HALCOTT & HALCOTT
[2020] FCCA 2175
•7 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALCOTT & HALCOTT | [2020] FCCA 2175 |
| Catchwords: FAMILY LAW – Interim arrangements for care of children aged eight and five years – nature of interim hearing – final hearing delayed by Covid 19 crisis – family report makes unequivocal recommendation – mother disputes recommendations – child with special needs – issue of poor co-parenting relationship between the parties considered in light of the conferral of parental responsibility – issues of family violence raised by the mother – father seeking increase in his time spent with the children – mother claims the father does not tend to the special needs of the children appropriately – meaningful relationship – protective concerns – matters to be considered – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65C, 65DAA, 65DAC, 65DAE |
| Cases cited: Astor & Astor [2007] Fam CA 355 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Bartel & Schmucker (No 3) [2012] FamCA 1094 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654 Goode & Goode (2006) FLC 92-286 Mazorski v Albright (2007) 37 FamLR 518 MRR v GR (2010) 240 CLR 461 Russell & Russell & Anor [2009] FamCA 28 Slater & Light [2013] FamCAFC 4 Teagan & Teagan [2020] FCCA 2098 |
| Applicant: | MR HALCOTT |
| Respondent: | MS HALCOTT |
| File Number: | ADC 338 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 31 July 2020 |
| Date of Last Submission: | 31 July 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 7 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Andersons Solicitors |
| Counsel for the Respondent: | Mr Scragg |
| Solicitors for the Respondent: | Peter Scragg & Associates |
ORDERS
Until further or other order:
The orders of 8 May 2018 do continue subject to the variations contained in these orders.
The parties have equal shared parental responsibility for the children X born in 2012 and Y born in 2014 (hereinafter referred to as “the children”).
In the exercise of this equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to, issues concerning the following:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health and any special needs;
(d)The children’s names; and
(e)Any changes to the children’s living arrangements, which significantly interferes with the operation of these orders, particularly with the specific arrangements for the children to spend time with each parent.
The parties shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children as soon as is reasonably practicable but no later than 24 hours after such consultation and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children; and
(c)Inform the other parent as soon as is reasonably practicable but no later than 24 hours after such issue has arisen of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The parents authorise by this order, the school, attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
Each parent is at liberty to attend at the children’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
The parties utilise a communication book, electronic app or other electronic format to exchange information in writing regarding the children’s education; changing sleep requirements; dietary, medical, extracurricular, and behavioural needs and preferences; and any appointments the children have with professional people as they are scheduled to occur.
The children live with the mother.
The children spend time with the father during school terms as follows:
(a)Each alternate week from the conclusion of school Friday (or 3.00pm if a non-school day) to the commencement of school Tuesday (or 9.00am Wednesday if Tuesday is a non-school day);
(b)At such further or other times as agreed between the parties in writing.
The children spend time with the father in school holiday periods and on special occasions as follows:
(a)For the September 2020 short school holidays, for a period of five (5) nights commencing at 3.00pm on 25 September 2020 until 9.00am on 30 September 2020;
(b)For the 2020/2021 Christmas school holidays, for a period of six (6) nights from the conclusion of school on 11 December 2020 to 9.00am on 17 December 2020 and each alternate week thereafter from 3.00pm on Friday until 9.00am on Thursday;
(c)For the April 2021 short school holidays and all short school holidays thereafter, for a period of 7 nights commencing from the conclusion of school on the last day of term until 9.00am on the middle Friday and thereafter alternating on 9.00am each Friday;
(d)For Christmas Day 2020, from 3.00pm Christmas Eve to 3.00pm Christmas Day PROVIDED THAT the children are with the mother from 3.00pm Christmas Day until 3.00pm Boxing Day;
(e)At such further or other times as agreed between the parties in writing.
Each party is to encourage telephone communication between the children and the other party and facilitate telephone communication at reasonable times as requested by the children and in any event from 5.00pm and 6.00pm on each Wednesday and Sunday.
Further consideration of the matter is adjourned to the call over on 10 August 2020 at 11.00am for the allocation of trial dates.
IT IS NOTED that publication of this judgment under the pseudonym Halcott & Halcott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 338 of 2017
| MR HALCOTT |
Applicant
And
| MS HALCOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment are directed to resolving long standing controversy relating to the care of two children, pending a final hearing, which has been delayed due to the pandemic emergency.
The children concerned are X born in 2012 and Y born in 2014. The parties to the proceedings are X and Y’s parents – their father, Mr Halcott and their mother, Ms Halcott.
The parties began to live together in 2009; married in 2014; and finally separated, in June 2016; when the father left the parties’ former family home and moved in with his parents.
At separation, X and Y remained in the care of their mother and there is no dispute that she has been their main provider of care in the four years which have followed.
In this context, the father has been seeking to increase his time with the children. Ultimately, he aspires to an order that the parties have equal shared parental responsibility for X and Y and to spend substantial and significant periods of time with them.
The mother seeks sole parental responsibility be conferred on her, although she is open to providing relevant information, to the father, about major long term issues to do with the children’s care, welfare and development. In this context, she proposes a more circumscribed regime for the children to interact with their father.
At final hearing, the case is likely to centre on issues relating to the nature and viability of the parties’ co-parenting relationship, which each party acknowledges remains problematic and likely to remain so, and the reasons for this state of affairs and its implications for the care of X and Y.
From the mother’s perspective, there are issues concerning the father’s mental health and personality traits. She categorises Mr Halcott as an emotionally reactive person and therefore an individual who is likely to be an unreliable parent. It is also her case that the father subjected her and the children to family violence during the parties’ relationship.
On the other hand, it is the father’s position that he reacted poorly to the end of the parties’ marriage and now sincerely regrets any poor behaviour, which can be attributed to him. He has deposed that his mental health has been restored and therefore any recurrence of comprised conduct, on his part, is unlikely.
In addition, it is his position that the parties’ relationship was categorised by mutual incidents of poor behaviour and the mother is now attempting to restrict his relationship with the children unreasonably and in order to satisfy her own needs for control.
In all these circumstances, he seeks to gradually increase his time with the children, in line with professional recommendations, which take into account the ages and developmental levels of the children concerned. It is his position that this issue can be determined on a provisional basis following the court’s scrutiny of the relevant affidavit material.
The mother resists his application and asserts that the issues raised in the case are not conducive to being resolved in a truncated interim hearing but should be deferred to a final hearing, at which all relevant evidence can be thoroughly traversed and scrutinised.
There has been litigation, in one form or another, between the parties, since late January of 2017. The case was originally commenced by the paternal grandparents, Ms B and Mr C, who each asserted that they had a very close and loving relationship with X and Y, prior to the parties’ separation.
As a consequence, Mr B and Ms C Senior sought orders to enable them to see X and Y. It being their position, at the time, that they had not spent time with the children since the parties’ separation and the father himself was not in a position to bring his own application to spend time with the children because he was psychiatrically unwell.
Subsequently, proceedings were engaged between the father and mother in respect of the settlement of marital property issues. These were resolved by way of consent orders in November of 2017.
The paternal grandparents were granted time with the children through a consent order made on 23 May 2017. They also played a role initially in supervising the father’s time with the children. They dropped out of the case, in May 2018, and since that time the proceedings have only related to the parents.
Regrettably, in the lengthy periods since, in spite of many different kinds of intervention, including co-parenting counselling and other forms of mediation, the parties have been unable to agree on final parenting orders.
In this period, two family reports have been prepared by Dr D, in May of 2018 and more recently, in April of 2019. Following the release of the first report, the proceedings were subject to a lengthy adjournment, during which the parties agreed to take part in a process of co-parenting counselling.
Regrettably, this counselling did not prove to be useful in assisting the parties to reach a long term consensus in respect of the parenting of their much loved children. As a consequence, Mr Halcott has become frustrated by the delay in the case being brought to some finalisation.
Dr D, while recognising the parties’ extremely problematic co-parenting relationship, has more recently recommended that there be an increase in the father’s time, with the children, of at least one night to each relevant block of time currently allocated to him.
It is the father’s position that Dr D’s recommendations are clear and unexceptional and therefore should be implemented with alacrity. The mother does not agree and criticises some aspects of Dr D’s methodology, particularly that he has underestimated the issues of family violence in the case and has failed to properly consider X’s special needs, in the context of the parties’ difficult parenting relationship. In June of 2018, X was diagnosed with autism.
At present, the regime of time, which the father spends with the children, pursuant to orders made on 8 May 2018, is as follows:
·During school terms, on alternate weekends, from after school on Friday until the commencement of school the following Monday;
·During each short school holiday, for a block of four nights in the first week and a block of three nights in the second week;
·During the end of year school holidays, for a block of four nights, in one week of each fortnight;
·For specified times, on special occasions, including Easter, birthdays, Mother’s Day and Father’s day.
The mother is employed as a professional. She has re-partnered to Mr E. She and Mr E have a child F, born in 2018. It would seem to be the case that X and Y have a warm and loving relationship with F.
The father is employed as a professional. Following separation, he attended upon a psychologist, Dr G and a psychiatrist, Dr H, to assist him to cope with what was an extreme reaction to the end of the parties’ marriage.
There has been some controversy about the precise nature of the father’s psychiatric condition. The mother describes it as a bi-polar disorder. The father as a species of reactive depression. He no longer sees Dr G and consults Dr H on a needs basis. It is the father’s position that he is no longer psychiatrically unwell.
In a report dated 12 March 2020, Dr H has diagnosed the father as previously suffering from adjustment disorder with depressed mood related to the breakdown of his marriage. Dr H further opines that this condition has now resolved. At present, Mr Halcott has not been prescribed any psychiatric medication.
The August 2018 orders were negotiated in the context of the recommendations contained in Dr D’s first family report. He recommended as follows:
·The children live with their mother;
·The children spend time with the father on alternate weekends, as well as increased periods during school holiday time, which was stipulated to be periods of at least four overnight blocks;
·The father continue to maintain mental health assistance to ensure his emotional stability;
·The parties engage in a course of co-parenting counselling to assist them to focus on the needs of their children and establish more reliable and respectful avenues of communication with one another;
·That the court revisit the parties in about eight or nine months’ time.
The parties adopted these recommendations. They agreed to engage in co-parenting counselling with Ms J. Against this background, the proceedings were adjourned until 28 January 2019. As previously indicated, it was hoped that this intervention would lead to a consensual resolution of the proceedings and the avoidance of a potentially expensive and emotionally bruising final hearing.
Regrettably, the co-parenting counselling did not assist the parties to achieve the hoped for amelioration in their relationship with one another. Ms J has dropped out. Ms Halcott is critical of Dr D for not contacting Ms J to obtain information as to her perspective as to why the co-parenting counselling was unsuccessful.
When the case returned to court, on 29 January 2019, the parties agreed to obtain an updated report from Dr D, no doubt in the expectation that such a report would be helpful in assisting the parties to reach an accommodation with one another. It being the father’s position that he would prefer, if at all possible, to avoid having to have a full scale adversarial hearing. Regrettably, there was some delay in Dr D being able to prepare the report in question. This led to the further delay of the proceedings.
Dr D’s second report was released on 12 April 2019. Although its recommendations were clear, it did not assist the parties to reach any final agreement. In these circumstances, when the case returned to court, in July of 2019, it was necessary for it to be allocated a final hearing date. Due to the pressure of business, the earliest dates available for the trial were 25, 26 & 27 March 2020.
Given the fact that the parties had previously been able to agree ongoing issues in respect of the children’s care, in what must be regarded as being difficult circumstances, it was also ordered that the parties attend a settlement conference, with their respective lawyers, prior to the hearing date.
The settlement conference was not successful. The dates scheduled for trial coincided with the emergence of the Covid-19 crisis, which led to restrictions on the court’s ability to accommodate in-person hearings. It was also at a time prior to the establishment of the court’s digital hearing platform. Regrettably, the trial had to be postponed.
In the absence of a final hearing, the parties were referred to judicial mediation. Again, this proved ineffective, other than the parties were able to agree final arrangements for Easter, Mother’s Day, Father’s Day and the children’s birthdays. The case itself was referred to a call-over to allocate another final hearing date.
It is in this context, that Mr Halcott has brought his application in a case seeking additional time with X and Y. From his perspective, due to forces beyond his control, delay after delay has compounded his frustration and, although he would prefer to be able to reach a negotiated agreement with Ms Halcott, he feels compelled to institute these proceedings.
For her part, by necessary implication, Ms Halcott asserts that the complex dynamic of the parties’ co-parenting relationship needs to be subject to the analysis of a final hearing before any significant alterations are made to the current parenting regime for the children. In addition, as previously indicated, it is her position that there are flaws in Dr D’s methodology and therefore it would be imprudent for the court to rely upon his untested recommendations.
The parties’ competing proposals
In his application in a case filed 8 July 2020, the father seeks the following orders:
·The parties have equal shared parental responsibility for X and Y;
·The children live with the mother;
·The children spend time with the father during school terms;
oEach alternate week from the conclusion of school Friday until the commencement of school the following Tuesday;
oAt any other times as agreed between the parties;
·The children spend time with the father during school holidays, as follows:
oFor five days during the September school holidays commencing September 2020;
oDuring the end of year school holiday period, commencing 2020/2021 for six nights of each alternate week per fortnight, commencing from Friday afternoon until 9:00am the following Thursday;
oDuring the April 2021 school holiday period and all short school holidays thereafter for a block of seven nights;
oFor the festive days of Christmas, the children spend time with him from 3:00pm Christmas Eve until 3:00pm Christmas Day and with their mother from 3:00pm Christmas Day until 3:00pm Boxing Day.
The mother is in agreement with the father’s proposal for the festive days of Christmas. She opposes any change to the current school term arrangements. She assumes the same position in respect of the existing arrangements for the forthcoming end of term three and end of year school holidays.
The family reports
Dr D’s reports are important pieces of evidence, notwithstanding the fact that they have not been subjected to any scrutiny. Dr D has an advantage over me in these proceedings, in the sense that he has been able to meet both X and Y and observe each of them interacting with their parents on two distinct occasions, separated by a period of approximately a year.
As such, he is in a position to make an appraisal of the children’s relationship with each of their parents, based on personal observation. I will not be provided with such an opportunity. It is trite, but true nonetheless that a picture is worth a thousand words. Dr D was able to form an opinion of the children’s relationship with their dad from actually seeing it in action.
Dr D observed X and Y with their father and paternal grandparents first on 26 March 2018. He described both children as being pleased to see their father. X greeted him with the comment, hello daddy, whilst hugging his father.
Thereafter, Mr Halcott played with the children and created what Dr D described as a fun-filled playful atmosphere. He described the children as being comfortable and responsive to their father, whilst Mr Halcott was relaxed and attentive in how he interacted with them. Significantly, Dr D observed no signs of discomfort or distress, in either child, whilst they were in the presence of their father or paternal grandparents.
One thing, in my view, is striking about this evidence. It is that Dr D was not able to observe any fear or apprehension, on the part of the children, in respect of their interaction with their father. This would tend to suggest that, at the time of the first family report, they were not experiencing any psychological sequellae, as a consequence of being exposed to some form of family violence or neglect.
As previously indicated, this first report provided the framework for the current regime of orders. Given the children’s respective ages at the time, Dr D did not elect to interview the children. By the time of the second family report (February 2019) X was just over seven years of age and Y was approaching five years of age. In these circumstances, it was appropriate for Dr D to interview the children, particularly X.
Dr D reported the portion of his interview with X dealing with his father in the following terms:
“When asked if mum or dad did anything that made him upset, X said ‘that we can’t just be with each other all the time’. X then spontaneously said ‘I just want to be with dad a bit more. I only get one weekend every two; it doesn’t feel right.’ When asked how he thought mum would feel if he had more time with dad, X said ‘not very good. She’s missing you.’”[1]
[1] See family report dated 12 April 2019 at page 4
When Y was asked if she liked spending time with her father, she simply answered in the affirmative, without specification. She was asked to delineate anything at her father’s house which upset her, to which she responded with a shake of her head, in a negative manner.
As with the first observed interaction, Dr D noted that the children were comfortable in the presence of each of their parents. Mr Halcott was described as being enthusiastic and responsive in his manner with the children. If there was any criticism, it was that Mr Halcott appeared to focus more on X’s needs than those of Y.
In summary, Dr D was of the view that the children enjoyed each aspect of their family environment and enjoyed engaging with F and trusted Mr E. He considered that X was genuinely perplexed as to why his parents could not communicate better. Clearly, X would like his parents to get on better.
In this context, Dr D noted the failure of the co-parenting mediation with Ms J, noting no progress at all had been made and there were few, if any, signs of effective means of communication. Of note, each parent blamed the other for this failure – the father feeling Ms J was biased against him; and the mother feeling the father would not take her advice.
What is clear is that the parties remain at complete loggerheads with one another, with each attributing malign conduct and attitude to the other. The mother says the father badgers her and does not respect her parenting decisions; the father says the mother is intent on restricting his involvement in the children’s lives.
As I indicated above, this is likely to be the central evidentiary issue at trial and be germane to the issue of whether the presumption of equal shared parental responsibility is to be applied in the case. However, regardless of how time is ultimately allocated in respect of the children, it appears to be inevitable that each party will be significantly involved in providing care for the children and therefore, axiomatically, they will have to interact with one another for the foreseeable future.
Dr D described the current situation between the parties as an unfortunate impasse which limited their capacity to have the types of constructive conversation required for successful co-parenting. Again, each blamed the other for the impasse. The mother perceiving that the father did not listen to her and the advice she had received from the professionals treating X; and the father feeling excluded from decision making.
However, given the views of X in particular and the obviously strong relationship between father and child, Dr D recommended as follows:
“… I am of the view that full shared care is not a viable option in the foreseeable future. However, I do believe both children would benefit from an increase in their time with their father, so long as the father is proactive in correcting any inadvertent imbalance in his attentiveness to X and Y that may have crept in as a result of focussing on X’s apparent special needs.”[2]
[2] Ibid at page 9
Dr D expressed some reservations about the efficacy of any future attempts at co-parent counselling but did not rule it out, if the parties wanted to give it another try. If they did, the focus should be on the following issues:
·The needs of the children;
·Consistency between each household;
·Establishment of more effective long-term communication, problem-solving and decision-making.
In my view, if the parties could improve in these various areas, it would be of incomparable value to X and Y. Again, I remind the parties that it is likely to be the case that the children will be moving regularly between their respective households, in one way or another, for very many years to come and, as such, it would obviously be in the children’s best interests for their parents to adopt consistent practices for their care and attempt to communicate better.
As is implicit in Dr D’s report, at this juncture, it would appear that any improvement in these areas remains out of reach for the parties. However, notwithstanding his lack of optimism in this regard, Dr D was clear in his recommendations as to what was likely to be in the children’s best interests, given his interviews with and observations of them.
Dr D recommended as follows:
“The children remain living predominantly with the mother, while spending increased time with the father. In this respect, addition of at least one night to the existing regime seems strongly indicated, subject to the father ensuring a more even-handed attention to the two children and a respect for the advice of the mother and relevant professionals about the level of weekend activity appropriate to X’s ASD needs.”[3]
[3] Ibid at page 10
Mr Halcott places emphasis on the strong recommendation of an extra night. Whilst Ms Halcott, no doubt, places emphasis on her criticisms of the father, recognised by Dr D, of a differential approach to the two children and the father’s propensity to over stimulate the children, particularly X, with too many activities on his weekends with the children.
The parties’ respective positions
Mr Scragg, counsel for the mother, emphasised issues to do with family violence during the parties’ relationship. With the greatest respect to him, his client’s case, as outlined in her affidavit material, had a different emphasis. She complains that the father does not understand or properly respond to the management of X’s autism and over-stimulates him with activities.
Essentially, it is her positon that the parties co-parenting relationship will not sustain a substantial and significant time regime or a situation in which the parties are required to make parental decisions consensually or consultatively.
It is her evidence that X struggles with loud or busy environments, which he attends with his father and this results in him being difficult to emotionally manage when he returns to her care the following day.
Necessarily, it is her positon that the father is dismissive of the professional advice she has garnered in respect of the issue. In her trial affidavit, she has listed numerous activities in which the father has enrolled X, with which she does not agree.
Associated with this issue, is her concern that the father differentiates between the two children and this is leading to Y struggling with the current arrangement. In combination, she contends that these issues are counter-indicative of there being any change in the current regime and Dr D has under-estimated or misconceived these issues. In this context, she contends that Dr D should have more thoroughly canvassed Ms K, the children’s therapist.
In her trial affidavit, the mother is critical of the father for being violent towards her during the parties’ relationship, particularly in 2011 when she was allegedly strangled to the point of unconsciousness by Mr Halcott. Mr Halcott denies the allegation and attributes the mother’s blackout to a drug reaction to asthma medication.
In his submissions, Mr Scragg made emotive submissions in respect to this incident. I note that the event occurred prior to X’s birth. I also note that it is the father’s case that the parties’ relationship was characterised by heated arguments, which he asserts were characterised by mutual pushing, hitting and physical restraint. He admits slapping her on her arm. He alleges Ms Halcott punched him.
It is the mother’s evidence that Mr Halcott was mentally unstable and violently unpredictable from late 2013 onwards. She alleges that he would hit or push her into walls, pin me strangle me and spit at her repeatedly for months and then his behaviour would improve for months at a time. She details the father having multiple involvement with a variety of health professionals.
As previously indicated, the father accepts that his behaviour was unacceptable during the parties’ relationship. However, he also alleges that there was a level of reciprocity in how the parties engaged with one another. He accepts he had issues to do with managing depression and anger during the parties’ relationship but denies ever having been diagnosed with bi-polar disorder or borderline personality disorder.
It is Mr Halcott’s evidence that he reacted badly to the parties’ separation. He further asserts that, in the period since, he has attended appropriately to his mental health through consultation with Doctors G and H and completion of an anger management course. In April 2018, he completed a Kids R First parenting course.
Mr Halcott deposes that he is currently living in rented accommodation near his parents. He works full time. There is some level of dispute between the parties regarding child support issues. It is his case that the children enjoy the time they currently spend with him and his home is safe and suitable for them.
For his part, he complains that Ms Halcott does not provide him with information about the children’s current medical needs. In this context, there is a suggestion that Y may also be suffering from some form of autism. He acknowledges that he has arranged for X to take part in various sporting and musical activities.
It is his positon that he is aware of the danger of X being overwhelmed by activities and as a consequence he makes sure the child has constant breaks. However, he also believes it is important for the children to keep active. It is his case that he and Ms Halcott have a different opinion as to the degree of sensitivity of X to loud noises.
Mr Halcott asserts that Ms Halcott refuses to communicate with him regarding the children and makes unilateral decisions in respect of them. Essentially, each of the parties assert that the other is unreasonable and impossible to deal with. It is also the case that they are the parents of a child with special needs and one who may have her own emerging special needs.
The nature of an interim hearing
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[4]
[4] See Goode & Goode (2006) FLC 92-286 at 80,901 [68]
At the interim hearing stage, the hearing takes a truncated form, which does not permit cross-examination of witnesses, including experts. As a consequence, the court cannot make findings of fact, particularly in respect of disputed issues.
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
In this case, I am not in a position to determine in any definitive way who was the more culpable party in respect of what was obviously a deeply unsatisfactory marriage between them. I note however that no police charges were laid against Mr Halcott; and he has never been subject to any family violence order.
More significantly, as I understand the mother’s case, she does not allege that either child has been exposed to family violence in the lengthy period since the parties finally separated. In addition, during this period, the father has spent regular periods of time, with the children, including in an overnight setting, for a period slightly in excess of two years.
It is also apparent that the parties’ co-parenting relationship is deeply problematic and likely to remain so. It is impossible for me to attribute fault for this highly regrettable state of affairs or opine why the process of co-parenting counselling was so singularly unsuccessful.
At this stage, the court’s focus must remain what is the outcome best calculated to be in X and Y’s best interests within the complex matrix of considerations contained in Part VII of the Family Law Act 1975 (“the Act”).
How the court determines a child’s best interests
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“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.”
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[5] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[5] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).
There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (a); (b); (i); (j); and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The views of any child concerned and any factors impacting on that view, particularly the maturity or level of understanding of the child;
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Any family violence involving the child or a member of the child’s family;
·Any family violence order applicable;
·The subparagraph relevant to family violence orders, subparagraph (k), directs that the court can take into account the following matters arising from any applicable family violence order:
oThe nature of the order;
oThe circumstances in which the order was made;
oAny evidence admitted in proceedings for the order;
oAny findings made by the court in the relevant proceedings;
oAny other relevant matter.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[6]
[6] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general…”[7] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[8]
[7] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[8] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The primary considerations are generally to be given more emphasis, arising as they do directly from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
Although the mother is critical of many aspects of the father’s behaviour, it does not appear to be her case that the father has exposed the children to any form of violence since the parties separated. In this context, I note that the particular incident on which Mr Scragg placed particular emphasis occurred prior to X’s birth.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.
Accordingly, it is very often difficult, if not impossible, for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[9]
[9] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J
Family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all walks of Australian society and represents a great threat to the wellbeing of children.
Family violence can place children at actual physical risk of being hurt. It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened. For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously, the latter type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child.
At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made. As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case.
By necessary implication, arising from their respective affidavit material, whilst each acknowledge their relationship was difficult, the parties characterise the nature of the dysfunction in their marriage differently. It is not possible to make findings of fact in respect of this dispute due to the truncated nature of the interim hearing. However, the court is not in a position to defer its adjudication of any interim issues arising merely because of any evidentiary issues facing it.
In Deiter & Deiter[10], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[10] See Deiter & Deiter [2011] FamCAFC 82
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. Risk can range from the risk of a child being exposed to neglect or abuse or to some other form of compromised parenting relating to substance abuse or mental health impairment. The Full Court, in Slater & Light, expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [11]
[11] Slater & Light [2013] FamCAFC 4 at [37]
The father submits that his previous violent behaviour was situational in nature and a response to the stresses implicit in the parties’ relationship at the time. In this context, it is important to note that the mother does not raise any recent complaints of misbehaviour and she has not recently sought any intervention from outside sources.
There can never be any excuse for violent behaviour. However, the purpose of the relevant legislation is to protect children from its consequences, not to punish its perpetrators. Given the manner in which this case has progressed, it is difficult for the court to characterise the episodes of family violence catalogued by Ms Halcott and make precise findings in respect of the allegations made.
In my view, it is also significant that Dr D did not characterise the current relationship between the parties as being one characterised by issues of power imbalance arising from coercion and control. Rather, the level of obvious dysfunction in the parties’ relationship appear to relate to issues of communication between them.
The parties also disagree about how parenting decisions are to be made in respect of X and Y. In the context of the current proceedings, the dispute turns primarily on the application of the presumption of equal shared parental responsibility.
However, regardless of the application of this principle, it is also the case that the parties are in fundamental disagreement about how major long term decisions are to be made in respect of the children, particularly in respect of issues relating to X’s medical and special needs.
As is apparent, the nature of the dispute between the parties focusses on the father’s perception that he is excluded from relevant decision making; whilst the mother perceives the father will not heed her advice and those of relevant experts.
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.
If an order is made which provides for parental responsibility to be shared, it requires that the parties to such an order 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 [section 65DAC].
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them.
This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of a child’s parents, can be made as expeditiously as the circumstances dictate. In most cases, this will be instantaneously.
Consultation requires the exchange of information prior to a decision being made. The law is unclear as to what should occur if the parties concerned are deadlocked about any particular major decision other than they should return to court to seek the court’s adjudication on the issue.
Given the structure of Part VII, particularly the objects and principles which underlay it, as specified in 60B, it would appear to be the case that it will be the exception rather than the rule that a parent will be excluded from decision making responsibility for a child.
The objects of the legislation (section 60B(1)) are as follows:
“(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, 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.”
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
“(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).”
As can be seen parents are encouraged to agree about how their children are to be parented. Many might think these are unduly utopian aspirations to be applied to high conflict families. But nonetheless they cannot easily be disregarded, particularly given the status parents are accorded in respect of their children pursuant to the legislation.
How parental responsibility is conferred by the court is through the making of a parenting order. Pursuant to section 65C of the Act, a child’s parents; the child him or herself; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. Accordingly, the applicant and respondent have legislative authority to seek the orders, which they do.
In the present matter, it is clearly the case that each of the parties is interested in the care, welfare and development of X and Y. In addition, regardless of how time is ultimately allocated, it is also the case that each party will remain significantly involved in all aspects of the children’s lives including educational, sporting and other issues and the two children will pass regularly between their two households.
In such circumstances, in my view, the artificial dichotomy of one parent having parental responsibility for the children and the other not is likely to prove problematic. In Bartel & Schmucker (No 3) Cronin J said as follows:
“Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [12]
[12] Bartel & Schmucker (No 3) [2012] FamCA 1094 at [18]
His Honour went on to say of the concept of parental responsibility that it:
“… is a broad concept as described in s 61B and that task covers many things. Parents are expected jointly to endeavour to promote their children’s development by ensuring they have the greatest potential in adulthood whilst at the same time enjoying the security of childhood they deserve.” [13]
[13] Ibid at [21]
Clearly, the parties, in the current matter, are far from the ideal circumstances, envisioned by Cronin J, in respect of being able to achieve the level of consultation and respect for one another’s views to facilitate the making of joint decisions in respect of X and Y.
Yet they remain the children’s parents and each is clearly interested in everything to do with them and their welfare. In addition, although the parties currently have extreme difficulty in realising it, each is likely to have a valid perspective on what is likely to be best for X and Y. Although, each might think it preferable that the other be erased from decision making that is not so easily achieved.
In these circumstances, the central question, which will likely be central at final hearing, can be easily stated (but not so easily answered); are the parties’ circumstances so dysfunctional that one interested and loving parent should be relegated to, at the very least, the perception that he/she is some form of subsidiary or lesser parent so far as X and Y are concerned, notwithstanding their love for them and fervent desire to be involved in every aspect of their life.
Whenever the court makes a parenting order, in respect of a child, it is mandatory that it consider the application of the presumption of equal shared parental responsibility be applied to the parents concerned, given the importance the legislature places on both parents being closely involved in their child’s life [section 61DA] – so long as this involvement is commensurate with protecting the children concerned from harm.
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)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
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 for the child concerned [section 61DA(4)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned. Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
The clear import of section 60B; 61DA; and 65DAA is that 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;
Pursuant to the applicable legislation, when the presumption of equal shared parental responsibility has been found to apply, the court is directed to “consider” firstly equal time and then secondly “substantial and significant” time between a parent and child.
The Full Court in Goode has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act. In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”
Accordingly the intellectual process required by section 65DAA is active in nature, rather than tokenistic. It is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time, provided the two limbs of the section are satisfied. This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome.
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.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from section 65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made (and with equal effect a substantial and significant time order).
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. This is because section 65DAA(1) & (2) are expressed in “imperative terms” and oblige the court to consider both questions. The affirmative answer to both being an essential jurisdictional fact before an equal time or substantial and significant time order are made.
In this particular case, if the presumption is to be applied, the court must be satisfied that it is both in X and Y’s best interest for there to be an equal time regime (or alternatively a substantial and significant time regime) and each such regime is logistically feasible to implement. Accordingly, the case does not depend on an assessment of what will be ideal, for the children, in purely theoretical terms.
The court must ask itself these sorts of questions: what is going on in this family; what will work for it; what won’t work for it; if a problem occurs, how can it be solved; can the mum and dad concerned talk about problems and sort them out; what will work for the particular child concerned? These issues do not turn on any ideological analysis of the role of parents in gender or sociological terms. They are purely practical.
Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and children not merely whether it is desirable, in the sense of facilitative of the child’s best interests alone, that an order be made for equal time to be spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[14]
[14] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
Accordingly, a proper consideration of what is feasible requires the court to consider the circumstances of both parties. This is particularly so if an equal time (or a significant and substantial time) order can only come about by requiring both parents concerned to remain in (or move to) the same locale.
The legislative pathway, which was delineated by the Full Court in Goode & Goode can be summarised as follows:
·The court is to consider the section 60CC matters relevant; then
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
These concepts are complex. I am well aware that it has taken me over fifteen pages to summarise them. In addition, neither party’s counsel referred to these concepts in any great detail. I do so because I consider it likely to be helpful to the parties to have the legal principles applicable to their case outlined to them with some care for their individual and, I hope, informed consideration.
This case has taken far longer than it should have. Chiefly this has been because the parties have hoped, I think, that the various interventions upon which they have embarked would assist them to reach an agreed position in respect of their much loved children.
Regrettably this has not occurred. A judicial assessment has also been ineffective. Accordingly the parties are now at the point where they ask the court to allocate a further final hearing date. This has the potential to lead each of them to incur significant expenditure in respect of legal fees.
In this context, I invite each of them to consider the legal principles applicable and, in their light, consider what is the cost efficiency benefit of committing those sums to such a final hearing, which will have no impact in improving the co-parenting relationship between them?
In a recent case, I said as follows in respect of two parents, who continued to have a problematic relationship with one another, after having been separated for many years. What they did have in common was a deep and abiding love for their child:
“Since the parties separated, they now lead different lives, with different preferences and priorities. The parties also bring different personalities and backgrounds to the parenting of A. Inevitably, this will result in them having different priorities and agendas in respect of the care of the child.
As a consequence, these matters must lead to differences of opinion and emphasis, particularly since the relationship between them has ended, an occurrence, which for obvious reasons, is likely to extenuate, rather than diminish the potential for differences of opinion to arise between them.
Every case, involving the care arrangements for children, which comes into court, must involve issues of this kind to some degree or other. After all, the parties concerned are seeking an adjudication, from the court, given the absence of consensus between them. It cannot be the legislative intent that parenting orders, envisaging a child spending significant time with one parent, be ruled out in all of these cases.
…
In my view, I must be careful not to adopt an unduly utopian standard for the parties’ communication skills or expect them to adhere to a standard, which is clearly untenable, given that they separated in difficult and acrimonious circumstances, as many couples do, particularly those that seek the court’s assistance to resolve their parenting disputes.”[15]
[15] Teagan & Teagan [2020] FCCA 2098 at [337]–[339] & [341]
Although I appreciate this is an interim, rather than a final hearing, all these factors appear to be present in the current case. However, what is clear is that at the end of any final hearing, the parties will remain in a relationship, with one another, as parents, which the final hearing will have done nothing to ameliorate.
Discussion
I do not consider that protective concerns relating to the need to protect the children from exposure to family violence dictate that the father’s time with X and Y should not be extended. The parties have been separated for a significant period of time. The incidents of family violence set out by the mother occurred during the parties’ marriage and the father disputes their import.
The evidence available from the father’s treating psychiatrist indicates that his mental health is well-managed and any symptoms suffered by him are in remission. Accordingly there is no unacceptable risk, arising for the children from this aspect of the father.
In these circumstances, I consider I must give some priority to the benefits the children will derive from having a meaningful level of relationship with their father. Given the evidence available to me, particularly in the form of the two reports of Dr D, I consider that both X and Y will benefit from extending their relationship with their father.
The mother does not accept the recommendations of Dr D. That is her prerogative. However, in my assessment, the report is detailed and Dr D’s expertise cannot be doubted. As such, in my view, apart from disagreeing with its conclusions, Ms Halcott is not able to point to any flaw of such significance that it would be imprudent of the court not to give it some significant weight at this interim stage.
Clearly the children love their father and are each comfortable in his care. In my view these factors support the modest increase in time which the father currently seeks. In my view, this increase will have the effect of enabling the father to be more involved in a variety of the children’s activities, particularly on school days. This can only add to the level of meaning in the children’s paternal relationship.
The evidence is that X in particular wishes to spend more rather than less time with his father. He is eight years of age and, in my view, of sufficient maturity to be able to express a preference. He is also obviously discomforted by the continual conflict between his parents. Y, being younger, was less articulate in expressing any preference but indicated her own preference in respect of spending time with her father.
At this stage, the children’s most significant relationship is with each of their parents. It would also appear to be the case that they have a close relationship with their paternal grandparents. In my assessment, the court should attempt to support these relationships in any orders which it makes. This militates in favour of the orders proposed by the father.
The gravamen of the mother’s case is that she is the superior parent, particularly so far as catering for X’s special needs. This may prove to be the case if the case proceeds to final hearing and all the relevant evidence is canvassed. However, it does not necessarily mean that Mr Halcott is a compromised parent, merely one who brings different attributes and personality to the parenting of the children.
In these circumstances, I do not consider that these matters are of such moment that they should result in the recommendations of Dr D not being actioned at this stage, given my own assessment of the evidence currently available to me.
Finally, I note that there is currently no family violence order applicable. Although Ms Halcott did make a complaint to police during the parties’ marriage and, on her evidence a safety plan was created, there is no evidence available to me to indicate that it was ever actioned. Certainly, no court has made any findings in respect of issues of family violence.
In all the circumstances of this case, I propose to apply the presumption of equal shared parental responsibility. I do not think that it is rebutted on the basis of a consideration of the children’s best interests or because there are reasonable grounds to lead me to believe that the father has recently engaged in any form of abuse or family violence.
The parties have been separated for over four years. In these circumstances, although this is an interim hearing, I do not consider it inappropriate that the presumption be applied, given the obvious love and devotion each of them have for X and Y. Each of them is fervently interested in all issues to do with their care, welfare and development and always will be.
However, at this interim stage, given the conflict between them, I do not consider that it is currently logistically feasible for there to be an equal time regime. At present, the parties simply do not have the capacity to solve the problems which are likely to crop up from the children living in two quite different households, which cannot communicate without recriminations arising.
However, in my assessment, these difficulties are not of such moment to rule out the implementation of the modest increase in time recommended by Dr D. Although, it may be unpalatable for the parties to consider, the best avenues for them to improve their communication skills is to adopt neutral and efficient channels to enable the efficient exchange of information and endeavour, as best they can, to respect the role of the other.
In the orders, which I propose to make, I will attempt to delineate, with some care, what are the responsibilities of parents who are subject to an order for equal shared parental responsibility in terms of decision-making and exchange of information.
In this context, I will make an order formalising the manner in which the parties are to communicate information with one another concerning X and Y in mechanical terms in the hope that this will make the exchange of necessary information more efficient.
I acknowledge that the parties communicate poorly, with each blaming the other for this parlous state of affairs. From the father’s perspective, it is likely to be his submission that the mother has an ulterior motive for perpetuating this state of affairs in order to restrict his involvement with the children.
As I have indicated, communication issues, in themselves, are but one factor applicable to the application of the presumption and what follows from it. [16] I have concluded that the presumption should apply in this case and it is in the children’s best interests for their father to be concerned in decision making and more meaningfully involved, in a temporal sense, in the various aspects of the children’s lives.
[16] See Astor & Astor [2007] Fam CA 355 at [195] per O’Reilly J
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 one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 7 August 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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