D and S
[2009] FCWA 107
•12 AUGUST 2009
[2009] FCWA 107
| JURISDICTION | : | FAMILY COURT OF WESTERN AUSTRALIA |
| ACT | : | FAMILY COURT ACT 1997 |
| LOCATION | : | [THE REGIONAL CENTRE] |
| CITATION | : | D and S [2009] FCWA 107 |
| CORAM | : | THACKRAY CJ |
| HEARD | : | 23 AND 24 MARCH 2009 |
| DELIVERED | : | 12 AUGUST 2009 |
| FILE NO/S | : | PTW 4232 of 2007 |
| BETWEEN | : | D Applicant/Father |
| AND | ||
| S Respondent/Mother | ||
| Catchwords: |
CHILDREN – with whom a child lives – where the parties live 260 kilometres apart – where the father's proposal involved "dual schooling" - where the father's plans to relocate to near mother's residence were vague
Legislation:
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mr H Moser |
| Respondent | : | Ms N Hossen |
[2009] FCWA 107
Solicitors:
| Applicant | : | Hudson Henning & Goodman |
| Respondent | : | Great Southern Legal |
Case(s) referred to in judgment(s):
B and B
Family Law Reform Act 1995 (1997) FLC 92-755
Champness & Hanson [2009] FamCAFC 96
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Dacia & Bennington [2008] FamCAFC 135
G & C [2006] FamCA 994
Goode and Goode (2006) FLC 93-286
Marsden & Winch (No. 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Mulvany & Lane [2009] FamCAFC 76
[2009] FCWA 107
1 [The father] and [the mother] have agreed they should have equal shared
parental responsibility for their daughter, [Emily], who is four years of age. They have not been able to agree other matters, especially the time [Emily] will spend with each of them.
2 The dispute is complicated because [the father] lives [on a farm] and
[the mother] lives 260 kilometres away in [a regional centre]. [The father] has
somewhat vague plans to move to [the regional centre].
Orders sought by the father
3 The orders sought by the father were set out in his amended Application filed in
February 2009. The first part deals with arrangements while he remains at [the farm]. The father proposes that during school terms he should have [Emily] six nights each fortnight. This would be arranged as follows:
Week 1. [Emily] spends time with the father at [the farm] from 6.00 pm Thursday until the commencement of kindergarten/school on the following Monday. (If [Emily] is not attending kindergarten/school the time would commence at noon on Thursday.)
Week 2. [Emily] spends time with the father in [the regional centre] from noon Wednesday until noon Friday. (If [Emily] is attending kindergarten/school the time would start at the end of kindergarten/school on Wednesday and finish at the end of kindergarten/school on Friday.)
4 The second part of the proposal concerns when the father moves to live in
[the regional centre]. If this happens he proposes a week-about shared care
arrangement, with handovers on Fridays.5 The father proposes that [Emily] spend half of the mid-year school holidays with
each parent. He proposes that he have the first week of the holidays, unless otherwise agreed. He also sought a somewhat confusing order about sharing of the Christmas school holidays.
6 The father sought an order restraining the mother from using the surname [“S”] for [Emily]. He also sought a variety of other orders which I will discuss later.
Orders sought by the mother
7 The orders sought by the mother were contained in a Minute attached to her
Papers for the Judge. She also proposes that the father’s time with [Emily] during school terms be organised on a two week cycle:
Week 1. The mother originally proposed that the father have [Emily] from 12 noon Thursday until 5.00 pm Sunday; however, her counsel indicated that she would agree to the time being extended to the commencement of kindergarten/school on Monday, provided [Emily] spends the Sunday night in [the regional centre]. The mother proposed
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that with effect from 2010 (when [Emily] will start pre-primary) the father’s time be reduced so that it commences at 3.15 pm Friday and concludes at 5.00 pm Sunday.
Week 2. The father (or his family members in [the regional centre]) would have [Emily] from 2.00 pm to 5.00 pm on Thursday (or such other weekday as convenient to the father, provided two days’ notice is given). This time would be reduced from 2010, so that the visit would commence at 3.15 pm and conclude at 5.00 pm. Counsel advised that there was no “magic” in the proposed return time at 5.00 pm; this could be later in the evening, although keeping in mind it was a school night.
8 The mother proposed that during 2009 the father should spend eight days with
[Emily] during each mid-year school holiday (made up of two four day blocks). From 2010 the father should spend time with [Emily] for one full week in each of the mid-year holidays.
9 The mother proposed that the father should have two periods of one week during
the Christmas school holidays. The mother proposed that these be taken in January to
fit around harvest; however, the mother is able to be flexible with the arrangements.10 The mother also sought an injunction restraining the father from enrolling
[Emily] at any school other than the [local] Primary School (which she presently attends). She also sought an order that [Emily]’s surname be changed to [“D-S”]. The mother also sought a variety of other orders which I will discuss later.
The trial
11 The matter proceeded to trial in [the regional centre] in March 2009. At the
conclusion of the hearing, I advised the parties that although I intended to reserve judgment on most issues, I considered it was appropriate for a decision to be made immediately about the kindergarten [Emily] is to attend and the name by which she is to be known.
12 I determined that it was in [Emily]’s best interests:
• to attend kindergarten at [the local] Primary School on each of the two days each week she is meant to be attending kindergarten (rather than spending one day a fortnight at kindergarten at [the farm]); and • to be known by the surname [“D-S”]. 13 I gave reasons at the time I made these orders. Although I reserved the right to expand upon them, I am satisfied my reasons are adequate.
14 At the conclusion of the hearing I gave the father the option of rearranging his
time with [Emily] in such a way that it would not include a kindergarten day. Alternatively, he could leave the existing regime in place, on the basis that he would make arrangements to ensure that [Emily] attends kindergarten in [the regional centre] during his time with her.
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15 Shortly after the hearing, I was presented with a Minute by which the parties
agreed that, pending judgment, the father’s alternate weekend time with [Emily] would commence on Thursday (instead of Friday) and conclude on Monday (instead of Tuesday). It was agreed that the mother would provide the father with [Emily]’s school uniform and school bag at the commencement of the visits, no doubt to accommodate the father’s desire that he be able to drop [Emily] at kindy. It was also agreed that the father would have two four night periods with [Emily] during the April 2009 school holidays. I made orders accordingly.
Credibility
16 I formed the view that both parents generally did their best to give truthful
evidence in their oral testimony. I was less inclined to accept the evidence in their
affidavits, which in a number of instances conflicted with their oral evidence.17 There were a number of matters on which I did not accept the mother’s evidence. For example:
• The mother had to acknowledge that statements she had made in her affidavit concerning the father’s failure to have any contact with [Emily] in the months following her departure from [the farm] were not true (similarly information in her Client Information Form portrayed an inaccurate impression concerning the involvement of the father in [Emily]’s life). • The mother misrepresented in her affidavit the content of Court documents and correspondence (although she attached to her affidavit the documents she had inaccurately paraphrased). • The mother was shown to be incorrect concerning the date on which the father paid her $10,000. I nevertheless accept she did not give the wrong date with the intention to mislead and that she was justified in drawing attention to her difficult financial position immediately after separation. 18 Similarly there were aspects of the father’s evidence I did not accept. For
example:
• The documents produced concerning the father’s mental health indicated that he had minimised matters associated with his depression. • The father was likely to have been mistaken in asserting that on the Friday prior to the trial he had spoken with the mother by telephone (and that she had hung up on him when he sought her agreement to his mother collecting [Emily]). His evidence was not only inconsistent with the firm evidence of the mother, but his version was also weakened by that given by his de facto wife. • The most important factual dispute concerned events on Christmas Day 2008. The father acknowledged that he had abused the mother when she was a little late in making [Emily] available. The mother says that not only did the father use far more offensive language that he admitted; but that he also physically assaulted her, causing her slight injuries. Although I am prepared to accept that the mother’s version may have been dramatised, I concluded that her version
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came much closer to the truth. I note that her evidence concerning her injuries
was corroborated.
19 I was satisfied that the witnesses who were cross-examined endeavoured to tell
the truth as they understood it, although their impressions may have been coloured by their allegiances. I found the father’s sister, Sonya, to be a particularly balanced witness who gave both her written and oral evidence in a most even-handed fashion.
Background
20 The mother is 37 years of age and is employed part time as [an assistant]. The father is 36 years of age and has his own farming business.
21 The father’s parents used to farm at [the property] but now live [in] a suburb of
[the regional centre]. They have acquired a “hobby farm” near [the regional centre]. They have a large home with a self contained living area suitable for family and paying guests. The other part of their home is also large enough to accommodate family. The home is about a 15 to 20 minute drive from [Emily]’s school.
22 The parents of both parties (as well as many other relatives) live in and around
[the regional centre]. The father and mother knew each other for some years before commencing a relationship in January 2004. The mother became pregnant shortly thereafter but she did not commence living with the father at [the farm] until just before the birth of [Emily] on 28 October 2004.
23 The father was taking anti-depressant medication when he met the mother and
their relationship soon ran into difficulties. It was the father who asked the mother to leave the relationship. The mother claims he said he wanted time on his own and wanted his life back.
24 There was some disagreement about the date of separation, with the mother
having given different dates in different documents. I am satisfied the separation occurred in late December 2005, although the mother returned to remove her goods over the next few months.
25 There was also disagreement concerning the extent to which the father visited
[Emily] in the period from December 2005 until March 2006. The father claims that he visited once or twice each week whereas the mother (ultimately) said he visited on only five occasions. I was inclined not to accept the father’s evidence but on the other hand I was not entirely convinced that he visited only five times. In any event, it appears to be common ground that the father did not take [Emily] away from the mother’s home until April 2006.
26 In June 2006 the father asked the mother for time with [Emily] on Sundays and
she agreed. In September 2006 they attended mediation at which time the mother agreed to the father having overnight time with [Emily]. The mother reneged on this arrangement. She says she did so because she had felt threatened at the mediation by the father’s proposal for [Emily] to spend equal time with each parent. The parties returned to mediation after the agreement collapsed and again reached agreement that the father would have overnight time with [Emily] each week. The arrangement was
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quite similar to that agreed at the first mediation; however, the mother felt more comfortable this time because she believed that her various concerns had been addressed in the discussions.
27 There were further negotiations and mediation sessions which resulted in the
father’s time with [Emily] building up to the schedule that was in place at the time of trial. This had been formalised by consent orders made on 30 June 2008, which provided for [Emily] to spend four nights a fortnight with her father – from noon Friday to noon Tuesday. At the time of trial [Emily] was meant to be attending kindergarten on Mondays and Wednesdays from 8.30 am to 3.15 pm. The father was meant to collect [Emily] from the mother’s residence and she was to be returned to the mother at the home of the father’s parents.
28 The father was living with [Ms S] at the time of trial. They had met over the
internet and first met face-to-face in about August 2008. [Ms S] took up residence with the father in October 2008. She is 31 and has two children aged two and five years.
Father’s plans to move to [the regional centre]
29 The father grew up on his parents’ [property]. After finishing school, he went
away to work as a farrier, before returning to [the farm] in 1997. He acquired a small property adjacent to his parents’ large property. His parents moved to [the regional centre] in 2005 and the father now leases part of their property. He has one fulltime worker. As I understood the evidence the father runs cattle on the family hobby farm and is using the [the farm] land only for cropping.
30 The father has plans to move to [the regional centre]. He said that the timing
would depend upon the outcome of these proceedings. If the Court determined that a shared care arrangement was in [Emily]’s best interests then the move would occur sooner rather than later. When the father was recalled to give some evidence near the end of the trial he said that he and [Ms S] had made a commitment to move to [the regional centre] in “the very near future”. Nevertheless, when this proposition was teased out, it seemed he was still anticipating that the move would be some time in the next two to three years. Notwithstanding this evidence, counsel for the father in his closing address said the move would not be delayed more than 18 months. At other stages it was also said that the move would be made at the latest in seven years time (to accommodate the educational needs of [Ms S]’s children).
Applicable law
31 As the parties were never married, the proceedings fall to be determined under
the Family Court Act 1997 (WA). In the discussion that follows, reference will nevertheless be made to cases decided under the Family Law Act 1975 (Cth). The relevant provisions of the two Acts are substantially identical, with all amendments made to the Commonwealth legislation having been mirrored in the State legislation. In order to assist understanding of the cases, I intend to refer to the section numbers of the Commonwealth Act. The corresponding State provisions can be easily ascertained by reference to the annotations embedded in the Family Court Act 1997.
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Best interests and the objects of the legislation
32 Section 60CA makes clear that I must treat [Emily]’s best interests as the
paramount consideration. In doing so, I will be guided by the relevant objects of the legislation and the principles underlying them. The stated objects 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; (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; (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.”
33 These objects are more comprehensive than the previously stated object of the relevant part of the legislation. Prior to the 2006 amendments, the stated object was:
“…to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
34 The first of the four “new” objects is far from novel. It echoes two of the guiding principles which were previously to be found in the legislation, namely:
“(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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development…”
35 The Full Court of the Family Court of Australia has previously considered the impact of statutory amendments dealing with the objects of the Family Law Act 1975. In B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at [9.2], the Full Court said this concerning the 1995 amendments to that Act:
“It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the
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children), in the approach by the Court in the adjudication of disputes and,
more broadly, in the attitudes of society generally.”
36 Notwithstanding the changes of emphasis and terminology made by the 1995 amendments, the Full Court was in no doubt about the core task of judges entrusted with responsibility for making decisions about the welfare of children. The Full Court said at [9.51] to [9.60] (my emphasis added):
“In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
The legislature has also made it clear that in that process the Court is required to have regard to both the provisions contained in s 68F(2) and those contained in s 60B.
The wording of s 68F(2) makes that clear — the Court "must consider" the various matters set out in (a)-(l) of that sub-section. That sub-section sets out a list of matters which the Court is required to consider to the extent that they are relevant to the particular case. The weight which is attached to any one consideration will depend upon the circumstances of the individual case and is a discretionary exercise by the trial Judge. The list is similar to the list contained in previous legislation but with the additions previously referred to. The list is not intended to be exhaustive. That is made clear by par (1) “any other fact or circumstance that the court thinks is relevant”. This simply underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of the particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.
Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub-section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.
Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of the children in the particular case. Although the Attorney-General submitted that the inter-
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relationship between the three sections was as much about procedure as it was about substantive law, we think it would be a mistake for this essential exercise to be clouded by procedural or semantic issues.
The Court now, as previously, is required to determine what is in the best interests of the particular children (s 65E). It will direct attention to both of the other sections, but the weight to be attached to individual components of those sections may vary significantly from case to case.
This approach, which emphasises the essential importance of the exercise of the discretion in each case, accords with the approach otherwise adopted by courts to the discretionary provisions in the Family Law Act see for example the decision of the High Court in Mallett v Mallet … (1984) 156 CLR 605, and ZP v PS … (1994) 181 CLR 630. For many years in child related cases the legislature and the courts have consistently emphasised that the welfare or best interests of the particular child in the particular circumstances of that case is the determinant, and have eschewed the application of fixed or general rules as the solution. That continues to be the case; the Reform Act should not be understood as suggesting otherwise.
As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests.
In this approach no question of a presumption or onus arises… The Act contemplates individual justice. Any question of presumption or onus has the potential to impair the inquiry as to what is in the best interests of the particular children. It may render the case more technical and adversarial, and may divert the inquiry from the facts relating to the children's best interests to legal issues relating to burdens of proof. The task is not “to be undertaken with a mind-set that defaults in favour of a pre-ordained outcome absent persuasion to the contrary”…
In cases where there are no countervailing factors the s 60B principles may be decisive, not only because they are contained in s 60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this
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and other courts which deal daily with the welfare or best interests of
children.”
37 It will be noted that the Full Court made many references to s 65E, which was
the provision making the best interests of the child the paramount consideration. Section 65E has now been repealed, but only for the purpose of advancing it to a position of earlier prominence in the Act. In my view, many of the remarks made by the Full Court in relation to the 1995 amendments hold true in relation to the 2006 amendments. In particular, it remains the case that the paramountcy provision defines the essential issue and the legislation still contemplates individual justice.
Parental responsibility and the outcomes the Court must consider
38 In enacting the 2006 amendments, Parliament has given legislative voice to what
was already a presumption that responsibility for making decisions about children should ideally be exercised jointly by their parents. In the present case the parents agree there should be an order for equal shared parental responsibility.
39 As I intend to make an order for equal shared parental responsibility, I am required by the legislation to consider two specific outcomes.
40 First, by operation of s 65DAA(1), the Court is required to consider whether or not the child spending equal time with each parent would be in the child’s best interests and reasonably practicable. If such an outcome is found to be in the child’s best interests and reasonably practicable, the Court is then required to consider making an order to provide for the child to spend equal time with each parent.
41 Second, by operation of s 65DAA(2), if the Court decides that an “equal time”
order would not be in the child’s best interests or would not be reasonably practicable, the Court must consider whether or not the child spending “substantial and significant time” with each parent would be in the child’s best interests and reasonably practicable. If such an outcome is found to be in the child’s best interests and reasonably practicable, the Court must then consider making an order for the child to spend “substantial and significant time” with each parent. (The expression “substantial and significant time” is defined by s 65DAA(3).)
42 The Full Court has said in Goode and Goode (2006) FLC 93-286 at [64] that the juxtaposition of the paragraphs in ss 65DAA(1) and (2) “suggests a consideration tending to a result, or the need to consider positively the making of an order” for equal time or substantial and significant time – provided such outcomes would be in the child’s best interests and reasonably practicable. The Full Court also said in Goode at [72] that the 2006 amendments evince a “legislative intent” in favour of substantial involvement of both parents in their child’s life, both as to parental responsibility and as to time spent with the child. However, the legislative intent is subject to many important qualifications. Fundamentally, it is subject to the need to protect children from harm, abuse and family violence. It is also dependent upon the arrangement being in the child’s best interests and reasonably practicable.
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Controversy concerning the interpretation of s 65DAA
43 In a paper delivered at the National Family Law Conference in Adelaide in April
2008, the eminent commentator the Honourable Professor Richard Chisholm, expressed concerns about the drafting of s 65DAA and the Full Court’s analysis of that provision in Goode, in particular the reference to s 65DAA as suggesting “a consideration tending to a result”. In order to appreciate Professor Chisholm’s argument, it will be helpful to set out s 65DAA(1), which I have earlier only paraphrased:
“(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
44 Professor Chisholm expressed his concerns about this subsection and the Full Court’s analysis in Goode as follows [footnotes omitted]:
“The drafting problem is this: since the child’s best interests are the paramount consideration, once the court has found that a particular order (here, equal time) is in the child’s best interests, and is reasonably practicable, so far as I can see the court would obviously go ahead and make that order. Doing anything else would be making an order that was not best for the child, and doing that would seem to be contrary to the principle that those interests are to be the paramount consideration. The word ‘consider’ is therefore mis-used in paragraph (c), because it suggests that there remains something else to be taken into account in deciding whether to make the order. The subsection should have stopped before paragraph (c).
The problem is not quite solved by the Full Court’s analysis in Goode. The Full Court quotes some perfectly appropriate authorities on the meaning of ‘consider’ – they contain no surprises. But then it says that the meaning of ‘consider’ in those decisions is ‘not entirely apposite to the meaning of the word in s 65DAA’. This is said to be so
because the juxtaposition of s 65DAA(1)(a), s 65DAA(1)(b) and 65DAA(1)(c) suggests a consideration tending to a result, of the need to consider positively the making of the order, if [the conditions in paragraphs (a) and (b) are met.]
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The problem with this, I think, is that it treats the word ‘consider’ as having the same meaning in all three paragraphs. What I think the Full Court should have said is that the authorities cited were entirely applicable to the meaning of the word ‘consider’ in paragraph (a) and (b). As to paragraph (c), I think it should have said that despite the word ‘consider’ in paragraph (c), once the court has found that an order for equal time is in the child’s best interests, and is reasonable practicable, since the child’s interests are paramount, the court will ordinarily, if not inevitably, make that order. It is in this sense, and this sense only, that it can be said to be ‘tending to a result’.
The reason I think it worth bothering with this apparently pedantic point is that if the Full Court’s remark about ‘tending to a result’ is not understood as confined to paragraph (c), it could be taken to indicate that s 65DAA as a whole tends towards orders for equal time; or, in other words, that it creates something like a presumption favouring equal time. I am confident that the Full Court did not mean this, since such a statement would be quite wrong. It is crystal clear that the court’s obligation under the section is, essentially, to pay attention to whether equal time would be in the child’s interests – and, if it is, then of course to make the order. ‘Consider’, in paragraphs (a) and (b), means precisely this, as it does in the administrative law cases cited by the Full Court. The quote from the Full Court would be correct if their Honours had said that the administrative law definitions were not apposite to the meaning of the word ‘consider’ in s 65DAA(c). I suggest that this is what the Full Court must have meant to say.”
45 I would venture, with utmost respect to Professor Chisholm, an alternative
approach to the interpretation of s 65DAA, which would have the benefit of allowing the word “consider” to be interpreted consistently wherever it appears in the section. As Hodges J said in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 [my emphasis added]:
“I think it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament, and with especial force to words contained in the same section of an Act. There ought to be very strong reasons present before the Court holds that words in one part of a section have a different meaning from the same words appearing in another part of the same section.”
46 I acknowledge these words may be treated as “the counsel of perfection” (as
suggested in the discussion in Pearce DC & Geddes RS, Statutory Interpretation in Australia, 5th ed., Butterworths, Australia, 2001 at [4.5]), and that it is legitimate for
a court to give a different interpretation to the same word, even when construing the words of just one section of an Act. Nevertheless, in my view, an approach which allows the same meaning to be given to the critical word “consider” in all of the many places in which it appears in s 65DAA is to be preferred over an approach requiring
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differing meanings, provided the interpretation is consistent with the objects of the Act
and the paramountcy provision.
An alternative approach to s 65DAA
47 The interpretation I propose for the word “consider” achieves the objective of
consistency and also sits comfortably enough with the formulation in Goode concerning “the need to consider positively” the making of certain orders. I accept, however, that it may not sit quite so comfortably with the alternative formulation proposed in Goode of “a consideration tending to a result”.
48 My interpretation of “consider” stems from asking two questions: Why would
Parliament merely require the Court to “consider” making an order that is both in the best interests of a child and reasonably practicable when the Court’s fundamental obligation is to make orders that are in the best interests of the child? Why not instead require the Court to make such an order?
49 The answers can be provided by recognising that there may be a number of possible outcomes that could be seen as promoting the best interests of the child and being reasonably practicable. Life is full of occasions when two different but tempting scenarios present themselves, with what may appear to be an equal measure of “pros and cons”. When faced with such alternatives, the competing factors are usually weighed before identifying those that ultimately make one outcome more appealing than another. Sometimes the final decision is made on the strength of nothing more than a “gut feeling” on the part of the individual, couple or family making the decision. On other occasions, it will be a matter of deciding whether short-term or long-term advantages are to be given greater weight.
50 The judicial officer allotted the task of making decisions for families employs
a process of reasoning which arguably is not dissimilar to that employed by families when weighing up the benefits of competing scenarios. One important difference, of course, is that families might choose the option that is seen as best for the family as a whole (or sometimes just for one member of the family), whereas the judicial officer must treat the child’s best interests as paramount.
51 The judicial officer will carefully assess all of the available outcomes and select
the one that stands out from the others. Selection of that outcome does not mean that the other options were not in the child’s best interests, it just means that the option which found favour was considered the “best” available. Having undertaken this process and come to a decision, the judicial officer will have discharged the legislative requirement to “consider” making all orders that would have been in the child’s best interests.
52 This approach to the interpretation of “consider” can be best understood when
applied to that range of cases in which there appears to be only a marginal difference between the competing proposals. Take, for example, a dispute as to whether a child will attend one excellent school instead of another excellent school. Or a dispute about where a child will live, when both parents are outstanding parents, but a shared care regime is impracticable. It would be straining the language in such cases to say that the proposal which was rejected was not in the child’s “best interests”.
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53 Discussion of the legislation has hitherto proceeded on an unstated assumption
that there can be only one outcome that is in a child’s best interests. If indeed such an assumption was correct prior to 2006, the way in which Parliament has chosen to amend the legislation requires reassessment of the language of the statute.
The primary and additional considerations
54 As will be apparent from the discussion above, my overriding objective in
navigating the complex statutory pathway must be to make the orders most likely to promote [Emily]’s best interests. The legislation itself specifies those matters I must take into account in determining what orders I should make. Section 60CC divides these into what are called the “primary considerations” and “additional considerations”.
55 This dichotomy between “primary” and “additional” considerations was
introduced by the 2006 amendments. There has not been a great deal of judicial guidance concerning the way in which respect is to be paid to Parliament’s intention in specifying two factors as being the “primary” considerations. However, the Full Court (Warnick and Thackray JJ, with whom Le Poer Trench J agreed) said this in Marsden & Winch (No. 3) [2007] FamCA 1364:
“The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.”
56 See also Champness & Hanson [2009] FamCAFC 96 (Thackray, O’Ryan and Benjamin JJ) at [101] to [103] and Mulvany & Lane [2009] FamCAFC 76 (Finn, May and Thackray JJ) at [84].
57 I also concur with the views expressed on this topic by Professor Chisholm in
his paper “The Family Law Amendment (Shared Parental Responsibility) Act 2006:
An Overview”, in which he said:“It is clear that the relationship between the “primary” and the “additional” factors cannot be that any primary considerations must necessarily outweigh any combination of “additional” considerations. First, the language of considerations involves matters of degree, not absolute. Second, such an approach would be inconsistent with the fundamental principle that the child’s best interests must be the paramount consideration… Third, and most obviously, it is expressly stated in
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[paragraph 51 of the Explanatory Memorandum] that there may be some instances where secondary considerations may outweigh the primary considerations.”
58 It is within this legal framework that I will proceed to determine this case.
The primary considerations
59 I turn first to the primary considerations:
The benefit to the child of having a meaningful relationship with both of the child’s parents
60 Although this factor has been afforded a position of prominence in s 60CC, the
term “meaningful relationship” has not been defined in the Act. However, I have had the benefit of reading Brown J’s careful analysis in Mazorski v Albright (2007) 37 Fam LR 518 concerning the various meanings of “meaningful”. I respectfully adopt her Honour’s analysis and agree that it is appropriate to proceed on the basis that “a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child” and that it is “a qualitative adjective, not a strictly quantitative one”. (Her Honour’s judgment has recently been cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92.)
61 It will be observed also that the focus of this consideration is on “the benefit to
the child” of the child’s relationships with both parents. In this regard, I respectfully concur with the analysis of Bennett J in G & C [2006] FamCA 994 in which her Honour said that the benefit to a child of having a relationship with both parents cannot be treated as “a given” and that it is necessary for the Court to “evaluate the extent to which a meaningful or significant relationship with both of [the child’s] parents is going to be beneficial and of advantage to [the child] into the future”.
62 I consider it of utmost importance for [Emily] to have a meaningful relationship
with both her mother and her father. In my view, [Emily] will receive great benefit
from having such a relationship and I am satisfied she already has such a relationship.63 I am satisfied [Emily] will have a meaningful relationship with both parents
whether I make the orders sought by the father or the orders sought by the mother. In this regard it is noted than on the mother’s amended proposal, at least for the balance of this year, [Emily] would live with the father for half of all school holidays (at least after this year) and for four out of every fourteen nights, with the opportunity for one further visit each fortnight.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
64 The mother acknowledged that apart from the incident on Christmas Day 2008 the father had never been violent towards her and had never caused any direct harm to [Emily].
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65 The mother nevertheless remains wary of the father as a result of his behaviour
on Christmas Day and now prefers to attend handovers with a friend or relative. I consider that it will take the mother time to regain trust in the father but ultimately I would anticipate that her level of apprehension will subside.
66 Although I accept there has only been one incident involving violence, I do not
consider it can simply be “brushed under the carpet”. The negative impact of this incident on [Emily] should not to be underestimated. Although it seems she did not see what happened, [Emily] was aware there had been a very unpleasant incident which had greatly upset her mother. [Emily] is very attached to her mother and was understandably most concerned for her welfare. I accept that she attempted to console her mother immediately after the incident. No child should be placed in that position and I am sure that the incident has increased the apprehension that [Emily] already felt at handover times because of the tension in relationships between the people she loves.
67 I nevertheless accept that the Christmas Day confrontation was an isolated
incident and I anticipate that the father will do his utmost to ensure that a similar event never occurs again. Whilst no amount of provocation would justify the father’s actions, the mother will be able to assist in ensuring similar events do not occur if she makes greater efforts to ensure that [Emily] is ready for the father to collect her, especially on important occasions.
Additional considerations
68 I now turn to discuss those of the additional considerations that appear to be
relevant.
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
69 [Emily] is very young and I do not consider this factor to be of any significance.
The nature of the relationship of the child with —
(i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
70 [Emily] has a very close relationship with both parents; however, I am satisfied
her closest attachment is with her mother. I have come to this view in part because of the history of care giving and in part because of the personality characteristics of [Emily]’s parents.
71 The mother was [Emily]’s fulltime carer from the time of her birth. Both the
father and his sister acknowledged that when [Emily] was small she could not be consoled by anybody other than her mother. The father’s involvement up until the separation, when [Emily] was about two, was such that he needed help from female relatives when given the opportunity to look after her. In the months after the
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separation, the father was an infrequent visitor to the mother’s residence. Since then, the time he spends with [Emily] has been slowly building up; however, [Emily] still spends the great majority of her time with her mother.
72 As to relationships with the extended family, I am satisfied that [Emily] is
a much loved child and thoroughly enjoys the time she spends with all of her relatives. I am concerned therefore that the mother, at least in more recent times, has been placing obstacles in the way of the father arranging to have [Emily] collected by one of his relatives. The mother acknowledged that she used to get on well with both the paternal grandmother and aunt and that each of these women was quite capable of looking after [Emily]. I am not satisfied that the mother’s refusal to allow them to assist the father with transportation arrangements was related entirely to [Emily]’s best interests. It seems more likely that it was part of another “agenda”. I did not form the impression that it was likely that the father would allow the majority or even a significant proportion of his time with [Emily] to be taken up entirely by his mother and sister (which, if that had been the case, would have given the mother some greater justification for resisting their involvement in the arrangements).
73 The other relationship which clearly is important for [Emily] is the one she has
with the father’s new partner, [Ms S]. The father met [Ms S] in an internet chat room (although the father described it as a “singles club”) in July 2008. After many visits by the father to [Ms S]’s home near Perth (some with [Emily]) and a couple of visits by her to the farm, [Ms S] started living with the father in about October 2008.
74 There was nothing to suggest that [Emily] has anything other than a pleasant
relationship with [Ms S] and her two daughters, [A] and [C]. However, I gained the impression that [Ms S] had assumed a somewhat more important role in matters pertaining to [Emily] than might have appeared appropriate. I found it interesting that she would make a point, at such a very early stage in their relationship, of describing herself as [Emily]’s “stepmother”.
75 I also formed the impression that, left to his own devices, the father would have
agreed that [Emily] should stop attending kindergarten in [his town] (at a school which has, in total, only 17 pupils). However, the father acknowledged that [Ms S] was firmer in her views about the benefits of “dual schooling” than he was. In fact, he did not even mention the possibility in his trial affidavit, whereas [Ms S] considered that “dual schooling” was a reasonable arrangement at least for the first few years of primary school. It was therefore of interest that no thought had been given to the possibility of [Emily] staying at the same school in [the regional centre], whilst [Ms S]’s children enjoyed the “dual school” experience. The father described such an arrangement as “uprooting the whole household”. The corollary of that proposition is that it is acceptable for [Emily] to be “uprooted” on a fortnightly basis and to attend two different schools, but not acceptable for [Ms S] and her children, only one of whom is at school (pre-primary). I found it of particular interest that the father was prepared to defer to [Ms S]’s views, even in the face of the fairly compelling evidence he had heard about the unsatisfactory outcomes associated with [Emily] attending two kindergartens (in particular the Harmony Day upset).
76 Notwithstanding my reservations about the position [Ms S] has adopted in the
father’s household, I gained the impression that she is a dedicated mother to her own
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children. For example, she readily volunteers at their school and organises and takes
part in many enjoyable activities with her children and [Emily] on the farm.The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
77 No evidence was led to suggest that the father was anything other than willing
and able to facilitate and encourage a close and continuing relationship between [Emily] and her mother. He has at all times readily acknowledged that she is a very good mother. Although he can be criticised for the way he behaved on Christmas Day, there was nothing to suggest that he had done anything designed to undermine [Emily]’s relationship with her mother.
78 It was asserted on behalf of the father that the mother had shown she was
unwilling to encourage a relationship between [Emily] and the father. The mother acknowledged in her Papers for the Judge that she had found it difficult to facilitate the relationship because of her fears about the father’s behaviour and his capacity to cope with a young child.
79 It was also asserted that the mother was an overly anxious mother. I accept that
there is a firm basis for this submission. The evidence, as well as the mother’s demeanour during the hearing, made it patently obvious that she has a passionate desire to provide the highest quality of parenting to [Emily] and is great disturbed by anything which she feels might contribute to anything less than the optimum outcome for [Emily]. This is not a new development, since when she was living on the farm (save in a couple of emergencies) the mother would never leave [Emily] with anybody other than the paternal grandmother.
80 The mother did have reason to be anxious in the early years of [Emily]’s life.
She was living in an increasingly unhappy home. The child’s father was seriously depressed and talking of suicide. She was then asked to leave the home and thus had to make arrangements to set up a new household with a young child. Although I gained the impression that she may, in any event, have been inclined to be an overly protective parent, all of these circumstances would have exacerbated the mother’s anxiety.
81 It is not uncommon for mothers of young children, especially those with only
one child, to develop anxiety about the welfare of their child when relationships break down. It is understandable that protective mothers would have great apprehension about the child leaving their care, especially if they are to be looked after by someone who has little experience in doing so. This would especially be so where the person to whom the child was being entrusted had been taking antidepressant medication and expressing suicidal ideation.
82 On the other hand, it can usually be anticipated that the anxiety of the mother
will diminish over time. In the present case, the mother’s anxiety remains at fairly high levels. It was noteworthy that the mother absented herself from Court for a lengthy period during the first day of the trial. It transpired that she had gone to the grandmother’s home to collect [Emily] at the regular changeover. It might have been
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anticipated that she would have made arrangements for [Emily] to remain with the father’s mother or alternatively to be collected by a member of her own family. The mother explained her actions by saying that she hadn’t seen [Emily] for four days and was “a little anxious to see her” and had not warned [Emily] that someone else would collect her.
83 I accept that the mother can be criticised for some of her behaviour. I have in
mind, in particular, the obstacles she has placed in the way of the father allowing his family to assist him in facilitating the travel arrangements. Her actions have caused the father considerable inconvenience and expense, as he has been required to undertake travel that could more easily have been undertaken by relatives. The consent orders made in June 2008 expressly stated that the father had only to “arrange” for the collection of [Emily]. In my view, this should have made it clear to the mother that the father was entitled to allow someone else to collect [Emily]. I was also troubled by the evidence in paragraphs 134 and 135 of the father’s affidavit in which he alleged the mother refused to pass on important information concerning [Emily]’s health and medication. If these allegations are true it strongly suggests the mother has allowed her negative view of the father to interfere with her obligations to [Emily].
84 However, it is also important not to lose sight of the fact that the mother has
consented (albeit on occasions reluctantly) to a gradual increase in the time the father has been able to spend with [Emily]. By the time of trial, [Emily] – who is still very young – was spending four out of fourteen nights with the father. The father conceded in cross-examination that it was reasonable for the increases in his time with [Emily] to have been “staged”. He also conceded that the mother had made arrangements to ensure that [Emily] spent time with his own mother after separation. The evidence also establishes that apart from relatively minor issues about the timing of commencement and conclusion of visits, the mother has complied with agreements and Court orders. As a result, the father had been able to enjoy all of the time to which he was “entitled” with [Emily], which is often not the position in high conflict matters involving an overly anxious parent of a young child.
85 I consider that the intensity of the mother’s relationship with [Emily] and her
concerns about the father (and the father’s new partner, who can be perceived as an “unknown quantity”) will continue to contribute to the mother finding it difficult to promote [Emily]’s relationship with the father. However, one concrete thing that the mother must now do to promote [Emily]’s relationship with her father is to ensure she does not arrive to collect her any earlier than the appointed time. The mother has made a practice of turning up 10 or 15 minutes early, in face of the father’s objections. This may have been an acceptable practice if the mother had taken up the opportunities offered to her to have a cup of tea with the father’s mother whilst she was waiting until it was time for [Emily] to leave. However, to simply turn up early and seek the return of the child, and then to approach the house again before the appointed time, has done nothing other than annoy the father and his family and interrupt their farewells to [Emily].
86 The evidence also suggests that since the earlier period of the separation the
mother has become very much less cordial towards the father’s family at handover times. I recognise that tension has developed as time has gone by (and the fault is
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almost certainly not all on one side) but it would be much better for [Emily] if all involved made at least a pretence of being friendlier at the handover times. I am sure [Emily] would feel much more comfortable if some pleasantries were exchanged at these times.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from —
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
87 I am not satisfied that increasing the number of nights that the father spends with
[Emily] is going to have any material advantage for [Emily] although I appreciate that the father and his family would dearly like to see her more often. I am convinced that [Emily] already has a very good relationship with the father and his family. This has been achieved with her initially spending only quite short periods with him and then (and only over the last nine months) spending four nights a fortnight with him.
88 Although the mother was proposing at the commencement of the trial to reduce
the father’s time with [Emily], once she was satisfied that an arrangement could be made to ensure [Emily] always attended the same school, she was agreeable to a continuation of the existing regime of four nights with the father every fortnight.
89 I am concerned there could be disadvantages for [Emily] associated with being
away from her mother any more than she is at present. I have found that [Emily]’s relationship with her mother is closer than her relationship with her father. I do not consider that it would be in her interests to be separated from her mother any more often than she is already.
90 Although it is not the basis upon which I intend to make my decision, I also have
concerns about the impact on the mother’s emotional well-being in the event that [Emily] was to be removed from her care to any greater extent. The emotional health of [Emily]’s mother is a matter of prime importance to [Emily], especially given the nature of their relationship. Anything that might contribute to a deterioration in the mother’s emotional health ought to be avoided if possible. Whilst I readily acknowledge that the father would be greatly disappointed by not obtaining the increase in time with [Emily] that he has sought, in my view he is at the present time better able to cope with the disappointment.
91 I also consider there are advantages for [Emily], particularly at this stage of her
life, in having what could be regarded as a permanent “base” at her mother’s home whilst visiting her father’s home. I make this observation in the context of [Emily] having already had to cope with a quite tiring regime which involves her undergoing a 500 kilometre round trip every second weekend. The likely unsettling effect of a second extended period away from her mother’s home each intervening week would exacerbate what I consider to be the strain of the current arrangements.
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92 Whilst I can readily understand (given the distance and expense) that the father
might not wish to come to [the regional centre] for the intervening Thursday afternoon visit that the mother proposes, the fact remains that the opportunity would be there for the father to have time with [Emily] in the intervening week.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
93 This factor is of considerable importance, given the distance between the two
homes and the cost of travel. Any outcome that involves [Emily] going to the father’s residence requires a 500 kilometre round trip by [Emily] and a 1,000 kilometre “double round trip” by the father if he is required to undertake all of the travel.
94 The father pays a modest amount of child support (just over $100 per week). In
the event the mother was required to undertake the travel she would spend a considerable portion of her child support on petrol (and the father said he would not be prepared to assist her with the cost of the travel). Furthermore, while the father has his parents’ residence in which he can stay and recuperate in [the regional centre], there was no evidence that the mother would have any similar facilities in [the farm].
The capacity of —
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child),
to provide for the needs of the child, including emotional and
intellectual needs
95 I have no doubt about the mother’s capacity to provide for all of [Emily]’s
needs. She has done a very good job in looking after her. She generally arranges her shifts around the time that [Emily] spends with the father. When she can’t, her mother sleeps over to ensure [Emily] sleeps in her regular bed.
96 The father properly accepted that the mother was able to provide for [Emily] in
all respects, although he said she had placed her own “wishes and wants” above [Emily]’s emotional needs. I am satisfied that although the mother could be criticised for her past behaviour, she has always had [Emily]’s best interests at heart.
97 I am also satisfied that the father, with the help of [Ms S] and his family, can
provide for all of [Emily]’s needs. I am nevertheless concerned about the father’s anger management because of the way he behaved on Christmas Day. Whilst I can readily accept his frustration about the mother having been late, even on his own evidence she was only a little late and his inability to retain composure while [Emily] was nearby was unfortunate.
98 I am also troubled by the failure of the father to ensure that [Emily] attended
kindergarten in [the regional centre] when she was with him, choosing instead to make
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arrangements for her to attend the [local] School. Notwithstanding any advice the father claims to have received about the Education Department’s willingness to permit “dual schooling”, the father ought to have appreciated that it would be better for [Emily] to attend just one kindergarten. The type of issue that arose on Harmony Day is precisely the kind of problem that should have been anticipated. The father should have either proposed a change in the timing of his contact visits or alternatively taken [Emily] back to [the regional centre] on the Sunday night (given that he could stay with his family) in order to take [Emily] to kindergarten on Monday.
99 It is noteworthy that whilst the father claimed that one of his reasons for seeking
more time with [Emily] was to be able to take her to kindergarten, on the two occasions she did go to kindergarten when she was at the farm prior to trial, he did not, in fact, take her. On the first occasion, [Ms S] took [Emily] and on the second occasion [Ms S] put her on the school bus (with neither the father nor [Ms S] being able to recall clearly whether the father was even present when she set off).
100 Although I am satisfied that the father can now tend to all of [Emily]’s needs,
I would have concerns about the extent to which – especially in the medium to long term – he would delegate responsibility for [Emily]’s care to [Ms S]. The father acknowledged that he already leaves [Emily] in her care when he is working around the farm. He acknowledged that at seeding and harvesting times [Ms S] would look after [Emily] for most of the day. He also properly acknowledged that during these busy periods he may not be able to come down to [the regional centre] during the whole time he was proposing in the second week of the cycle. His expectation would be that [Emily] would spend that time with his family. (In assessing the amount of time the father might spend working on the farm it is important to record that his evidence indicated that he was not content with just “making a living” but he wanted to “get ahead”, which I take it meant he would be keen to work hard.)
101 The only other matter on which I propose to make comment concerning the
father’s capacity to provide for [Emily]’s needs relates to his history of depression. The medical records indicated that the father has suffered from quite serious depression for many years (more serious and for a longer period than he acknowledged in his own affidavit). It is true that the mother did not raise this as an issue earlier in the proceedings but I accepted as valid her reasons for not having done so.
102 The father said in his oral evidence that he first saw his doctor about depression
in July or August 2003 when he was prescribed anti-depressant medication. This was before he commenced his relationship with the mother. He said he “just felt depressed” and did not feel he was coping. The father stopped his medication after a few months because he had commenced a relationship with the mother and was happier with arrangements relating to the farm.
103 The father became depressed again in 2005. In April that year he was referred to
a psychiatrist for urgent assessment. His doctor informed the psychiatrist that he had “a 10 year history of severe depression” and had presented with “severe symptoms including persisting suicidal ideation”. The doctor said she had only been persuaded not to admit the father to hospital immediately because of “reasons related to family
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and work” and because it was thought he would have “adequate support over the
weekend for his own safety”.104 The father said in his oral evidence that he had not felt as bad on the occasion he
saw his doctor in April 2005 as he had in 2003. In any event the doctor put the father back on his medication with an increased dosage pending the assessment by the psychiatrist. After taking the medication for a while, the father again felt better and stopped taking his medication. In 2007 the father saw his doctor again and he was referred to a social worker in [the regional centre] who developed what was described as “a mental health plan”. The father says he has not had medication for depression since early to mid 2006.
105 The correspondence between the doctors indicates that the father reported
a history of depression from his early 20s, although he had not obtained treatment until 2003. The father had used “speed” and “ecstasy” but not since 1996. He also had issues with his own father whom he described to his doctor as “very controlled” and “a very hard man who bears grudges”. Interestingly his sister [S] said in her affidavit that she felt that her brother and father often clashed because they were “so similar”, although she felt their issues were now behind them. The paternal grandfather did not provide an affidavit.
106 To his very great credit, the father has sought and followed medical advice to
assist him in the management of his illness since 2003 and it would appear that he does not suffer from depression at present. Nevertheless, given the severity and duration of his depression in the past, there has to be at least some concern that circumstances will arise in which the father will again become depressed. He acknowledged that one of his stressors had been financial difficulties associated inter alia with the drought. The nature of farming is such that he is likely to confront similar difficulties in the future. I consider his ability to cope with this and other problems is also likely to be heavily dependent upon his satisfaction with his relationship with [Ms S]. They are currently in what can only be regarded as a very early stage of their romance. Whilst they appear to be very much in love, it can be anticipated that the relationship will experience the normal stresses and strains as the years progress. How this will impact on the father’s emotional health is an unknown quantity, especially as it seems he has never let his own family know the extent of his struggle with depression.
107 These uncertainties are matters to keep in mind when considering whether there
is any basis to move toward an equal shared care regime, which is the father’s ultimate
goal.The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
108 [Emily] is still very young and I consider this of relevance in assessing the likely impact upon her of separation from the person who is clearly her primary attachment.
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Any family violence involving the child or a member of the child’s family
109 There is nothing further that needs to be said in relation to this issue.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
110 It is usually desirable to make the order least likely to lead to further
proceedings. The difficulty is in identifying what that order would be. I do not consider this factor to be of great significance; however, my finding that an equal shared care arrangement is unlikely to be in [Emily]’s long term interests may assist in avoiding further proceedings.
Any other fact or circumstance that the court thinks is relevant
111 I do not consider there are any other matters that require consideration.
Section 60CC(4) factors
112 I am required to consider a variety of other matters in s 60CC(4). The provision
is lengthy and I will not repeat it. I have already dealt adequately with the relevant
matters.
Parental responsibility
113 [Emily]’s parents have consented to an order that they have equal shared
parental responsibility. This is appropriate as they both have [Emily]’s interests at heart. However, such an order will require some change of attitude on the part of both parents. I consider that the father’s sister, [S], was probably correct in describing both the father and the mother as “stubborn” and having “differences of opinion about the simplest things”.
114 I can only hope, for [Emily]’s sake, that now this trial is behind them, the
parents will find some means of communicating civilly with each other, apart from through their lawyers. In this regard, I note that to his credit the father has enrolled in a Triple P parenting program, but I consider it would also be beneficial if he could make arrangements to attend the excellent Mums and Dads Forever program, which the mother has also attended.
Time sharing
115 As I intend to make an order for equal shared parental responsibility, I am
obliged to consider whether or not an arrangement where [Emily] spends equal time
with each parent would be in her best interests.116 The father does not seek equal time with [Emily] at present, but wants such an
arrangement if he moves to live in [the regional centre]. Clearly an equal time
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arrangement would not be practicable, especially for a child of school age, while the parents live a long way apart. In any event, I am not satisfied such an arrangement would be in [Emily]’s best interests, even if the parents lived in close proximity.
117 I consider the reasons for this can be ascertained from the findings I have already made. In particular:
• [Emily] has been largely brought up by her mother and her closest attachment is with her mother; • [Emily] already has a meaningful relationship with her father and will be able to retain such a relationship without spending equal time with him; • [Emily] would benefit from having a permanent “base” in her mother’s home; • The father would be likely to delegate to [Ms S] some of the responsibility for caring for [Emily], especially during busy times; • There are question marks concerning how the father will cope with life in the future, especially if he experiences financial setbacks or problems in his relationship with [Ms S]. 118 I am also obliged to consider whether an order for [Emily] to spend substantial
and significant time with both parents would be in her best interests. The legislation provides that a child will only spend “substantial and significant time” with a parent if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends or holidays; and (b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and (ii) occasions and events that are of particular significance to the child; and (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
119 I am satisfied that it would be in [Emily]’s best interests for her to spent
substantial and significant time with the both parents. I consider that the regime laid down by the 2008 consent orders provided for “substantial and significant” time. The proposal of the mother, at least for the balance of 2009, also provides for such time. However, the mother’s proposals for 2010 and onwards do not.
120 Part of the difficulty the mother would have experienced in making her
proposals concerns the uncertainty associated with the father’s proposals about moving to [the regional centre]. What might be a perfectly appropriate arrangement if
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he was living near [Emily]’s school will not be appropriate while he is living a long
way away.121 The father has faced similar difficulties in making his proposals. He says he
would move to [the regional centre] more quickly if he felt he was going to have [Emily] living with him more than she does at present. On the other hand, he would be inclined to stay at [the farm] longer if he was going to have less time with [Emily] than he is proposing.
122 Unfortunately, the father’s intentions are unclear. I found it of significance
(particularly in the earlier stages of the trial) that neither the father nor his counsel was prepared to commit to any timetable for the move to [the regional centre] – other than that it would have to be within the next seven years. Many things can change in the space even of 18 months, which seemed to be the earliest time the father would be prepared to move to [the regional centre].
123 Court orders are not normally made on the basis of some hypothetical state of
affairs. If the father takes up residence in [the regional centre] then the Court can deal with that position at the time. The orders to be made would take into account what arrangements the father has made for accommodation and all of the other things that are important in determining his capacity to care for [Emily]. These would include his employment and any domestic relationship in which he was then involved. Furthermore, the longer the father delays his move to [the regional centre] the more important [Emily]’s views will become in determining her living arrangements. The Full Court in Dacia & Bennington [2008] FamCAFC 135 has drawn attention to the difficulties associated with orders directing a change of arrangements to occur at some time in the future based upon speculation as to what the circumstances might be at that time.
124 One very important issue if the father moves to live in [the regional centre]
would be the amount of time he would still need to spend on the farm at [the farm]. The father does not appear to have any plans to give up that land and therefore would have to spend some time farming the property and travelling between [the regional centre] and the farm. These arrangements were not well developed at the hearing, although [Ms S] said in her affidavit that, with the help of employed labour, the farm could “look after itself” for between 60 to 70% of the time. The father said in his affidavit that “over the years, I have thought about moving to [the regional centre] and running the farm from a distance, however the idea has never really been feasible”. It seems from reading the father’s affidavit that the idea had only become feasible as a result of him forming a relationship with [Ms S], because he would be able to leave [Emily] with her when he goes back to work on the farm.
125 I consider the mother’s proposals for the regular time the father is to spend with
[Emily] for the balance of 2009 to be in her best interests. This arrangement will allow the father four nights in every 14 with [Emily] and also gives him (or his family) an opportunity for a further visit on one further weekday in the intervening week.
126 This arrangement is appropriate whilst [Emily] is only required to attend
kindergarten on two days each week. Arrangements will become more difficult when [Emily] is required to attend either pre-primary or primary school on five days every
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week. It is not acceptable for [Emily] to miss days from pre-primary or primary school and any arrangement for sharing her time between her parents needs to take this into account. It also needs to be taken into account that [the farm] is a long way from [the regional centre]; hence if [Emily] is to go to the farm for the weekend, she will probably not arrive until around dusk on Friday and will have to commence the journey back on Sunday afternoon. This is going to be a tiring arrangement, and in this regard I accept the evidence suggesting that [Emily] shows signs of fatigue after such visits and takes some time to recuperate.
127 If the father was to decide to move to [the regional centre] soon, then I consider
that it would be in [Emily]’s best interests for the roster proposed by the mother for 2009 to continue; i.e. [Emily] would continue to spend four nights each fortnight with her father and have an afternoon visit in the other week. If, however, the father continues to live at [the farm] this is not an option if the father wants to spend all his time with [Emily] on the farm. The father would only be able to have three nights over a weekend with [Emily] – and I would only be inclined to allow him to have the third night if it was spent in [the regional centre] (since it is unrealistic to anticipate that [Emily] would be brought back to [the regional centre] from [the farm] in the morning of a school day).
128 The mother’s preference is that [Emily] would, in fact, come back to her home
on the Sunday night. She is very concerned about the travel schedule and the time it takes [Emily] to return to her “normal self” after the journey. The mother feels that it would be best for [Emily] if she was home with her so that she would be “well rested and in a fit state to go to school the next day”. There is merit in the mother’s views; however, I consider [Emily] will also be able to be rested if she stays Sunday night with her father in the family home in [the regional centre]. By this means, the father will then have the opportunity of being able to take [Emily] to school on Monday and perhaps have some opportunity to get to know the teachers and some of the other parents and children while he is dropping [Emily] off.
Handover and travel arrangement
129 The father proposed that the mother drive [Emily] to [the farm] at the
commencement of his time with [Emily] in the first week of the roster and that she also take [Emily] to [the farm] at the commencement of school holidays. The mother’s proposal was that the father should undertake all of the transportation arrangements.
130 The father acknowledged that the transport arrangements would not be as
onerous if his parents were permitted to bring [Emily] to the farm. He and his de facto wife also acknowledged that it is necessary for them to come to [the regional centre] regularly to do the family shopping. There would also be other occasions when it would be convenient to come to [the regional centre], whereas there is no reason for the mother to go to [the farm].
131 Although not mentioned in this context in the submissions, I consider it is also
a factor that the mother is apprehensive about the father as a result of his behaviour on Christmas Day. She now prefers to have someone with her at handover. It would
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become very onerous to expect anyone to accompany her regularly on such a long trip and it would not be reasonable to require her to be alone on the farm with the father until she regains trust in him.
132 Whilst I acknowledge there appears to be “fairness” in each parent being obliged
to share the travel arrangements, it also needs to be kept in mind that the mother has
responsibility for all of [Emily]’s transport arrangements when she is living with her.133 Taking all of these matters into account, I do not consider it appropriate to
require the mother to undertake any of the travel; however, the father’s family and [Ms S]should to be permitted to help out. Apart from any other consideration, it is very important that the father not be forced to undertake return journeys totalling 1,000 kilometres over a short period because of the fatigue he might suffer.
Other matters for determination
134 As I understood the position, the following were the only “minor” issues not agreed and on which I am therefore required to rule.
Mother’s Day and Father’s Day
135 Counsel for the father drew attention in his opening address to differences in the
applications concerning Mother’s Day and Father’s Day. No submissions were made.
136 The father proposed that [Emily] be with him “from 8.00 am on Father’s Day to
8.00 am the following day or the commencement of kindy/school, as appropriate …” The father proposes that [Emily] have a similar period with the mother on Mother’s Day if she happens to be with the father on the weekend of Mother’s Day.
137 The mother proposed that the father have [Emily] from 8.30 am until 5.00 pm on Father’s Day and did not seek any order concerning Mother’s Day.
138 If Father’s Day does not fall on one of the father’s weekends, the reality is that
he would only be able to see [Emily] in [the regional centre], as it would be too far to take her to the farm just for one day/night. If the father was coming to [the regional centre] to spend the day with [Emily], I consider it not unreasonable that he have her overnight on Father’s Day and take her to school or kindy the following day. I consider, however, that an 8.00 am start on Father’s Day is too early and that the mother’s proposed start time of 8.30 am is preferable.
139 The mother has sensibly not sought to have a formal order made in relation to
suspension of the father’s time with [Emily] on Mother’s Day. I would expect, however, that the father would ensure that [Emily] acknowledges Mother’s Day, if not by having some time face-to-face, then by speaking over the telephone.
Birthdays
140 Counsel for the father drew attention in his opening address to the fact that there
were some differences in the proposals concerning birthdays. Again no submissions
were made.
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141 The father proposed that [Emily] be with him “from 8.00 am on the father’s
birthday to 8.00 am the following day or from the conclusion of kindy/school on the father’s birthday to the commencement of kindy/school the following day if [Emily] is at kindy/school”, with the father to provide the mother 48 hours notice of his intention to exercise such contact. The father also proposed that he have “at least three hours on [Emily]’s birthday”. He sought the mirror arrangement to allow the mother time with [Emily] on the mother’s birthday but no arrangement was proposed in relation to time to be spent by the mother with [Emily] on [Emily]’s birthday, if this happened to fall during the father’s time.
142 The mother proposed that the father would have time with [Emily] on his
birthday from 8.30 am to 4.30 pm and on [Emily]’s birthday for three hours (either 8.30 am to 11.30 am or 1.30 pm to 4.30 pm) if [Emily]’s birthday was not on a school day; or for one hour after school if it was a school day. Once again the mother did not propose any special arrangement for her own birthday, nor did she seek time with [Emily] in the event that [Emily]’s birthday fell during a time when she was with the father.
143 In reality there is not much to choose between the proposals. In many respects it
is a pity that the already convoluted arrangements have to be made even more intricate by providing for adult birthdays. Nevertheless, if the father wants to celebrate his birthday with [Emily] on the very day of his birthday, then I would imagine that he would want to share either a lunch with her and his family in [the regional centre] (if it is not a school day) or perhaps the evening meal (if it is a school day). In my view it would be sufficient for this purpose if the father was to have three hours on his own birthday with [Emily] (at a time to be nominated by him at least 14 days prior to the birthday).
144 The mother’s proposals concerning [Emily]’s birthdays allow the father to have
three hours with her if it is not a school day, which I consider is adequate; however, the hours she suggests would mean the father could not have lunch or dinner with her, which does not seem appropriate. Any arrangements for [Emily]’s birthday would also need to take account of any arrangements for a party with her school friends. This is more likely to be arranged by the mother, especially while she is the only parent living in [the regional centre]. I therefore intend that the father will have three hours with [Emily] on her birthday, from either 11.00 am to 2.00 pm or from 4.00 pm to 7.00 pm, with the mother to inform the father 28 days in advance which of these times would suit [Emily].
145 In the event that the birthday falls on a school day, I intend that the father will
have two hours with [Emily] immediately following the conclusion of school, provided that the father gives the mother 28 days notice of his intention to exercise that time. The advance notice will allow the mother an opportunity to arrange for an afterschool party for [Emily] if the father is not going to come down to see her for her birthday.
Christmas
146 The father’s proposed arrangements for Christmas were contained in paragraph 5 of his Amended Application:
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“5. That from December 2009 onwards, the parties spend an equal amount of time with [Emily] during the Christmas Period on terms to be agreed between the parties but failing agreement, then the Father shall spend from 10am on 23 December until 10am on 25 December with [Emily] and the Mother shall spend from 10am on 25 December until 10am on 27 December with [Emily], and each alternate year thereafter. Orders 2a and 2b shall remain in force during the Christmas Period and the time that [Emily] spend with each parent will resume for the remainder of the week as of 10am on 27 December.”
147 I was informed that the mother agreed with this, save for the final sentence.
148 Dealing first with the agreed portion of paragraph 5, whilst the parties’
intentions are clear enough, I am not convinced the words proposed capture their intention. I understand that, in the absence of agreement to the contrary, the proposal is that in 2009 and each alternate year thereafter the father would have [Emily] from 10.00 am on 23 December until 10.00 am on 25 December and that the mother would have her from 10.00 am on 25 December until 10.00 am on 27 December, and that in 2010 and in each alternate year thereafter the arrangements would be reversed.
149 Turning now to the disputed final sentence of paragraph 5 it is important, first, to
record what is contained in the father’s proposed “Orders 2a and 2b”, since paragraph
5 refers to them. They were in these terms:
“2. That the Father spend time with [Emily], to include the following:
a. in week 1, and each alternate week thereafter, from 6:00pm Thursday if the child is attending kindy/school or from noon Thursday if the child is not attending kindy/school, as appropriate, until the commencement of kindy/school on the following Monday; b. in week 2, and each alternate week thereafter, from noon Wednesday or from the conclusion of kindy/school on Wednesday as appropriate until the following Friday at noon or at the conclusion of kindy/school as appropriate”.
150 No submissions were made in relation to the dispute concerning the last sentence
of paragraph 5, and I confess I am unsure what the father is seeking to achieve, particularly as the words “the Christmas Period” were defined by the father’s application as meaning from 10.00 am on 23 December until 10.00 am on 27 December. I am also not sure how paragraph 5 is meant to fit with the proposal contained in paragraph 2d which provides that:
“subject to Order 5 below, for half of each school holiday period, and failing agreement, then the Father shall spend the first week with [Emily] and the Mother the second week with [Emily], on a week-about basis and on the agreement that [Emily] start each school year with the Mother.”
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151 At one stage in his submissions I also understood counsel for the father to be
submitting that there should be a week-about sharing of the balance of the Christmas
holidays, which seems inconsistent with paragraph 5 of the father’s proposed orders.152 Apart from agreeing with the father’s proposal for the sharing of the Christmas
festive days, the mother’s proposal was that during the Christmas school holidays the father would spend two one block periods with [Emily] commencing 4 January and 18 January (on the basis that there would be some flexibility because the timing of harvest cannot be predicted and this would impact on the father’s capacity to have time with [Emily]).
153 I consider that the mother’s proposals for the Christmas holidays are appropriate.
The Christmas holidays are usually around six weeks (this year from 17 December 2009 until 1 February 2010) and on the mother’s proposal the father will have two weeks and two days. In deciding that the father will have a little less than one half of the holidays I have in mind that harvest is one of the busiest times. In the event the father was to have any more time than what the mother proposes, there is a likelihood part of this would fall during harvest when [Emily] would be looked after principally by the husband’s partner (when [Emily] could instead be at home near the seaside in [the regional centre] with her mother). In making these observations, I also have in mind the fact that I consider that it is in [Emily]’s best interests not to spend more than one week in a block away from her mother. As she matures, it will be appropriate for the times to be increased and when this occurs it may become more feasible for the father to have block time constituting one half of the Christmas school holidays.
Form of orders
154 I have already recorded that the parties have agreed on the order relating to
parental responsibility. A number of other orders were made by consent at the conclusion of the trial (with the intention that they will be discharged and made again at the same time as orders are made arising out of these reasons). In addition I have already made orders about [Emily]’s surname and her attendance at just the one kindy.
155 I do not propose to set out the full suite of orders that should now be made. This
is because the precise form of orders will depend upon the position the father now adopts regarding his time with [Emily] once she has to start attending pre-primary or primary school five days a week. If he is prepared to return [Emily] to [the regional centre] on Sunday night and personally take her to pre-primary or school on Monday morning, then orders can be made for that regime to come into effect when [Emily] starts attending school five days a week. If the father is unable to commit to such an arrangement, then I propose orders would be made to require [Emily] to be returned to the mother on the night before the start of the school week. In fact, it seems to me, the orders could allow the father the option. Sometimes he might be able to come to [the regional centre] and stay the Sunday night and sometimes he might not. If that type of flexible arrangement were to be attractive to the father he would need to give the mother some notice (say 7 days) of his intentions so that the mother could make her own arrangements.
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I certify that the preceding [155] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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