Falzone and Falzone
[2013] FCCA 1978
•2 December 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FALZONE & FALZONE | [2013] FCCA 1978 |
| Catchwords: FAMILY LAW – Children – consent orders for equal time – interim injunction restraining mother from attending school during father’s time – parental responsibility – whether equal time should be continued. |
| Legislation: Family Law Act 1975, ss.11, 60B, 60CC, 61DA, 62G, 65DAA, 65DAC Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), Sched. 1, Pt 2 |
| AIF v AMS (1999) 199 CLR 160 Barber & Salmon [2009] FMCAfam 272 |
| Applicant: | MS FALZONE |
| Respondent: | MR FALZONE |
| File Number: | LNC 733 of 2010 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 17, 18 & 19 April and 28, 29 & 30 May 2013 |
| Date of Last Submission: | 30 May 2013 |
| Delivered at: | Burnie |
| Delivered on: | 2 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Fitzgerald |
| Solicitors for the Applicant: | Legal Aid Commission of Tasmania |
| Counsel for the Respondent: | Mr P McVeity |
| Solicitors for the Respondent: | McVeity & Associates |
| Independent Children's Lawyer: | Mr D Lewis, Barrister |
ORDERS
That all previous parenting orders in relation to X born (omitted) 2005 (“the child”) are discharged.
That MR FALZONE (“the father”) and MS FALZONE (“the mother”) have equal shared parental responsibility for the child.
That except as otherwise provided in these Orders the child shall live with the father in the first week of each fortnight from Sunday at 5.00 pm (or at such other time as the parties may agree) and the child shall live with the mother in the second week of each fortnight from Sunday at 5.00 pm (or at such other time as the parents may agree).
That notwithstanding the provisions of the preceding order hereof the child shall live with the father and the mother on an annual alternating basis from 5.00 pm on 24 December until 5.00 pm on 25 December or on such basis as is otherwise agreed between the parents.
That notwithstanding the provisions of Order No. 3 hereof the child is to be returned to the mother on the Saturday preceding Mother’s Day in each year if the child is not otherwise living with the mother in that week.
That notwithstanding the provisions of Order No. 3 hereof the child is to be returned to the father on the Saturday preceding Father’s Day in each year if the child is not otherwise living with the father in that week.
That for the purposes of these orders and unless the parents otherwise agree the parent with whom the child is living during any particular period must deliver the child to the home of the other parent at the end of the particular period.
That the child shall spend time with the parent with whom she is not otherwise living for up to three hours on the child’s birthday and on that parent’s birthday.
That if either party is unable to care for the child overnight at any time that parent must give the other parent the first option of caring for the child during any period that the first parent is unable to care for her.
That the parents must each permit and enable the child to communicate with the other parent at all reasonable times by telephone or by such other age appropriate electronic means that is available.
That unless the parents otherwise agree in writing the mother is restrained from attending at the child’s school during those periods when the child is living with the father pursuant to these Orders.
That all extant applications in relation to parenting orders are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Falzone & Falzone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 733 of 2010
| MS FALZONE |
Applicant
And
| MR FALZONE |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is MS FALZONE (“the mother”) and the respondent is MR FALZONE (“the father”). Their dispute is about the care arrangements for their child, X born (omitted) 2005 (“the child”).
The parties currently also have competing applications in this Court for orders in relation to financial matters.[1] However, their dispute in relation to financial matters is not the subject of these Reasons.
[1] Application and Response filed 29 October 2012 and 23 January 2013 respectively.
Brief background to the dispute
Unless a contrary intention is clear from the context, where I refer to facts in these Reasons, they should be regarded as findings of fact, especially where there is a dispute between the parties in relation to those facts.
The father is 45 years old and the mother is 39 years old. They started living together in 1996 and married in 2002. They separated in mid-2007 and were divorced early last year. The child who is the subject of these proceedings is their only child.
It is conceded by the father that prior to their separation the mother was the child’s primary carer but I accept that the father actively participated in the parenting of the child after work and during weekends.
After the parties separated (when the child was just two years old), they reached a private agreement about the care of the child. Pursuant to that agreement, she lived with the mother but stayed with the father each weekend and on Tuesday and Thursday nights.
On 25 November 2010 the parties filed an Application for Consent Orders in the Family Court of Australia in relation to the child. Orders were made by consent on the following day (“the Family Court Orders”). They provided inter alia that:
a)The parties would have equal shared parental responsibility for the child;
b)From the commencement of her full-time schooling in 2011, the child would will live on a week about basis with each parent with changeovers to take place at school and after school each Friday at the child’s school (unless the parties otherwise agreed);
c)Any changeover that could not be at the child’s school would take place at the mother’s home at 5.00 p.m. on the relevant day; and
d)The child would spend time with and communicate with the parent with whom she was not living on special days such as Christmas, birthdays and parent days as may be agreed between the parties from time to time.
I note, but do not accept, that in her first affidavit the mother said that she did not agree to formalise their agreement by court orders. However, I will refer to that further below.
On 21 October 2011 the mother filed an Initiating Application seeking final orders and interim orders in identical terms that:
·she have sole parental responsibility for the child;
·the child live with her; and
·the father spend no time with the child.
On 28 October 2011 the father filed a Response in which he sought final orders that:
·he have sole parental responsibility for the child;
·the child live with him; and
·the child spend time and communicate with the mother on such terms as the Court considers appropriate.
The only interim order sought in his Response was that the mother’s interim application be dismissed.
The parties had a meeting with a family consultant on 1 November 2011 pursuant to section 11 of the Family Law Act 1975 (“the Act”), but that meeting did not resolve the matter.
On 23 November 2011 I made interim orders after an interim hearing. The relevant orders were:
·that the Family Court Orders continue in effect on an interim basis;
·that on an interim basis the mother be restrained from attending at the child’s school during those periods when the child is living with the father pursuant to the Family Court Orders (“the interim injunction”); and
·that the Legal Aid Commission of Tasmania be requested to arrange the appointment of an Independent Children’s Lawyer (“ICL”) for the child.
At the interim hearing, the mother’s affidavit evidence was that the child had been distressed at school on 19 October 2011 when the mother sought to leave the school after being “parent help”. I concluded that if the mother did not attend at the school during the weeks that the child was living with her father, then that could alleviate the child’s distress. That is why I made the interim injunction.
On 1 June 2012 a Family Report was ordered pursuant to section 62G of the Act, and that Report (“the Family Report”) was released to the parties and the ICL on 9 August 2012.
Orders and directions were made on 25 September 2012 setting the parties’ competing parenting order applications for hearing on 17 April 2013, with an allocation of two days based upon the lawyers’ estimate of how long the hearing would take.
On 19 December 2012 the mother filed an Amended Initiating Application in which she sought orders that:
a)the parties have equal shared parental responsibility;
b)the child live with her;
c)the child spend time with the father:
i)each alternate week and from after school on Friday until the commencement of school on the following Monday;
ii)from after school on Thursday until the start of school on Friday in the alternate week;
iii)for half of the child’s school holidays (provided that the father is able to provide documentary proof of his ability to obtain leave from his employer not less than 28 days prior to the start of the relevant school holiday period); and
d)various other orders in relation to special occasions and changeovers, that I need not detail here.
On 3 April 2013 the mother filed a Further Amended Initiating Application in which she sought orders that she have sole parental responsibility for the child provided that;
a)in exercising that sole parental responsibility she communicate with the father in writing in relation to any intended decisions relevant to major long term issues for the child, she gives the father the opportunity to have input and “in the event that the Father provides a written response to the mother, she will actively consider the Father’s view”; and
b)the mother ensures that all records relevant to “the major long term issues regarding the child’s care, welfare and development, note the Father is a parent of a child and a person with whom the record keeping entity may liaise”.
She also sought some further minor variations to the orders sought in her Amended Initiating Application filed on 19 December 2012.
The matter was heard over six days on 17, 18 and 19 April and 28, 29 and 30 May 2013. For convenience, I shall refer to those dates from time to time as “Day 1” to “Day 6” respectively in these Reasons. However, I point out that the estimate given by the lawyers on 25 September 2012 caused me to allocate only two days for the hearing. Had the lawyers’ estimate been accurate, the hearing would have concluded in the same week that it started; instead it was heard over six days in two different sittings, thereby causing inconvenience to the parties, witnesses, counsel and other court users. Consequently, I repeat my general plea to lawyers to consider their time estimates carefully when asking for matters to be set down for hearing.
The witnesses
The first witness was the Family Consultant who prepared the Family Report (“the Family Consultant”). She was cross-examined at length by all counsel.
The mother relied upon affidavits from herself, three teachers, a school library technician and a friend. All were cross-examined.
The father’s witnesses were himself and his mother. Both were cross-examined.
Evidential matters
In her trial affidavit filed 3 April 2013 the mother said:
10. I believe that I was subjected to family violence over the course of and following the end of my relationship with the Respondent. This is discussed in detail later in my Affidavit. More often than not, I acquiesced to, or was, persuaded by the Respondent’s demands, views and beliefs in relation to [the child]’s arrangements. Due to patterns of behaviour established during our relationship, I have acquiesced to or have been talked into arrangements which were different to and sometimes contrary to my beliefs about what was best for [the child] and her interests. The shared care arrangement was the biggest example of this.
It is clear from paragraphs 11 and 12 of that affidavit that the “shared care arrangement” to which she was referring was that set out in the Family Court Orders made by consent on 26 November 2010.
At paragraph 72 of her trial affidavit she stated that “the dynamics of [her] relationship with the [father] and the family violence that occurred within it provides an explanation as to [her] part in acquiescing to the [father]’s demands for a shared care arrangement …” and she said this in the following paragraph:
73. During my relationship with the Respondent, I was subjected to a number of incidents of family violence. I outlined these incidents in paragraphs 8 to 24 of my Affidavit filed on the 21st of October 2011. Since swearing that Affidavit, I maintain and assert that the facts outlined in that Affidavit are true. Since the release of the family report in this matter, I believe this case is really about the attachment needs of [the child] and her need for a single base. Therefore, I assert that the current relevance of family violence issues is in relation to:-
a. to provide an explanation about how shared care came about; and
b. my difficulties in communicating with and dealing with the Respondent.
In his trial affidavit the father denied the incidents of violence in paragraphs 8 to 24 of her previous affidavit and gave other explanations of the incidents described. However, in view of what I say below, I do not consider it necessary to repeat each party’s version in detail.
The mother says in a number of places in her affidavits that she acquiesced to, or was talked into arrangements that were different from her beliefs about what was best for the child. In my view, her evidence about that was significantly undermined by the fact that she had sent an email to the father on 3 August 2010 which suggests otherwise. It read as follows:
I haven’t had a chance to look over specific dates, but basically I would like for us to have [the child] a week at a time, after thinking about it more, I'm not sure whether it would be better to make it from 5pm Sunday to the same time the following week or we could take it in turns to pick [the child] up from school on the Fridays. The latter would probably be better for us but I'm not sure if the school could provide a safe place to store a bag for the day for the other parent to pick up.
I would like for us to start the weekly rotation 2 or 3 weeks before school starts so [the child] can have a little time to adjust.
Most school holiday periods are for 2 weeks so we can just stick to the weekly rotation. There is a one week holiday for the Easter period, so we may want to share that time.
I would like for [the child] to be with you for father's day and me for mother's day but if we do decide to start our week with her on a Sunday that will happen anyway.
[The child]’s birthday will be harder once she goes to school, I'd like for whoever she isn't staying with to be able to still see her on her birthday, even if it's only for a short time.
Christmas, if we keep to what we've done, would mean that [the child] is with me this Christmas Eve and you pick her up to celebrate Christmas day with you, we need to talk about a time thought (sic). Then next year she would spend Christmas Eve with you so that she can wake up at your place for Xmas Day. Again we need to work out a time.
I would like to be the one to look after [the child], even if it’s not one of my days to have her, if she is sick and unable to go to school and you can’t get the day off work or if you are asked to work I will do the same for you. I want to look after my girl if you can't and I'm sure you feel the same way. Of course if the other parent can’t help then find an alternative. Also if it’s not overnight it shouldn’t be necessary to ask, most of the time I suspect we would both call on your mum to help out anyway.
These are just basic things, I know, and I don’t want things to be any more difficult for either of us than they have to be, I know we both have [the child]’s best interest at heart. I hope that we can keep the communication going from now on.
In respect of school help, we will need to talk about that as it comes up. That won't start til next year.
If there's anything you want to talk about please just ring or email me back.
[The child] is up and down health wise. She’s still coughing a lot but the fever has gone, it was only a slight one this morning. Nose is still running flat out, but she says she doesn't hurt anywhere which is good. Just going from wanting to play then getting really tired very quickly. It's just that nasty cold that everyone seems to have right now I think. Poor kid. I got her some panadol in case she gets any aches/headache or fever, but I also got a cold and allergy relief which helps for the runny nose and watery eyes better which she did take, with a very pained look on her face but she did it. Very proud of her.
Ok, think I’ve filled you in now, see you tomorrow.
That email clearly suggests to me that the mother was an active participant in bringing about the “shared care arrangement”. Indeed, the first paragraph of that email suggests that she may well have been its initiator, rather than the party who had acquiesced or had been talked into it.
I referred to that email in questions that I put to the Family Consultant on Day 2 after she had said that she understood that initial arrangements the parents had made for the child were “an example of coercive controlling behaviour by [the father]”.[2] When she was asked directly whether that email looked like it had come from someone who was “coerced and controlled”, the Family Consultant’s answer was:
No. This is a person that’s making some suggestions about trying to make an arrangement, an agreement, yes.[3]
[2] Transcript: Day 2 at page 132
[3] Transcript: Day 2 at page 134
On Day 4 the mother’s Counsel clearly attempted to “mend some fences” in relation to that email when he asked the mother:
So as to understand the background to you sending that, can you explain your relationship with [the father] at that time?
Her response was:
It was very strained and I was trying very hard to make the best out of what I thought was a bad situation. We had had quite a lot of arguments regarding schooling, as well as the periods of time that [the child] was stay with each of us. And I just wanted to be able to – not sure if “appease” is the right word, but I just wanted to be able to get some sort of communication going with [the father] about the matter, where I didn’t physically have to be with him and speak with him. And I thought that emailing would be the best option to have – to be able to clearly say everything that I wanted to say, because, in speaking, things would very quickly escalate to an argument.[4]
[4] Transcript: Day 4 at page 16
In my opinion, that answer further undermined the mother’s credibility in relation to her claims that she had “acquiesced” or had been “talked into” the arrangement that became the subject of orders made with her consent. She said that she had thought that emailing would be the best option to be able to “clearly say everything that [she] wanted to say”.
A little later on Day 4 the mother conceded that she had had written a further email “of [her] own free will” that she sent to the father on 29 January 2011.[5] I set out below the full text of that email because it confirms in my mind that the mother was not “acquiescing” or “being talked into” the arrangements for the child. To the contrary, she was the one proposing some of the arrangements which she thought were fair to both parties. That email states:
[5] Transcript: Day 4 at page 38
Sorry this took so long, have had minor computer issues, hope this gets through ok.
I need to go to the school soon with the fees which are $200, so I'd appreciate it if you could bring your half when you drop [the child] off tomorrow, unless you want my half and you can go to pay.
Seeing as we will be having [the child] for a week at a time now, I’d suggest that we each have both uniforms and also home clothes for [the child] and not have to pack up a bag at all that she would have to take to school for when she was being picked up on the Friday. I know that means doubling up on some things such as jackets and hats for school but it would be easier if we each just buy what we think she will need and not have to ask each other for those things. I've already got her lunch box and drink bottles so you won’t need to buy any of those and all the books she needs are part of the levy so we don’t need to worry about those either.
As we’ve talked about already, I’ll have [the child] for her first week of school, so I’d like to propose that when you bring [the child] back tomorrow she stays with me until next Saturday 5th February. I thought if you pick her up at 3pm that would get us all into the habit for once school starts. Then you have her til the following Saturday 12th February, bringing her back here at 3pm. I would then have her for the first week of school until the Friday 18th February when you would pick her up from school at 3pm. And that would start the normal school routine of a week each, alternately picking her up from school at 3pm on the Fridays.
Please let me know what you think, this way I think it's fair on us both, with equal time and it will get [the child] used to the new arrangements.
It’s what we have been saying we were going to do, but since you haven’t put any plans forth I thought I’d see what you thought of my ideas.
In her first affidavit, the mother had said this:[6]
When [the father] and I separated, we initially made our own parenting arrangements for [the child], which was later followed up with a mediation conference, and the arrangements were formalised by what I understood to be a parenting plan. I was unrepresented at the time. I later discovered however that I had signed a Minute of Consent Orders. At no time did I agree to formalise this arrangement by Court Order.
[6] At paragraph 7
The copy of the Family Court Orders that the mother annexed to her first affidavit shows that she signed both pages of Exhibit “1” which is very clearly headed “Minute of Consent Orders”. Further, she completed the required affidavit at “Part L” of the Application for Consent Orders and the words “Court”, “orders” and/or “consent orders” are used in four of the six relevant paragraphs of that affidavit.[7]
[7] See Annexure “C” to the father’s trial affidavit
In my opinion, it defies belief for the mother to claim that she did not “agree to formalise this arrangement by Court Order”.
I also must say that I found the mother’s version of the circumstances in which she claimed they signed the Application for Consent Orders at the courthouse to be somewhat unbelievable, particularly because she failed to mention any of that in either of the two affidavits that she subsequently filed with the court.
The father gave his evidence in a “matter-of-fact” and forthright manner. However, he was prepared to concede matters that were against his own interests. For example, while he denied that he had called the mother “stupid” during a particular conversation, he admitted that in that same conversation he had said she had “slimed” her way into the child’s school parent help program and she would be in “deep shit” or something similar.[8]
[8] Transcript: Day 5 at pages 172 and 173
When I consider the matters set out above, and having seen both parties cross-examined at length, I find that in general when the parties differ in their evidence, particularly in relation to the mother’s allegations of family violence, I prefer the evidence of the father.
The father and one of the child’s teachers clearly had different perceptions of what had happened when the father attended a parent/teacher interview that he had requested in April this year. I do not propose to set out an analysis of each and every statement that they made in relation to that interview, but I consider it likely that the teacher would have been “defensive” during that interview because she says twice in her own affidavit that she apologised to him repeatedly. The logical inference to draw from her acknowledgement of repeated apologies is that there was something for which she needed to apologise. Indeed, the teacher acknowledged that she had been in error in not advising the father of some difficulties in relation to the child.[9] That alone is likely to have made the teacher defensive, and the fact that she was already a witness for the mother by the time of that parent/teacher interview could also have added to any defensiveness on her part.
[9] Transcript: Day 5 at the foot of page 125
Further, I am of the view that it is a reasonable assumption that, at the time of the parent/teacher interview, the teacher probably also knew about a complaint that the father had made earlier that year about the school’s failure to follow its own procedures in relation to the child’s travel after a school picnic (“the picnic incident”). If that is the case, it could have made the teacher’s attitude to the father even more defensive (even though she was not involved in the picnic incident).
As I have said, the perceptions of the two people at that parent/teacher interview were quite different, but I do not accept the submissions by counsel for the mother that the father’s affidavit filed on 24 May 2013 was “an attack” on the teacher or that it “reflected a lack of insight” on the part of the father.[10] In my view, neither criticism of the father was valid. I also point out that his affidavit was filed in response to the teacher’s second affidavit filed on 16 May 2013 and I consider that the father had reasonable cause to raise his concerns with school staff.
[10] Transcript: Day 6 at page 307
At this point, I will simply reiterate what I said about the picnic incident during closing submissions on Day 6. I am of the opinion that a parent has a legitimate complaint if a school specifically sends out a document to the parent setting out the procedure to be followed in relation to a child’s return travel from a picnic outing and then the school does not follow its own prescribed procedure. Luckily, nothing went wrong in this particular instance. However, the incident does highlight that if there had been better communication between the mother and the father before the picnic took place, there would have been no need for any concern about the incident. I referred to that during the hearing and will refer to it further below.
I am concerned that the Family Consultant may have unintentionally portrayed the father as an “angry” man in the Family Report. She said this in paragraph 16:
[The father] presented in a strained and tense manner. He was initially unhappy to be part of these proceedings and indicated a reluctance to discuss personal issues with the writer. His demeanour was stern and angry and he later stated that he and his father are afflicted with a set facial expression that causes others to consider them to be angry.[11]
[11] My emphasis
However, her handwritten notes made at the time, or shortly after her interview with the father read: “a lot of people say look grumpy - dad same”[12] and my concern is that what she noted as his acknowledgement of a possible “grumpy” appearance to others could be interpreted upon reading that first paragraph about the father in the Family Report as a generally “angry” disposition on his part. He did not impress as an angry man in the witness box.
[12] See Exhibit “C1”
I am of the view that the word “angry” is generally regarded as being a stronger word than “grumpy” and I am fortified in my view by referring to the Oxford Dictionary of English 2nd Edition. It defines “angry’ as “feeling or showing strong annoyance, displeasure or hostility; full of anger”[13] whereas the definition of “grumpy” is “bad-tempered and sulky”.
[13] My emphasis
I acknowledge that paragraph 19 of the Family Report states: “He denied any family violence in their relationship and stated that whilst he could look “grumpy” at times he was not an angry or violent man.” However, that sentence is immediately preceded by three sentences about the father that can also be read in a negative light. They are:
[The father] impressed as a man with limited insight into the demise of his relationship with [the mother]. He did not see any problems in their relationship until the time [the mother] had an affair in 2003. He stated that the relationship “went downhill from there.”
In relation to that, I will say firstly that it is not in any way unusual for one party to a relationship to be slower than the other to recognise that there are relationship difficulties. However, my concern in relation to the first of the sentences quoted immediately above is that it may have encouraged the mother and her legal team to stress an overall lack of insight on the part of the father. Indeed, I note that in his closing submissions to me on Day 6 the mother’s counsel attempted to persuade me that the parent/teacher interview to which I have referred above was an example of the father’s lack of insight into the effect that his persona or appearance has on others.[14] I reject that submission because it is not supported by the evidence and simply refer to my comments above about that parent/teacher interview.
[14] Transcript: Day 6 at pages 305 to 307
In my opinion, what the Family Consultant went on to say in paragraph 19 of the Family Report is clearly suggestive of insightfulness on the father’s part. She said:
He did describe periods of difficulty following the death of [the mother]’s mother when he said [the mother] was “depressed, aggressive, short tempered and verbally abusive’. [The father] considered he tried hard to help her but was “pushed away”. He also described a similar period of stress in their marriage after the birth of [the child] when he considered [the mother] relived the loss of her mother.
I also note that during his cross-examination by the mother’s counsel, the father said: “I have no interest in turning [the child] against her mother. That would only turn [the child] against me.”[15] That is also suggestive of insightfulness on the father’s part.
[15] Transcript: Day 5 at page 194
Unfortunately, the Family Consultant in her oral evidence also appeared to portray the father in worse light than her interview with him would appear to allow. In an answer to a question from the ICL: “How long did you see him for?” she responded:
I saw him for two hours and I think I said in my notes that the only time I saw him smile was when he was in the presence of [the child], and that would probably be then - if you add that together, it’s probably two and a half hours, plus whenever I saw him in the interviewing room in passing, and on his own comment to me, he says he’s grumpy. He presents as a grumpy person. [16]
[16] Transcript: Day 3 at page 212
I have deliberately highlighted “on his own comment to me, he says he’s grumpy” in the quotation of her evidence immediately above, because nowhere in the Family Report or her handwritten notes does it appear that the father said to the Family Consultant that he is grumpy. Both the Family Report and the handwritten notes only suggest that the most that he acknowledged was that people say that he and his father look grumpy.
The Court record shows that father was in the witness box for almost three and a half hours on Day 5 and during most of that time he was being cross-examined. During that time, he did not give me the impression that he is a grumpy person.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[17]
[17] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [18]
[18] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[19]
[19] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. That section was amended in some respects by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (“the Amending Act”). However, Item 45 of Schedule 1, Part 2 to the Amending Act provides that the amendments to section 60CC do not apply to proceedings instituted before 7 June 2012. These proceedings were commenced before that date, so it follows that I must apply section 60CC as it applied before the amendments enacted by the Amending Act.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[20]
[20] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[21]
[21] Subsection 60CC(3)
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.[22]
[22] See Mulvany & Lane (2009) FLC 93-404 at paragraphs 76 and 77 and Champness & Hanson (2009) FLC 93-407
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence.[23] The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[24] In this regard, Murphy J said:
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that a parent has engaged in abuse or violence or where it is in the best interests of the children for that presumption to be rebutted. In the latter case, then, the s 60CC findings as to best interests are again called into use. [25]
[23] Section 61DA
[24] Subsection 61DA(4)
[25] See Runcorne & Raine [2008] FamCA 837 at paragraph 24
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[26]
[26] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[27]
[27] See subsections 65DAA(2) and (3)
The High Court decision of MRR v GR[28] has clearly stressed the importance of what is “reasonably practicable”. Their Honours[29] made it clear that if it is not open to a Court to find that it is reasonably practicable, within the meaning of s.65DAA(1)(b) of the Act for a child to spend equal time or substantial and significant time with each parent, then it is not open to a Court to consider making an order as described in s.65DAA(1)(c).[30]
[28] MRR v GR (2010) FLC 93-424
[29] French CJ, Gummow, Hayne, Kiefel And Bell JJ
[30] Also see Wainder & Wainder (2011) FLC 93-473
It is clear that the court is not restricted to considering only the proposals put forward by the parties.[31]
[31] See KB & TC (2005) FLC 93-224
Section 60CC considerations
In deciding what orders I should make, I will consider the relevant evidence in the light of the considerations under section 60CC of the Act.
Primary considerations
The benefit to the child of having meaningful relationships with both parents
It is not difficult for me to conclude that both parties acknowledge that the child benefits from having a meaningful relationship with the other parent.
For example, the mother said this in her trial affidavit:
13. I acknowledge and am grateful for the fact that [the child] loves both me and her father very much. I want the Respondent to continue to play a large role in [the child]’s life and want [the child] to continue to share a close and meaningful relationship with him.
The father acknowledged that the child enjoys her time with her mother as much as she enjoys her time with him[32] and, although she did not state it specifically in the Family Report, the Family Consultant noted clearly in her handwritten notes that the father had stated that the child loves both of her parents.[33]
The need to protect the child from harm from abuse, neglect or family violence
[32] Transcript: Day 5 at page 213
[33] See Exhibit “C1” at page 18
In this matter the mother does not suggest that there has been any abuse or neglect of the child. However, at paragraph 10 of her trial affidavit she says that she “believes” that she was subjected to family violence. At paragraph 72, she went on to say this:
I am raising family violence in this matter. This is not because I want to diminish the Respondent's love for [the child], or her relationship with him, nor stymie the Respondent's relationship with [the child] but because:-
a. the dynamics of my relationship with the Respondent and the family violence that occurred within it provides an explanation as to my part in acquiescing to the Respondent’s demands for a shared care arrangement … ;
b. it explains what I believe are ongoing difficulties in my personal relationship with the Respondent and particularly in communications between us.
In my view, it is very significant that the mother does not appear to be saying that the child is in need of any protection from harm resulting from family violence. Instead, she appears to be “raising family violence” to explain why she entered into a shared care arrangement (which I have discussed above and do not accept), and in support of her application in relation for sole parental responsibility (which I will discuss further below).
In my view, the evidence in this matter does not suggest that the child is in need of any protection from such harm.
Relevant additional considerations
The child’s views
In any assessment of a child’s views, it is important to take into account the age and maturity of the child, and the circumstances in which those views were expressed. It is also clear that, while the word “views” includes “wishes”, it encompasses more than just a child’s wishes in relation to the outcome of the parents’ dispute.
Fogarty and Kay JJ said this in a joint judgment in relation to children’s wishes in H v W: [34]
The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this Court but across the wider spectrum of society generally.[35]
[34] H v W (1995) FLC 92-598
[35] At page 81,944
Their Honours approved of the comments of Hannon J in Doyle and Doyle where he had said:[36]
If the Court is satisfied that the wishes expressed by the child are soundly based and founded upon proper considerations as well thought through as the ability and state of maturity of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances.
[36] Doyle and Doyle (1992) FLC 92-286 at 79,128
In a separate judgment in H v W, Baker J said:
The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial judge in each individual case. Such an exercise will require a consideration of both the child’s level of maturity and understanding.[37]
[37] At page 81,967 – my emphasis.
The Family Consultant said this in paragraph 25 of the Family Report:
[The child] volunteered that she would like to see her father every second weekend “like A”. (A is her mother’s partner’s 13 year old son.) She considered she would not miss her father if she spent less time with him.
The child was only seven years and four months old at the time and the mother was then in a relationship with A’s father. While the mother is no longer in that relationship, one cannot discount the possible influence of that 13 year old boy over the child at the time of her meeting with the Family Consultant. In those circumstances, I do not place much weight upon the child’s apparent desire to spend only alternate weekends with her father as told to the Family Consultant fifteen months ago.
The Family Consultant also said this in the same paragraph:
Although she thought After-School Care to be “nice” she did not like arriving late to her father’s home as she could not then play with her dog.
However, it is illogical to equate that statement with a desire on the part of the child to spend more time with the mother. That is because the dog in question is in the father’s household, so spending more time in the mother’s household would logically mean spending less time with the dog that she loves very dearly. The most that one can deduce from that statement is that the child would have preferred to be with her dog than at after-school care.
At paragraph 26 of the Family Report, the Family Consultant said;
The most poignant and unsolicited statement made by [the child] was “I want my own place. I don’t have my own place”. [She] made it clear to the writer that she considered her life would be better if she spent more time in one home and that this should be with her mother. She indicated that she prefers to be with her mother when she is sick, she finds her mother’s home more cosy than her father’s home, and she receives more cuddles from her mother than her father and this makes her feel happy.
The Family Consultant appeared to base her assessment of the child’s preferred living arrangements in some large measure upon an apparent preference on the part the child to be with the mother when she is sick. For example, she also said this when cross-examined by the ICL:
It’s of concern to me that it’s to her mother that she wishes to go to when she’s sick. It’s to her mother that she actually clearly leans towards.[38]
[38] Transcript: Day 3 at page 212
In eliciting that apparent preference, the child was quite appropriately not asked direct questions, but was asked open-ended questions and the Family Consultant also interpreted “(omitted)” chosen by the child. While I do not doubt the Family Consultant’s ability to interview children appropriately, the conclusion that “it’s to her mother that she wishes to go to when she’s sick” appears to be contradicted by some unchallenged evidence that the child had specifically asked for her father to collect her when she hurt herself at school. In fairness to the Family Consultant, I should point out that occurred some months after the child had been seen by the Family Consultant.
In relation to that, the father’s evidence in paragraph 35 of his trial affidavit was as follows:
On or about October 2012 I received a phone call from Ms L who is an office worker at [the child]’s school. Ms L first asked me if it was my week with [the child]. I confirmed it was. She then said to me “[The child] just had an accident, she is ok but is a little bit distressed. [The child] said to us she wants her dad to come and get her and take her home.” Ms L told me [the child] had fallen and hit her face, she had a bit of a scrape on her nose and a black eye. She said [the child] had been at the sick bay and had been checked over. I told Ms L I would be there in 10 minutes.
The mother’s counsel asked the father questions about that incident, and even tendered a colour photograph of the child’s injured face,[39] but the fact that the child had asked for her father when she was hurt and distressed was not challenged.
[39] Exhibit “M2”
Irrespective of the impressions that the Family Consultant may have formed fifteen months ago, it is clear to me that the child now views her time with her father as being very enjoyable. Indeed, that was the very clear evidence of both the father and the paternal grandmother. While it is not unusual for paternal grandmothers to be supportive of their son’s cases, it is to the mother’s credit that she clearly agreed with much of what the paternal grandmother had said in her affidavit. For example, this exchange took place during the mother’s cross-examination by the ICL:[40]
Mr Lewis: And the reason why I ask this question – the reason I’m asking these questions is that basically you agree with [the paternal] grandma about how grandma sees [the child]’s life with dad?
Mother: Yes.
Mr Lewis: And if I suggested to you that the time that [she] has with dad is a rich experience for her would you agree?
Mother: Yes, I would.
Mr Lewis: And if I suggested it was a very important experience for her would you agree?
Mother: Yes.
[40] Transcript: Day 4 at page 74
Having considered the evidence, I cannot conclude that the child has any particularly strong views in favour of one parent over the other.
The child’s relationships with the parents and other people
Both parties acknowledge that the child loves the other parent very much, and that love is reciprocated by the other parent.
The Family Consultant observed that it was “clear that [the child] loves her father and [he] dearly loves her”.[41] However, she was of the opinion that the child was “more significantly attached to her mother than her father”, notwithstanding that she had spent equal time with each of them for some years.[42] That opinion also appears to have been based to some degree upon the child’s apparent preference to be with the mother when she is sick and I have commented upon that above.
[41] At paragraph 34 of the Family Report
[42] At paragraph 32 of the Family Report
I conclude after hearing all the evidence that the child has rich and loving relationships with both her parents. I also conclude that she has a normal loving relationship with her grandmother.
The willingness and ability of the parents to facilitate and encourage the child’s relationship with the other parent
Although this consideration was repealed by the Amending Act, it is still applicable in this matter because these proceedings were commenced before 7 June 2012.
In his closing submissions, counsel for the mother said:
My client’s preparedness to see the positives in the father’s household, to see the security and the love which [the family Consultant] identified at paragraph 34 of her report, was quite a powerful statement. And it is powerful because it gives your Honour confidence this is not a woman that has a plan to further reduce time.
In my view, that puts a gloss on the mother’s evidence that is not deserved. Certainly, the mother’s counsel sought at times to stress an apparent lack of positive statements about the mother in the father’s evidence, but I find that submission to be somewhat hypocritical. That is because most of the mother’s affidavit material was extremely critical and negative in its portrayal of the father. However, that may be an unfortunate result of the fact that in our judicial system proceedings generally follow an adversarial format which can cause parties (and sometimes their lawyers) to quite wrongly fall into the trap of unnecessarily belittling the qualities and actions of the other parent. That does not accord with the principles for conducting child-related proceedings as set out in section 69ZN of the Act and it is worth re-stating that one of those principles is that “the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties”.[43]
[43] See subsection 69ZN(6)
The mother’s counsel did go on to say:
My client gave evidence, you might recall, of the circumstances around Mother’s Day; the positiveness of that. So … these proceedings may have had a cathartic effect upon the parties.
The gist of the mother’s evidence in relation to Mother’s Day this year was that the father had allowed the child to spend additional time with her mother and that was pleasing for both of them. Further, the parties were able to communicate about that by text message. I shall refer to their failures of communication below, but I do see some encouraging signs that are suggestive of improvement.
As mentioned earlier in these Reasons, the mother sent an email on 3 August 2010 that read in part as follows:
These are just basic things, I know, and I don’t want things to be any more difficult for either of us than they have to be, I know we both have [the child]’s best interest at heart. I hope that we can keep the communication going from now on.
That clearly suggests to me that at that time, she was willing to facilitate and encourage the child’s relationship with the father. Although, things clearly deteriorated after that, it does give me hope that she will be able to return to that position in the best interests of the child.
Indeed, my confidence in relation to that was boosted by the fact that the mother has given some serious thought to changeovers that could make things better for the child. During her cross-examination by the father’s counsel about what strategies could be put in place to make things easier for the child, this exchange took place:[44]
Mr McVeity: Are there any new strategies you would try?
Mother: There is one thing that I would like to try.
Mr McVeity: Can you just tell me in one sentence what that is?
Mother: I would like to try that we not make changeovers at school.
Mr McVeity: Yes?
Mother: Because that may help [the child].
Mr McVeity: What would your proposal be – and this is a scenario where his Honour hasn’t changed the basic week about thing. What would your proposal be about that?
Mother: Possibly that we could do changeovers from either my residence or in a mutual location, and that it would be possibly on a Sunday afternoon instead of the Friday mornings at school.
[44] See Transcript: Day 4 at page 55
It was also heartening to see that the father was reasonably receptive to the mother’s suggestion that changeovers not be at her school on Friday afternoons. Although he was not keen on changeover being on Sundays because it interrupts the weekends, he was quite receptive to having face-to-face changeovers. When asked for his suggestion, he said:
… well, Friday evening is at the end of the school week, so I think that’s good, and I wouldn’t mind having a face-to-face changeover on the Friday rather than have it at the school. [45]
[45] Transcript: day 5 at page 215
It is also encouraging that the father gave evidence that he was prepared to reconsider the necessity for an injunction preventing the mother from attending the school during “his week”.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
Expense is not really a concern in relation to this consideration because the parents live in relatively close proximity to each other.
However, I do have some concerns about the mother’s apparent unwillingness to keep open lines of communication with the father. I do not propose to detail the instances when she has failed to respond to requests for information by the father, but it is clear that the mother has not always continued the clear and friendly communication that was apparent in the two emails to which I have referred above.
Indeed, there have been instances where basic communication could well have avoided difficulties. The picnic incident is the most obvious recent instance. As I pointed out during the hearing, if the mother had informed the father prior to the picnic that she would be attending and would be available to transport the child, it is highly likely that the difficulties surrounding that incident would have been avoided completely.
Notwithstanding that, it was pleasing to hear the father say that only a week before the hearing they had been able to communicate well in relation to the child’s welfare. His evidence was:[46]
[The child] had a sore throat. The school rang and I collected [her] from school because she wasn’t feeling all that well, took her home, gave her some cough syrup, and comforted her, and …the changeover was that day and so because the changeover was normally at the school, and I had taken her home for the afternoon, then I sent [the mother] a text saying, “[The child]’s gone home sick with a sore throat. I’ll have her back at the school at 3 o’clock for you to collect her.” And that all went fine, and there was conversation via text messaging and then we met at the school, and then I told [the mother] I had given her five mills of cough syrup at 2 pm. She asked me what are the intervals, I said two hours. And … [the child] and I had a bit of an embrace and a kiss and a cuddle and that was changeover.
[46] Transcript: Day 5 at page 212
In my view, that incident reflects well upon both parents, and it also shows that they are able to have face-to-face changeovers. However, it is imperative that both parties keep their lines of communication open in the best interests of this child, irrespective of how much time she spends with each of them.
The capacity of the parents to provide for the child’s needs
In her first affidavit filed 21 October 2011 the mother clearly intended to convey the impression that the accommodation that the father is providing for the child is inadequate and even dangerous. She said:[47]
Another example is the current state of [the father]’s home. I say that our former matrimonial home is in an “unliveable state” and [the father] has done nothing to improve the home. I know this because of my own former observations of its dilapidated state when I was living there. The child has also told me that the house looks the same as it did when we all lived in it together. I say that it is a dangerous environment for a child to live in, as there are partial renovations done with nails sticking out of the walls and floors.
[47] See paragraph 45
In her trial affidavit filed nearly eighteen months later, the mother clearly sought to continue that criticism of the father’s accommodation. She said:[48]
The Respondent’s home is in extremely poor repair and despite having expressed my concerns about being an inappropriate environment, to my knowledge, the Respondent has not made any improvements to the house. I have asked my solicitor to issue a Notice to Admit Facts in relation to a valuation which has recently been conducted in relation to the property as I believe that the comments of the valuer are relevant.
[48] See paragraph 109
In my view, two things need to be said about those criticism of his accommodation in her affidavits:
·firstly, I consider it to be somewhat hypocritical because the mother had apparently been prepared to live in that same accommodation until the child was two years old; and
·secondly, she admitted when cross-examined by the ICL that her time at her father’s home was a rich and rewarding experience.
I note that the mother appeared to abandon her criticism of the father’s accommodation during the hearing because her counsel indicated that she would not be relying upon the Notice to Admit Facts that she had instructed her solicitor to issue. It is therefore sufficient to simply repeat what I said at paragraph 94 above about the conduct of child-related proceedings and section 69ZN.
In her affidavits, the mother also raised some concerns about the father not providing medication to the child as prescribed, and in his trial affidavit the father said his view is “that medication should be taken only if absolutely necessary”.[49] When he was asked by the ICL whether he had any personal concerns about the administration of antibiotics, he responded: “I think there’s an overuse of antibiotics in today’s society.” I think I can take judicial notice of the fact that his view is shared by many medical professionals, but when prescribed, it is very important to complete the full course of treatment in order to minimise the growth of antibiotic resistance in bacteria.
[49] See page 8 of his trial affidavit.
However, I note that in response to an earlier question from the ICL, he had said: “If antibiotics are required to assist [the child] in recovering from any illness then absolutely, I’m not going to deny her that. I’m not going to deny her pain relief”[50] and having heard his evidence, I am satisfied that the father would not deprive the child of properly prescribed medication.
[50] Transcript: Day 5 at page 210
In general, I am satisfied that both parents can provide well for the child’s physical, intellectual and emotional needs.
The attitudes of the parents to the child and parental responsibilities
In some respects there is some overlapping between this consideration and the consideration referred to immediately above, so it is sufficient for me to say that I consider both parties to be generally responsible parents.
The likely effect of any change in the child’s circumstances
In this matter, the mother seeks to change a regime of equal shared care that has existed for a large part of the child’s life. The father seeks to maintain the status quo.
In Burton and Burton[51] the Full Court of the Family Court of Australia said:
An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination – and if a long standing status quo is disturbed, then the factors which influence the Court to come to that conclusion should be clearly identified.[52]
[51] Burton and Burton (1979) FLC 90-622
[52] At page 78,218
In Barber & Salmon,[53] Walters FM (now Justice Walters of the Family Court of Western Australia) referred to that passage from Burton and said:
These remarks were re-affirmed by the Full Court in Re: G: Children’s Schooling (2000) 26 FamLR 143 at 154.[54] In my opinion, and although the pre-existing law in relation to parenting issues was comprehensively amended in mid-2006, the passage from Burton quoted above remains good law.
[53] Barber & Salmon [2009] FMCAfam 272
[54] Also Re: G: Children’s Schooling (2000) FLC 93-025 at 87,409
I agree with Justice Walters that the quoted passage from Burton is still good law. It is clear that while there is no onus on either party in relation to the evidence for or against a change in the status quo, there must be clear evidence that a change would be in the child’s best interests.
As will be seen from what I say below, I will need to consider whether spending equal time with each of the parents is in the best interests of the child and is reasonably practicable pursuant to section 65DAA of the Act. Consequently, I will give consideration below to the likely effect of any change in the child’s circumstances.
Any family violence and family violence orders
Since the enactment of the Amending Act, the definition of “family violence” is to be found in section 4AB of the Family Law Act 1975. However, that new definition does not apply in proceedings instituted before 7 June 2012.[55] These proceedings were commenced before that date, so the old definition previously found in section 4 of the Family Law Act 1975 is applicable. That definition reads:
“family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
[55] See item 45 of Schedule 1, Part 2 to the Amending Act
In my view, the notation set out immediately above made it clear that a person’s fear or apprehension had to be objectively reasonable and not simply subjective. I have commented above about family violence and indicated that I do not accept that the mother was “coerced and controlled” by the father’s actions, so I do not propose to address that further here.
I also note that there have not ever been any family violence orders in relation to this family.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the children
It is clearly preferable to make orders that will not lead to future litigation. In this regard, the parties are both seeking final orders and neither appears to be contemplating any future litigation in relation to the child (but I note that the parties are still to resolve their competing property applications and those are listed for hearing in February 2014).
Certainly, the orders that I will be making in relation to the child are intended to be final.
Should the parents share parental responsibility equally?
As mentioned above, the mother filed her originating application on 21 October 2011 in which she sought both final and interim orders that she have sole parental responsibility for the child. Then, on 19 December 2012, she filed an Amended Initiating Application in which she sought an order she and the father have equal shared parental responsibility.
However, on 3 April 2013 the mother filed a Further Amended Initiating Application in which she sought what I can only describe as a “hybrid” order in relation parental responsibility for the child. It read:
1. THAT [the mother] be allocated sole parental responsibility for [the child] provided that:-
(a) in exercising parental responsibility, save in an emergency, the Mother will communicate to [the father] in writing, any proposal/intended decisions relevant to the major long term issues for the child, to give the father the opportunity to have an input to such proposal/intended decision AND in the event that the Father provides a written response to the mother, she will actively consider the Father’s view;
(b) the Mother will ensure all records relevant to the major long term issues regarding the child's care, welfare and development, note the Father is a parent of a child and a person with whom the record keeping entity may liaise;
(c) for the purpose of order 1 (a), the Mother will forward, in writing, any proposal/intended decisions to the Father at a postal/email address provided by the Father and will advise the Father of a postal/email address to which his response may be sent.
Although the case outline submitted on behalf of the father does not say so specifically, it is clear that the father wishes to retain the order for equal shared parental responsibility that was made by consent on 26 November 2010.
The obligation upon parents sharing parental responsibility to consult with each other and make joint decisions is found in section 65DAC of the Act. It reads in part as follows:
65DAC(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
65DAC(2) The order is taken to require the decision to be made jointly by those persons.
65DAC(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
In my view, the parental responsibility order sought by the mother is a “hybrid” because it appears to suggest that the mother will actively consult with the father in relation to “major long term issues for the child” and that is suggestive that some of the provisions of subsection 65DAC(3) of the Act will apply. However, I have some difficulty with the drafting of the order sought by her because it clearly gives her the sole power in relation to any proposed or intended decisions relevant to the major long-term issues for the child. Although paragraph (a) appears on its face to suggest that she would be required to give serious consideration to the father’s views, the words “she will actively consider” do not require her to be in a positive frame of mind, nor do they require the parties to make joint decisions. In short, I consider that the order sought pays lip-service to subsection 65DAC(3) and no more.
In Runcorne & Raine,[56] Murphy J pointed out the seriousness of depriving a parent of the ability to share parental responsibility. He said the following:
34. A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility, and a finding that this incapacity is highly likely to spill over into regular future conflict for the children, appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally - is contra-indicated in the best interests of the children.
35. Equally, though, an order for “sole parental responsibility” in favour of a party means (as, it seems to me, follows from the statutory definitions) that the other party has no “duties, powers, responsibilities and authority” in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
36. The exercise of discretion in favour of excluding completely one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
37. There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U [2002] HCA 36; (2002) 211 CLR 238).
[56] Runcorne & Raine [2008] FamCA 837
From what I have said above, it can be seen that there are encouraging signs that the parties’ relationship is improving in the best interests of their child, and importantly their ability to communicate face-to-face and by telephone, text message and email is improving. Consequently, having considered this matter, I am of the view that there are no good reasons why the parties should not equally share parental responsibility. That will require them to consult with each other and make joint decisions in the best interests of the child that they both love very dearly.
Conclusions
Because I consider that it is appropriate for the parents are to have equal shared parental responsibility for the child, I must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, I must consider making an order to provide for the child to spend equal time with each of the parents.[57]
[57] See subsection 65DAA(1) of the Act
It is clear that the stimulus to the mother instituting these proceedings at the end of 2011 was the anxiety or distress shown by the child at school when the mother sought to leave the school after being “parent help”. I have referred to that at paragraph 14 above.
It appears that the interim injunction did not completely eliminate all of the anxiety being experienced by the child. However, the child’s school has put in place a strategy to alleviate her anxiety. The strategy of permitting the child to spend some time away from the class to enable her to regain her composure is referred to in her teacher’s comments at the end of the child’s school report for Term 1 this year. Those comments read as follows:
[The child] is to be applauded for the conscientiousness with which she traverses her school day. Every learning activity is begun with enthusiasm and is completed to the best of her ability. She is an enthusiastic member of our learning team, willingly sharing her thoughts and ideas and she is unafraid to ask relevant questions to either extend her learning or to ascertain if she understands a task. A couple of times she has been a tad emotional at the beginning of the day but she is aware she can access our “Peaceful Room” when feeling overwrought. [The child]’s quick wit, sparkly demeanour and sense of humour bring many a smile to the teacher’s day. Furthermore, she maintains a constantly friendly demeanour and is a keen supporter of her peers. [The child]’s goal this year is to play with more of her peers in the playground.[58]
[58] My emphasis
However, it is clear from the teacher’s oral evidence that this is not a strategy that the school applies only to this particular child. When the child’s teacher was cross-examined by the ICL, she said that “it’s not nice for little kids to be so upset in front of their peers, so we have a place that kids can go if they get upset or they just need a little bit of time to themselves to recoup.”
The ICL’s cross-examination of the child’s teacher also revealed that the child had been “a tad emotional” on four occasions this year and the mother had been present on three of those occasions. [59]
[59] Transcript: Day 5 at pages 127 and 128.
I also note that the teacher’s comments set out above suggest clearly that the child is doing well at school. Indeed, she gave the child the top rating for “Attitude, Effort and Behaviour” on all 14 criteria that were assessed.
The ICL said this as part of his closing submissions:[60]
Now, if you’re upset and your mother is also upset and crying and you both cry and you’re clinging on to your mother for a period of time – I’m not saying it’s still happening now – but for a period of time when you are first attending school … it’s my submission that you don’t need to be a psychologist or psychiatrist or a social scientist to conclude that a child is going to be pretty well impacted upon by that and will remember it. And it is open to your Honour on the evidence, in my submission, that [the child] still has from time to time, depending on how her mother is about things, [been] reflecting her mother’s anxiety and genuinely being upset about leaving her. But it’s not all the time and this year it has only happened four times. It would be open for your Honour to conclude that [the mother] has an intensely focused relationship with [the child] and that she might be a little clingy.
The evidence that [the mother] gave about all of the things that [the child] does with dad would, in my submission, lead your Honour to a conclusion that the time [the child] spends with her father is rich and of great benefit to her. [The mother] agreed with the things that the maternal grandmother had said in her affidavit … . She agreed about the close - the wonderful relationship between [the child] and her dog [at the father’s home].
She agreed about [the child] having chickens and selling [eggs] for 50 cents each and that both mum and [the paternal grandmother] had purchased those eggs from her. She agreed about going and collecting wood and exploring the great valley. Now, from the evidence of the father and the mother and the paternal grandmother, in my submission, your Honour would conclude and it’s open for you to conclude that [the child]’s time with her father is a very special time. It is very rich. It is of great benefit to her.
[60] Transcript: Day 6 at page 284
Having heard the evidence, I cannot help but agree with those comments by the ICL.
When I consider all these matters, as well as the evidence of the father, the paternal grandmother and even the mother herself that the child’s time with her father is both rich and important to the child, I conclude that her time with the father should not be reduced.
Although my conclusion about that is not in accordance with the recommendations of the Family Consultant, I have based my decision upon a consideration of all the evidence in a hearing that ranged over six days. As my brother Judge Scarlett observed in Sproat & Brimm:[61]
There is no magic in a Family Report or a Court Expert Report, but such a report is usually a most useful resource for a Court making parenting orders. It is the judge who must decide, having considered all the evidence (Hall & Hall[62]).
[61] Sproat & Brimm [2013] FCCA 1823 at paragraph 107
[62] Hall & Hall (1979) 5 Fam LR 609; FLC 90-713
However, this does not mean that the child’s equal time must continue in accordance with the existing regime. In my view, that regime requires some “tweaking” to make it work better for the child, and in that regard, I am persuaded by the mother’s suggestion that changeovers should be on Sundays. I am also of the view that the child will benefit from seeing both parents being involved in making those changeovers work. The best way for that to happen is for each parent to deliver the child to the other parent at the start of that other parent’s time with the child.
Because the parties will equally share parental responsibility, there is no necessity for me to make any specific order about consultation and communication. Section 65DAC of the Act provides for that.
Because the child was still experiencing occasional episodes of being “a tad emotional”, and the mother had been at the school on 75% of those occasions this year, I consider it necessary to extend the injunction in relation to the mother’s attendance at the school during those times when she is living with her father. Having said that, however, I am also of the view that such an injunction is unlikely to be needed in the longer term because the child is adapting and is getting older. While I initially considered extending the interim order, I am mindful that the father has indicated that he is prepared to consider relaxing the restriction upon the mother’s attendances at the school. On that basis, it is appropriate to allow the parties to decide upon its continuation and I will include a provision in the injunction that allows them to agree in writing about that.
I will discharge all previous orders so that the parties only have one set of orders to guide them. The orders are set out at the start of these Reasons.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Date: 2 December 2013
0
7
3