's affidavit filed 8 May 2007 she raises concerns about the windows in the husband's apartment and the fear that A could easily remove the pieces of wood that keep the windows shut, and fall from the windows. At paragraph 12 she expresses concern about having to walk up four or five flights of stairs with A and her belongings. At paragraph 15 she asserts that when A comes home from her father's home she is very tired, withdrawn and wants to stay in the house and close to the mother. At paragraph 17 the mother expresses concerns about A being very sleepy when she comes home from her father. In paragraphs 18 and 19 she refers to A's alleged rude and demanding behaviour addressed towards both the mother and the maternal grandmother. At paragraph 21 the mother asserts that A has said that she does not want to go to her father's house. At paragraph 22 the mother describes A's apparent joy at seeing her mother again, the morning after an overnight with her father. In paragraph 23, however, she again expresses concern about how A is unpleasant and difficult with her mother after spending time with her father.
At paragraph 16 she expresses concern about the father having never supported or involved himself with the Filipino heritage that both the mother and A share.
In paragraphs 6, 29, 30 and 31 the mother raises concerns about the father's ability to care for A having regard to his working commitments. She asserts, for example, that the father works long, unpredictable hours. The mother would prefer A not to attend after‑school care. She asserts that she is able to care for A far more than the father is during the working week. At paragraph 33 she raises concerns about the father's alleged non‑payment of child support.
I observe, at this stage, that all of these concerns of the mother do need to be understood in the context of the interim order that provides for five nights a fortnight with the father, and the agreement reached with the family consultant which provide for six nights a fortnight. The mother's evidence in her affidavit of 8 May 2007 and her cross-examination clearly indicates, that the vast majority of these concerns existed either at the time these agreements were made, or beforehand. That is not to say that these concerns are not issues that I need to take into account. For example, in deciding as between five, six or seven days per fortnight (ie, between substantial and significant time or equal time) it is most important that I consider the working commitments of both parents as that has an impact on their capacity to meet A's needs. If there is an issue about non‑payment of child support, for example, that reflects on attitudes towards parenthood and is a factor caught by s.60CC(4) anyway. The genuineness of these concerns, however, and the extent to which they are a real issue in this case, is a matter I need to consider.
The family report records that the main interviews that led to the preparation of the report were conducted on 21 March and 28 March 2007. In other words, it was clearly possible for the mother to raise these issues with the family consultant. Are these concerns reflected in the family report? I set out some of the relevant passages in this report: ‑
10. With regard to A’s adjustment, Ms C advised that she had initially not wanted to go and spend time with her father but she has gradually become more comfortable with the arrangements. Ms C acknowledged that, in the beginning, she herself had also felt concerned and worried for A but that she has also gradually begun to feel more comfortable. Ms C feels, however, that at times A experiences some possible instability and uncertainty about the fortnightly parenting regime. Also, she would prefer that A not be away from her for longer than two nights at a time…
12. Neither parents described any undue distress by A at times of changeover from one parents to the other. Both parents advised that, developmentally, A is progressing well and they have noted that she has become “more outgoing” and that her speech has improved…
15. A presented as a talkative and gentle little girl who appeared relaxed and comfortable when observed in the presence of both of her parents. She separated with ease from both of her parents to allow a brief assessment interview with her to occur. This indicated a degree of security in A and is developmentally appropriate for a child of her age. A identified both of her parents as people who she loved. Positively, A did not present as a child who is unduly burdened or pre-occupied with her parents’ conflict and instead appeared to be more focused on the usual interests of a child her age. For example, she spoke about her pet fish, her desire for a dog and playing…
17. Despite the obvious underlying tensions that remain between Ms C and Mr D, which to some extent may remain unresolved as irreconcilable areas of difference between them, it would appear that considerable progress has been made since the interim Consent Orders were made in October 2006. Both parents reported considerable improvements since they have lived in separate households and they presented as hopeful about being able to communicate about day to day concerns for A, particularly when this parenting dispute and the financial issues between them are resolved. From the parents’ own reports, A appears to have adjusted reasonably well to the significant changes that have occurred in her care and routine.
I observe that, based on the relevant passages from the family report either the mother did not express the concerns to the family consultant, or the family consultant did not consider them significant enough to warrant reporting. Indeed, however, the passages above record that the mother reported that A was progressing well, developmentally, had become more outgoing, her speech had improved, was securely attached, identified with both of her parents, did not present as a child who is unduly burdened or preoccupied and appears to have adjusted reasonably well to the significant changes that have occurred in her care and routine.
Mr Macpherson cross‑examined the family consultant about some of these concerns. For example, he put it to Ms Gabriel that the mother had raised concerns with her, in the interviews, that revolved around the father's capacity to care for A, for example, because of his full‑time work. Ms Gabriel indicated that it was not a concern raised by the mother with her. She agreed, however, that the mother had expressed concern about not having a full weekend with A. She acknowledged the mother's concerns about how much time A was away from her, but, explained in evidence that this was a concern frequently expressed by parents of a child A's age. Mr Macpherson put to Ms Gabriel the mother's evidence about A's behaviour on return from spending time with her father. Her response was it was only a concern if it was out of the range of normal responses. It would be fair to say that Ms Gabriel sought to normalise some of the anxious behaviour exhibited by children after returning from spending time with another parent. She emphasised that the real issue is how a parent deals with the situation, and for how long it continues. Ms Gabriel emphasised that A was simply going through an adjustment.
By way of summary of the cross‑examination of the family consultant in relation to the issues raised by the mother in her affidavit of 8 May 2007, there was nothing that would give rise to any concern about A's welfare and there was nothing that might undermine the very basis of the report. To the extent that there is a conflict between the evidence of the family consultant, and the mother, I prefer the independent evidence of the former.
Indeed, when Mr Macpherson cross‑examined the father about the mother's affidavit filed 8 May his evidence was that he had not observed A to be tired, that he had never experienced problems when picking up A, that he was always positive about other members of the mother's family, that he structured his work around her, that he did not forget to return things, that he has always agreed to variations when requested, that the windows are safe, that he was quite comfortable with encouraging A's connection to her Filipino culture, and that he would prefer A to go to preschool two days a week.
The only aspect of the father's cross‑examination that I found unsatisfactory was the evidence about child support. According to the father, as a result of cash flow problems in the business, he could not pay child support for several months. I found his responses quite inadequate. His view, which was in effect that the mother had more than ample resources to provide for A, ignored the fact that he had a financial responsibility to contribute towards her needs. In this regard, albeit for a relatively short period, he elevated the needs of his own business and finances above those of his daughter. This is disappointing, but it also does seem out of character having regard to the other evidence given by the father. The father was also cross‑examined about his work hours and obligations to travel. In the past, he has travelled interstate as well as intrastate, but the father's evidence is that it has never occurred on the days when he is responsible for A and that his work is flexible. I also record that he was extensively cross‑examined about the mother's concerns about his alleged anger management issues but it is hard to put any significant weight on these concerns having regard to the agreements entered into by the parents that provided for five and six nights each fortnight with the father.
The mother's cross‑examination in relation to the concerns she had indicated the following. She agreed in cross‑examination that since the consent orders on 16 October 2006 she had not expressed any concerns about the parenting arrangements, or instructed her solicitors to complain about them with the father's solicitors. The mother asserted that she had complained to the father and that she had tried to raise her concerns with the family consultant but she "did not have the opportunity". The mother agreed that she had not thought of these concerns until after she had changed her mind about the agreement reached with the assistance of the family consultant. The mother agreed that the concerns referred to in her affidavit of 8 May had not been set out in any prior affidavit and had been communicated to no‑one except, according to the mother, to the father. The mother denied, however, that her affidavit of 8 May contained assertions that she needed in order to have some justification for not going ahead with the agreement.
It was put to the mother, in a series of questions, that the concerns she expressed were not genuine, but that they were consistent with the mother's actions in doing whatever it took to ensure that A did not spend more time with her father. The cross‑examination in this regard included questions about past complaints, experiencing post‑natal depression, etc. It was also put to her that she, the mother, was overreacting and was, in fact, contributing to any anxiety suffered by A. The mother steadfastly refused to concede that there might be any circumstances in which A could be away from her for more than two days, and this was notwithstanding the alleged terms of the agreement referred to in paragraph 16 of the family report that allegedly enabled A to travel overseas with her father for two weeks.
I did not form the impression that the mother was prepared to do whatever was necessary to ensure that A did not spend more time with her father. I believe that her evidence, viewed in its totality, when compared to what she told the family consultant, and how she answered questions in cross‑examination, all create the impression of an overanxious mother whose subjective concerns have no objective basis save as regards the matters to which I will expressly refer. The majority of the concerns raised by the mother in her affidavit of 8 May 2007 have no foundation in fact. In relation to the issues raised by the mother in the said affidavit, where the father's evidence on these issues is different to that of the mother, I prefer the evidence of the father. Whilst I was less than impressed with his evidence about non‑payment of child support for a short period, I regard that as a matter going to his attitude as a parent, rather than whether he is telling the truth. The mother's evidence on those issues was more likely to be impacted by her subjective concerns in relation to A.
This leaves me in a situation where I find that the mother had agreed with the father, as a result of the facilitation of the family consultant, that he would have six nights a fortnight with A. I note that this was the basis of the family consultant's report. None of the concerns expressed by the mother, save one, would justify a conclusion based on A's best interests other than six nights (which the parents agreed was in her best interests) or seven nights (being the father's position and that which I am required to consider under s.65DAA). The one issue raised by the mother which is a genuine one relates to the father's work commitments. The mother is quite correct ‑ under the current arrangement the father only cares for A one evening during the working fortnight, but under his proposal, contained in his amended application filed 7 May 2007, it would be every Thursday night, and each alternate Wednesday night ‑ in other words, three nights during the working week when he would be responsible for A's care, and the corresponding mornings as well. This issue, of course, is directly related to the issue of her care. In cross‑examination, Mr Macpherson spent considerable time and effort on this topic. The father was firmly of the view that many of the concerns raised by the mother had no foundation but that, in any event, he was able, as a result of his position as a principal of his business, to adjust his working hours so that he could provide the care for A. There was never any doubt that he would need to use childcare, and the father also expressed the hope that the mother might be able to assist in this regard. He acknowledged that from time to time he had to travel, but, especially in re‑examination, he gave evidence that he could arrange his travel on the days when he is not caring for A.
There is no doubt that the current shared parenting arrangements reflected in the interim order of 16 October 2006 enable the father to spend time with A with minimal distraction from his work. Any increase, either to six nights per fortnight or equal time, will exacerbate this impact. However, based on all the evidence as set out above, I am satisfied that A will cope and that the father will make the necessary adjustments so that he can be there, as much as possible, to provide the care for her.
There are no impediments to my making an order for equal time, but the parents themselves agreed to six nights a fortnight ‑ should I uphold that even though the mother has resiled from it? Should I order equal time because that seems to be one of the possible favoured outcomes under s.65DAA?
Application of the law to the facts
Ultimately, I have to make this decision based on what is in A's best interests, and I now proceed to consider the relevant s.60CC considerations with a view to helping me to decide.
As noted above, it was common ground that the presumption of equal shared parental responsibility applied, and that there were no issues in this case about each parent having a meaningful relationship with A and thus s.60CC(2)(a) did not apply. Ms Rees submitted on behalf of the father that there were no issues relating to abuse, neglect or family violence for the purposes of s.60CC(2)(b). Mr Macpherson asserted that the mother had concerns about the father's inappropriate physical behaviour towards A and herself and in this regard provided as the example the notice of abuse filed on 4 October 2006. I disagree. Whatever concerns about abuse, neglect or family violence may have been in the mind of the mother prior to 16 October 2006, they clearly did not figure genuinely or prominently after that date. The family consultant clearly had no concerns. I find accordingly that there are no issues under this paragraph.
In relation to the views expressed by A (s.60CC(3)(a)) Ms Rees submitted there were no such views, a matter largely confirmed by the family report. Mr Macpherson relies on the mother's evidence about what A has said to her. I do not accept the mother's evidence in this regard. It is inconsistent with the family report which, in effect, states that because of A’s tender age, there are no such views to be considered in any meaningful way. Even if A has said those things having regard to her age and maturity I would place no weight on such expressions. In any event, as I indicated above, the mother's subjective concerns about A spending more time with her father are matters that could easily distort her perception about events, and I need to weigh very carefully any such evidence from her in this regard.
In relation to paragraph (b) of s.60CC(3), the nature of A's relationship with each parent, Ms Rees submitted that the evidence, particularly the family report, indicated that A had a good relationship with both parents and had attached to both her mother and father. The mother submitted, however, that A's primary attachment was to her. I find the evidence contained in the family report quite clearly establishes that she is attached to both her parents, and has good relationships with them both.
Section 60CC(3)(c) looks at the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between A and the other parent. Ms Rees, on behalf of the father, submitted that both parents were critical of the other, but that under the circumstances both had done well to facilitate the ongoing relationship. For example, the October orders have been complied with, without serious incident. The mother's submissions in relation to this paragraph was that A had told her that the father had made demeaning comments about the maternal grandmother. I do not accept that this is what the evidence says. As indicated above, not only is A's statements to her mother unreliable, but in all the circumstances having regard to the mother's subjective concerns, the mother's statement of concerns is unreliable. On balance, in a relationship which involved such high levels of conflict as does this one, both parents have done well to facilitate and encourage that close and continuing relationship. I was not invited to draw the inference from the mother's actions in resiling from the agreement reached with the family consultant as an indicator of unwillingness under s.60CC(3)(c). As I was not invited to do so, I will draw no such inference.
Section 60CC(3)(d) requires me to look at the likely effect of any changes in A's circumstances. This is one of the most important considerations in this case. Even on the father's amended application, A is not away from her mother for longer than four nights. On the parents' own agreement, A would be away no more than three nights. In my opinion, it may be too early to move to a four‑night absence immediately. Even though, based on the family report, I think that A would probably cope, I also need to be concerned about how her mother would cope with such a significant change occurring so rapidly. I note that the parents had agreed that until September 2007 the current parenting regime will remain. As I indicate below, it is my intention to do likewise, and then implement the agreement reached by the parties as a result of the intervention of the family consultant from September 2007. In September 2008, however, I propose to implement the father's proposals, which will involve A being away four nights in a row from her mother. By then, she will be well and truly experienced at spending three nights away from her mother so I am confident that she will cope with one extra night. Clearly the family consultant also believes that A could cope with equal time.
I accept that both of A's parents undertake the task and responsibilities of parenting in a very different fashion to each other. As Ms Rees submitted to me, the mother is clearly a mother and the father is clearly a father, but for A, both are important even though the associated styles of parenting are different.
Section 60CC(3)(e) looks at the practical difficulty and expense of a child spending time and communicating with a parent. It is not an issue that is raised in any significant way in this case. Indeed, implicit in the acceptance that both equal time and substantial and significant time were reasonably practicable, is an acceptable that this additional consideration was not a problem on the facts of this case.
Paragraph (f) of s.60CC(3) requires me to consider the capacity of each parent to provide for A’s needs. Even though the mother in this case expresses her subjective concerns in this regards, I find they have no objective basis in fact. Her own agreement with the father is testimony to this. Having regard to all the evidence, I have no concerns about the father’s capacity to care for A.
Paragraph (g) of s.60CC(3) requires me to consider, in the specific context of this case, matters relating to A’s background. Her father is Irish, and her mother Filipino. The mother was concerned about the father seeking to discourage or even undermine A’s connection to her Filipino culture. In evidence the father firmly rebutted this. I find there to be no basis in fact for the mother’s concerns in this regard. I accept the father’s evidence in preference to that of the mother in this regard.
Paragraphs (h), (j) and (k) of s.60CC(3) refer to matters that are not relevant on the facts of this case.
Section 60CC(3)(i) refers to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each parent. There are two issues in this regard. The father’s attitude as regards payment of child support during a period of cash-flow difficulties was truly disappointing. The fact that A may not have suffered in any financial way during this period, because of the financial circumstances of her mother, is quite irrelevant. This event shows an attitudinal deficit on the part of the father, but one I am prepared to accept is out of character for him when compared to the evidence of his actions as a father, and the insight this gives me into his attitudes to parenthood.
The second issue relates to the mother. Her whole approach to these proceedings reveals an unrealistic over-protective view about A spending time with her father. The strange dissonance between what the mother was prepared to actually do and the orders she sought, give an insight into this over-protective view. In cross-examination, her insistence that there were no circumstances when she could concede that A could cope with more than two nights away from her also reveal this over-protectiveness. One forms the impression that there are many unresolved issues between the mother and the father including, perhaps, emotional and financial ones. The extent to which these other issues have contributed to the mother’s over-protective views about A and her father is unclear. In any event it is clearly not in A’s best interests. I am satisfied based on all the evidence before me that A will cope, indeed will thrive, in the shared parenting arrangement that I will order. I am confident that the mother will cope too, but she must become committed to making them work from her own perspective, for A’s sake. In view of the concerns I have about the mother’s unrealistic over-protective views I will make orders that, I trust, will clearly chart the way forward for the future, and attempt to minimise the opportunities for the mother’s subjective concerns to get in the way.
Paragraph (l) of s.60CC(3) requires me to consider making an order that is least likely to lead to the institution of further proceedings between the parties. For the reasons set out in the preceding paragraphs I do have a concern that unless future parenting arrangements are as concrete as is reasonably possible, the mother may seek to relitigate the issue of A’s time with her father. It is one of the matters I take into account in formulating the orders I make in this matter.
Section 60CC(4) requires me to take into account matters that I am satisfied I have already taken into account elsewhere in these reasons. Accordingly I will not repeat them.
Conclusion
As I indicated above, I believe the outcome in this case is whether, having regard to A’s best interests, I should make an order for equal time or substantial and significant time at six nights per fortnight. Of course I am not bound by the position adopted by the parties. Having regard to all of the evidence, and for the reasons set out above, I make order the effect of which is that A:
a)Spends time with her father in accordance with the interim order until September 2007; and thereafter:
b)Until September 2008 lives with her father six nights out of 14, broadly in accordance with the parties’ own agreement; and thereafter;
c)From September 2008, an equal shared care arrangement is to be implemented with A to be away from each parent for no longer than four nights during the school term.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Lisa Molloy
Date: 24 July 2007
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