Dornom & Fielden
[2021] FedCFamC1F 272
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dornom & Fielden [2021] FedCFamC1F 272
File number(s): BRC 9238 of 2020 Judgment of: JUSTICE JARRETT Date of judgment: 17 November 2021 Catchwords: FAMILY LAW – CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – parenting orders – assessment of competing proposals. Legislation: Family Law Act 1975 (Cth), ss 4, 4AB, 4AB(2), 4AB(2)(i), 60B, 60CC, 60CC(3), 60CC(3)(a), 60CC(3)(d), 61DA, 62G, 65DAC(2), 65DAC(3)
Cases cited: Re S; Newcastle City Council v Z [2005] EWHC 1490 (Fam)
Rice & Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
U v U (2002) 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 42 Date of last submission/s: 17 November 2021 Date of hearing: 16 & 17 November 2021 Place: Brisbane Counsel for the Applicant: Ms Earl Solicitor for the Applicant: Redhill Legal Counsel for the Respondent: Mr Casey Solicitor for the Respondent: Gary Rolfe Solicitors Counsel for the Independent Children’s Lawyer Mr Taylor Solicitor for the Independent Children’s Lawyer C M Bint Family Lawyers ORDERS
BRC 9238 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DORNOM
ApplicantAND: MR FIELDEN
Respondent
ORDER MADE BY:
JUSTICE JARRETT
DATE OF ORDER:
17 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The applicant have sole parental responsibility for decisions concerning the major long-term issues of X born …, 2010.
2.Except in the event of an emergency, the applicant is to consult the respondent about decisions to be made in the exercise of her sole parental responsibility on the following basis:
(a)the applicant will give the respondent in writing details of the decision that needs to be made, what decision she proposes to make and the reasons why she proposes the decision be made in a particular way;
(b)the respondent will respond to the applicant, if he wishes to suggest any variation or alternative proposal within seven (7) days of receiving notice;
(c)the applicant will consider any feedback given by the respondent by reference to the best interests of X/children;
(d)the applicant will inform the respondent, in writing, within 7 days of the decision she has made.
3.X shall live with the applicant.
4.X shall spend time with the respondent as agreed but failing agreement as follows:
(a)commencing no earlier than 2 months following the making of these orders, from 9am to 3.00pm each Saturday for 4 visits;
(b)thereafter for 4 visits, each alternate weekend from 9.00am Saturday to 5.00pm Sunday;
(c)thereafter for 4 visits, each alternate weekend from after school Friday to 5.00pm Sunday; and
(d)thereafter:
(i)each alternate weekend from after school Friday to before school Monday; and
(ii)for one half of each school holiday period being the first half in holidays commencing in even numbered years and the second half in holidays commencing in odd numbered years with such time to include Christmas Day as it falls.
5.Unless otherwise agreed or provided for in these orders, changeover shall occur as follows:
(a)when changeover occurs on a school day, then at B School or such other school that X might attend from time to time; and
(b)at all other times at the McDonald’s Restaurant at City C with the parties to exchange X inside the premises and not in the car park.
6.The parties shall not use any illicit drugs or be affected by same while caring for X.
7.The parties shall communicate by using the online parenting application Our Family Wizard, except in an emergency where the parties may communicate by text message and such communications shall be limited to matters concerning X and such matters as:
(a)start and finishing time and locations of any special requirements of any extra-curricular activity scheduled for X during a contact period;
(b)any special medication required by X;
(c)any special homework, assignment or school work required to be undertaken by X;
(d)any other unscheduled or periodic activities or events of which the other party should be aware; and shall not include any other matters such as observations or comments upon the other party’s parenting.
8.X shall spend the Father’s Day weekend with the respondent in accordance with the applicable regime set out in order 4 hereof.
9.X shall spend the Mother’s Day weekend (from after school Friday until before school Monday) with the applicant.
10.Upon the commencement of time between the respondent and X pursuant to order 4(a) hereof, the applicant shall facilitate X having communication with the respondent by telephone, skype or such other appropriate electronic communication platform each Wednesday between 6.00pm and 7.00pm.
11.Upon the commencement of time between the respondent and X pursuant to order 4(a) hereof, the parties facilitate X’s communication by telephone with the other party at all reasonable times at X’s request but limited to between the hours of 7.00am to 7.00pm.
12.Notwithstanding the above, the party who is spending time with X shall ensure X communicates with the other party on the other party’s birthday and X’s birthday.
13.Each party keep the other informed of their address and telephone number and give notice of any intended change to either as soon as reasonably possible once known.
14.These orders constitute sufficient authority to X’s doctors, and any other health or other professionals who are consulted in relation to X, to provide the parties with information which they may require in relation to the health and welfare of X.
15.These orders constitute sufficient authority for any school attended by X to forward to the parties all school reports, newsletters and notices of school sports and school functions and in addition provide authority to the schools attended by X for the parties to attend such school sport and school functions and to permit the parties to attend parent/teacher meetings and to meet and discuss with X’s teacher and principal of the school the progress of X.
16.Each party shall facilitate X’s attendance at any of his sporting or extra-circular activities.
17.The parties shall continue to attend at individual counselling with the intention of improving communication and to assist in the care of X.
18.The parties shall not enrol X in any extracurricular activity that impinges on X’s time with the other party without the written agreement of the other party.
19.The applicant is to keep the respondent informed of the contact details of the general practitioner upon whom X attends and except in an emergency, the respondent will facilitate X’s attendance at the same general practitioner.
20.Upon the commencement of order 4(d)(ii) hereof, notwithstanding the above, either party may travel overseas with X provided:
(a)the travelling party provides to the other one month’s written notice of their intention to so travel and the date and time of X’s departure and return to Australia;
(b)the travelling party provides to the other a copy of X’s pre-paid return airline tickets 30 days prior to departure; and
(c)30 days before departure, the travelling party provides to the other an itinerary of X’s travel timetable; and
(d)any overseas travel take place in time that X would otherwise spend with that party pursuant to these orders or otherwise by agreement in writing.
21.Each party shall do all acts and things necessary to assist the other to obtain a passport for X where necessary.
22.Notwithstanding the above, such overseas travel shall not exceed three (3) weeks of each year and one occasion each year for each party.
23.The travelling party shall ensure that X telephones the other party:
(a)on the day of departure;
(b)when X arrives at their destination;
(c)at least twice per week whilst X is away;
(d)on the day that X leaves to travel back to Australia;
(e)when X arrives back in Australia.
24.Each of the parties are restrained and an injunction hereby issues restraining each of the parties from:
(a)making derogatory comments about the other party to X, in X’s presence or to any teacher or other Education Queensland employee;
(b)discussing these proceedings with X, in X’s presence or to any teacher or other Education Queensland employee;
(c)discussing any matters of disagreement between them with X, in X’s presence or to any teacher or other Education Queensland employee;
(d)discussing any matters of parenting style in the other’s household with X, in X’s presence or to any teacher or other Education Queensland employee.
25.Each of the parties be restrained from discussing or otherwise providing to any school X attends, documents or information relating to these proceedings or dispute between them other than a copy of this order.
26.Following a period of 2 months from the date of this orders, each party be at liberty to respond on one occasion to any text message sent to them by X at times when he is otherwise in the care of the other party and not initiate text communication.
27.Each of the parties is restrained and an injunction hereby issues restraining each of the parties from otherwise communicating with X during times that he is in the other party’s care, subject only to these orders.
28.Each of the parties are to provide to any counsellor upon whom they attend for the purposes of improving their co-parenting relationship:
(a)a copy of the Family report of Ms D dated 9 August 2021.
(b)a copy of these orders and any reasons for judgment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dornom & Fielden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
REASONS FOR JUDGMENT
JARRETT J:
This case involves the parenting arrangements for X, who is presently 11 years of age. For most of his life, he has been the subject of parenting orders made by a court under the Family Law Act 1975 (Cth). The parties first started litigating about his welfare in 2011 – that is, the year following his birth. Those proceedings were settled in 2014 with the assistance of a s 62G report, by some consent orders which generally speaking provided for X to live in an equal time arrangement between his parents. There was an order for equal shared parental responsibility.
In 2016, X’s mother commenced further proceedings in which she applied for orders that permitted her to move X’s residence to City E and for him to live most of the time with her. However, after some more reports prepared under s 62G of the Family Law Act, those proceedings, too, were compromised and in 2017 (on an interim basis) and 2018 (on a final basis), the parties agreed that the arrangements put in place by the 2014 orders should remain. They have remained ever since. There have been some hiccups, in more recent times in particular, but by and large, X has passed from one household to the other for better or for worse. As it turns out, it is for the worse.
It was said by counsel for the applicant that there can be no doubt that the orders have had a deleterious effect upon X. I do not accept that proposition for one minute. It is not the orders that have that effect upon him. As the evidence clearly demonstrates, it is his parents’ conflict that is the source of the detriment to him. All that the orders have done is to manage his time between each of his parents. He spends equal time with each of them, so he is exposed to them equally and the orders have imposed an obligation on the parties to make decisions concerning major long-term issues for X together. Again, perhaps of more recent times, but maybe not so recent, the order for equal shared parental responsibility has not truly been observed, if not to the letter, certainly not in spirit.
The making of parenting orders is an exercise of the Court’s power granted to it by Part VII of the Family Law Act 1975. Part VII provides the relevant statutory framework within which the Court must determine what parenting orders are in a child’s best interests. Overarching the framework set up by Part VII is the obligation upon the Court to regard the best interests of the child or children concerned as the paramount consideration when determining what parenting orders ought to be made. That paramount consideration is just that: paramount. There are many considerations that need to be assessed when making parenting orders, but the best interests of the child or children concerned is paramount to all of them.
In the context of what is described in some of the authorities as “relocation” cases, it is often said that there is a contest between the entitlements and rights of parents to live wherever they wish with an entitlement or a right of a child set out in s 60B of the Family Law Act to a relationship with both of his or her parents. In those cases, it is clear that the interests of the parents comes second: see for example, Hayne J in U v U (2002) 211 CLR 238. So although that is a consideration, the interests of parents, it is nowhere close to the top of the list. Anyway, I digress.
The best interest principle informs each of the orders that a court might be called upon to make concerning parenting, including orders concerning the incidence of parental responsibility, where a child will live and with whom a child shall spend time and communicate.
As to the issue of parental responsibility, s 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility for that child. Despite what is often commonly thought in the community that does not mean equal time between parents, for it is to do with decision-making, not living arrangements. The theory is that children will do best when they have input from each of their parents through, in part at least, the obligation to make decisions about major long-term issues jointly: Sections 65DAC(2) and (3), is an attempt by the legislature to put that policy into practice. Sometimes it works. Sometimes it does not. Here, it has not. Both of the parties here have, despite the orders for equal shared parental responsibility, demonstrated an adeptness at making decisions themselves which really ought to have been made jointly. I will return to that soon.
The presumption of equal shared parental responsibility does not apply where the Court is satisfied that there has been family violence, or there has been abuse of a child or somebody who was a member of that child’s family. The term abuse is defined in s 4 of the Family Law Act 1975. The term family violence is defined in s 4AB. Here, it was said that the presumption does not apply, because there is a protection order in place between these parties. It is an interesting argument, but apart from the application for the order being in evidence and the fact of the order having been made after a contested hearing, there is nothing else before me that would permit me to make a finding about those things. The evidence does not traverse the acts said to constitute the violence upon which the protection order was made. In any event, I do not have to, because, for other reasons, I am satisfied that there has been family violence here. It arises in this way. Section 4AB of the Family Law Act 1975 provides that:
For the purposes of the Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, the family member, or causes the family member to be fearful.
Subsection 4AB(2) of the definition gives some examples. The relevant one here is subsection 4AB(2)(i). Read in its entirety, subsection 4AB(2)(i) says this:
Examples of behaviour that may constitute family violence include (but are not limited to):
(i)preventing the family member from making or keeping connections with his or her family, friends or culture.
I take the view that the withholding of children from a parent in breach of orders is preventing that child, that is, the relevant family member, from making or keeping connections with his or her family. That is what happened here when the father withheld X from his mother. He has perpetrated family violence within the definition set out in s 4AB of the Act towards X. I so find. That is sufficient to disengage the presumption in s 61DA of the Act. I note, with some irony that in his affidavit filed on 12 October, 2021 the father swears that he supports numerous organisations, including those committed to raising awareness around gender neutral domestic violence.
To work out what is in a child’s best interests, the Court needs to take into account the matters set out in s 60CC of the Family Law Act 1975, to the extent that those things are relevant. Not all of the matters will be relevant in any particular case. And here, some of those set out in s 60CC(3) are not relevant. I only intend to deal with those that are relevant. But before I do that, it is necessary to deal with the Rice & Asplund issue. Rice & Asplund (1979) FLC 90-725 was decided in 1976. It is a case of longstanding, and it has been applied and reapplied and reaffirmed by the Full Court time and again.
There is, with respect, a fulsome explanation of the principle in SPS & PLS [2008] FamCAFC 16 a case to which I was taken by counsel for the Independent Children’s Lawyer. In that case, Warnick J made it clear that the rule in Rice & Asplund, as it has come to be known, is nothing more than a manifestation of the best interests principle. The Court has long acted on the proposition, commencing with Rice & Asplund itself and the judgment of Evatt CJ in that case, that litigation is rarely in the best interests of a child or children, and repetitive litigation is even less in their interests and so repetitive litigation about children is to be discouraged. Once final orders have been made concerning a child’s welfare under the Family Law Act, and irrespective of whether those orders are made after a trial or by consent, a Court needs to be satisfied that there has been a significant or material change in circumstances sufficient to warrant the revisiting of the welfare of the child or children concerned before it will embark upon another examination of those issues. As Warnick J explains in SPS, the test can be applied at the commencement of proceedings and it is not uncommon for there to be applications for summary dismissal of parenting cases at the commencement where there have been final orders made. But it can also be applied at the end of proceedings like this and the considerations are different.
If the rationale of the rule is to avoid a multiplicity of proceedings and more importantly, the exposure of children to that multiplicity of proceedings, then the work to be done by the principle is all but expended when we get to the point at which we have reached in this case.
In any event, I am satisfied there has been a change of circumstances here. Mr Taylor persuades me that really, the significant change is a change in the optimism, for want of a better word, of each of the parents that they might be able to make their co-parenting relationship work. That must have underpinned the orders that were made in 2014 and reaffirmed in 2017 and 2018. But as the evidence given by both of the parties in cross-examination now makes very clear, whatever hope they ever held out to have a workable co-parenting relationship has been abandoned – so much the worse for X.
I am satisfied and I find that there has been a material and significant change in circumstances represented by a change in the attitudes of the parents to which I have just referred, which is sufficient to revisit the welfare of this child and the orders that were made in 2014.
These parties had a relationship which was relatively short. I have indicated that X was born in 2010 and litigation commenced soon after his birth when the parties separated in 2011. Since that time, it seems that Mr Fielden has not been partnered. He lives in the home in City C that he occupied at the time of the parties’ relationship. He has two other children. They are much older, having just turned or are about to turn 21. Ms Dornom has other children as well, one of whom lives with her. She lives in City C. The parties live close to each other. An equal time arrangement, all other things being equal, could work.
I have the benefit of having seen both of the parties give their evidence under cross-examination. Neither were impressive. I thought that the evidence given by the mother in cross-examination was a little more insightful, although it was a marginal thing. The father’s evidence was breathtaking insightless. He has no understanding of what is in X’s best interests, in my view.
That is not to say that these parents have not managed some aspects of X’s life well; they have. There can be a number of positive things said about X and each of his parents. He is, on all accounts, physically well cared for. Both of his parents provide for his needs although the evidence demonstrates that X’s father has trouble getting him to school on occasions. He does well at school. That seems to be common ground. His parents are both articulate people, and intelligent. The evidence shows that they are both either tertiary educated or have completed aspects of tertiary education. Those things bode well for X.
The evidence demonstrates that X’s father is what I might describe as an outdoors man. He takes his son on fishing excursions. He enjoys the beach. Those things are important and X is exposed to them. So in the context of this courtroom and these proceedings, where the task is to ultimately make a determination about what is in X’s best interests, it is all too easy to get caught up in the negative side of things. It is important to acknowledge the positives.
X will benefit from an ongoing, meaningful relationship with each of his parents, because they have much to offer him – each of them – and he has much to gain from them. The father’s evidence demonstrates that he is engaged in the community. He is a volunteer, and he has run for public office. Those are important things, and they are demonstrative of a wider commitment. They should be acknowledged.
That X has had a relationship with each of his parents is also a positive. That also ought to be acknowledged, that he has such a strong relationship with his father is not just a credit to his father, but a credit to his mother as well. That he has the psychological permission from her to have that relationship demonstrates a capacity on her part to understand what is in his best interests. Sadly, the same cannot be said for X’s father.
This is not a case where there is a need to protect X from an unacceptable risk of physical or psychological harm by reason of being exposed to abuse, neglect or family violence as those terms are used in the Family Law Act 1975.
Section 60CC(3)(a) requires me to take into account X’s views and whatever matters I think are appropriate essentially, my paraphrase, which bear upon the weight that might be given to those views. I do not have any reliable evidence about X’s views before me. He has refused to engage now for a long time with those who are tasked with assessing his views in a professional sense. The Family Law Act 1975 provides for the ways in which the views of children are to be placed before a court and one of those ways is through the assistance of a family consultant through, amongst other things, a report under s 62G of the Family Law Act 1975. That process has been an abject failure here.
There is some peripheral evidence, if I can call it that, which bears upon X’s views. There are some text messages, there is his behaviour when he was subjected to the latest s 62G process, all of which point towards X wishing to spend more time in his father’s household than his mother’s, or at least wishing to return to his father’s care in the context in which the particular statements by X or the behaviour exhibited by him were made. But in terms of context, the evidence is thin on the ground.
I was taken recently with a statement made by a judge deciding a case in another jurisdiction, which some of those at the bar table might be familiar. In Re S; Newcastle City Council v Z [2005] EWHC 1490 (Fam) is a decision of the High Court of Justice Family Division at Newcastle in the United Kingdom. In that case, Justice Munby said this – and this is not by way of anything precedential or authoritative, but it illustrates the point – his Honour there said, when dealing with a freeing application (my emphasis):
Everything must depend upon the facts and the context. In this, as in so many other areas of family law, context is everything.
Well, I have nothing, because I have very little context for much of what has been placed before me. Much of the evidence of the mother and the father before me is robbed of its probative value because of the lack of context. That is not uncommon in this jurisdiction. People will often provide in their affidavits extracts from text messages, emails, telephone conversations, conversations had outside of McDonald’s in the carpark during contact changeovers and they place in italics, as has happened in this case, a phrase or a few phrases strung together, but nothing else. And the words, on their face, are pejorative and apt to cause concern. But bereft of context, the evidence has no probative value.
So in terms of X’s wishes or views, I understand that he might be expressing some view that he prefers to be in the company of his father. I also accept that orders to the contrary might upset him. But I cannot make a finding that there is any particular factor in this case which would elevate any views that have been expressed by X to such significance that I would accord them any weight at all. I do not accord his reported views any weight.
The mother’s proposal is for X to live with her, for there to be a moratorium of time between X and his father and then for X to spend, after graduation, alternate weekend time with him and half of the school holidays. Orders in that form, which are close to the orders sought by the independent children’s lawyer, will not accord with what have been described in submissions to me as X’s views. To that extent, I accept the evidence of the family report writer that that might cause X to be resentful of his mother and might cause him short term pain. But as Ms D expressed, it is more about the long term gain than the short term pain. The orders sought by Mr Fielden would accord with what have been loosely described as X’s views and that would make X, no doubt, happy. I take that into account.
There is no doubt that X’s relationship with his father is important to him. It is well developed, but developed to the point where Ms D expressed the view that if the orders sought by Mr Fielden were made, there might be further “enmeshment” between X and his father in terms of their relationship. What she meant by that was not explored in the evidence, but the suggestion in the context in which it was made was that it was likely to be a negative thing for X.
X’s relationship with his mother is problematical. If his expressions set out in the text messages to which I have been taken in the evidence and his behaviour, particularly at the last s 62G report, is any indication, then his relationship with his mother is fractured. It is not in the same league as his relationship with his father, and that is a concern because, first, he has been living equally with each of his parents, and second he is entitled to have a relationship on his own terms with each of them – s 60B of the Family Law Act bears that out. But for reasons that do not appear from the evidence, at least expressly, all is not as it could be or should be between X and his mother.
The evidence does not really permit of a finding about why that is so. Many factors have been talked about, particularly by Ms D in cross-examination. It might be that the mother’s more of a disciplinarian or rule setter in her household. It might be that the father is less of one. It might be a whole range of things. The evidence does not permit of a finding about why it might be. What the evidence does permit of a finding about is that Mr Fielden does not support X’s relationship with his mother. He says that he does but it is one thing to talk the talk, and another to walk the walk. The evidence demonstrates that Mr Fielden’s actions are not supportive of X’s relationship with his mother but, rather, undermine it, demean it, and give to X a message that his relationship with his mother is less important than his relationship with his father. Nothing can be clearer from the evidence.
That is an important consideration and it feeds in to, of course, the matters to be considered under s 60CC(3)(d) of the Act. If things are left as they are, the conflict between these parents will continue to rage. I accept the submissions made by the Independent Children’s Lawyer’s counsel that these parties do not demonstrate a capacity to change. There has been, over the years now, plenty of opportunity for them to change but they have not taken that opportunity. There is evidence from each of them that they have continued to engage with therapists and counsellors. And that is therapy and counselling which, no doubt, both of them have needed to deal with the issues that they confront in their own lives and their own mental health. But none of it appears to have addressed nor been intended to address the issues that are of immediate concern here, namely, the conflict that exists in their co-parenting relationship.
There is no evidence that either of these parties have attempted to do anything about the conflict in their co-parenting relationship. They have done Triple P parenting courses but that is about how to look after children, not how to look after co-parenting relationships – two different things. The mother has recently completed a circle of security program. The syllabus of that program is not in evidence so I am not entirely sure what it dealt with but I will give her the benefit of the doubt and accept that it deals with co-parenting relationships. But it does not seem to have had any effect. The father has done some courses. His evidence about that is a little more nebulous because it seems that he has done some learning in the context of his tertiary study. But when confronted directly with the proposition that he had done nothing to put into practice what he had learned, he ultimately conceded the proposition. The only thing he could point to having done with the view to trying to improve the parties’ co-parenting relationship having regard to his learnings was to write to the mother and, essentially, point out her faults. Not very helpful.
So I accept the submissions from the Independent Children’s Lawyer that these parties probably do not have the capacity for change in respect of their co-parenting relationship. If they did, they would have by now. But they have not.
In those circumstances, the question then becomes what to do about the relationships that X presently has with each of his parents bearing in mind his entitlements set out in s 60B of the Family Law Act 1975. Subsection 60CC(3)(d), the subsection I referred to a moment ago, requires the Court to take into account the likely effect of any changes in the circumstances of a child, including the likely effect on the child of any separation from his parents. It is usually the subsection that is referred to when dealing with changes in relationships between children and parents. If the orders proposed by the mother and the Independent Children’s Lawyer are made, there is a potential for X’s relationship with his mother to improve. I say a potential because as Ms D quite frankly acknowledged, predicting the future is a difficult business.
As I remarked to counsel for the father during the course of his submissions, the Court deals in probabilities rather than possibilities. On the evidence before me, there is only one thing that is probable and about which I can make a finding in terms of X’s relationships with his parents. That is that if either the current arrangements remain or the proposals put by the father are put in place, X’s relationship with his mother will probably deteriorate. I so find. I am satisfied that that is likely to occur. His relationship with his mother will get worse. I refer to my earlier finding that X’s father is not in a position to and does not support that relationship in the way in which it ought to be supported. His conduct in the past has been undermining of it. And, in my view, deliberately so.
Ms D acknowledged that the orders sought by the mother might lead to a deterioration in X’s relationship with his mother, but she also said that it might also lead to an improvement. It might. But it seems to me that the likelihood of that occurring is far less than it deteriorating. If I were to make the orders the mother seeks then there is the likely prospect - I say it no higher than that - that X’s relationship with his mother will improve.
The evidence of Ms D demonstrates that X’s relationship with his father will not suffer. Such is the strength of that relationship that it will be able to withstand a reduction in time between X and his father. That is vitally important, because it demonstrates that if the outcome of this case is viewed through the prism of what is in X’s best interests, and one recognises that X has an entitlement and a right to a proper relationship with each of his parents, then the prospect that his relationship with his mother might be improved, and the prospect that there will be no negative effect upon his relationship with his father, must demand that X be given the opportunity - because this case is about him - to improve his relationship with his mother.
I reach the following conclusions. The first is that, as I have already expressed, the presumption of equal shared parental responsibility is rebutted. The evidence makes it clear that these parties have very little capacity to cooperatively parent their son and they are apt to do things unilaterally. Their communication is such that it is not conducive to joint decision-making, although that fact of its own is not determinative of whether an order for equal shared parental responsibility, either as a result of the application for presumption or as an exercise of the best interest principle should be made. But here, I think, having regard to lack of communication and the track record, if I can call it that, it is not likely that an order for equal shared parental responsibility will continue to work. The parties recognise that, because each asks for an order for sole parental responsibility. Sole parental responsibility ought to be provided to the parent with whom X will live most of the time.
As to that matter, it seems to me that the discussion that I have undertaken in respect of the s 60CC factors compels a conclusion that X should live with his mother and he should live with his mother for most of the time. That will give him the best opportunity to restore and enjoy a relationship with his mother as he should have without cost to his relationship to his father. That will, of course, mean that there is a significant reduction in time between X and his father, and that will distress, no doubt, X, at least in the short term, and it will no doubt distress his father. I accept Ms D’s assessment that the father’s case is probably more about the father’s needs than X’s. That was the conclusion to which I had come on a preliminary basis having heard the father’s evidence and before I heard Ms D’s evidence. Her evidence solidified my thinking.
The question of a moratorium looms large, but there is no reason not to accept Ms D’s evidence about that. It has the ring of common sense. X ought to be relieved of as many burdens as he can to deal with what is going to be a taxing experience for him the next little while. If one accepts Ms D’s suggestions, as I have done, that the father’s case is more about the father’s needs rather than X’s needs, then it will be important to insulate X from that, and a moratorium is required. I accept that two months is appropriate. I do not accept the Independent Children’s Lawyer’s position that the time should then commence with alternate weekends immediately.
I was impressed by Ms D’s evidence and her explanation as to why the reintroduction of time between X and his father should be gradual. I accept her reasons for that; they make sense, in my view. And so the orders proposed by the mother in that regard will be appropriate.
No party in their submissions addressed me directly upon on the terms of the orders proposed by any of them, and in particular, the minutiae which often accompanies parenting orders like this. I have a set of orders that have been presented by the Independent Children’s Lawyer. I have indicated that, in a roundabout way - and I will do it expressly now - that I will make orders 1, 2, 3, 4, 5, 5(a), 5(b), 5(c), 5(d), 6, 7, 8, 9, 10, 11 - not 11; I beg your pardon - 12, 13, 14.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Jarrett delivered on 17 November, 2021. Associate:
Dated: 24 January 2022
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