Gee and Long
[2016] FCCA 2659
•14 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GEE & LONG | [2016] FCCA 2659 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – how much time a child should spend time with his non-resident parent. |
| Legislation: Family Law Act 1975,ss.13C, 60C(1), 60C(2), 60CA, 60CC, 61DA, 65DAC |
| Cases cited: Mazorski v Albright (2008) 37 FLR 518 |
| Applicant: | MS GEE |
| Respondent: | MR LONG |
| File Number: | MLC 7485 of 2012 |
| Judgment of: | Judge Small |
| Hearing date: | 15 February 2016 |
| Date of Last Submission: | 16 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 14 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Radebe |
| Solicitors for the Applicant: | Radebe and Associates |
| Solicitors for the Respondent: | Self-Represented |
ORDERS
All previous parenting orders in relation to the child X born (omitted) 2008 (“the child”) are hereby discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the father.
The mother shall spend time and communicate with the child as follows:
a) During school terms:
i.Each alternate weekend from after school or 4:00 p.m. on Friday to before school on Monday commencing on 21 October 2016;
ii.By telephone, Skype, Facetime or other real time video communication each Tuesday at 6:00 p.m. and at 6:00 p.m. on each Saturday when the child is not spending time with the mother, with the mother to make the call and the father to ensure that the child is available to take the call and that he has access to a charged and working telephone or computer; and
iii.At other times by agreement between the parties in writing
b) For half of all school term holidays by agreement between the parties and failing agreement for the first half, from after school on the last day of term to 6:00 p.m. on the middle Saturday in 2017 and in each alternate year thereafter, and from 6:00 p.m. on the middle Saturday to the commencement of the new school term in 2018 and in each alternate year thereafter;
c) For half of the long summer holidays each year by agreement between the parties and failing agreement:
i.In 2016-2017 for the first two weeks from 12:00 p.m. on the first day of the holidays (that is, the day after the last day of school) to 12:00 p.m. 14 days later and from 6:00p.m. on the second last Saturday of the holidays to 6:00 p.m. on the last Saturday of the holidays;
ii.From 12:00 p.m. on first day of the holidays to 6:00 p.m. on the middle day in 2017-2018 and in each alternate year thereafter; and
iii.From 12:00 p.m. on the middle day to 6:00 p.m. on the day two days before the commencement of the next school year in 2018-2019 and in each alternate year thereafter;
d) From 10:00 a.m. to 6:00 p.m. on Christmas Day 2017 and in each alternate year thereafter;
e) From 6:00 p.m. on Christmas Day to 6:00 p.m. on Boxing Day in 2016 and in each alternate year thereafter;
f) From 6:00 p.m. on the evening before Mothers’ Day to the commencement of school or 9:00 a.m. on the following Monday each year should it fall on a weekend when the child is not usually spending time with the mother pursuant to these orders;
g) for the child’s birthday:
i.from after school or 3:30 p.m. to 7:30 p.m. on the child’s birthday in 2016 and in each alternate year thereafter should the birthday fall on a school day;
ii.from after school or 3:30 p.m. on the day before the child’s birthday in 2017 and in each alternate year thereafter should the birthday fall on a school day;
iii.from 10:00 a.m. to 2:00 p.m. on the child’s birthday in 2016 and in each alternate year thereafter should the birthday not fall on a school day;
iv.from 2:00 p.m. to 6:00 p.m. on the child’s birthday in 2017 and in each alternate year thereafter should the birthday not fall on a school day;
h) On the mother’s birthday each year for 4 hours by agreement and failing agreement, from after school or 3:30 p.m. to 7:30 p.m.;
i) On the birthday of any of the child’s maternal siblings from after school or 3:30 p.m. to 7:30 p.m.
j) At such other times and places as the parties might agree in writing from time to time.
The mother’s time with the child shall suspend on the following occasions should they fall on a day when the child is usually spending time with the mother pursuant to these orders:
a) from 6:00 p.m. on the evening before Fathers’ Day to before school or 9:00 a.m. on the following Monday;
b) On the father’s birthday each year for 4 hours by agreement and failing agreement, from after school or 3:30 p.m. to 7:30 p.m.;
c) from after school or 3:30 p.m. to 7:30 p.m. on the child’s birthday in 2017 and in each alternate year thereafter should the birthday fall on a school day;
d) from after school or 3:30 p.m. to 7:30 p.m. on the day before the child’s birthday in 2016 and in each alternate year thereafter should the birthday fall on a school day;
e) from 10:00 a.m. to 2:00 p.m. on the child’s birthday in 2017 and in each alternate year thereafter should the birthday not fall on a school day;
f) from 2:00 p.m. to 6:00 p.m. on the child’s birthday in 2016 and in each alternate year thereafter should the birthday not fall on a school day;
g) from 10:00 a.m. to 6:00 p.m. on Christmas Day 2016 and in each alternate year thereafter;
h) From 6:00 p.m. on Christmas Day to 6:00 p.m. on Boxing Day in 2017 and in each alternate year thereafter;
i) On the birthday of any of the child’s paternal siblings from 3:30 p.m. to 7:30 p.m.
j) At such other times and places as the parties might agree in writing from time to time.
The time spent between the mother and the child pursuant to paragraph 4(a)(i) hereof shall suspend during school holidays and shall recommence after the holidays as though the holidays had not intervened.
Changeovers that do not take place at the child’s school shall take place at the home of the parent into whose care the child is being delivered or at such other venue as the parties might agree in writing from time to time.
If the child is not well enough to spend time with the mother pursuant to these orders, the father shall immediately inform the mother of such illness by text message and shall take the child to a registered medical practitioner at the first possible opportunity and obtain a medical certificate which:
a) specifically names the child;
b) states the specific nature of his illness; and
c) states that he is unfit to spend time with the mother and for how long he will be so unfit,
and the father shall provide that medical certificate to the mother within three days of obtaining it.
For the purposes of complying with paragraph 8 hereof, the father shall provide a copy of these orders to the medical practitioner who is to provide the medical certificate.
From the beginning of 2017 neither party shall make any arrangements for the child which interfere with the other party’s time with the child pursuant to these orders without the written consent of the other party first having been obtained in writing.
Until the end of 2016 the father shall notify the mother of any sporting, social or other extra-curricular activities the child is scheduled to attend or participate in during his time with the mother and the mother shall ensure that the child attends and participates in such events.
Should either parent wish to take the child overseas in his school holidays or at any other time, he/she shall notify the other no less than 42 days prior to departure and shall provide a full travel itinerary for the child, including times and means of travel, accommodation details and contact numbers where the child might be reached while he is away.
Neither party shall unreasonably withhold his/her consent to the child travelling overseas if the proposed time is in school holidays and occurs during the time the child is scheduled to be with the other parent.
If there is any dispute about the child being taken overseas, the parties shall attend upon a registered Family Dispute Resolution Practitioner and genuinely attempt to resolve that dispute.
Should the child suffer any serious illness or injury then the parent in whose care he is at the time shall, at the first possible opportunity, inform the other by text message or telephone call and shall authorise any medical or allied health practitioner who is treating the child to consult with the other parent about such treatment.
The father shall ensure that the mother is kept informed of the contact details of all and any medical practitioners, including medical specialists and allied health professionals including but not limited to counsellors, physiotherapists and occupational therapists who might be treating the child at any given time, and the mother is permitted by this order to consult with any medical or allied health practitioner who is treating the child.
For the purposes of the operation of paragraphs (15) and (16) hereof, the mother shall be at liberty to provide a copy of these orders to any medical or allied health professional who is treating the child.
The parties be and are hereby restrained by injunction from:
a) abusing, insulting, belittling, rebuking or otherwise denigrating the other, or members of the other’s family; and
b) discussing these proceedings or any of the issues contained therein (save to explain the operation of these orders)
in the presence or hearing of the child and from permitting any other person to do so; and
c) applying corporal punishment of any kind to the child.
The father shall immediately authorise any school in which the child is enrolled to provide to the mother at her expense (if any) all school reports, photographs, newsletters, notices and the like that are usually provided to parents.
The mother, her husband and any of the child’s maternal siblings, and the father, his wife and any of the child’s paternal siblings shall be at liberty to attend any school functions, extra-curricular activities or events to which parents and/or family are usually invited.
Each party shall keep the other informed of his/her residential address and contact details and shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.
Pursuant to section 13C of the Family Law Act 1975 the father shall:
a) attend and complete, as soon as practicable, a post-separation parenting program (“the Program”) at a suitably qualified and accredited organisation;
b) sign all such documents and do all such things as may be necessary to enrol in, undertake and successfully complete the Program;
c) pay and otherwise be responsible for all costs associated with the Program; and
d) provide an appropriate certificate of attendance and completion of the Program to the mother within 7 days of receipt.
IT IS NOTED that publication of this judgment under the pseudonym Gee & Long is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7485 of 2012
| MS GEE |
Applicant
And
| MR LONG |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting proceedings regarding the care arrangements for X born (omitted) 2008.
X’s parents are Ms Gee born (omitted) 1977 (“Ms Gee” or “the mother”) and Mr Long born (omitted) 1982 (“Mr Long” or “the father”).
X has been living with his father since September 2011 when Ms Gee asked Mr Long to care for X at a time when she was under severe emotional and financial stress.
Until the release of the Family Report on 7 January 2016, Ms Gee wished for X to live with her, as she said her circumstances have now stabilised.
However, upon considering the Family Report, and particularly X’s wishes as expressed to the Family Consultant, Ms Gee modified her proposal so that she now seeks that X remain living with his father and that he spend substantial and significant time with him. That decision shows considerable child focus and is to Ms Gee’s credit.
That leaves only two issues to be decided, those being:
A.Whether the parties should have equal shared parental responsibility for X or whether that responsibility ought to rest with Mr Long alone; and
B.Whether X should spend each alternate weekend with his mother during school terms or the first two weekends of every three, and when that time should begin and end.
It is to both parties’ great credit that they were able to agree that X should spend half his school holidays with each parent and that he should spend 10:00 a.m. to 6:00 p.m. on Christmas Day each year with the parent with whom he is not spending the first half of the long summer holidays.
Background
Ms Gee and Mr Long were born and met in China, and were married in that country on (omitted) 2007.
Ms Gee had migrated to Australia in 2006 and Mr Long followed her in 2007 on a spousal visa.
X is the parties’ only child.
The parties separated on 15 August 2011 and were divorced on 2 October 2012.
Ms Gee has remarried and lives with her husband and their three-year-old daughter in Melbourne's (omitted) suburbs. They own and operate a (business omitted) where Ms Gee is the manager.
Mr Long has also remarried and lives with his wife in Melbourne's (omitted) suburbs. Mr Long’s wife was due to deliver their first child about a month after the trial. Mr Long works as a (occupation omitted).
Procedural History
These proceedings were brought by Ms Gee's Initiating Application filed on 18 September 2014. In that Application she sought orders for equal shared parental responsibility for X, that he live with her and spend alternate full weekends and half school holidays with his father, that the parties share the travel associated with X’s care arrangements, and that there be telephone contact between X and his father as agreed between the parties.
Mr Long filed a Response on 3 October 2014 seeking orders that X live with him, that he spend time with his mother from Saturday morning to Sunday evening during school terms, half school holidays, on his birthday and on Mothers’ Day. He sought that Ms Gee do all the travelling associated with her time with X, and that if X were to become ill for more than two months, then he should live with each party on a week about basis. He also sought orders allowing both parties to take X overseas for a period of not more than five weeks every second year.
The matter first came before me in the Duty List on 18 November 2014. On that day, I made interim parenting Orders providing for Christmas and long summer holiday time between X and his mother, and adjourned the matter for Mention.
On 12 February 2015 the parties returned before me for Mention and I made further interim parenting Orders providing for X to spend every weekend with his mother from Friday after school until Sunday evening, and ordered the parties to section 11F counselling on 27 March 2015.
The parties returned before me for further Mention on 8 April 2015 when I listed the matter for trial and made further interim parenting Orders. I also ordered the parties to attend upon a Family Consultant for a full Family Report.
The interim orders made on that day provided for X to spend the first two weekends in a three week cycle with his mother from after school on Friday to 7:00 p.m. on Sunday, for half of all school term holidays, for three specific days in April 2015, for Christmas 2015 and for three weeks of the long summer holidays in 2015-2016. The orders also provided for specific changeover arrangements, for each party to complete a post-separation parenting course and for the mother to receive all relevant school information in relation to X.
The Family Report was released on 7 January 2016.
The parties filed their trial material in accordance with the Trial Directions of 8 April 2015.
By the time the mother filed her Outline of Case Document on 9 February 2016 she had changed her proposal so that she sought orders that X live with his father and spend two of every three weekends with her, plus half school holidays and time on special occasions. That remained her position at trial.
The father’s proposal is contained in his Amended Response filed 27 January 2016, in which he seeks orders for sole parental responsibility, and for X to live with him and spend alternate weekends with his mother during school terms from 10:00 a.m. on Saturday to 6:00 p.m. on Sunday “with the mother to provide dinner to the Child prior to the conclusion of time on Sunday”. He also proposed that X spend half his school holidays with each parent and for special occasions. In addition, he sought orders that would allow each parent to take X overseas for a holiday of not more than 5 weeks each alternate year. Mr Long repeated his proposal that if X is ill for more than one month, then his parents should equally share his care, and sought orders that the mother pay half of X’s child care fees from October 2011 to December 2013 and half of his expenses into the future. He did not file an Outline of Case Document.
The trial began on 15 February 2016. Ms Gee was represented by her solicitor and Mr Long was self-represented. Both parties were assisted by Mandarin interpreters.
The matter ran for just over one day, with only the parties as witnesses, and judgment was reserved.
The Issues and the Evidence
Issue A: Whether the parties should have equal shared parental responsibility for X or whether that responsibility ought to rest with Mr Long alone
Ms Gee seeks an order that the parties retain equal shared parental responsibility for X.
Mr Long seeks an order that he have sole parental responsibility.
The Law
The law relating to parental responsibility for the children of separated parents is found in Division 2 of Part VII of the Family Law Act 1975 (Cth) (“the Act”), and more particularly in ss.61C and 61DA.
Section 61C(1) and (2) state that each of the parents of a child who has not reached the age of 18 years has parental responsibility for the child, whether or not the parents are living together, are married, or have separated.
In Note 1 attached to s.61C(1), the Act makes clear that the above statement simply states the legal position that exists unless and until an order to the contrary is made by the court.
Section 61 DA states as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parents family (or that other person’s family); or
(b) family violence.
In this case, there is no suggestion that either parent has abused X, so that s61DA(2)(a) does not apply.
Both parents make allegations of family violence against the other in their Affidavit material, albeit in different terms and to different degrees.
However, neither is very specific about those matters and there is nothing in their trial Affidavits which addresses the issue.
At trial, Mr Long cross-examined Ms Gee at some length about this issue.
It was her evidence that it was Mr Long and not she who had committed most of the family violence, although she did not deny that she had hit him on occasion. For instance, in answer to a question about whether she had hit Mr Long in 2007 while the parties were living in rental accommodation in (omitted), Ms Gee stated that Mr Long had hit her first.
She was able to state where the parties had been living when unspecified incidents had taken place albeit that she could not recall specific dates.
She said that Mr Long had “beaten” her during an argument at about the time she had suffered a miscarriage when the parties were living in (omitted), and at the time of separation, and that she had sustained bruises as a result of these incidents. She did not have any photographic evidence of these events because, she said, photographs she had taken of her bruises were on an old mobile phone that is no longer in her possession.
She also stated that she had left the family home and gone to a friend’s home after a “fight” with Mr Long while the parties had been living in (omitted).
It was Ms Gee’s evidence that she could not recall “kicking (Mr Long) out of the house” on an occasion when he took X with him, saying only that he had left and that she had not wanted him to take X. She said she did not know where Mr Long and X had spent that night but said she had tried to call him several times without success.
Ms Gee refused to confirm (but did not actually deny) that she had been under the influence of alcohol at times when Mr Long says she hit him.
Mr Long’s evidence about family violence was scant other than to assert that Ms Gee had hit him several times during the relationship.
In answer to a question about why he had not been more specific about this issue in his Affidavit material, nor mentioned it to Family Report writer Mr A (“Mr A”), Mr Long said that he had not wanted to do so and that even his parents had not known about the violence.
He was clear that he understood the importance of telling Mr A everything relevant to the issues in dispute between him and Ms Gee, but he could not say anything further about why he had not done so in relation to his allegations of family violence.
Nevertheless, he did concede that there had been no family violence between the parties since 2007, some four years before separation.
In the circumstances, while the court has some concerns about both parties’ allegations of historical violence occurring in their relationship, there is not enough evidence for me to find, on the balance of probabilities, that either party engaged in such behaviour so as to nullify the presumption.
Therefore, the presumption of equal shared parental responsibility raised by s.61DA(1) applies in this case.
However, subsection 4 of s.61DA states that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I will discuss how the court determines what orders might be in the best interests of the child in some detail later in these Reasons.
Mr Long’s reason for wishing to have sole parental responsibility for X seems to centre on his lack of confidence in Ms Gee’s ability to make sound decisions about X’s long term welfare.
Much was made at trial about an incident that took place when X injured himself at school on Friday 15 May 2015. Ms Gee, who was due to spend time with X that weekend, was contacted by the school and she immediately attended the school to find X in some pain as a result of an injury to his leg. After discussion with X’s teacher, Ms Gee took him to hospital, where his leg was X-rayed, and X was admitted overnight in order to have a plaster cast applied to his fractured leg.
Ms Gee did not contact Mr Long to advise him of this situation until about 6:00 p.m. that evening, after X’s leg had been X-rayed. Mr Long spoke to X’s doctor and on the next day asked Ms Gee to take care of X for the following week, which she did.
It was clear from Mr Long’s evidence under cross-examination that he had not seen X for some eight days after his injury and that he had not visited him in the hospital, although he had spoken to the doctor attending to X. He said that he had not attended on the Friday night because Ms Gee had assured him that the situation was under control, and that X was sleeping.
Mr Long was critical of Ms Gee for not informing him of X’s injury more quickly, and while it might not have been possible to let him know immediately, as there was a need for her to respond to a situation that needed someone to take immediate parental responsibility for X in terms of his treatment, it is my view that she could have contacted X’s father earlier than she did. Mr Long’s decision not to see X for another week is difficult to understand in circumstances where X lives with him and he seeks sole parental responsibility.
If anything, there is some evidence that Mr Long attempted to take control of the situation in a manner that could have disrupted X’s treatment, as Ms Gee alleges that he wished to obtain a second opinion from another doctor for unclear reasons.
In addition, it was clear from both parties’ evidence that it was Ms Gee rather than Mr Long who took X to almost all of his follow-up appointments after his hospitalisation.
I note that it was the recommendation of Mr A that these parents share responsibility for X.
Decision: Issue A
Subject to issues of safety, parents having joint parental responsibility for a child is an important issue, not only to the parents who must make decisions about them, but for the child to know that both his parents are involved in the major decisions about his life. It is a message which conveys to a child that although his parents might not be a couple any more, they are still committed to being his parents. As I have heard it said: “He might be my ex-partner, but he is not my child’s ex-parent”.
As I have stated, I will discuss the law in relation to the best interests of children later in these Reasons, but suffice it to say that when I consider all the matters set out in s60CC of the Act, I find that it is in X’s best interests for his parents to retain equal shared parental responsibility for him.
For the benefit of the parties, I set out here the provisions of s.65DAC of the Act which states the effect of a shared parental responsibility order:
This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The parties should be clear about these provisions in the event of any dispute about who is to make decisions about X’s welfare.
Issue B: Whether X should spend each alternate weekend with his mother during school terms or the first two weekends of every three, and when that time should begin and end
Mr Long seeks that X spend time with his mother from 10:00 a.m. on Saturday to 6:00 p.m. on Sunday on each alternate weekend during school terms - that is, for one night per fortnight.
Ms Gee seeks orders providing for X to spend time with her on the first two weekends of every three from after school or 4:00 p.m. on Friday to Sunday at 7:00 p.m. in Daylight Saving Time and 6:00 p.m. in Eastern Standard Time.
The Law
An order providing for a child to spend time with a parent is a parenting order[1].
[1] See s.64B(1)(a) and s.64B(2)(b)
The law in relation to parenting orders is found in Division 5 of Part VII of the Act.
S. 60B sets out the objects and principles of Part VII and I set them out here for the benefit of the parties.
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA states that when deciding whether to make a parenting order, the court must regard the best interests of the child as its paramount consideration.
Section 60CC then sets out the factors the court must consider when deciding what orders would be in the child’s best interests and I will address each of those factors in turn.
There are two primary considerations set out in s.60CC(2) as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgement of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
Both parents describe their relationships with X in their Affidavit material.
Ms Gee says that she is and has always been involved with X’s education and learning development and that she has had contact with his teachers to discuss his progress.
Mr Long’s affidavit evidence is that he has been intimately involved in X’s care since his birth. For instance he says that he changed X’s nappies, fed him and gave him baths. He says that he reads to X and that the local library is one of X’s favourite places. He also says that he encourages X to save money and that X is part of the (omitted) Bank's School Banking Program.
He deposes further that he speaks Mandarin to X at home and that he feels responsible for X’s cultural education.
The family report says only that there was a lack of expressed affection between X and his parents in their observation sessions. However, there is nothing to indicate that X was uncomfortable in the company of either of his parents.
On the basis of the above evidence, it is clear to the court that X has a meaningful relationship with both his parents in the terms set out by Brown J in Mazorski & Albright.
While it is not alleged that either party has abused X directly, there is some evidence that he has been exposed to some conflict between his parents.
However, unlike many cases that come before this court, there is no evidence that their relationship is acrimonious to a concerning level. There have been no volatile incidents at changeover for instance, and communications between the parties are relatively civil.
It is vital that X is protected from any conflict between his parents, and I will make orders that do so as far as is possible.
S. 60CC (2A) states that when a court is applying the considerations set out in subsection (2), it must give greater weight to the consideration set out in paragraph (2)(b).
That is, while I must make orders which allow for meaningful relationships between X and his parents to flourish, my main concern must be to ensure that he is protected from any harm caused by being exposed to any conflict in their relationship.
S.60CC(3) then sets out 14 “Additional considerations” as follows:
(3) Additional considerations are:
(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;
X was clear in his interview with Mr A that while he wished to remain living with Mr Long, he wished to spend some more time with his mother. He was somewhat confused about the current living arrangements which provide for him to spend two of each three weekends with his mother, and appeared “relieved” when told that it would be the adults in his life who would make decisions about those issues.
While he is only seven years old, Mr A recommended orders that generally follow those wishes and I will therefore make orders for X to live with his father and spend a little more time with his mother.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Given the history of this matter, it is only natural that X’s relationship with his father is closer than his relationship with his mother. He has lived with his father for virtually his whole life and, until these proceedings were instituted, he had spent little time with his mother since the parties separated.
Mr A described the interaction between mother and son at the family report interview as follows:
78. […] When Ms Gee was taken into the playroom and introduced to X there were no affectionate greetings. After a time Ms Gee did endeavour to cuddle X, but the child pulled away, smiling.
79. As had been the case with his father, Ms Gee, despite the opportunity, and with some encouragement from the writer, did not actually play with X but rather sat to one side and chatted to the child, while X amused himself.
However, later in the observation session, Mr A describes Ms Gee sitting on the couch with her arm around X while he ate a biscuit.
Mr A states:
82. At the end of the play session, when the time came for X to leave with his father, again there were only perfunctory expressions of emotion between Ms Gee and X, and vice versa. X parted from his mother without any anxiety and distress; with his mother reassuring the child they would meet again soon.
X later told Mr A that the time he spends in (omitted) with his mother is “fun” and that his mother takes him swimming, and to the park, and he plays football. Mr Long conceded to Mr A that while X had initially been reluctant to spend time with his mother, he was not so now.
In the “Evaluation” section of his report, Mr A describes Ms Gee as “having a bond” with X and her being “no doubt sincere in her desire to incorporate X into a new family”.
X’s relationship with his father is not described in any detail in the family report save for the statement that “As had been the case with his father,” there had been no overt affection expressed between Ms Gee and X in paragraph 79 set out above.
Nevertheless, X’s clear preference was to live with his father.
X identified both parents and his sister Y when asked to describe his family, and told Mr A: “I have 2 families. It is better to have 1. There is not so many people.” However, when asked to describe the people he loved, X did not mention any of the adults in his life.
Mr A notes that neither party had brought any food to the interview for X, although Mr Long had brought water, and when he said he was hungry, Mr Long asked Mr A to provide some food for him. X eventually ate some biscuits his mother had in her car.
Mr A states his opinion at paragraph 108 of the report that:
Despite Ms Gee’s criticisms of Mr Long as a parent – criticisms which in the writer’s view lack real substance – it seems clear that Mr Long has exercised his responsibility as a parent in an exemplary way. He has done his very best for X in what appear to have been quite difficult circumstances.
There is one other indication of X’s relationship with his father, which is that he had prepared a Fathers’ Day card for him in 2015, which was found by his mother and assumed to be for his step-father. X had not told his mother that the card was for Mr Long and he did not receive it.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
In the first months of the separation, as both parties concede on the advice of her parents, Ms Gee relinquished the then almost-3-year-old X to the care of his father, who has cared for him ever since.
It is the father’s evidence that the mother took no part in decisions made about X’s life after separation but the mother says that is because she was prevented from doing so.
In the months after separation, the parties attended some kind of mediation, and with the assistance of a solicitor, signed a Parenting Plan on 3 October 2011 which provided for Mr Long to have sole parental responsibility for X, and for X to live with his father and spend time with his mother, albeit that Mr Long would have X on “all public holidays, school holidays and Christmas holidays”, with Ms Gee doing all the travelling to collect X from and deliver him back to his father,
As Mr A noted, the Parenting Plan “seems, on the face of it, to have disadvantaged Ms Gee”.
Ms Gee’s evidence is that she was suffering emotional and financial stress at the time and that her intention was that the arrangement for X to live with Mr Long would be temporary.
Mr Long, to his credit, has looked after X and made decisions about his care since that time, although Ms Gee now wishes to be involved in making those decisions and has persisted in that desire throughout these proceedings.
Since orders were first made in these proceedings, both parents have taken every opportunity to spend time and communicate with X, although there is some concern about the events of May 2015 when X was injured and Mr Long appears to have ceded all responsibility for his care to Ms Gee, at least in the first week after the injury.
Mr Long’s application for him and Ms Gee to share X’s care equally if X is ill for a significant period of time also causes the court some concern in this regard.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Mr Long is convinced that Ms Gee’s application for X to live with her was based on child support concerns and not on a genuine desire to take care of her son.
He mentions that belief in his Affidavit material and also asserted it to Mr A.
Ms Gee was adamant when speaking to Mr A that child support was in no way her concern in these proceedings, and the fact that she has since relinquished her application for X to live with her would tend to support that assertion.
Indeed, it is Ms Gee’s evidence that on 23 September 2014 she received an e-mail from Mr Long saying that if X were to live with her then she would have to forego any claim for child support. When asked about that email at trial, Mr Long stated that he was testing Ms Gee and the statement had in essence been a bluff. I found his evidence in that regard unsatisfactory.
Otherwise, Mr Long has maintained X with the assistance of child support from Ms Gee as assessed by the Department of Human Services (Child Support) throughout the time he has had X in his care.
Ms Gee supports X when he is spending time with her.
(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) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
As there is no longer an application to change X’s living arrangements, this factor no longer has the significance it might otherwise have had.
Nevertheless, I am conscious that if I make orders that increase X’s time with Ms Gee significantly, he will be separated from Mr Long, his wife and their daughter, while if I make the orders Mr Long wants, X will be separated from his mother, her husband and their daughter for much of the time.
Therefore I will make orders that are certain for X and which increase his time with his mother slightly.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Mr Long lives in (omitted) and works in the (omitted). Ms Gee lives in (omitted) and works in (omitted).
The parties therefore live about 46 kilometres and one hour’s travel time apart.
There appears to have been little trouble for the parties in travelling with X in terms of the practicalities envisaged by this factor, although there has been some conflict between them in terms of who should undertake the driving.
Ms Gee and her husband both have drivers’ licenses while Mr Long is the only person in his household who is able to drive.
In addition, Ms Gee works in a business owned by her and her husband, which makes her working hours a bit more flexible than those of Mr Long on week days.
I will therefore craft orders that take those matters into account.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no suggestion that X’s parents are unable to provide for his physical and material needs. He is sheltered, fed and clothed appropriately, although the failure of both parents to have brought any food for X to the family report interview might indicate a minor level of thoughtlessness on the part of both.
In addition, he appears to be progressing well at school, which would indicate that his parents are able to ensure that his intellectual needs are met.
It is in the area of the parties’ capacity to meet X’s emotional needs that the court has some concerns.
X’s mother’s decision to relinquish his primary care to his father shortly after separation when he was not quite three and she had been his primary carer for his whole life, might be seen as a decision made more in satisfaction of her own needs and interests than X’s.
However, if she was emotionally and financially distressed at that time and felt unable to care for X, then that decision might be seen as very child focussed.
Since these proceedings began, Ms Gee has shown a considerable focus on X’s needs, and her decision not to proceed with her application for X to live with her can only be seen as one made with his emotional needs in mind.
Mr Long has done his best to take care of X and he has, by all accounts, done a good job of ensuring that X is safe and secure. However, he is at times less than insightful when it comes to X’s emotional needs.
His decision not to attend the hospital on the night X was admitted with a suspected broken leg, followed by a week when he did not see X, and his wish for Ms Gee to share X’s care equally if X is ill do not impress the court as the actions of a man who puts his child’s needs ahead of his own.
Mr Long impresses as a man who believes that he knows best about almost everything. He would do well to listen more to X, so that X’s emotional needs are better met.
(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;
Ms Gee impresses as a mature and sensible woman who has X’s best interests at heart.
Mr Long does not impress as a terribly mature man, although he clearly loves X and wants only what is best for him.
Both parents are Chinese by birth and X has grown up with both parents providing the richness of that cultural heritage. There is no indication that that heritage will be denied him in any way.
(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 Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor is not relevant in this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Both parents love this little boy and want the very best for him. Both, however, have shown some deficiencies in terms of their attitude to their responsibilities as parents.
While the court accepts and understands Ms Gee’s reasons for relinquishing X’s primary care to his father in 2011, there were times in the early part of these proceedings when she appeared to consider her own needs to be more important than X’s.
In the latter part of the proceedings however, she has exhibited a genuine care for X and again, I see her decision not to pursue her application for X to live with her as a truly child focussed decision. No doubt it was not easy to make, but it shows an attitude to X that puts him first and that in turn shows a very positive attitude to her parental responsibilities.
Nevertheless, her failure to inform Mr Long about X’s accident in May 2015 for some two-and-a-half hours indicates some lack of understanding of her parental responsibilities.
I have already mentioned Mr Long’s failure to visit X in hospital on the night of his injury and his failure to visit him in the following week. He said at trial that on the night X was in hospital Ms Gee had told him that X was sleeping, and that was why he did not attend, but when asked what he would do if his present wife had told him the same thing in similar circumstances, Mr Long said he would have gone to the hospital.
That is not to say that Mr Long does not care about X, but he certainly has nothing positive to say about X’s mother. When asked to do so at trial, he could say only that she had provided him with his son and that otherwise she was someone he should never have met.
He appears to have no insight whatsoever into how that attitude might be conveyed to X and what its impact on him might be.
(j) any family violence involving the child or a member of the child’s family;
I have already discussed the issue of family violence in paragraphs 33 to 46 above and will not repeat that discussion here.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
There is no current family violence protection order in place between these parties.
(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 the child;
I note that Mr Long told the court at the end of the trial that he sincerely hoped he would not have to come back to court again.
X presented to the family reporter as confused by his current living arrangements. The more certain and regular I can make those arrangements, the more likely it will be that the parties will simply comply with those orders and get on with their lives.
(m) any other fact or circumstance that the court thinks is relevant.
Mr Long presents as an intelligent and educated man. He represented himself in court throughout these proceedings and he expressed his views and submissions very clearly and cogently.
However, he does impress as a somewhat controlling man who believes that only he knows what is best for X. For instance, at one of the interim hearings I urged Mr Long to seek legal advice and representation and he said that he would do so.
When counsel for Ms Gee asked him at trial why he had not done so he simply said “Not necessary” and appeared confused as to why the question had been asked.
On another occasion, when asked why he had asked for an order that he and the mother share X’s care if he is ill for a significant period, Mr Long first said that that order was based on the 2011 Parenting Order, which, he agreed, he had insisted that Ms Gee sign. When pressed on the point, he said he had included that order because one of his friends had suggested it.
He was unwilling to compromise on the issues about which I have had to make a decision when it would not be unusual to do so when the major issue of where X is to live had been resolved.
It is my view that Mr Long shows little insight into X’s emotional needs and that X needs more of the input of his less rigid mother.
The orders I will make do not reduce the time X spends with his mother and her family (in fact they will increase it slightly), but they will allow for that time to be spent more regularly and in a more certain fashion.
That time will be “substantial and significant time” as defined in s.65DAA(3) of the Act. It will include regular weekday time and weekend time as well as holiday time and provision for special occasions.
Conclusion
These parents both clearly love their son.
It is to be hoped that Mr Long will understand that X needs to have a positive relationship with his mother, and that he will be able to relinquish the almost total control he has exercised over X’s life so that he can do so.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 14 October 2016
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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Procedural Fairness
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