Garth and Hope (No.2)
[2008] FMCAfam 1304
•9 December 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARTH & HOPE (No.2) | [2008] FMCAfam 1304 |
| FAMILY LAW – Children aged 12 and 10 – final arrangements for care – mother lives in Adelaide – father lives in Brisbane – views of children – weight to be given to family report – children have lived in Brisbane for trial period – younger child expresses wish to return to live in Adelaide – older child wishes to remain living in Brisbane – separation of siblings – practical considerations – best interests. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| Garth & Hope [2007] FMCAfam 677 Garth & Hope [2008] FMCAfam 104 D & S V (2003) FLC 93-137 Godfrey v Saunders 208 FLR 287 |
| Applicant: | MR GARTH |
| Respondent: | MS HOPE |
| File Number: | ADM 3970 of 2006 |
| Judgment of: | Brown FM |
| Hearing date: | 9 October 2008 |
| Date of Last Submission: | 9 October 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 9 December 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baston |
| Solicitors for the Applicant: | Scales & Partners |
| Counsel for the Respondent: | Mr Holland |
| Solicitors for the Respondent: | Christopher Ganzis & Co |
| Counsel for the Independent Children’s Lawyer: | Ms Du Barry |
| The Independent Children’s Lawyer | Graeme Hemsley |
ORDERS
The parties have equal shared parental responsibility for the children [Q] born in 1996 and [B] born in 1998.
From the start of the school year in 2009 the child [Q] live with the father in Brisbane.
From the start of the school year in 2009 the child [B] live with the mother in Adelaide.
The aforesaid children spend time with one another and with each of their parents during school holidays as follows:
(a)so that the children spend one half of the end of year school holiday with their mother in South Australia being the first half in the school year ending in 2008 and each even ending year thereafter and the second half in the school year ending in 2009 and each odd ending year thereafter;
(b)so that the children spend one half of the end of year school holiday period together in Brisbane being the second half in the school year ending in 2008 and each even ending year thereafter and the first half in the school year ending in 2009 and each odd ending year thereafter;
(c)so that the children spend at least five days with each of their respective parents in each of the short school holiday periods occurring each year so that overall the children spend at least ten days together during each such holiday period in both Queensland and South Australia; and
(d)At any other times, in any other places and on such other conditions as the parties may agree from time to time.
The father be responsible for paying seventy five percent (75%) of the cost of the necessary airfares required to facilitate the children spending time with each of their parents and with each other during each school holiday period pursuant to order 4 hereof and with the mother to be responsible for paying for the remaining twenty-five percent (25%) of the necessary cost of such airfares.
The mother be able to spend time with the child [Q] in Queensland for one weekend during each school term from the conclusion of school on Thursday until the commencement of school the following Monday on giving the father fourteen (14) days written notice.
The father be able to spend time with the child [B] in South Australia for one weekend during each school term from the conclusion of school on Thursday until the commencement of school the following Monday on giving the mother fourteen (14) days written notice.
The mother have liberal telephone, email, videocam and text message communication with the child [Q] when he is in the father’s care.
The father have liberal telephone, email, videocam and text message communication with the child [B] when she is in the mother’s care.
The children have liberal telephone, email, videocam and text message communication with one another.
The children be permitted to travel unaccompanied pursuant to order 4 hereof.
The parties each immediately inform the other in the event that either of the children is hospitalised or suffers any serious medical condition.
The father and mother shall have the right to communicate with and obtain any information concerning either of the children’s physical and mental health and welfare direct from any medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsellor and/or social worker.
Each party shall have the right to obtain copies of each of the children’s school, academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own cost), fees and enrolment information and such information pertaining to each of the children’s school and school related sports and extramural activities.
The application and response herein be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Garth & Hope is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADM 3970 of 2006
| MR GARTH |
Applicant
And
| MS HOPE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the third written judgment I have delivered in this matter since it was transferred to the Federal Magistrates Court from the Family Court on 22 November 2006. As such, it is to be read in conjunction with the two earlier judgments, where much of the complicated background to the case is set out.[1]
[1] See Garth & Hope [2007] FMCAfam 677 & Garth & Hope [2008] FMCAfam 104
Mr Garth filed an amended application on 28 February 2007. He sought that the parties’ two children [Q] born in 1996 and [B] born in 1998 should live with him in Brisbane and spend time with their mother, in Adelaide, mainly during school holidays but also at other times during the school term.
At the time of the amended application, the two children were living, in Adelaide, with their mother, Ms Hope and had done so for several years. This had followed two acrimonious trials, between the parties, in the Family Court of Australia at Adelaide.
Ms Hope was opposed to the children moving to Brisbane. She views Mr Garth as a manipulative svengali, who is intent on manipulating the children to achieve his own ends, mainly out of spite for her.
For his part, Mr Garth regards Ms Hope as a neurotic, who is unhealthily dependent on the two children concerned in order to maintain her own mental equilibrium and happiness. As such, he asserts she is either blind or indifferent to what is likely to be in their best interests and what are their true preferences, particularly as to where they wish to live.
As such, for better or worse, this case has always been about what [Q] and [B] want. It seems to be the case that they are largely inured to the extraordinary level of dysfunction in their parents’ relationship with one another. It also seems to be the case that they are used to having their views canvassed in the formal settings created by proceedings such as these – the rooms of a court appointed counsellor and expert.
At the outset of these proceedings, neither party was legally represented. As such, it seemed appropriate that a family report be prepared to assist me in the proper determination of the case. It being self-apparent that the parties’ themselves were incapable of any resolution of it. The first family report in this case was prepared by Dr Julie Savage on 16 August 2007.
Dr Savage recommended that [Q] and [B] go to Queensland to live with their father, on a trial basis, for the final term of 2007. Thereafter, she proposed that she revisit the children in mid-December of 2007 and advise how the children had reacted to the experience of living in Brisbane with their father and step-mother, Ms G.
At the time of this report, it was Dr Savage’s view that [Q], in particular, was strongly desirous of spending an extended period of time in his father’s household. She reported to me that it was a common phenomenon for boys of the age of [Q] to strongly identify with their fathers. In addition, it had been the case that [Q], although not [B], had been parented, in a shared care arrangement, up until mid-2003.
It has long been Mr Garth’s position that [Q] was grossly unsettled by the termination of this arrangement, as a result of court order and had been grieving for his father in the period since. As such, Mr Garth asserted that [Q] strongly wished to come and live with him, in Brisbane.
At the time of her first report, Dr Savage thought that [B], being somewhat younger than her brother, was more uncertain about the prospect of going to live in Brisbane and what it would mean in terms of her relationship with her mother, to whom she was undoubtedly close. However, along with [Q], [B] told Dr Savage that she would like to live in Brisbane, on a trial basis, to see what it would be like.
Dr Savage reported as follows:
“Both children have expressed a clear view that they would like to try living with their father to see what this is like. They also appeared relieved that this could be on a trial basis initially so that they would have an opportunity to change their minds if this did not work.”[2]
[2] See Family report dated 16 August 2007 at paragraph 28
Underlying this recommendation was Dr Savage’s opinion that, given the strength of his views and degree of attachment to his father, it was inevitable that, at some stage in the future, [Q] would, to use a vernacular expression“vote with his feet” and go and live with his father, whether the court mandated the move or otherwise. At the time, Dr Savage was concerned at the prospect of [Q] suffering some degree of psychological harm if he felt no-one heeded his views.
As perhaps can be imagined, Mr Garth accepted Dr Savage’s recommendations with alacrity. It being his position that the children had been consistently expressing a desire to come and live with him, in Brisbane, for some time.
For her part, Ms Hope regarded the proposal of the trial as foolhardy. She could only see harm coming to the children, if the longstanding arrangements for their care were disrupted. She was however not surprised that [Q] told Dr Savage that he wanted to give living in Brisbane, with his father, a try.
At the time of the first hearing between the parties, I summarised the difficulties in the case as follows:
“The central issue in the case is how the children can be protected from the worst excesses of the litigation between their parents and maintain a meaningful relationship with them both. In such an environment, the expression of any views by the children, as to what they would prefer, is likely to be fraught with difficulty.
The case turns on the purported views of [Q] and [B]. Is it safer to leave things as they are or should an experiment based on what the children have said to Dr Savage be undertaken? Will such an experiment unleash a further storm of litigation around the children, to their ultimate detriment?”[3]
[3] See Garth & Hope [2007] FMCAfam 677 at paragraphs 26 and 27
Later, in the judgment, I expressed some of my own reservations about the trial:
“The outcome of the trial cannot be foreseen. The children may have different views about it, [Q] wanting to stay and [B] to return, raising issues of their possible separation.
If the children are in Brisbane and say they want to return to Adelaide, Mr Garth may be unwilling to accept this outcome. There will be more pressure on the children. Once the egg is scrambled, it cannot be unscrambled. Given this uncertainty, why attempt the trial in the first place.”[4]
[4] Ibid at paragraph 48
Not without considerable soul searching, I decided that it was likely to be in the best interests of the children concerned to attempt the trial, as recommended by Dr Savage. In so doing, I was strongly influenced by the strong views which Dr Savage indicated [Q] was expressing. Accordingly, to adopt my own metaphor, the egg, in this case, was well and truly scrambled by the orders which I made on 28 September 2007.
The matter returned to court on 21 January 2008. In the meantime, Dr Savage had revisited the children and re-canvassed their views. As a result, she wrote a second family report dated 2 January 2008. Much of the second hearing was taken up with examining the second of
Dr Savage’s reports.
In respect of [B], Dr Savage reported that she ([B]) “was not totally sure what she wanted to do because she loved both of her parents and wanted to live with both of them.” [B] also said to Dr Savage that “generally she would like to live in the same place as [Q] but also added that if he wanted to do something different then she thought she would get used to it.”[5]
[5] See Family report dated 2 January 2008 at paragraph 37
Both Mr Garth and Ms Hope categorise [B] as a bubbly child, who makes friends easily and adapts well to most situations. They describe [Q] as a more reserved child, who is prone to worrying. On his second interview with Dr Savage, [Q] reported that he had missed his mother during the period of his trial. As such, he seemed more torn, in his loyalties to his parents, than [B].
The outcome of [B]’s interview with Dr Savage was that she indicated she wanted a little more time in Brisbane to consider her options so that she would be able to make a “good decision”. [Q], with more reluctance, was prepared to go along with this proposal, although it was his preference that the trial only be extended to the middle part of 2008.
Accordingly, the children seemed to have moved in their views about the pros and cons of living in Brisbane, with their father, during the period of the trial. [Q], who was initially the more enthusiastic child and the driver of the change had cooled somewhat, whereas [B], who had been more apprehensive, about the trial, had settled in better.
However, it is interesting to note that, at this stage, [B] floated the possibility of their being a different final outcome in respect of her and [Q]. At the time, Dr Savage did not think that either child had been subjected to any overt coercion from either one or other of their parents. In particular, she reported the following conversation with
Ms Hope:
“Ms Hope reported that she had spoken to both of the children and had informed them both, “If they decide that they want to stay with their father I will respect their choice. I have told them that I think that it is a bit early for them to have to make that decision and I objected to them having been put in that situation and I still object to it”. Ms Hope continued, “So whilst I have told them that I don’t want them to feel they have got to say that they want to do X to please me, because I don’t feel like that’s a fair pressure to put on the children, if they choose to go I will still be objecting to it for the reasons that I have been coming to this court for the past nine years.””[6]
[6] Ibid at paragraph 16
At this stage, Dr Savage reported her view that Ms Hope indicated to her that it may be in the children’s best interests if the “trial” of living with their father was extended for a further period of nine months. However, during the hearing before me on 21 January 2008, Ms Hope denied that she had given such an indication.
Again, as was to be expected, Mr Garth indicated to Dr Savage that both children had settled in well to living with him in Brisbane and had been delighted to be part of a household, which included a newly born half-sibling. Again, by necessary implication, he was an advocate for the court giving affect to the views of the children, as expressed to
Dr Savage, that there be a further trial of [Q] and [B] living with him in Brisbane for the next nine months.
Overall, Dr Savage made the following recommendation, which was largely based on what [Q] and [B] had told her:
“While there needs to be some final resolution in relation to this matter, it is also considered sensible to provide the children with a longer time to adjust to living in Queensland, pending the making of final orders. Extending the children's trial living arrangements with their father until September 2008, with the final report to take place in the September-October school holidays, would therefore appear a prudent way to proceed. In this way, arrangements could be made for the children to return to South Australia for the commencement of the new school year, if they decided they wished to return to live with their mother.”[7]
[7] Ibid at paragraph 52
Again, I was troubled by but not surprised at Dr Savage’s second set of recommendations. As I indicated at the conclusion of the first judgment one of the consequences of Dr Savage’s report was that the “genie was out of the bottle” so far as the views of the children were concerned. As such, Mr Garth, in particular, was not likely to let the issue go until it had been resolved in a way which he considered was satisfactory to him.
At the time of the second hearing, I expressed some of the concerns I had at continuing the trial, as Dr Savage recommended. I said as follows:
“What weight is to be given to the views expressed by the children, both in August of 2007 and more recently in January of 2008?
Coupled with this are considerations of the level of insight they each have into the consequences of extending the trial. Are they merely postponing the evil hour or trying to placate one or other of their parents?
Are there any unacceptable risks or dangers for the children, if the trial is extended?
If the trial is extended, will the children become the axis upon which the dispute between their parents turns and will this necessarily exacerbate and extend the stress which they currently feel. In essence, will the trial unfairly extend the period of their dilemma?
If, after a period of nine months or so, the children remain unable or unwilling to express a definitive view, will the additional trial have proven to be an unwarranted and rash experiment, so far as the children are concerned?”[8]
[8] See Garth & Hope [2008] FMCAfam 104 at paragraph 9
As is clear, although she had reservations about the children being consulted in the way they had been by Dr Savage, Ms Hope was well aware that the children’s views were one of if not the central issue in the case and she personally had told [Q] and [B] that she would respect their views. Mr Garth appears to have been sanguine about the process of consultation and what flowed from it.
After the second hearing, during which Dr Savage was cross-examined about the contents of the second family report, I said the following about the dilemma which her report had created:
“Once the court embarks upon the exercise of consulting with children about their views, and more importantly creates an expectation in the children concerned that their views are meaningful and will be given weight, it is important, I think, that the exercise of consulting with children is not undertaken in a tokenistic or mechanical way or, perhaps equally important, that the children concerned do not perceive it as such.
Such a process of consultation will inevitably create dilemmas. Choice is not necessarily clear cut but invariably involves the balancing of opposing or contrary considerations – for children just as much as adults. In addition, preferences may change over time.
The expression of choice has created dilemmas for these children. How could it not, given the love that the children have for each of their parents and the fact that the children want to be with both of their parents, an outcome which is not possible.
In addition, the children are aware of the painful emotional consequences, for one or other of their parents, in the expression of any preference they may have. However, I agree with Dr Savage's assessment that the issue of the children's views should not be avoided or downgraded in some way merely because it raises difficult or inconvenient issues, either for the children involved or the court.
The court should not necessarily pre‑empt the children being involved in the decision-making process, when the parents concerned are incapable of conducting it, because such a process creates tensions and dilemmas for the children. Very often such tensions and dilemmas are part and parcel of life.
At the same time, the court should avoid placing the children, as it were, in the metaphorical crucible or heat of the decision-making process, if this of itself will constitute a damaging experience for them. It is a truism, but true nonetheless, that adults should make decisions about children not vice‑versa. Again it is a question of balance.”[9]
[9] See Garth & Hope [2008] FMCAfam 104 at paragraphs 17-22
Ultimately, for the reasons I provided at the time, I decided to accept Dr Savage’s recommendations and prolong the trial. I directed that Dr Savage should again revisit [Q] and [B] in September of 2008 and once again canvass their views about the appropriate outcome of this case.
The 9th and 10th October 2008 were scheduled as the dates on which the matter should be finally determined. Clearly, both the parties themselves and [Q] & [B] need to know where they will be living on a final basis. Regrettably, in the intervening period Mr Garth and
Ms Hope have been unable to reach a consensus about the issue. They remain mutually hostile and suspicious towards one another.
Mr Garth and Ms Hope are not the only parties to these proceedings. On 28 September 2007, I ordered that both [Q] and [B] be independently represented in these proceedings [Family Law Act 1975 section 68L].
The children’s independent representative is Mr Hemsley, an experienced Adelaide family lawyer. The law requires Mr Hemsley to formulate a position, based on the evidence available to him, which he thinks will be in [Q] and [B]’s best interests [section 68LA]. Mr Hemsley has briefed a barrister, Ms Du Barry to appear on his behalf.
What has happened in the period since 24 January 2008
Since the judgment of 24 January 2008 [Q] and [B] have continued to live in Brisbane, with their father, and attend school there. They have seen their mother regularly, both in Brisbane and Adelaide.
It has represented a considerable financial burden, for Ms Hope to spend time with the children. She has changed her employment but continues to be an extremely modest wage earner. She has been assessed to pay child support to Mr Garth, in respect of [Q] and [B].
Other issues of controversy have arisen between the parties.
In particular, during the most recent September/October school holidays, Mr Garth wished to travel to Hong Kong with [Q] and [B] for a holiday. Initially at least, Ms Hope was not prepared to consent to the issue of passports for the children.
This state of affairs led to Mr Garth filing an application, in the court, on 4 September 2008, seeking that the mother’s approval to the issue of passports for the children be dispensed with. Ancillary with this application was an application for the court’s confirmation that
Dr Savage alone was to provide an update of her earlier family reports.
The reason for this latter order was as follows. In the period between January and September 2008 Dr Savage had left the employ of the Family Court registry at Adelaide and had commenced her own private practice in the City of Adelaide. However, in the meantime, she had not been appointed as a family consultant pursuant to Regulation 7 of the Family Law Regulations 1984. Accordingly, for bureaucratic reasons, she was no longer entitled to complete the report ordered, due to the ending of her professional relationship with the Court.
In lieu thereof, the manager of child dispute resolution services at the Family Court at Adelaide had nominated Dr Merrylyn Asquith to complete the report herein. Mr Garth complained that this was both irregular and in breach of my earlier order. He also thought it might be unsettling for the children if they had to see another court appointed expert.
Ms Hope responded to this application on 10 September 2008. She was prepared to consent to the issue of passports for [Q] and [B], provided certain conditions were met regarding the passports’ safe keeping, at the court registry, when not in use.
Of more significance, she indicated that she sought an order that Dr Asquith complete the family report herein in lieu of Dr Savage. On the other hand, it was Mr Garth’s preference that the court ensure that Dr Savage complete the report, regardless of any legislative or bureaucratic niceties involved, because of Dr Savage’s extensive prior involvement with the case and her personal familiarity with [Q] and [B].
Of particular moment, as the case has subsequently unfolded was
Ms Hope’s disclosure that she had video taped a conversation between her and [B] in January of 2008, regarding [B]’s alleged antipathy towards Dr Savage and her ([B]’s) preference that another family consultant be engaged.
Ms Hope deposed that she had been advised by her then solicitor, apparently prior to the hearing of 21 January 2008, not to raise the issue of the appropriateness or otherwise of Dr Savage to express an opinion regarding [B]’s views or [B]’s degree of ease with Dr Savage, with the court. Accordingly, neither she nor her then counsel raised the issue or any objection to Dr Savage during the hearing of 21 January 2008.
As a result, neither I nor Mr Garth was aware of any video tape record of Ms Hope interviewing [B] about her attitude towards Dr Savage. Around the middle of 2008, Ms Hope resumed acting on her own behalf. She remained concerned about the objectivity of Dr Savage and particularly [B]’s level of comfort with her.
It was against this background that she elected to forward a copy of the video tape she had made of [B] to both Mr Hemsley and the Director of Child Mediation Services at the Family Court. She deposed to her actions, in this regard, in her affidavit of 10 September 2008. The issue was raised before me on 10 September 2008. Mr Hemsley was not greatly troubled by the issue and could see some benefit to another expert eye being brought to bear on the case.
Perhaps for obvious reasons, Mr Garth was disquieted by the prospect of Dr Savage not being involved in the case. From Ms Hope’s perspective, for reasons unrelated to the video tape of [B], she had achieved her objective in getting Dr Savage removed from the case.
Given that Mr Hemsley was satisfied to allow Dr Asquith to complete the family report and the fact that Dr Savage was no longer available to the court, I felt unable to do anything other than formally confirm Dr Asquith as the person who would re-interview [Q] and [B] and complete the report writing process for the court. However, I directed that she should be permitted to contact Dr Savage to discuss any relevant issue, if she so wished and thought it appropriate.
Accordingly, Dr Asquith interviewed the parties themselves and [Q] and [B], at the Family Court, on 24 September 2008. She completed her report on 7 October 2008. Much of the third hearing was taken up with, an examination of Dr Asquith’s report and recommendations.
In her report, Dr Asquith indicated that [Q] had indicated a wish to remain living with his father, in Brisbane. Whilst, on the other hand, [B] had indicated a wish to return to live with her mother, in Adelaide. Accordingly, from Dr Asquith’s perspective, the trial had not resulted in an outcome which was without its dilemmas and difficulties.
However, overall, Dr Asquith was of the opinion that the court still needed to give significant weight to the views of the children, as they had expressed them to her. She reached this view because it was her perception that both [Q] and [B] perceived that they were being asked for their decision about where they would live in future, not only by the court but also by their parents.
In such circumstances, Dr Asquith considered, if the children felt that they had not been listened to, there was the possibility that both would suffer some level of psychological harm. Obviously, Dr Asquith was well aware that, if the court adopted her primary recommendation, it would result in the separation of the siblings.
As an alternative to the separation of [Q] from [B], but not her preferred option, Dr Asquith indicated that the court should give serious consideration to both children returning to live in Adelaide, in their mother’s care. However, Dr Asquith would only countenance this outcome if the court considered that, given [B]’s tender years, it was inappropriate for her to be separated from [Q].
Like Dr Savage before her, it was Dr Asquith’s impression that [Q] was a child who lacked confidence and had a need for security, safety and continuity. As such, Dr Asquith could see considerable advantages in [Q] returning to Adelaide, where he had previously lived for most of his life previously and would be able to maintain his close relationship with [B].
Mr Garth is uncomfortable with the issue of where the children will live, on a permanent basis, being determined effectively on the basis of a brief “snapshot” taken by Dr Asquith in her report. However, prior to the interview, he indicated to her Dr Asquith that he was content to abide with the children’s views as expressed to her. It is now
Mr Garth’s position that the two children should not be separated but should continue to live with him in Brisbane and spend time with their mother during school holiday periods.
Mr Garth is dubious regarding the validity of the views ostensibly presented by [B] to Dr Asquith, given the contents of the January video tape produced by Ms Hope. In these circumstances, he argues that the court cannot definitely rule out the possibility that Ms Hope has influenced [B] to express the view, which she did to Dr Asquith.
Mr Garth categorises the mother as being hyper-protective of both children, but particularly [B]. He also asserts that she is anxious, to an almost paranoid degree, about him and his influence on the children. As such, he asserts that the mother’s presentation towards the court is one permeated with sadness and anxiety at any possibility of the children living away from her. He submits that it is highly likely that the mother has presented herself in a similar way to the children, particularly [B], in her home.
In all these circumstances, Mr Garth argues that it is highly likely that [B] has been exposed to a high degree of influence by Ms Hope and is either repeating what her mother has told her to say to Dr Asquith or is emotionally “caretaking” her mother in some significant way. Accordingly, Mr Garth urges the court to take caution with
Dr Asquith’s report, particularly in circumstances which would result in the separation of the two children concerned.
Incidental with these concerns, Mr Garth is critical of Dr Asquith’s methodology and thoroughness regards to the compilation of the family report. In particular, he submits that it would be inherently unsafe for the court to rely on the few brief (and to Mr Garth incomplete) sentences in which [B] reportedly expresses her preference to return to live in Adelaide with her mother.
Dr Asquith reported that Ms Hope was weary and despondent after the long and bitter litigation between the parties, which she wanted ended. As previously indicated, in the middle of 2007, Ms Hope was not surprised that [Q] expressed a desire to live in Brisbane with his father.
Although Ms Hope is disapproving of the fact that [B]’s opinion has been canvassed, she does not doubt that what [B] said to Dr Asquith reflects her ([B]’s) preferred view. In all these circumstances, Ms Hope is content if the court adopts the first and preferred option, which
Dr Asquith advocates.
Mr Hemsley has briefed a barrister, Ms Du Barry, to appear on [Q] and [B]’s behalf. The law requires Mr Hemsley and Ms Du Barry to formulate a position, based on the evidence available to them, which they think will be in [Q] and [B]’s best interests [Family Law Act section 68LA].
In her submissions, Ms Du Barry advocates that the court should follow the recommendations of Dr Asquith. It is her position that neither Mr Garth nor Ms Hope have done anything to disabuse [Q] and [B] that the expression of their views to the court appointed expert will be the determinative factor in this case. In these circumstances, she submits that it is potentially detrimental if, at this late stage, the court apparently disavows the views of one or other of the children.
Ms Du Barry can find no fault with how Dr Asquith conducted the task laid out for her by the court. In particular, it is common ground between all the parties that Dr Asquith viewed the controversial video tape taken by Ms Hope of [B] in January of 2008. Accordingly, in
Ms Du Barry’s submission, Dr Asquith was appraised of the type of pressure which Ms Hope had applied to [B].
For her part, Ms Du Barry submits that although it was ill-advised and constituted poor parenting, on Ms Hope’s behalf, to videotape [B] in this way, her action in this regard does not cause her (Ms Du Barry) to change her assessment that both the mother and father are basically good and competent parents.
Ms Du Barry submits that there is nothing particularly complex about the respective preferences each child has expressed. [Q] feels a need for his dad. [B] feels a need for her mum. If the parties lived in the same location, it would obviously be a case where an equal time parenting regime was by far the preferred outcome. However, given the geographical separation of the parties, this is not a possible outcome.
This present judgment is directed to finalising arrangements for the care of [Q] and [B] for the indefinite future. Given the circumstances of the parties, there can be no outcome in this case, which will be set entirely satisfactory to all concerned. The various options available to the court, in the outcome of this case, cannot be manipulated, like the surface of a rubik’s cube, to reach a perfect result.
The issues
Having provided this introduction, it is useful for me to set out the issues, which I must determine, before turning to the evidence and applicable legal principles in more detail.
·What weight should the court give to the views of the children particularly [B], ostensibly expressed to Dr Asquith?
·What factors, if any, are influencing those views?
·Is [B] mature enough to understand what the possible implications are if her apparent views are implemented?
·Does either child understand the implications of living apart in another state, from a sibling?
·Is there any evidence from which the court can reliably conclude that Ms Hope has sought to unduly influence or pressure [B] to express the view, which she has done, to Dr Asquith?
·Is there any proper basis for the father’s criticism of Dr Asquith’s methodology in the manner in which she consulted with either of the children concerned?
·What are the practical implications which will arise in order for the children to spend holiday time together, if they are separated and live in different States, particularly as at the present time the South Australia and Queensland school holidays do not run concurrently?
·Above all, what outcome is likely to best serve the interests of [Q] and [B]. Are these interests different, given the sexes of the children concerned and their different ages?
The evidence
Dr Asquith was the only witness who gave oral evidence in the proceedings before me on 9 October 2008. She was cross-examined by counsel for each of the parties and Ms Du Barry.
In addition, I was provided with a DVD of the videotaped interview between Ms Hope and [B], which took place in January of 2008, apparently after [B] had seen Dr Savage for the second time. At the invitation of Mr Baston, counsel for the father, I viewed this DVD in chambers prior to Dr Asquith giving her evidence. The DVD was later tendered into evidence.
a) The interview between [B] and Ms Hope
The DVD of the interview between Ms Hope and [B] takes about 17 minutes in all to play. The quality of the recording is not particularly good. [B] appears to be brightly lit during the interview.
Ms Hope was not cross-examined about the circumstances of the interview and why she felt motivated to record it. In these circumstances, I have no reason to doubt that she was primarily motivated by her perception that [B] had expressed some level of discomfort with Dr Savage.
This level of discomfort can be encapsulated by [B] saying to her mother that she did not get “a good vibe” from Dr Savage. Later, in the interview, [B] indicated that her mind “went blank”, when Dr Savage indicated that she would miss her mother, when she was with her father and vice versa.
The interview begins with [B] complaining and feeling under some level of pressure because her father had apparently already bought her school books for the forthcoming year in Queensland. [B] was concerned that, if she elected to return to Adelaide, her father would have been put to an unnecessary expense. She then went on to explain that Dr Savage had told her that her father would almost certainly be able to return the books in question, if necessary. There does not seem to me to be anything particularly untoward in this exchange.
To my mind, what is highly significant about the interview is what occurs at about the three minute mark, after [B] has expressed some disquiet about her level of rapport with Dr Savage. Ms Hope asks this question: “So you still want to go up and see what its like living with your Dad for longer?” [B] replies: “yep”, to which Ms Hope says: “alright”.
Accordingly, it seems likely that the interview took place after
Dr Savage’s report was released. Viewing the interview as a whole, there seems to me to be no indication that Ms Hope is “push polling” [B] away from the continuation of the trial. It seems to be a given that both Ms Hope and [B] accept the trial will continue. Rather, what the conversation is primarily about is Dr Savage and the report writing process.
[B] is obviously an emotionally torn child during the interview. In this regard, I am satisfied that it was imprudent of Ms Hope to proceed in the way she did. However, it does not seem to me that she is trying to curry favour with [B] or canvass her directly.
At a slightly later stage, when she is asked if she has anything further to add, [B] indicates that she told her father, after she had recently returned from spending time with her mother, that she missed her mum and was “stressed by not having enough time to say goodbye to mum”. [B] reported that her father told her that her mum was “just a phone call away”.
When asked what she wanted at this stage, [B] said she wanted to talk to her mum but stopped short of saying she wished to return to her mother. Again, Ms Hope does not appear to be inclined to capitalise on this statement by [B] but returns again to the issue of Dr Savage.
What is also, I think, clear from the interview is that, rightly or wrongly, the premise of the discussion between [B] and her mother is that [B] is in the process of making for herself a significant life decision. My impression is that Ms Hope does nothing to disabuse her of this premise or indeed to influence her one way or the other. Rather, [B] expresses apprehension that Dr Savage may misreport her in some way or other.
In particular, Ms Hope asks [B] if there is anything ([B]) could do now to make her decision. [B] indicates that “she really does not know”. At this stage she seems to be a sad and troubled child. Ms Hope breaks [B]’s silence by asking “but maybe next time you’d like someone different to interview you”.
Again, at this stage, there is no overt attempt by Ms Hope to undermine the decision [B] had apparently earlier conveyed to Dr Savage about the continuation of the trial. In fact, [B] goes onto say that Dr Savage has in fact reported everything that she wanted to say up to this stage. Her concern seems to be directed to the possibility that she will not do so in future.
This state of affairs leads Ms Hope to take [B] to the conclusion that she ([B]) would prefer to have another counsellor “next time”. In this context, Ms Hope puts to [B] the proposition that “its not that you want to say with your mum or that you want to stay with your dad, it’s just that you want someone else to talk to about it” (or words to this effect). [B] readily agrees.
Towards the end of the interview, Ms Hope, when probing as to why [B] feels that she has no rapport with Dr Savage suggests to [B] that
Dr Savage has suggested to her the answers to the questions posed to her ([B]). [B] also expresses some discomfort that Dr Savage has tape recorded their conversations in the past.
Towards the conclusion of the conversation, [B] complains that
Dr Savage is too cheerful in her interaction with [B] and treats her like a silly child. Overall, my impression is that [B] herself is not lacking in understanding of the process and implications of having her views canvassed. Rather she is worried that her view may be misreported in some way. That is not to say that she is not unaffected by the emotional consequences of the decision involved. She most certainly is.
The DVD is unfortunate. Ms Hope was unwise to have embarked upon the process of interviewing [B] in this formal manner. Obviously, I have no way of knowing whether this was an isolated interview or one of many. However, as I have already indicated, in my view, there is no clear evidence that Ms Hope was trying to influence [B], one way or the other, about the central issue in the case.
To the contrary, she confirms the extension of the trial to [B]. The existence of the interview emphasises the extraordinary polarisation and lack of trust between the parties concerned. In this atmosphere, both parties have acquiesced in the children’s views becoming the most important determinative factor in the case. I confess that the court must have some level of complicity in allowing this state of affairs to arise.
However, to a large degree this came about as a result of the applicable legislation and because the parties themselves were happy for the court to embark upon a family report. No doubt, at the time, both parties thought that such an outcome would suit them. Sadly, it is my impression that, too a marked degree, both parties have focussed on achieving their preferred outcome in this case, rather than on sparing the children the invidious consequences of these very adversarial proceedings.
As I observed in the first judgment, once the genie was out of the bottle, so far as [Q]’s views were concerned, it was inevitable that the parties would be set on pursuing another round of litigation with one another.
The parties themselves are incapable of agreeing upon what the children’s views actually are. In these circumstances, it seems to me, that the only way the court is likely to gauge what the children’s views are is through some form of independent assessment. The extensive regime of family reports and interviews became unavoidable.
Having reconsidered the evidence of Dr Savage, in the light of the DVD, I have no reason to doubt the validity of Dr Savage’s opinion or the substance of what she reported the children said to her. In addition I do not think that anything Dr Savage has done taints the process undertaken by Dr Asquith.
b) Dr Asquith and the Family Report
In her report Dr Asquith identified a number of issues in dispute between the parties, which warranted attention. These included:
·The potential for financial inequity to arise regarding travel arrangements for the children, given the disparity in the parties’ respective incomes;
·The emotional burden being borne by the children in their attempts to be even handed with their parents and to keep each of them happy;
·Ms Hope’s emotional pain at the present arrangements for the children’s care.
Dr Asquith viewed Ms Hope as a sad but determined person, particularly where the interests of her children were concerned. This accords with my own impression. Ms Hope viewed the trial, predicated as it has been on the opinions of the children, as flawed. However, Ms Hope believes that a more serious deficiency would be for the children to perceive they have been consulted and then disregarded. Dr Asquith put it this way:
“She [Ms Hope] expressed her further concern that such a child, if refused, should never have been asked to express a view in the first place”.[10]
[10] See family report dated 7 October 2008 at paragraph 19
Dr Asquith viewed Ms Hope’s parenting strength as her devotion to the children, as epitomised by her willingness to travel, at considerable expense to herself, to spend time with them. I share this assessment. Without doubt, Ms Hope was emotionally devastated by the court’s decision to allow the trial in September and more so by its extension in January. Although she is not well off financially, she has taken every opportunity she can to spend time with [Q] and [B].
Dr Asquith viewed the video tape of January 2008, as part of the process of compiling her family report. She regarded the decision to interview and record [B] as “unfortunate” but did not think it ipso facto proof of a compromised attitude on Ms Hope’s part, to the responsibilities of being a parent. Rather, Dr Asquith thought the tape’s inspiration came from Ms Hope’s anxiety at the prospect of being separated from her children and her concerns about Dr Savage and the earlier report writing process.
In essence, Dr Asquith considered the tape part of a process whereby Ms Hope was intent on investigating Dr Savage. As such, she did not think that the interview evidenced any direct pressure being placed on [B], as to where she should live in future. Indeed, from her observations of the parties’ concerned and the children, Dr Asquith could find no evidence that either parent had placed [Q] and [B] under pressure.
Accordingly, the video tape itself did not raise any concerns in
Dr Asquith’s mind about the mother’s parenting of [B]. In particular, Dr Asquith strenuously rejected any categorisation of the interview between Ms Hope and [B] as being tantamount to child abuse. Rather, she categorised it as being a lapse of judgment, on Ms Hope’s part, which was perhaps understandable given the tenor of the litigation, which was focused so strongly on the views of the children concerned and the most appropriate means of canvassing them.
Perhaps unexpectedly, given the intensity of the litigation between the parties, Mr Garth indicated to Dr Asquith that he thought the best outcome from these proceedings would be that no orders were made. This view seems to be predicated on the basis that the children should be free to choose where and with which parent they live, as Mr Garth himself had apparently done, whilst a minor.
Dr Asquith, like Dr Savage before her, assessed Mr Garth’s parenting capacity as sound, particularly as he “convincingly reported” his willingness to support any decision made by the children regarding their residential preference.[11] In my view, this protestation, which I have no reason to doubt, does not fit comfortably with the attitude
Mr Garth has adopted in the current round of proceedings.
[11] Ibid at paragraph 31
Dr Asquith observed the children with each of their parents. Both [Q] and [B] were observed to be settled and contented with their mother and father. As a result, Dr Asquith did not challenge the quality
of either child’s parental relationship. Again, this correlated with
Dr Savage’s assessment.
Of note, in her overall assessment of this case, Dr Asquith reported that [Q] chose to sit very close to his father and wrapped his arms over his father’s chest. Dr Asquith interpreted this as being reflective of [Q]’s need to be close to his father, for his support and approval, which
Dr Asquith believed was clearly indicative of [Q]’s need for physical affection from his father. Mr Garth responded appropriately to [Q]’s need to be close to him.
Dr Asquith has extensive experience of interviewing children, in the court context, particularly in ascertaining what their views are and what is influencing those views. It is her practice to explain to children why they have come to see her. By which I take it, she explains that she will report back to the court what the children tell her, so that the children concerned know a decision regarding them will be made.
I accept Dr Asquith’s evidence that she told [Q] and [B] about her role, in this regard, at an early stage in her interview with them. In addition, given their earlier experiences with Dr Savage, I have no doubt that [Q] and [B] knew why they had come to see Dr Savage, particularly the import of anything they might say to Dr Asquith.
How could it be otherwise? Dr Asquith filled the same role for the children as Dr Savage had done earlier. Following their first visit to
Dr Savage and having told her that they wanted to give living in Brisbane a try, they had moved to Brisbane. Again, following their second interview with Dr Savage, at which stage they had asked for more time in which to make a decision, they remained living in Brisbane.
In all these circumstances, it seems highly unlikely that the children were under any level of misapprehension regarding the purpose of their visit to Dr Asquith and the significance which was likely to be placed on anything they said to her. Overall, Dr Asquith’s “very strong impression” was that the children knew that they had come to see her because she (Dr Asquith) would ask them each for a final decision about their future living arrangements.
It is in this context that the court must carefully examine what each of the children told Dr Asquith. For the reasons I have provided, I am satisfied that both [B] and [Q] knew the importance which would be accorded to whatever they told Dr Asquith and that the meeting with her was, for better or worse, the final time at which they would be asked their preference, within the court system, as to their future living arrangements. In other words, the trial process was over and it was time for them each to make a final decision.
[Q] identified to Dr Asquith his close association with his father describing himself as a “mini me” to his dad. He spontaneously reported to Dr Asquith that he had a decision for her. He said he wanted to stay with his father and to split the holiday in half. In Dr Asquith’s view, this was a measured and considered decision.
This was clear because [Q] reported to Dr Asquith that the decision was a “really hard” one for him to make but he identified his father as being very important to him, particularly in the sense that he (Mr Garth) “probably ….understands me more than I do”.
In regard to this decision, Dr Asquith said as follows:-
“It is noteworthy that [Q] appeared to believe that the decision to live in either household is his and that the trial periods that the children have been living with their father, as recommended by
Dr Savage, have been to assist them to make that decision.”[12]
[12] See Family Report dated 7 October 2008 at paragraph 43.
Dr Asquith viewed [B] as a more confident child than [Q]. In the interview setting with her, Dr Asquith described [B] as being comfortable and confident and as being a child who appeared to speak her mind.
[B] indicated that she had missed her mother “quite a bit” whilst she had been living in Brisbane and had found it particularly hard to say goodbye to her mother. This was a theme examined by Ms Hope, with [B], in the DVD interview.
[B] was also positive about her father, describing him as being “nice” in his care of her. As such, it was clear to Dr Asquith that [B] loved both her parents and was well aware of the dilemma which confronted her. Dr Asquith described her exchange with [B] thus:-
“[B] explained her dilemma thus. She said that if she decides to stay somewhere [with her mother] that “Daddy might get upset” but that “she’s my mummy and I’d like to be with her”. [B] started to cry as she explained that she misses her mother. [B] added that her half sister [S] is very nice and that they love each other very much and do things together.”[13].
[13] Ibid at paragraph 50
It was Dr Asquith’s observation of [B] that her mood lightened, after she had apparently got this issue off her chest. [B] also indicated to
Dr Asquith to make sure she (Dr Asquith) told the court that what she had been told was the truth so far as [B] was concerned.
Dr Asquith provided the following assessment of each of the children:-
“Overall, each of these children presented developmentally sound and able and willing to express their views in ways that were age appropriate. Following the interview with [B], and following expressions of her views to the writer that she would like to return to live with her mother, [B] appeared to become animated, relieved, happy, and as though a burden had been lifted from her.”[14]
[14] Ibid at paragraph 59
When together, both children indicated to Dr Asquith that they did not wish her to communicate their respective decisions to their parents at that time because it would be “scary” for them. The children also acknowledged that they understood that this decision would mean that they would no longer live together for the greater part of the year but would be restricted to seeing each other in school holiday periods.
It was Dr Asquith’s position that both children clearly understood that the arrangements whereby they had been living with their father, in Brisbane, were a trial period, with an opportunity for review.
Dr Asquith acknowledged that the highly conflictual parenting relationship between Mr Garth and Ms Hope was likely to have been highly influential in respect of both children. However, notwithstanding this state of affairs. Dr Asquith opined that it was to both parent’s credit that [Q] & [B] were “confident enough to express their views without demonstrable distress or untoward signs of parental influence.”[15]
[15] Ibid at paragraph 56
In the evaluation section of her report, Dr Asquith reported as follows:-
“The nature and quality of the relationships between the children and their respective parents appeared to be sound and mutually rewarding. [Q] appeared to be a very needy child in terms of his apparent lack of confidence and his need to be close to his father. [Q] is also in the early stages of adolescence and his needs for establishing self-identity and beginning independence from his parents may well have influenced his stated views. [B] appeared to express personal confidence and self esteem which apparently has enabled her to clearly express her views without overwhelming distress.
The weight the Court might determine to place on these children’s views is a matter for the Court. It seems important to note that it appears the children have come to their expressed views following their considerable personal struggles to satisfy their own and their parents’ needs. It appeared to be a measure of their relatively independent thinking that each child has determined a difference course of action at this time.”[16]
[16] Ibid paragraph 69 and 70
It was Dr Asquith’s preferred recommendation that the court should take account of the children’s wishes, as expressed to her, notwithstanding that this would result in [Q] and [B] being separated and the significant practical difficulties which would ensue in respect of the children spending time together, during school holidays.
Dr Asquith is a highly experienced family consultant, who is well aware of the significance of separating closely integrated siblings from one another. However, in the context of this case, particularly her satisfaction that both children had become engaged in the decision making process, Dr Asquith believed that there would be significant deficits for both children, but particularly [B], if she felt she had not been listened to.
In particular, Dr Asquith thought that the children would lose trust in their parent’s assurances that their voices would be heard and this would be highly damaging in respect of their parental relationships. In particular, Dr Asquith considered [B] would be “devastated” to such a degree that she would “lose trust in her father”.
Clearly, Dr Asquith did not doubt the sincerity of [B]’s preference, as a little girl, to live with her mother. As such, Dr Asquith was highly concerned at the potential for [B]’s relationship with her father to be damaged, if [B] perceived that her father had either misled her or disregarded her views. This scenario appears to have led to the formulation of Dr Asquith’s second but less preferred option, which would involve the return of both children to the care of their mother in Adelaide.
Dr Asquith could see significant advantages to this proposal, particularly in terms of [Q]’s lack of confidence and need for security and continuity in his care. In this context Dr Asquith observed that [Q] had lived in Adelaide for most of his life and maintained strong connections in the city, not only with his mother and potentially [B], but also with his friendship group at his previous school.
However, Dr Asquith clearly favoured the court adopting the outcome which would accord with the views of the children, as expressed to her. This was because the children had been faithful in giving the trial of living in Brisbane “a go” and given that they had each kept the faith, in this way, it would be contrary to their best interests if they did not have “authorship” of the future arrangements for their care.
It is my apprehension that Ms Hope accepts that, as a result of how things have come to this point, it would be contrary to the children’s best interests if their views were not acceded to. On the other hand, although up to this point, Mr Garth has pushed for the court to canvass the children’s wishes, he asserts that there is now something untoward in how this process has unfolded, so far as [B] is concerned.
In many ways, it is unfortunate that the children’s views have become so seminal in this case. However, given the complexity of the litigation between the parties and the fact that the children were given the opportunity of a trial, which they accepted with alacrity, it was inevitable that the children’s views, as gathered by a professional reporter, would become central in this case.
Overall, I am not persuaded that there is anything flawed in the means by which Dr Asquith canvassed either [Q] or [B]’s views or, more importantly, that either child has been directly coerced or manipulated by one or other of his or her parents.
I also agree with Dr Asquith’s view that the trial process needs to be brought to an end and it would be abusive both if the children were to be asked again what is their preferred option or if the children believe that this exhaustive consultative process with them is at worst a sham and at best an exercise in shallow tokenism.
The legal principles applicable
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of [Q] and [B]’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, including grandparents and half-siblings [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)]. In this case, neither party raises any issues to do with neglect, abuse or family violence.
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, provided this outcome is both likely to be in the child’s best interest and reasonably practical.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The additional considerations are as follows:
“(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) The nature of the relationship of the child with:
(i) each of child’s parents;
(ii)and other persons (including grandparents or other relative of the child );
(c) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent;
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)from any other child, or person (including any grandparent or relative of the child,) with whom he or she has been living;
(e) The practical difficulty and expense of a child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) The capacity of:
(i) each of the child’s parents; and
(ii)or any persons (any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) If the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Straight Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact of any proposed parenting order under this part will have on that right;
(i) The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) Any family violence involving the child or a member of the child’s family;
(k) Any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to that child;;
(m) Any other fact or circumstance that the court thinks is relevant.”
In assessing the various considerations arising under section 60CC (2) & (3) the court is required to assess the degree of participation of the parents concerned in the lives of their children both before and after separation.
This assessment includes how much time and communication each parent has had with the children; the degree of their involvement in long-term decision making; and their fulfilment of financial obligations towards the children [section 60CC (4) & (4A)].
In addition, the court is also required to consider how the parents have each facilitated the involvement of the other in these aspects of their children’s lives. These considerations emphasise the benefits for children of effective co-parenting and the obligations on parents to facilitate it.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the child concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[17]
Determining [Q] & [B]’s best interests – Section 60CC
[17] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
a)The primary considerations
The dilemma which arises in this case is essentially created by the fact that Mr Garth has elected to live in Brisbane. Accordingly, circumstances of geography prevent the children living in either an equal time or substantial and significant time arrangement with each of their parents. Accordingly, the legislatively mandated optimal arrangement for the care of these children is not open to the court.
However, to the credit of both parties, in what must be regarded as difficult and extreme circumstances, the children have a meaningful relationship with both their parents. [Q] and [B] know how deeply their father and mother each love them.
Over several years, [Q] and [B] had a long distance relationship with their father. He formed a relationship with Ms G and the two have a newly born child together. In all these circumstances, it is not unusual that the children would be curious about what it would be like to live permanently in Brisbane, during the school year.
In addition, it seems to have been part of [Q]’s motivation that he wanted to extend the level of his relationship with his father by spending an extended period of time with him in Brisbane. Accordingly, as a result of the trial process, it seems likely that now both [Q] and [B] have a more meaningful relationship with their father.
In this sense, the trial, whether it crystallises into a permanent arrangement or one which is ended or changed, has produced concrete benefits. The children know their father and step-mother better. They have all shared a domestic setting together for an extended period of time. As such, Mr Garth is not solely a “holiday parent”, so far as the children are concerned.
Undoubtedly, up until September of 2007, Ms Hope was the most significant figure in both children’s lives, but particularly [B]’s, who had never previously had any experience of living in a shared care arrangement. As such, Ms Hope remains highly significant to both children. Accordingly, I am satisfied that the process of the trial, although it has been extended, has not removed any level of meaning in the relationship which the children have with their mother.
This is not a case which concerns issues to do with abuse, neglect or family violence. Both parties are well resourced parents, who are committed to securing and protecting their children’s best interests. As such, it is regrettable that the geographical circumstances of this case must mean that one parent has a lesser level of involvement with either one or both of the children concerned.
The additional considerations
a)The children’s views
The children’s views are important in this case for a number of reasons. Firstly, [Q] and [B] are aware that their views have been formally and extensively canvassed by the court and, as such, will be instrumental in its determination of what is likely to be the appropriate outcome in the matter.
The children are well aware their parents are currently unable to make a consensual decision about these arrangements. Because of the level of impasse between their parents, the children now perceive that they each have their parents’ imprimatur to make a decision about what they ([Q] and [B]) would prefer, so far as their living arrangements are concerned.
As such, I accept that the children will be distraught and potentially disaffected if they perceive that there has been an elaborate process of consultation, apparently orchestrated by their parents, which turns out ultimately to be disregarded. In particular, [B], who trusts her father, may perceive that he has feet of clay, so far as his indication that he respects the children’s opinions.
Secondly, the expression of any human preference is both important to the person expressing it and idiosyncratic in nature. This is true of children as much as it is with adults. In this case, I accept that both [Q] and [B] have expressed their preferences regarding the ultimate outcome in this case. It is perhaps inconvenient that these preferences do not accord with one another but considerations of convenience alone are not reason enough for those preferences to be disregarded.
[Q] is a child of 12 years and 4 months. He has always had a close relationship with his father and strongly identifies with him. In particular, he describes sharing character traits with his dad. In the early period of the parties’ separation, prior to their second acrimonious hearing in the Family Court, [Q] experienced living with his father and mother in an equal time arrangement. In addition, it is clear to me that [Q] was the main agitator, in the middle period of 2007, of the children’s desire to go and live in Brisbane with Mr Garth.
As such, I am confident that, over a lengthy period of time, [Q] has had a desire to live with his father. I am satisfied that he is old enough to be able to express this view and understand its significance, including its potential to result in him living in separate circumstances to [B]. I am also satisfied that he understands that it is likely to be a decision which cannot easily be revisited.
[B] is around 10 years of age. As such, she is a little girl. Necessarily her degree of insight and maturity must be less than her brother’s. However, as with [Q], she has been placed in a position where she feels her view has been sought, not only by the court, but by her parents.
I accept that she has grappled with this role and reached a decision. As previously indicated, [B]’s care arrangements historically have been different to those of [Q]. Initially, she acceded to her brother’s enthusiasm to have a try at living in Brisbane. She is a bubbly and affectionate child, who makes friends more easily than her less confident brother.
In January of this year, she felt that she had not had enough time to decide whether she preferred Brisbane to Adelaide. She wanted more time. The court, with the apparent acquiescence of her parents, afforded her that opportunity. In these circumstances, I accept that she has now made a valid and personal expression of her preference. In expressing this preference, I do not think that she has been subjected to the overt coercion or coaching of her mother.
Dr Asquith has been criticised for not exploring, in more detail, with [B] the expression of her preference. I do not think that this criticism is valid. Given her age and level of development, the statement that
Ms Hope is “…my mummy and I’d like to be with her” is, in my view, a clear statement of preference, which reflects [B]’s understanding of her care prior to the experiment of the past year.
b)The nature of the children’s relationship with each of their parents and significant others.
Clearly both [Q] and [B] have a close and loving relationship with each of their parents and indeed with one another. Due to the strength and durability of these relationships, there is no obviously preferable outcome in this case.
The relationship between siblings is one of the most important of all human relationships. [Q] and [B] have lived in the same household for the vast majority of their respective lives. The difference in their ages is small. I would anticipate that they will remain close to one another for the remainder of each of their lives.
[Q] was the primary instigator of the trial, which commenced in September of last year. [B] had more reservations about it but the parties’ mutual desire that the children not be separated from one another resulted in both children going to Brisbane. At the time, I took comfort from the fact that the children would be able to support one another through the significant change of circumstances entailed in the trial.
Accordingly, the most significant deficit of the outcome advocated by Dr Asquith is that the children will be separated from one another. For understandable and human reasons, ordinarily, the court tries not to separate siblings, particularly if those children are close and have always lived together.
In addition, it is sometimes said that, in high conflict families, siblings provide mutual support and comfort to one another. I am greatly troubled at the prospect of [Q] and [B] growing up separately and missing the opportunity to see the other develop on a day to day basis. Obviously, such an outcome has the potential to reduce the level of intimacy between the two children, who are separated by a little under two and a half years in age.
One of the seminal issues in this case is whether its particular circumstances justify a departure from the general rule regarding the separation of siblings. As previously indicated, the prior arrangements for the care of [Q] and [B] are not completely congruent. In the past, [Q] lived with his parents on an equal time basis, whereas [B], who was much younger at the time of the parties’ final separation, has always lived predominantly with her mother, up until the time of the Brisbane trial.
It is Mr Garth’s case that [Q] was gravely discomforted by the end of the shared care arrangement and mourned the loss of his father’s presence in his life. As such, in the years which have followed, he has come to identify more and more strongly with his father and to yearn to spend more time with him.
In all these circumstances, I can understand why [Q] attaches such importance to his paternal relationship and why he has expressed a view, which is at odds with his sister’s. Although it is clearly not something which is usually countenanced by the court, in the particular circumstances of this case, it is my view that the court should not automatically reject the possibility of the children being separated from one another.
In September 2007, the court gave some pre-eminence to [Q]’s interests in its endorsement of the Brisbane trial. Now, given [B]’s vulnerabilities and her need to re-engage with her mother, it seems to be Dr Asquith’s view that particular consideration should be given to [B]’s needs at this stage.
For this reason, Dr Asquith was not in favour of the two children remaining living together in Brisbane. Rather, it was her view, if the court could not countenance the separation of the children, it was preferable that they live together in Adelaide.
I agree with this assessment. It is very difficult to rank the various possible outcomes in this case. However, the price of the children continuing to live together in Brisbane is likely to be a possible deterioration in [B]’s trust in her father and a feeling that her emotional needs have been disregarded.
The children’s relationship with one another is a firm and consolidated one. [Q] is coming to an age at which he is likely to want to separate himself from his immediate family, including his younger sister, and assert his independence.
Dr Asquith saw this in terms of [Q] entering the early stages of adolescence and having a need to establish a “self-identity”. Like [B], he is also likely to be susceptible to a sense that he has been repudiated, if his apparent views are not taken into account.
However, of the two children, he is more likely to be able to rationalise that, in this particular case, if the children do return to live in Adelaide, his views have been made subservient to [B]’s best interests on this occasion. However, like Dr Asquith, I see considerable pitfalls in such an outcome.
I do not have a sense that the children have conspired together to achieve some cobbled together solution in an attempt to mollify each of their parents. Essentially that the children have decided to sacrifice their relationship with one another and separate in the hope that neither one of their parents will feel totally disconsolate at having lost the opportunity to live with both of their children. Certainly, Dr Asquith did not think that the expression of the children’s views was influenced by any altruistic desire, on the part of the children, for a compromise to be reached between the parties’ competing positions, to their own cost.
c)The willingness and ability of the parties to encourage a close and continuing relationship between the children and the other parent.
In spite of the unacceptably high level of conflict between the parents in this case, [Q] and [B] have been able to maintain a strong relationship with both their parents. As such, it seems to be the case that both Mr Garth and Ms Hope recognise that the other parent will always play an important role in the lives of the children concerned.
Ms Hope was devastated when the children went to live in Brisbane. At considerable personal expense to herself, she has visited the children there on several occasions. Similarly, in the past, when the children have lived together in Adelaide, Mr Garth has ensured that he and the children have been able to spend regular periods of time together.
In all these circumstances I have no reason to think that, if the children are separated in order to achieve each of their residential preferences, they would not each continue to maintain a close and loving relationship with the parent with whom they were not predominantly living.
Essentially, if Dr Asquith’s principle recommendation is adopted, I do not think that it will result in some form of defacto segregation of the children. Rather, the parties will work together to ensure that their relationships with each other and their other parent are maintained.
d)The likely effect of any change in the children’s circumstances including the likely effect of being separated from one of their parents.
Assessing the effects of changes and separations are at the heart of this difficult case. Obviously, given the circumstances of this case, this cannot be a precise exercise and must involve some degree of speculation. Again, at the risk of repetition, it is impossible, whatever outcome is eventually achieved, that this will represent a perfect one. In fact, there are likely to be significant deficits for the children, whatever is the outcome.
However, rightly or wrongly, since September of 2007, the children have been exposed to a significant level of change. In part, this flowed from their understandable curiosity about what it would be like to live in Brisbane, particularly in the period before and after Ms G gave birth to their new half sibling.
Accordingly, now the children have a high degree of familiarity with what life is like both in Adelaide and Brisbane. As such, it will not represent some huge change for [B] if she returns to live in Adelaide, where she will resume being cared for by her mother and will return to a familiar cohort of school friends. In addition, it seems that [B] is able to deal with change more easily than [Q], who is a more reticent child.
The same considerations apply to [Q]. However, at this point, he seems more resistant than [B] to another residential change and appears well settled in his current circumstances in Brisbane. However, as
Dr Asquith points out his need for continuity and security do not necessarily rule out a return to live in Adelaide for him.
The greatest change for the children, arising from the court’s adoption of Dr Asquith’s recommendation, is that the children will have to adjust to the emotional consequences of living in separate households from one another. The children will miss one another. I have no reason to think that both Mr Garth and Ms Hope will do anything other than provide the prerequisite level of emotional support to allow the children to accommodate this major change in their circumstances.
e)The practical difficulties and expense of the children spending time and communicating with each of their parents.
Up until this stage, [Q] and [B] have travelled between Adelaide, Brisbane and return as a unit. In addition, it has been relatively easy for the parent living interstate from them to visit regularly during the school year. In this way, the children’s parental relationships have been maintained relatively easily.
If the children live in separate states, many practicable difficulties will arise. Steps will have to be taken to ensure that the children maintain not only their parental relationships but also their relationship with one another. The most significant practical difficulty which will ensue arises from the fact that the South Australian and Queensland school holidays do not currently run concurrently with one another. Rather, they are regularly one week out of kilter.
As a consequence, if the children live in different states, it must mean either that one or both of them will miss some school at the beginning and end of school terms or that the time available for the children to spend together will be significantly curtailed. These are daunting practical considerations, which must militate against the outcome advocated by Dr Asquith and sought by Ms Hope.
However, are these considerations so significant that they should outweigh the views ostensibly expressed by the children themselves? Mr Garth is comparatively well resourced financially. In the past, he and Ms Hope have ensured that [Q] and [B] have maintained their significant level of relationship with him. In addition, Ms Hope, in difficult circumstances, has ensured that she has been able to visit the children regularly.
These are promising factors which indicate that the parties are likely to be able to manage the practical implications arising from the children living in different states with a minimum amount of disruption to them. Given this state of affairs, I do not think that the practical difficulties should necessarily outrank the views of the children concerned. Rather, they are another factor which adds to the level of difficulty in this already very difficult case.
Mr Garth has recently changed his employment and commenced his own consultancy business. I have not been provided with any details regarding either his current or anticipated level of income. However, I have no reason to consider that this change in his circumstances will result in a marked reduction in his level of remuneration.
Ms Hope remains a modest income earner. As such, the burden of the children’s travel expenses, whatever is the ultimate outcome in this case, will represent a difficult burden for her. In these circumstances, it seems appropriate that Mr Garth should pay more of the children’s travelling expenses than Ms Hope, particularly as he was the instigator of a change in the children’s living circumstances in the first place.
As is well known, there have recently been many innovations in electronic means of communication. [Q], in particular, has an interest in computers. Few middle income families, in this country, now do not have either at least one computer within their home or access to the internet.
Although it is no substitute for direct physical contact, such media as skype, webcam, and other internet based forms of communication will allow the children cheap, accessible and effective ways of remaining in contact with one another and with their parents. These media, in my view, dilute to a significant degree some of the tyranny of distance arising from this case.
f)The capacity of the parties to provide for the children’s emotional and intellectual needs;
i)The attitude to the children and the responsibilities of parenthood, demonstrated by each of the parties
These criteria are so closely linked that it is convenient to consider them together. In my view, both parties are capable parents, who are glad to assume the heavy burdens incumbent upon being a parent. Both Mr Garth and Ms Hope place great emphasis on both children achieving their full potential at school.
The parties are quite different people, who have different views as to what is important in life. In the past, these differences in outlook have led, in part, to the significant level of conflict between them. Conflict which persists to the present time and is unlikely ever to dissipate.
It is Dr Asquith’s view, which was shared by Dr Savage, that thankfully [Q] and [B] have been spared from suffering the more emotionally corrosive consequences of the level of conflict between their parents. This may be so, but is unlikely to be completely true.
From the perspective of both [Q] and [B], the struggle between their parents is the perennial background noise of their lives. They cannot ever completely escape it. In my view, the endemic conflict between the parties and the forces which drive it cannot, in any way, be described as good parenting. It is not helpful to the children’s sense of well being. It is likely to have marred their shared childhood.
Sadly, the parties seem resigned to the current parlous state of their relationship and the deficits in their capacity to communicate, which pervade it. As such, it seems that this state of affairs will remain for the foreseeable future. In my view, this must pose some threat to the ongoing psychological wellbeing of the children.
Otherwise, I am satisfied that the children will receive an appropriate level of parenting, in both their parent’s homes, whatever is the outcome of these proceedings. [Q] and [B] are much loved children. They are well parented.
g) The children’s maturity, sex, lifestyle and background
[Q] is twelve years of age and on the cusp of adolescence. In the past, he has spent significant periods of time in his father’s care and seems to have been more unsettled by his parents’ separation than [B] was.
In all these circumstances, it does not seem improbable that [Q] would crave to be in his father’s care and to have him as an immediate role model. It is significant that [Q] describes himself as “a mini me”, so far as his father is concerned.
[B] is younger, at ten years of age. She has said to Dr Asquith she wants to be with her mummy. Given [B]’s age and degree of relationship with her mother, I can well understand why she would express this preference.
h) Aboriginality
This is not a relevant consideration in this case.
j)Family violence
k)Any family violence order
These are not relevant considerations in this case.
l)Whether it will be preferable to make the order that would be the least likely to lead to the institution of further proceedings
As I indicated, in the first judgment, it is my perception that both parties have had ready recourse to litigation, in the past, in respect of issues to do with the parenting of [Q] and [B]. This remains my perception, particularly so far as Mr Garth is concerned.
In September of 2007, I embarked upon the trial recommended by
Dr Savage with reluctance and some trepidation. However, it was my view that, once the genie was out of the bottle, so far as the children’s views were concerned, it was inevitable that litigation, in some form or other, would be engaged.
So it is has proved to be. It seems likely that Ms Hope is now exhausted by the many years of litigation between her and Mr Garth. As such, she is willing to accept what she believes are the valid views of the children, particularly as both [Q] and [B] perceive they have been given their parent’s and the court’s imprimatur to determine the outcome of this case.
At the outset of these proceedings, it was my perception that Mr Garth was adamant in the expression of his view that he would respect any wishes expressed by the children. Without wishing to appear unduly cynical, I suspect that this may have been his view, whilst the children’s wishes apparently accorded with his own.
In all these circumstances, I consider it to be highly probable that there will be further proceedings concerning the children if the court adopts either the primary or secondary recommendation, as advocated by
Dr Asquith, as neither accords with Mr Garth’s preferred outcome. However, in all the circumstances of this case, I do not think that this is a sufficiently valid reason for the court to reject either of these recommendations and maintain the current living arrangements of both children in Brisbane.
Sadly, this case is never going to present an ideal outcome. As I observed in September of 2007, the prospects of the dominoes of further litigation falling against each other remains high.
Conclusions
For the reasons provided in September of 2007,[18] I accept that the presumption of equal shared parental responsibility should be applied in this case in respect of both [Q] and [B]. In my view, both parties must accept some level of responsibility for their poor relationship with one another and it would be inappropriate to consign one of them to a subsidiary parenting role to the other because of their poor relationship.
[18] See Garth & Hope [2007] FMCAfam 677 at paragraphs 209-217
I have carefully considered all of the relevant section 60CC factors. In my view, the views of the children must be given pre-eminence in this case because, whether rightly or wrongly, both [Q] and [B] perceive that they have been asked, both by their parents and the court, to determine what outcome they would prefer. Having had their views so thoroughly canvassed, in my view, it would be detrimental to their wellbeing in future if either child thought his or her views were of no apparent significance now.
[Q] and [B] are each somewhat worldly in respect of matters to do with the court’s deliberations. On two separate occasions their views have been canvassed and what they have said to the report writer concerned has come to pass.
In all these circumstances, I am satisfied that both [Q] and [B] were aware of the moment of what they said to Dr Asquith and the weight which the court would attach to their views expressed to her. As such, each child has deliberated carefully about his or her preferred outcome. I do not believe that what [Q] and [B] are advocating represents a “quick fix” to placate one or other or indeed both of their parents.
I am well aware that this outcome has many significant shortcomings and creates many practical difficulties. The two children, who up until now have shared the same household will be separated. This may cause the schism between the maternal and paternal aspects of their family to become deeper and so cause a lasting disaffection between the two siblings. Certainly their relationship with one another will lose its everyday intimacy and immediacy.
I do not think it likely that the children have no understanding of what it will be like for them to be separated from one another for lengthy periods of time and largely to grow up in different households. Certainly Dr Asquith thought that both [Q] and [B] had spent some time considering this difficult issue. Given how they have lived over the past four years or so, I would expect both of the children to have some very real personal appreciation, from their own direct personal experience, of the impact of “the tyranny of distance” on the relationships surrounding them, particularly their parental ones.
This case has become one about the children’s personal preferences. As a result of their different ages, their different past experiences of being parented and to some extent the differences in their sex, the children now have different preferences and different emotional needs. [Q] wants to be with his dad, whom he seeks to emulate. [B], a self described “little girl” yearns to be with her mummy.
In addition, the lack of alignment between the Queensland and South Australian school years will impose many problems and potentially much expense for the parties themselves. However, on balance, I have come to the conclusion that these matters, although highly significant, should not countervail the strong and unequivocal wishes of the children concerned.
Mr Garth is more financially secure than Ms Hope. It was he who initially moved away from Adelaide and the children, although no doubt he had valid and considered reasons for his move. It is also
Mr Garth, who has been the main instigator for change, so far as the children’s living arrangements are concerned.
In these circumstances, I think he should bear the majority of the costs of the children travelling between Adelaide and Brisbane, which will come about as a result of the outcome which I envisage in this case. All things considered, I assess that Mr Garth should pay 75% of the children’s costs of travelling between Adelaide and Brisbane, during school holidays.
In my assessment, it is no longer necessary that the children should be accompanied by an adult during any of this travel. They are well accustomed to the practices of the airlines concerned and the travel involved.
This year the school year in Queensland concludes on 12 December. The children should spend the first half of the long school holiday which follows in Adelaide. They can then travel together to Brisbane to spend time with Mr Garth and then [B] can return alone to Adelaide to start the school year there on 27 January 2009.
Thereafter, the difficulties will begin in respect of coordinating the school holidays so that the children are able to spend time together with one another and with each of their parents. No easy formulaic solutions arise as to how these arrangements can be made with unerring precision. Rather, the parties will have to solve the problems which will inevitably arise, on an adhoc basis, whilst focussing on the children’s best interests.
I am well aware that the parties do not communicate well with one another and many difficulties have arisen in respect of the interpretation of past orders. Given the lack of synchronisation in regards to the Queensland and South Australian school holidays, a simple order providing for the division of the school holidays between the parties is not available.
In addition, at the outset of each school holiday period, one of the children will have to travel to the location of the other. Then at some agreed date during that holiday, the children will then have to travel together to the location of the other parent concerned. Then, after some agreed period, one child will have to travel back alone, to where he or she habitually lives. Necessarily, the coordination and planning involved will be considerable.
It should be relatively easy to ensure that the long end of school year holiday is divided so that the children spend equal periods of time with each other in both Brisbane and Adelaide.
The various holidays, during the school year are far more problematic. In 2009, the Queensland end of first term holidays is two weeks in duration. The South Australian end of first term holiday is three weeks. In 2009, both school holidays periods start on 9 April. The period of overlap is around ten days.
The Queensland mid-year school holiday is three weeks. The South Australian mid-year school holiday is two weeks, which starts one week later than in Queensland. Effectively this means again that there is only about ten days overlap between the two holidays concerned.
The Queensland end of term three school holiday and the South Australian end of term three holidays are both two weeks in duration but again are one week out in terms of their synchronisation. Again leaving, at best, an overlap of ten days. Accordingly the time potentially available for the children to spend time with the other of their parents, in that parent’s home, be it Adelaide or Brisbane, is limited to five days in each of the short school holidays unless one or other of the children miss some days of school.
Both parties place great store on the children concerned enjoying a high level of continuity in their educational arrangements. In addition, it is likely to be the case that each child will have significant activities, at his or her school, which occur at the end of each school term. These activities may include tests or examinations, which will become more important as the children mature. In addition, it may occasion embarrassment to the children if either one of them missed school at the start of any school term.
I fear that there is no easy solution to these problems, about which the parties will inevitably have different views. Given the parties’ past record with one another, it is difficult to see how they will easily reach a compromise about one or other of the children missing some school and when this should occur.
In all these circumstances, the best option seems to be for the court to provide some mandated minimum standards by which the children will spend with one another during school holidays but which the parties themselves can vary, by mutual agreement, if they see fit. I can only hope that both Mr Garth and Ms Hope will be able to focus on the children’s best interests particularly [Q] and [B]’s entitlement to remain in contact with one another and with the other of their parents.
In the past both parents have made the effort to visit the children during school terms and spend time with them, on weekends, during these periods. Regrettably, this will no longer be a viable option for either Mr Garth or Ms Hope to spend time with both children together or for [Q] and [B] to spend time together. At best, it seems to me, that one parent will be able to visit one of the children only, during school terms.
I accept that these arrangements are far from the optimal ones for both [Q] and [B] to maintain a meaningful relationship with each of their parents and indeed with one another. However, the unusual circumstances of this case, in my view, make these the most feasible arrangements available. As I have already indicated, any other approach is likely to involve the negation, to some degree or other, of the children’s views and a serious possibility of some level of emotional disaffection occurring.
It is a common occurrence, in contemporary Australia, for a parent to move voluntarily away, from a child or children concerned, after a relationship breakdown. In addition, children are often relocated away from one of their parents, as a result of a consensual decision made by the parents concerned. Often financial imperatives are involved.
These types of situation come about because of the high level of mobility in Australian society and the reality that many parents wish to pursue career and personal opportunities, in a different place to that in which they lived whilst in a relationship with the other of their child’s parents. High rates of divorce are also an incidence of modern Australian life.
These phenomena are present in the current case. Mr Garth moved to Brisbane to pursue a career opportunity there. Ms Hope is well settled in Adelaide and has no wish to live anywhere else. To a large extent, in this case, the personal preferences of both Mr Garth and Ms Hope impinge upon the children’s best interests. I cannot ignore the parties’ personal preferences. There is no principle of law that separated parents are obliged to live in close proximity with one another.
The circumstances of this case are extremely complicated. I have determined that the emotional needs of the children, as reflected in the views which each have expressed, are different. It is impossible for there to be either an equal time or substantial and significant time arrangement, as envisaged by section 65DAA of the Act, arising from the presumption of equal shared parental responsibility.
In such circumstances, children are frequently able to maintain their relationships with significant people, including a parent, by less frequent periods of quality time spent in school holidays, which is supplemented by other forms of communication, such as telephone, webcam or letters.[19] As Kay J pointed out in Godfrey v Saunders,[20] whilst speaking of the Shared Parental Responsibility legislation, “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[19] See D and S V (2003) FLC 93-137 at 78, 280
[20] See Godfrey v Saunders 208 FLR 287 at 298
The outcome I have formulated in this case sees the children seeing each other and the other of their parents principally during school holidays. This is a situation which confronts many children of separated parents within Australia, given the high levels of relationship breakdown which prevail in this country and the mobility of its citizens.
In these circumstances children, particularly children of the ages of [Q] and [B], are able to maintain meaningful relationships with both of their parents, particularly if the children concerned have an already strong and existing relationship with the parent living away from them. In this case, I am satisfied that both [Q] and [B] have such a strong relationship with each of their parents and indeed with one another, which will be able to withstand the pressures of distance. Periods of holiday time can also be augmented by so called “electronic visitation”.
In this day and age, there are few middle class homes in Australia, which do not have access to a computer and the internet. [Q] apparently has some aptitude so far as computers are concerned.
I appreciate that skype and video webcams are no substitute for personal contact but such media will ensure that [Q] and [B]’s relationship with one another remains alive to each of them in between periods of holiday contact. In addition, it seems likely that Mr Garth will be able to visit Adelaide from time to time and Ms Hope, who has some connections in Queensland, may be able to visit Brisbane.
As I have said many times during the course of these proceedings, this case was never going to produce a perfect outcome or one which was not capable of being challenged. The parties’ poor relationship with one another and their geographical circumstances make it impossible for the children to have the optimal level of relationship with each of their parents. I have also come to the conclusion that the views of the children, as expressed to Dr Asquith are valid and sincere views and, as such, must be given pre-eminence by the court, regardless of the practical difficulties which will ensue.
I acknowledge that the result I have envisaged is a far from perfect one. In my view, however, it will ensure that the children have some level of meaning in their relationship with each of their parents and indeed with one another and is the outcome which is the one that is best calculated to serve the interests of both [Q] and [B], given the difficult circumstances which prevail in this case.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and fifty-two (252) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 9 December 2008
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