Hardie & Capris
[2010] FamCA 1046
•23 November 2010
FAMILY COURT OF AUSTRALIA
| HARDIE & CAPRIS | [2010] FamCA 1046 |
| FAMILY LAW – CHILDREN – Final parenting orders – With whom a child should live – Relocation – Where the mother sought to relocate the child from Queensland to South Australia – Best interests of the child – Where the ultimate conclusion about the child’s “best interests” will be a “least worst” determination – Discussion of the Primary and Additional Considerations |
| Evidence Act 1995 (Cth) s 144 Family Law Act 1975 (Cth) ss 4; 60B(1); 60B(2); 60CC; 60CA; 60CB; 61DA(1); 61DA(4); 65DAA; 65DAC; 65DAE |
| AIF v AMS (1999) 199 CLR 160 Brown v Dunn (1893) 6 R 67 (HL) Carlson and Ors & Bowden [2010] FamCA 432 |
| APPLICANT: | Ms Hardie |
| RESPONDENT: | Mr Capri |
| FILE NUMBER: | BRC | 9475 | of | 2008 |
| DATE DELIVERED: | 23 November 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 10 & 11 November 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Baston |
| SOLICITOR FOR THE APPLICANT: | Cooper Grace Ward of Brisbane |
| COUNSEL FOR THE RESPONDENT: | Dr Sayers |
| SOLICITOR FOR THE RESPONDENT: | Harrington Family Lawyers of Brisbane |
Orders
The child, E born … March 2002, live with the father.
The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) in respect of the child, save that the father shall, prior to making the sole ultimate decision about any such issues:
(a)advise the mother in writing of the decision being considered and its particulars,
(b)Seek a written response from the mother in relation thereto, permitting of sufficient time to allow the mother to properly consider, and if she desires, to seek advice about the proposed decision;
(c)Consider, by reference to the best interests of the child, any such response by the mother, prior to making any such decision;
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The child spend time with the mother at all times as may be agreed by the parties and failing agreement, at the times specified as follows:
During Queensland gazetted school holidays
(a)For end of Term 1 holidays, for 7 days with the child to fly in accordance with paragraphs 5 and 6 of these Orders, on the last day of the school term until 6pm on the 7th day after the end of the school term;
(b)For end of each of Term 2 and Term 3 holidays, for 11 days with the child to fly in accordance with paragraphs 5 and 6 of these Orders, on the last day of the school term until 6.00pm on the 11th day after the end of the school term;
(i)For the first half of the Christmas school holidays in 2010 and all even-numbered years thereafter and the second half in 2011 and all odd-numbered years thereafter, with Christmas school holidays deemed as commencing at 9.00am on the first day of the school holiday period (not the last day of school) and shall conclude at 4.00pm on the second last day prior to the recommencement of school.
Long Weekends
(c)Having made flight arrangements in accordance with paragraphs 5 and 6 of these Orders, in addition as follows:
(i)Where Anzac Day falls on either a Friday or a Monday, from 4.00pm on the Wednesday prior to Anzac Day (where Anzac Day is a Friday) until 6.00pm on the following Sunday or from 4.00pm Friday until 6.00pm Tuesday where Anzac Day falls on the Monday;
(ii)On the weekend coinciding with the May Day (Qld) holiday, from 4.00pm Friday until 6.00pm Tuesday;
(iii)On the weekend coinciding with the Queen’s Birthday (Qld) holiday, from 4.00pm Friday until 6.00pm Tuesday;
(iv)Provided that there is a pupil free day on the day either immediately before or immediately after the Brisbane Exhibition public holiday, then from 4.00pm on the Saturday before the pupil free day until 6.00pm on the Exhibition public holiday or from 4.00pm on the Tuesday before the Exhibition public holiday until 6.00pm on the Saturday immediately following the Exhibition public holiday;
(v)Provided there is a pupil free day on a Monday or a Friday in October, then, from 4.00pm Friday until 6.00pm Tuesday where the pupil free day occurs on a Monday, or, from 4.00pm Wednesday until 6.00pm Sunday where the pupil free day occurs on a Friday in October;
Special Occasions
In the event that the mother and father are living or visiting in the same city as the child, on special occasions, the child shall spend time with each parent as follows:
(a)That in the event that the child is not with the father on Father’s Day weekend then with the father from 5:00pm Saturday immediately prior to Father’s Day until the commencement of school on the day after Father’s Day;
(b)That in the event that the child is not with the mother on Mother’s Day weekend then with the mother from 5:00pm Saturday immediately prior to Mother’s Day until the commencement of school on the day after Mother’s Day;
(c)On the child’s birthday as follows:
(i)With the father in even numbered years from after school the day before the child’s birthday until the commencement of school on the day of the birthday;
(ii)With the father in odd numbered years from after school on the child’s birthday until before school on the day after the birthday;
(iii)With the mother in even numbered years from after school on the child’s birthday until before school on the day after the birthday;
(iv)With the mother in odd numbered years from after school the day before the child’s birthday until the commencement of school on the day of the birthday;
(v)In the event that the child’s birthday falls on a weekend the child shall spend time with the parent with whom she is not then living or visiting from mid-day until 5:00pm.
(d)On the father’s and D’s birthdays from after school, or from 2.00pm if a weekend, on the day of the father’s and on the day of D’s birthday until 9.00am the following day;
(e)On the mother’s, R’s and W’s birthday from after school, or from 2.00pm if a weekend, on the day of the mother’s and on the day of R’s birthday until 9.00am the following day;
Changeovers and Provision for Flights
For the purposes of these Orders, the Mother shall book and pay for the child’s flights from Brisbane to Adelaide and the father shall book and pay for the child’s flights from Adelaide to Brisbane at least one month prior to the date of all such travel.
In respect of the child’s flights to and from Adelaide, each of the parties shall:
(a)sign all such documents and follow all such procedures or policies as is required by the chosen airline in relation to "unaccompanied minors"; and
(b)provide to the other one month prior to the date of departure from Brisbane:
(i)the details of the dates and times of travel booked and paid for by each of them;
(ii)a copy of any documents that have to be completed in order to comply with airline policy on unaccompanied minors;
(iii)a copy of the ticket for the flight/s booked and paid for by each of them or sufficient information to authorise the Father to be able to collect the child's return ticket to and from Adelaide.
(c) Ensure that:
(i)the child is delivered to the relevant airport in sufficient time, in accordance with the relevant airline’s policies or requirements, to enable the child to board her flight/s and in the event that either party defaults in this regard, they shall do all things necessary, at their expense, to arrange an alternative timely flight.
Communication
The child be at liberty to communicate with either parent and the child’s respective extended families at all such times as the child so desires, either by telephone or mail.
In order to give effect to the preceding paragraph of these Orders:
(a)The parties shall maintain a telephone number at all times at which they can be contacted by the child and shall keep each other advised of same.
(b)Within 48 hours of the date of these orders, the Mother and Father shall advise each other of their current postal address and shall keep each other informed of any changes to their postal address within 48 hours of such change.
(c)The Mother and the Father shall ensure that any letters, cards or presents that the child wishes to be sent to the other parent are posted promptly to the other parent, and shall each similarly ensure that any cards, letters or presents to the child from the other parent are passed on to the child.
(d)The child be at liberty to communicate by email, Skype, Facebook, Twitter or other similar forms of computer communication, with the other parent not more than once a day in a session lasting not longer than 30 minutes.
(e)In order to give effect to the preceding paragraph of these Orders, the parties shall provide to each other, within 48 hours of their possessing same, an email address at which the child can receive and send emails to the other parent and details, such as are necessary, so as to facilitate the child communicating by Skype, Facebook, Twitter or similar, with each parent.
Miscellaneous Orders
At the earliest possible time and where possible within one hour, each party shall inform the other party of any serious accident or medical condition requiring the child to be seen by a doctor.
The father shall take the child to counselling with Ms B or such other counsellor and/or doctor or other therapist as may be recommended by Ms B from time to time, for as long as and at such times as may be recommended by Ms B or such doctor or other therapist.
The parties shall bear equally the costs of the child's counselling or other medical treatment as recommended by Ms B or such doctor or other therapist.
The father shall advise the mother of the contact details for any extracurricular activities that the child may be engaged in from time to time.
The parties, by this order, authorise the child's school, medical practitioners, counsellors and extracurricular activities to advise or supply the requesting party with any relevant information or documents as may be requested from time to time provided that the requesting party shall be responsible for any costs and shall pay to the school, medical practitioners, counsellors and extracurricular activities directly for such costs.
All previous orders be discharged and applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hardie & Capris is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC9475 of 2008
| MS HARDIE |
Applicant
And
| MR CAPRI |
Respondent
REASONS FOR JUDGMENT
E was born in March 2002. Her parents separated after an approximate three-year relationship, in mid-2003. E was then barely a year old.
E’s parents shared her care after their separation until about the middle of 2005. She spent four nights per fortnight with her father and, for about four and a half years until the end of February 2010, the child spent alternating weeks with each of her parents.
At the end of February 2010, the mother moved to D, South Australia. D is, apparently, situated about one and a half hour’s drive from Adelaide, on the Yorke Peninsula. The mother initially hails from South Australia and her parents and extended family live there. The mother’s intended move saw proceedings for interim parenting orders conducted before me. By reason of my orders, E remained in Brisbane with her father and, subsequently, the parties agreed upon school holiday and other time that the child would spend with her mother.
It seems to me axiomatic and, in any event, the mother agreed in cross-examination, that a loving, caring mother (which the mother plainly is) would not have allowed the child to remain living in Brisbane with her father, geographically remote from her, if she considered that he (or his household) presented any type of unacceptable risk to her.
However, the mother had filed a Notice of Child Abuse or Family Violence on 23 September 2009, the details of which will be referred to subsequently. The filing of such a notice is a matter that must be, and is, taken seriously by the Court. The father asserts that, although no risk (particularly of sexual abuse), is now raised by the mother, a number of issues, which he asserts to be relevant to the statutory considerations, flow from it.
Reports from a Ms T, ordered by the Federal Magistrate’s Court where this matter commenced, and, subsequent reports by Family Consultant Ms F, plainly reveal each of the parents to be caring, loving and thoughtful parents. As will emerge when the details of those assessments are discussed, I agree with that assessment.
Sadly for E though, (and somewhat perplexingly) is a serious, debilitating and, it seems, chronic incapacity for these two loving parents to communicate in any meaningful way. This results in very significant conflict between them. Details of the seriously detrimental effect that this conflict has had upon the child will also be referred to below.
That conflict underpins the issues for determination in this case including, centrally, orders for parental responsibility. That this should be the case is of course, tragic, and all the more so because the parents are as I have described.
The central issues in this case (which, of course, must be resolved within the statutory framework provided for in Part VII of the Family Law Act 1975 (Cth) (“the Act”) can, I think, be expressed cogently by reference to Ms F’s most recent report, dated 1 November 2010. She says:
51.I have no doubt that [E] is indeed missing her mother and it is my opinion that she did experience intolerable grief when her mother abruptly moved to South Australia in February this year. It is my view that underpinning some of this grief was [E’s] sense of abandonment by her mother. Hence [in] my opinion […] her very strong desire to live with her mother is presently being informed by her need to address this sense of abandonment and to create and reassure herself in her own mind that her mother has not abandoned her and that she is loved and valued by her mother.
…
54.… If [E] were to relocate and live with her mother, it may avail her the opportunity to address her grief and abandonment issues in relation to her mother, however she will most likely be further burdened with experiencing a level of grief and guilt in regard to not living with her father any more.
…
56.It is my view that either [that] option [or living with her father] will impose a level of emotional and psychological burden upon [E], and in the end, the answer may lie in the court determining which is the “least worst option” for [E].
I agree with the opinions and sentiments expressed in those quoted paragraphs. In my view, the dilemma posited by them creates for the Court the central dilemma to be addressed in attempting to arrive at an ultimate conclusion about E’s best interests.
The evidence before me including, in effect, the evidence from each of the parents themselves indicates, sadly for E but plainly, that these parents have (for whatever reason, and whomever might be “at fault”) no meaningful capacity to communicate or co-operate so as to arrive jointly at decisions central to E’s welfare and, specifically, the matters defined as “major long-term issues”.
The father seeks an order that will give him the final say in respect to those issues. The mother says that orders should reflect the statutory presumption of “equal shared parental responsibility”.
In outlining those issues in the manner that I have, I do not for a moment suggest a process other than that which is required by the legislation, in order to determine best interests (s 60CC). Nor do I suggest a process other than that prescribed for the ultimate assessment of orders that best meet E’s best interests, in her particular circumstances. (See Goode v Goode (2006) FLC 93-286; MRR v GR (2010) 263 ALR 368.) Reference to the applicable principles will be made shortly. Rather, the articulation of those issues identifies the circumstances particular to E within which the statutory tasks are to be performed. (See eg Donnell v Dovey (2010) 42 FamLR 559 at para 103.)
E And Her Parents
I consider that the description of each of the parents and the underlying issues in relation thereto are well-described by Ms T in her report. The passages about to be quoted are consistent with the impression gained by me, both from the evidence as a whole, including the respective affidavits of the parties, and from my impression of each of them in the witness box when each was cross-examined (the father briefly).
Ms T says of the mother:
8.[The mother] presented [as] a concerned, caring mother who was very worried about her daughter’s welfare. Although supporting her daughter’s relationship with her father, she said she has many concerns, primarily that [E] cannot cope living equal and shared between the two houses.
Ms T’s report was prepared in March 2009 when E was living with her parents week about. At that time, the mother had indicated a desire to return to South Australia with the child. Ms T conducted home visits to each of the parent’s homes and there spoke to each of their new partners.
By that time, the father and his partner Ms S had a child, D (born in May 2007) and the mother and her partner Mr L had a son together, R (born in February 2008). Subsequent to Ms T’s report, the mother and Mr L had another child, W, born in December 2009.
Ms T went on to say of the mother in her March 2009 report:
10.Because of [the father’s alleged treatment of her] and because of the physical distance from her own family of origin, [the mother] felt deeply alone, isolated and unsupported. She said her experience in this relationship left her feeling devalued, demoralised and alienated and it took many years to recover her confidence and dignity. She now worries about the impact of [the father’s] repressive cultural attitudes towards women on [E] and she objects to the way in which [the father] and Ms [S] are parenting [E].
…
16.[The mother] describes a sad life-history. Although not physically abused, she described many unhappy teenage years when she suffered from a fibroid condition. Finally diagnosed in her twenties, this condition has been successfully treated ever since. However, growing up in country South Australia, [the mother’s] serious weight issues caused by this condition left her deeply unhappy and personally insecure. Seeking a better life and very naïve, she said she moved to Queensland where she was exploited by [the father] [and] her self-esteem was further undermined.
17.However, after enduring so much unhappiness with [the father], [the mother] believes she has at last matured and found happiness with her present partner. She said she is now content in her relationship with Mr [L].
Ms T described the father as:
26.At interview, [the father] presented as a concerned, caring father deeply committed to his daughter. He talked knowledgably about children’s issues and described having a close supportive relationship with both his children. He said he is devastated by [the mother’s] allegations [contained in the Notice of Abuse] and is very distressed by the Court process. He denies any inappropriate behaviours around [E] or that he has abused her through medical treatment.
Ms T commented of Ms S:
35.Ms [S] has a Master’s degree in [science]. She impressed as bright, caring and articulate. She is an excellent mother and this was observed directly during the report, as she looked after [E], [D] and [E’s] friends who visited during the afternoon.
In respect of the parents jointly, Ms T commented:
61.Overall, it was observed both parents provide comfortable, clean, well-organised and child-focussed environments. Both parents and their partners behaved appropriately and [E] was observed interacting appropriately and lovingly with both families. She loves her respective baby brothers, [R] and [D]. However, [E] also describes traumatic memories and is insecure and fearful as a result. While she loves both parents, [E] has some anxiety about her mother’s well-being.
Equally, however, some reservations were expressed by Ms T. For example:
90.Both parents need to refocus their energies on addressing [E’s] problems jointly, supportively and positively, not divisively, contentiously and fractiously. At present, they are turning their frustrations on to each other through blaming and criticizing. They are distracting themselves from the task at hand and they need to pull together, as parents, at this difficult time.
…
75.Quite clearly, a child who has to navigate such complicated waters, between houses on a weekly basis, without joint support from both parents, will find the process challenging. Whilst I have no doubt both parents love their daughter dearly and would never intend [to] visit any negative consequences on her, in my opinion, this is precisely what has happened. In short, the impact on [E] of their parental dispute is now profoundly disturbing her on every level…
…
77.However, [E] is not a happy child. She has many worries and fears and appears to be feeling deeply insecure, upset, anxious and fearful. She is pre-occupied with her safety when she is in both parents’ homes.
It is particularly tragic, in my view, that precisely the same sentiments are expressed by Ms F some 18 months later. Examples are:
35.One of the disturbing and continuing features of this family dispute is the explicit inability and/or unwillingness of the parties to communicate with one another in a functional and timely manner, irrespective of where the parents have lived or who the child lives with.
36.It is my view that regardless of the nature and machinations of the parenting arrangements, [E] has consistently displayed great affection and loyalty to both her parents. I am of the view that [E] still suffers from a great sorrow and grief that her parents are not together and that they do not get on.
37.[E] did not cope with equal shared parenting time, not because of any particular onerous practice or event that was occurring in either parental household, but rather it was because she could not cope with the overt parental conflict and dysfunctional communication between the parents. I recall [E] explaining to me that it felt like she was being split in half, and that on Mondays when she used to change residence her heart would be breaking.
…
40.At the time of preparing the specific issues report [in May 2010], it was still very apparent that both parents viewed the other party as a “bad” parent, were distrustful of the motives of the other parent and communication was still dysfunctional and conflictual. [E] was clearly upset about her mother’s abrupt move to South Australia and was missing her mother very much.
In my view, the evidence read for the purposes of this final hearing, and the presentation of each of the parties at it, plainly reflects Ms F’s opinion expressed in the last of the paragraphs just quoted.
At the time of the interviews for that report by Ms F (which occurred on 21 October 2010), the mother had been living in South Australia for about eight months and E had spent time with her in South Australia during that time.
Whilst flagging profound concerns about the level of conflict between these two parents and flagging (just as Ms T had done before her) her concerns about the detrimental impact this was having upon E, Ms F nevertheless concluded:
48.Based on the information I have had available to me and the observations I have made, it is my opinion that both parents display strengths and some deficits in their parenting of [E]. There is nothing, however, that I would assess as being of particular concern that would compel me to recommend one parent as being the more appropriate parent for [E] to predominantly live with.
I observe that Ms T, also, was of the opinion that “both parents displayed strengths and some deficits in their parenting of [E]”.
E and her feelings
The picture of E which emerges from her parents’ evidence and the reports of Ms T and Ms F to which I have referred, is of a delightful child in need of co-parenting from both of her parents in a focussed and co-operative way. She is plainly not receiving that.
What also emerges is a worried and sometimes unhappy child who would love, more than anything else, for her parents to be united again, but who, at the same time, has sufficient maturity to understand that this will not occur.
E appears desperate to please both parents. Equally, but more troubling, she clearly appears to take at least some responsibility on her young shoulders for not causing upset or sadness to either of them – in particular by expressing a desire to live with one parent rather than the other.
It is unbearably sad that a child, then barely eight, would say to a report writer that:
Many people have let me down with my dreams. … I don’t always tell people everything, but I know that you write down stuff and tell the Judge, so I’m telling you what I want.
The same eight-year-old was at pains to tell Ms F about how “worried” she was. I agree completely with the importance which Ms F attaches to the statement by E that “many people have let me down with my dreams” (para 28, May 2010).
Equally sad is the then seven-year-old E telling Ms T that “They should be friends. When they’re not friends I hate it. It upsets me”; so too a child who described the week-about arrangements (which both parents maintained for four and a half years) in these terms, “I feel giddy sometimes, back and forth, back and forth … I want to stay at one house …”.
Examples of the worry and concern that E shows for her parents can be seen, firstly, in Ms T’s report:
49.However, although her statements [about wanting to live with her mother] were clear, she was equally clear she would not tell her father what she wanted. Not because she was afraid of him, but rather, because she did not want to “upset him”. She said, “I love my Dad and I want you (meaning the writer) to tell him”. In my opinion, [E] is in a conflict of loyalties and under a great deal of pressure about this.
…
53.[E’s] emotional instability was certainly evidenced when the writer discussed [E’s] experiences of living in both parent’s homes with her. [E] framed all her responses to my question in terms of “safety”. She explained her father’s home was “scariest (because) at night in Dad’s house, I have a bed made of metal and when I move I am scared. I am worried a werewolf will come”. However, [E] also felt “scared” in her mother’s house too, however she said her mother’s house was “less scary (because) we have a police up the road and a fireman around the corner”.
54.It is important to note that, in this context, [E] did not make reference to her parent’s presence being reassuring (which is the expected response). In my opinion, both parents have contributed to [E’s] feeling insecure. Because of their respective behaviours (ie. [the mother] by throwing [E’s] clothes out and [the father] by putting her outside the house) and the negative impact on [E], I seriously cautioned both parents to identify and refrain from such behaviours in the future.
Both Ms T and Ms F described the joy and the open love displayed by E toward her siblings in each of her mother’s and father’s family. Ms F noticed in her first report that E was “very attentive to [D] ensuring that he was OK, as he was a little teary when he separated from his mother and father”. And, in her second report, Ms F describes E picking up her baby brother W and taking him over to her other brother D and introducing him. This speaks not only of a delightful little girl, but also of the quality of parenting E receives in each of her parents’ households.
Of concern is the fact that, when Ms F saw E in May 2010, she said to her that she was “… always worried at my Dad’s”. When Ms F enquired why, E said “I worry about my Mum and my little brothers, I have more little brothers with Mum”.
I note that Ms T, having said that “[E] is also subject to other anxieties which compounds her presentation” commented further that:
83.… I am concerned about the level of [E’s] anxiety about her mother. She perceives [her mother] is deeply unhappy at times and this distresses her. [E’s] exposure to too much information about her mother leaving [for South Australia] also causes her significant anxiety and this also has deeply impacted on [E].
There can be little doubt that E is missing her mother. E has said so. Her mother clearly says so and, indeed, the father said “[E] is so full of love for her mother and her little brothers and for me and her family here” and told Ms F that he believes that E wishes that her mother would come back to Brisbane and live here.
Again in Ms F’s November report there is reflected the troubling picture of E being worried about upsetting one parent or the other.
The father recounts a conversation with E the evening before the report interview. E said to him that “she can’t wait for this [dispute] to be over” and that she was “scared about talking to the Family Consultant, because she was scared that what she says will upset one parent”. So, too, E herself said to Ms F “I really want to live with my Mum but it worries me that it will upset Dad”.
I found the oral evidence of Ms F to be compelling and persuasive in respect of the emotional issues confronting E including, in particular, her opinion that a central issue for E was her profound sense of abandonment when her mother left Brisbane for South Australia.
Interestingly, Ms F also said that her strong opinion was the E was not “primarily attached to either parent”. One of the significant aspects of that is that if E had had a primary attachment she “could separate more easily”. It would also, she said, increase her self-confidence. In that respect it is interesting to observe E has had some difficulties at school, particularly with bullying.
Ms F said that the greatest assistance for E in dealing with this sense of abandonment, would emanate from both parents co-operating and engaging in “free and easy communication” and by supporting each other’s decisions (and E) in a co-operative way.
Applicable Principles
Best Interests: Objects, Principles and Considerations
Parenting orders, of whatever type, are driven by a determination of the best interests of the particular child or children who are the subject of the proceedings (ss 60CA; 60CB; 61DA(1) & (4) and 65DAA).
But, the Act makes it abundantly clear, and it reminds the Court numerous times in different places, that the essential exercise in making parenting orders is to have those orders best meet the best interests of the specific child or children's best interests relevant to their specific circumstances. Findings as to best interests underpin each of the specific matters to which the Court is directed by the Act. (See s 60CA and, more specifically, eg. s 60B(1);s 60B(2); s 60CA; s 61DA(4); s 65DAA(1)(a); s 65DAA(2)(c) and Note 1 to each of those latter two sections.
Ascertaining best interests by reference to the Act's mandatory signposts must embrace the fact that, "It is a mistake to think that there is always one right answer to the question of what the best interests of the child will require. Best interests are values not the facts." (CDJ v VAJ [1998] 197 CLR 172 219)
Further, the issue of best interests is not left at large. The path to a decision about that issue is signposted by a number of mandatory considerations. Some considerations are marked as having primacy, whilst others are “additional” (s 60CC).
“Best interests” is not the application of a theoretical construct but, rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child or children of this particular parenting relationship.
Importantly, analysis of the statutory considerations must also be consistent with the overall objectives of the Act (s 60B(1)). The statutory objectives are given light and shadow by the principles underlying them – which are also outlined in the Act (s 60B(2)). Together, they represent a number of obligations cast upon those responsible for the nurturing and care of children and rights enjoyed by those children accordingly.
The statutory Objects and Principles are unifying aims, but attempts to meet the Objects, and to accord with the Principles, will vary from parent to parent and child to child. The individual characteristics or idiosyncrasies of parents will invariably mark the parenting relationship.
Where parental conflict (particularly significant conflict) intervenes, differences in belief systems, personality, psychopathology, attitude and the like are thrown into sharp focus. The circumstances in which aims – statutory or otherwise – are satisfied, or not, must vary with the individual parents and children and with their particular circumstances.
Within that rubric, decisions about the best interests of an individual child, are given further statutory direction and specificity by further statutory requirements which:
·direct a court to presume that shared parental responsibility is in a child’s best interests (s 61DA(1)). The presumption is rebuttable (s 61DA(4)); and
·If parents are to share parental responsibility, require (s 65DAA(1)) the court to consider whether an equal time order is in the best interests of the children; and
·if not, require (s 65DAA(2) the court to consider whether a child spending “substantial and significant time” (as defined – s 65DAA(3)) with each parent is in the children’s best interests; and
·require the court to consider the extent to which parents have fulfilled their parenting obligations, particularly in the post-separation period (s 60CC(4) and (4A).
Each of the two requirements just referred to, relating to the amount of time children spend with their separated parents, is governed, in turn, by a consideration of not only whether either is in the children’s best interests but, also, whether each is “reasonably practicable” (s 65DAA).
The determination of “reasonable practicability” is, also, not left at large; s 65DAA(5) prescribes a (non-exhaustive) list of factors by which a conclusion about that matter might be reached.
In MRR v GR (2010) 263 ALR 368, the High Court held (at par 13) that, “… the making of an order can only be considered if the findings mentioned [i.e. the findings in each of s 65DAA(1) and (2)] are made”. The High Court stressed that this Court’s power to make parenting orders is “…conditioned [on those findings] much as it is where a jurisdictional fact must be proved to exist”.
Significantly, as it respectfully seems to me, the High Court went on to hold:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible …
Of course, those considerations only apply where s 65DAA is activated which, as its opening words specify, is “[i]f a parenting order provides or is to provide that a child’s parents are to have equal shared parental responsibility for the child …”.
Ultimately, the court must bring a consideration of all of the statutory matters to a practical and enforceable conclusion in the individual circumstances of conflicted parents who, by definition, cannot agree sufficiently to do so themselves.
Parental Responsibility
Because I am to make a parenting order, the Act consequently requires that I apply a presumption that it is in E’s best interests for her parents to have equal shared parental responsibility for her.
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that (relevantly) it is in E’s bests interests for that presumption to be rebutted. The heading to s 60CC indicates that it is that section that is directed to “How a Court Determines What is in a Child’s Best Interests”. It is the only section that refers to how that central requirement is determined.
Findings about best interests, and, thus, findings about the s 60CC considerations are, then, required in order to come to a conclusion (relevantly) as to whether the presumption is rebutted. Within that context, an additional consideration (s 60CC(3)(m)) also, in my view, emerges.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the court orders, each of the father and mother has parental responsibility for E. A parenting order does not derogate from that save as is expressly ordered. But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.
Not only is that phrase not defined, but it might be thought to involve a concept different from that which guides the practicalities of co-parenting of children in either intact families, or in separated families where high levels of co‑operation, respect and agreement attend consensual post-separation co‑parenting arrangements. In those situations, there can be little doubt that, appropriately, parties share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, important aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.
The Act (s 65DAC) makes it clear that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
“Major long-term issues” is defined (s 4) as follows:
major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e) changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The Full Court held in Chappell and Chappell [2008] Fam CAFC 143:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself. [Emphasis in original]
A finding that the parties are incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility (s 65DAC) is a highly relevant matter in determining whether the best interests of E require the presumption to be rebutted in this case.
In this case, the family consultant, Ms F, recommends, in effect, an order for what is sometimes referred to as “sole parental responsibility”. The father seeks an order which provides for a mandatory process of consultation about major long-term issues, but which, in the event of disagreement, gives the final say to him.
An order for “sole parental responsibility”, or something akin to it, suggests (at least arguably by reference to the various statutory definitions, and lack of definition) that the other party has no rights, responsibilities and authority in respect of “major long term issues”. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE. See the discussion in Chappell, above, in respect of possible issues emanating from the distinction).
The exercise of discretion in favour of excluding one parent from consultation and decision making in respect of major long-term issues for their child (or providing an effective “veto” to one parent in respect of those issues) is, it seems to me, a significant step, being a very serious interference with the rights of a parent that might be seen to be, in a free democracy, fundamental to a parent who is not said to have abused or harmed their child.
There is no doubt that the exercise of the discretion under discussion ought be resolved in favour of an outcome which is determined to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate (and arguably fundamental) rights of a parent are irrelevant. (See, in a different context, AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
As it seems to me, a decision about parental responsibility and, specifically about whether the statutory presumption of equal shared parental responsibility is rebutted by reason of “best interests”, involves the balancing of the considerations just referred to, always bearing in mind that E’s best interests, in the particular circumstances in which she finds herself, is the ultimate criterion.
As pointed out in Chappell, above, one outcome of the specific application of those principles and considerations might be, for example, the enumeration of aspects of parental responsibility that will be shared (including equally) and those which are not. Or, as noted above, an outcome might be, for example, to leave an ultimate decision or decisions to a party, but to make provision for formal input into any such decision by the other party.
The suggestion by the father that this is what should occur in this case, and the contrary assertion by the mother that the parties should share equally parental responsibility, is a central issue that needs to be determined in this case.
Meaningful Relationship
In McCall & Clark [2009] FamCAFC 92, the Full Court approved a statement of Bennett J in G v C [2006] FamCA 994 to the effect that the notion of “meaningful relationship”, as used in s 60CC, required a court to “evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.
The Full Court held that “the court should consider and weigh the evidence at the date of the hearing to determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents …” (at par 118).
That accepted, it also needs to be borne in mind that “… what the legislation aspires to promote is a meaningful relationship, not an optimal relationship” (per Kay J, Godfrey v Sanders [2007] FamCA 102).
In Mazorski v Albright ([2007] FamCA 520), Brown J held:-
The provisions in the Act relating to children rest on two pillars. The first is the importance to children of having a meaningful relationship with both parents, the second is the need to protect children from physical and psychological harm. These are stressed in s 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC.”
…
What these [dictionary] definitions convey is that “meaningful” when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary consideration and the application of the object in principles, 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. Quantitative concepts may be addressed as part of the process of considering the consequences of the application the presumption of [equally] shared parental responsibility and the requirement the time with the children to be, where possible and in their best interests, substantial and significant.
I respectfully agree, noting her Honour’s use of the word “strictly”. (See, too, Mulvany and Lane [2009] FamCAFC 76 per May & Thackray JJ. Note also the judgment of Nygh J in Cotton v Cotton (1983) FLC 91-310 @ 78,252. His Honour discussed the notion of the “meaningfulness” of a relationship more than 20 years before its inclusion in the Act).
Of course, whilst this specific Consideration, contained in s 60CC(2)(a), “should be accorded particular importance in determining what order will best promote the interests of the child” and is “of the utmost importance … in determining [that] outcome…”, it is necessary to “…take into account all of the relevant considerations identified in the legislation, giving each of them such weight as … thought appropriate…”. (Marsden and Winch (No. 3) [2007] FamCA 1364 per Warnick & Thackray JJ @ par 77).
The Child’s “Views”
In my view, the voices of children should be heard in parenting proceedings about them. How those voices might be heard in a manner consistent with protecting them from their parents’ dispute, and otherwise ensuring their emotional wellbeing and the weight to be accorded them, is each, of course, a different matter.
Here, each of the parties contend that significant regard should be had to E’s views. Closer analysis of their assertions, however, reveal, as it seems to me, that the parties assert that regard should be had to E’s “wishes” in the sense of her expressing a preference for a parent with whom she would prefer to live.
It is in my view noteworthy that, in the Reform Act, the legislature chose to replace the expression children’s “wishes” (s 68F(2) of the previous Act) with the expression children’s “views” (s 60CC(3)(a)). I consider the use by the legislature of the term “views” to envisage a much broader concept than that embodied by simply asking a child (even a child of mature years) what he or she might desire by way of a specific outcome (or outcomes) to proceedings.
In particular, I consider that the “views” of children (particularly when seen in combination with other “Additional Considerations” contained in s 60CC) encompass a range of issues including the psychological foundation for those views, or how any such expressed views might be reflective of, for example, attachment to either or both parents and the child’s relationship with each. The factors that might be at play (or have been at play) in forming the views of the children also have the potential to say a considerable amount about many of the Additional Considerations relevant to the children.
Ms F gave evidence which I accept and which I consider valuable in attempting to ascertain E’s best interests in respect of this issue. That evidence, which I will refer to in detail below, reflects some of what I have just said.
The Act specifically refers to a child’s “maturity” as one of the factors which need to be considered in examining a child’s views. E is but 8½ years old. The views she expressed to Ms F (and earlier to Ms T) were the views of a child even younger than that. That fact is very important in assessing, and giving appropriate weight to, the Additional Consideration referred to in s 60CC(3)(a).
Best Interests – Issues and Findings
Meaningful Relationship
The first of the Primary Considerations can, I think, be readily dealt with.
It is patent that E would benefit from a meaningful relationship with each of her parents. It is equally patent that, all else being equal, that would be manifested in E spending significant amounts of regular time with each of her parents and, further, having each of her parents share in her day to day triumphs and failures; joys and sadness and her day to day activities and interests.
Indeed, Ms F says in her most recent report:
38.Had [the mother] remained living in Queensland, and I was required to provide a family report and given [E’s] predicament as identified in my Issues Assessment I would have been minded to recommend a parenting arrangement that saw [E] living predominantly in one parental household and spending substantial and significant time in the other household, such as a 9 days/5 days split. Whilst this would not have necessarily compelled the parents to improve their communication and co-parenting practices, it may have alleviated some of the “to-ing and fro-ing” that many children complain of when they are in an equal shared parenting time regime.
The reality for E is, however, that her mother lives in South Australia and intends to remain there; her father is in Brisbane and intends to remain here. The meaningfulness of the relationship between E and each of her parents will, then, insofar as time, at least, is concerned, be bounded by that significant feature.
That very same feature means, of course, that it is not reasonably practicable for E to spend either equal time or substantial and significant time (as that expression is defined in the Act) with the parent with whom she is not predominantly residing.
In this case, as in so many parenting cases, the desire by each of the parents to have their child living predominantly with them in circumstances where a significant geographical distance separates them, is not surrounded by proposals which might make the resulting situation for the child more tolerable and which might add meaning to such “meaningful relationship” as can be facilitated given the central difficulty which the geographical situation provokes.
For example, whilst it is not remotely suggested that the face to face experience of a child’s joy or the experience of a child’s hug can be replaced by technology, it nevertheless now provides a means by which “real time” communication can take place so that a physical relationship restricted by geographic distance, at least can be attended by communications which have both visual and audio elements. Neither party puts forward any concrete proposals amongst the orders sought by them for communication by means such as “Skype”; Facebook, Twitter or the like.
Risks
As earlier referred to, the mother filed, on 23 September 2009, a Notice of Child Abuse. That document was not read by her, but was tendered by the father consequent upon cross-examination of the mother in respect of it.
That form includes within it the Statutory definition of “abuse”, and the instructions for completing the form (at Part E) require a party to “carefully read the definition of abuse” before completing the document. Question 6 of the document requires a description of “any acts or omissions that you allege constitute abuse”. The definition of “abuse” refers to “an assault, including a sexual assault” or, “a person involving a child in sexual activity”.
In completing Question 6, the mother set out the following:
1.[E] told me that [Mr Capris] ([E’s] father) “rubbed” Bepanthen onto her “pisha” (the Croatian equivalent of vagina) and did so every night when she stayed at [the father’s] home. I told her that no one should be touching her pisha and called [the father] who became very aggressive on the telephone about the topic. He warned me that he didn’t like what I was implying and I said to him that if he didn’t like what I was saying then he knew it was wrong to be doing it.
2.I took [E] to the doctors who examined her and said that she “appeared” not to have been penetrated but that unless she had a very recent injury or trauma she would not be able to tell. The doctor explained to [E] that no one should be touching her private parts and that she is old enough to put a cream like canasten on if necessary for thrush. She also said that it would be highly unlikely for a child [E’s] age to have thrush. [E] told me that her father was putting Bepanthen on nearly every night she spent during her week at her father’s house.
3.I put [E] into the bath on 7 September 2008 and she asked me to come in and look at something. When I came in she was squatting and asked me what the hole was in her “pisha” and was that normal. I didn’t know what to say and paused long enough for [E] to ask “is that where your pee comes from?” to which I said yes. I asked if anyone else had seen that hole and she said “well I’m not going to run around showing people but Daddy and [Ms S] have seen it”. I said to her that she was normal and she shouldn’t be showing ANYONE her private parts. She said that [Ms S] had told her that her pisha wasn’t normal when bathing her.
4.During breastfeeding of my then infant son [R] in mid 2008, [E] asked to suck on my “boobie” and I was shocked and said no. She responded with telling me that [Ms S] had let her suck on her boobies. I telephoned [the father] about the matter as I consider this to be completely inappropriate even for an older child in the same family, yet alone a child not your own and he simply laughed if off. Since Court proceedings began [E] told me that her father has said to her that she had to “forget about it”.
5.[The father] has administered adult medications, painkillers, syrups, creams and “natural” products to [E] without the advice of a GP.
Under cross-examination, the mother sought to suggest that, despite what was contained in that document, her assertion was that the use of “Bepanthen” cream was “inappropriate” in the sense that it was cream designed to be used on babies and not on a child of E’s age. As I have earlier said, it seems plain to me that, in doing so, the mother was seeking to “climb down” from what, earlier, was said by her to be impropriety – including, in particular, impropriety of a sexual nature.
The mother’s attempt to distinguish “inappropriate” use of the cream in the manner indicated in the witness box, sits ill with taking E to a doctor and an indication post-examination that “she ‘appeared’ not to have been penetrated”… (para 2 of the Notice), or indeed, with the tenor of the answers to Question 6 as a whole.
Whatever be her then views or beliefs, the mother now disclaims any belief that the father poses any form of risk of sexual harm to E. The mother accepted – as indeed, it seems to me she must – that, as a loving, caring mother she would not have left E in the care of her father and moved a significant geographic distance from her, if she considered E to be at risk in her father’s care.
Together with the other matters raised earlier by me, the filing of this document can hardly have assisted in the development of a harmonious co-parenting relationship. It is difficult to imagine many things more serious than an allegation of sexual impropriety towards one’s daughter. The father’s anger and upset is, in my view, understandable.
It is suggested that findings adverse to the mother – perhaps in respect of parental “capacity” or “the responsibilities of parenting” – can be made by reason of the filing of this document. That is particularly so, it is said, because the allegations were raised by the mother in the context of what had then been a lengthy “week about” parenting arrangement, but where the mother desired to move to South Australia with E. The father says that suspicion should attend the genesis of the allegations contained in the Notice.
It is troubling that within about five months of the Notice being filed, the mother was (consequent upon a decision by this Court) prepared to move a significant distance from the father and leave E in his care. No specific findings are sought that the mother made the accusations contained in the Notice of Abuse falsely or that she did not believe them (or their implications) when made. Suggestions to that effect hang over the father’s evidence and so much is, in my view, understandable from his perspective.
However, as it seems, his counsel’s submissions properly reflect, the evidence in my view falls a long way short of that which would be required to make findings as serious as those just referred to.
E’s Views
In March 2009, Ms T said “that [the then 7-year-old] [E] is expressing a clear, consistent wish to live with her mother and visit her father”. But, E’s expressed views expressed in that way had a context. Some of the context has already been referred to, including that those views were expressed at a time when E was alternating between her parents’ households and the mother was contemplating a move to South Australia.
Additional context emerges from Ms T’s opinion that E’s wishes “appear to have been contaminated”. Ms T goes on to say:
58.Whist [E] is strongly attached to both parents, she has expressed a consistent wish to live with her mother. In further discussion with her about this, [E] described her being more approachable and identified her as the one who “listens” and helps her when needed. She went on to describe her mother assisting her resolve a problem with bullying at school. After telling [the mother] about other children demanding money from her, she said her mother visited the school and told the teachers. The bullying then stopped. When [E] told her father, she said he told her to “forget about it”.
59.[E] also described her parent’s fairly different parenting styles. She perceives she has “more fun” at her mother’s place because she does not have to do as much work there. She described her father much stricter in this regard, making her tidy up all her toys and assisting she pay attention to her manners.
60.However, [E] also perceives her mother as “unhappiest” and [E] worries about this. “I want her to be happy. She’s unhappy sometimes when bad things hurt her feelings. She should enjoy life”. [E] also wished her father to be happy and added as an afterthought, “I wish he would stop smoking. He’s addicted”.
E’s expressed wishes – in the sense of apparently expressing a preference – some 18 months later when seen by Ms F have already been referred to. Those comments are reinforced by what Ms F reports at paragraph 34 of her most recent report:-
34.[E] asked that when I write to the judge, that I make sure that the judge and her father know that; “I love Dad lots, but I really want to live with Mum. I don’t want to hurt Dad’s feelings and I don’t want him to be mad at me.”
Yet, E’s loyalty to, and love for, each of her parents, and her grief at their separation and desire to have each of them close to her, is expressed in the conclusion to the paragraph just quoted:
… She also recounted that her father had told her that he didn’t mind who she lived with because she would always be with him in his heart. She further recounted that her mother had told her that she did not mind who she lived with as long as she was happy. [E] then stated; “Neither of them want me to be unhappy, but I am and they just don’t understand.”
A little earlier, Ms F records E as follows:
32.[E] stated; “[the father’s partner] [Ms S] told me that Dad will die when he’s 60. A fortune teller told her this…What if this is true and I’m not living with him.” [E] also reported that her stepmother and grandmother had told her that she was fat. She then asked me whether I thought she was fat. Clearly this issue is troubling her, regardless of who may be raising it with her.
33.[E] reported that she is scared at her father’s because; “He works night shift and [Ms S] is really mean to me when Dad is not around…she tells my Dad on me for things that I don’t really do.” She then sighed and asked; “What will I do if I have to live with my Dad?” [E] was then asked what she thought she would do if she had to continue to live with her father; she replied; “I will be really really sad.”
The father produced on the morning of the trial – for the first time – a document which became Ex F1. It was typed by his partner from (the second draft of) handwritten notes made by the father. It records events on the day prior to Ms F’s second report (20 October 2010); the day of those interviews; “the next few days after that”; “that same weekend” (presumably 23/24 October) and, finally, 29 October 2010.
That document:
·has E telling her father she was scared about the report interviews the following day, saying that Ms F would “ask me hard questions”. The father said, he said that she would not, and E replied “yes she will ask me where I want to live”.
·The father said he assured E and goes on to say that “[E] was very upset that she will upset one of the parents”.
·On 21 October driving back from the report interviews, E said “Daddy can I tell you something, but you have to promise that you will won’t be upset… Daddy I told that lady I want to live with my Mum”. The father says that E then asked him “you are not upset are you”. The father again reassured E.
·“That same weekend” E asked to speak to the father in private. She appeared upset and when asked what was wrong she started crying and said “daddy I think I’ve made the biggest mistake of my life and I’ve ruined my life”. When asked why she said “Daddy I want to live with you and I want to see that lady again”. The father told her not to worry and E said “Daddy I really want to live with you, I had to tell that lady that I want to live with my mum because mum told me if I don’t we won’t have a relationship and everything will change”.
·On Friday 29 October while watching a movie, E “out of the blue” asked her father “Daddy did you love my mum”. When asked why E said “when I asked my mum ‘did you love my Daddy’, she told me she did not love you, she just used you”.
·On 8 November, after a phone call with the mother the father says that “[E] started playing up and did not want to go to bed”. When put to bed “she started crying, ‘Daddy I am scared what will happen in Court’.”
The mother asserted in the witness box that she considered the document was “a stunt” by the father; she thought it was “completely and utterly fabricated”. She later appeared (somewhat unconvincingly I thought) to want to climb down from that somewhat. The father’s explanation for the late arrival of the document as evidence, I also found somewhat unconvincing.
The position of each of the parties – that is the father in introducing the document and the mother’s reaction to it – is in my view ironic in two respects. First, each of the parties took what might be seen to be a polarised position which, as I saw it, had as its focus upon the other party and his or her alleged actions and motivations. Secondly, and related to the first, the document, again as I see it, in fact, says nothing new. It highlights the (in my view) wholly unsurprising circumstance that this little girl still has the same emotional “themes” as she appears to always have had; she remains worried; she desperately loves each parent; she desperately wants to please each of her parents and doesn’t know what she should do to eliminate the worry, to please either of them or to effect the “best outcome”.
I remain very concerned that those most recent statements by E are yet more evidence of a worried and anxious little girl, who is concerned more for each of her parents than for herself.
Two trained professionals have implored the parents to look beyond their individual horizons; neither, it seems, can do so.
The conclusions I reach about E’s views (and preferences) are these:-
·She very much desires to please each parent, and to “win the love” of each of them;
·She worries about hurting or disappointing each; she wants to spend lots of her time, and share her life, with each parent and, preferably, with them both together, but realises the latter will not occur;
·She is a fairly world-wise 8½ year old but I consider her expressed preference for person or place to be based on insufficient maturity to allow a realistic assessment to be made by her of what it will mean day to day;
·Her “wishes” are an unsafe basis from which to inform a preference in that respect;
·Her desire to live with her mother is constant and consistent. I consider it genuine – that is, in the sense of freely expressed and heartfelt. However, I consider that the desire may say as much about E’s perception of her mother’s underlying needs as it does about her (E’s) needs;
·I agree with Ms F that E’s “criticisms” of her stepmother are “… not surprisingly... reflective of her not sharing the same level of intimacy and connection with her stepmother as she does with her mother”;
·The fact that Mr L does not feature in E’s comments is, I strongly suspect, indicative of (a) the nature of the relationship between E and him and (b) the fact that, on the other hand, Ms S has been a day to day presence in E’s life for the past eight or nine months.
I propose to attach significant weight to E’s views (and “preferences”); those views are in my opinion a very important consideration. I do not, however, consider those views either to be effectively a safe basis for attributing a preference for person or place or, to be determinative of the ultimate issue before me.
Attachment and abandonment
As has been seen, a central theme of Ms F’s evidence is her opinion that E is experiencing a sense of abandonment resulting from the mother’s departure to South Australia. I accept that opinion and myself regard it as very important in attempting to arrive at arrangements that best meet E’s best interests.
It is important to understand that the word “abandonment” is not used in any pejorative sense as a description of the mother’s decision; nor to suggest that her reasons for moving to South Australia are under scrutiny (or that they should be). Rather, the expression is used to describe E’s perceived emotional state and to place that at the centre of the decision to be made.
An additional central plank of Ms F’s evidence is that E does not have a primary attachment to either of her parents. I also accept this assessment. Ms F says that this feature makes it more difficult for E to separate from each parent; something which, in my view, manifests itself in the parties’ evidence about E’s reaction pre and post periods of time spent with the mother.
Each of the parties, it would appear, accept each of those central planks of Ms F’s evidence, but contend for differing outcomes as a result.
Before dealing with those, it is imperative to point out the result that Ms F (and I) consider provides the true best outcome for E. Ms F’s evidence in that respect has been alluded to earlier. Her evidence was very clear and I accept it. It bears repeating:
What [E] needs is for her parents to cooperate meaningfully; for there to be “free and easy” communication between the parents and between [E] and each of them; they each need to support actively the parenting of the other and there needs to be significant one-on-one time with each parent.
Geographical separation makes the last difficult physically; the parties’ personalities and attitudes, if the past is any guide as I believe it to be, would appear to prohibit the other matters occurring.
The mother contends that E’s sense of abandonment and the establishment of a primary attachment can best be dealt with by her being available full-time to care for E. She contends that each of the father and his partner are remuneratively employed and there are care needs for E resulting therefrom. The mother says that she would be available full-time and this would assist E significantly in dealing with the issues just described. The mother also asserts that she is now more settled and E would be with her grandparents and extended family in a relatively small, rural environment with a number of significant benefits for E as a result.
A sense of abandonment, then, is asserted by the mother to be dealt with, by allowing E to experience not being abandoned, by her mother being available to her full-time as she has plainly said she wishes should occur.
The father says that E would experience an equal sense of abandonment if she left the care of the father (even if by a Court order as distinct from his volition). That is, it is asserted that one doesn’t “cure” the sense of abandonment by replacing the absence of one parent by the absence of the other. So, too, the lack of a primary attachment figure is not “cured” by doing so; indeed it may even exacerbate the problem because E has achieved a measure of stability (albeit in the shadow of these proceedings which plainly affect her) whilst living with her father and his partner and E’s younger brother.
In my judgment, the proposals of neither party necessarily better address these central needs of E as identified by Ms F.
In addition, I am concerned, as I have earlier said, about the statements (or “views”) expressed by E reflecting a level of worry or anxiety on her part for her parents. Primarily, they are concerns, as expressed, about the mother’s wellbeing, but, much more likely in my view, they are concerns about the “more absent” parent: “If I say I want to live with mum, how will it affect (the absent parent) dad” and vice versa.
That an 8½ year old child should not bear these burdens goes without saying. But, in s 60CC(3) terms, I do not assess either parent, in terms of their “capacity” or “the responsibilities of parenthood” as being able to provide E with a more solid bulwark to these feelings. Nor do I assess “the nature of the relationship” that E has “with each of [her] parents” to be such that a predominant placement with one is better than the other, in terms of E being able to deal with this issue.
Stability and Change
The mother moved to South Australia in late February 2010. At that time, she and her partner, Mr L had two very young children, aged two and two months. The mother’s partner did not, though, join her in South Australia. He travelled to South Australia some six months later (that is, about 10 to 12 weeks or so before the trial). Thus, the mother was, effectively, a sole parent of two very young children for about six months, during which time E also spent time with them in South Australia.
The father questions whether the time period referred to was, in fact, a separation between the mother and Mr L. That question is raised primarily, I gather, because of the following passage from a report from the mother’s treating psychologist, which was not read in the mother’s case but which became Ex F2. The report is dated 26 October 2010 and contained within it is the following:
A focus of the current psychology sessions with [the mother] has been the establishment of her new life with her two young sons on the Yorke Peninsula. Throughout the sessions to date, [the mother] has consistently reported day-to-day decisions based on the needs of her sons. Her move to South Australia to live near her family appears strongly motivated by her desire to provide a stable and supportive environment for both herself and all her children, including [E]. [The mother] indicated it was “hard” making a move to live by herself without a partner to co-parent, but she made a commitment to providing the best possible environment for her family. As part of that goal, [the mother] recognised that she had begun to value her independence that allowed her to make the best choices for her family.
As I said to counsel during the course of the trial, I do not consider that the paragraph is necessarily indicative of a separation (despite, for example, the reference to living “by herself without a partner”). The report, in the absence of cross-examination of its author, can in my view be read as equally consistent with the mother’s evidence that her partner remained behind in Queensland until an employment opportunity arose in South Australia.
What is, though, more significant as I see it, is that the referral to the psychologist was, in the first place, initiated by the mother’s general practitioner “as part of her Mental Health Care Plan” dated 13 April 2010, which indicated that “[the mother] requires assistance in coping with issues relating to Court case”. The picture is of a mother who was (understandably enough) very stressed and experiencing significant difficulties as a result. This strikes me as unsurprising. The mother’s partner and her child remained in Queensland and she was, effectively, the sole parent of two very tiny children in an environment which, although she had grown up in, was nevertheless new to both her and the children. It involved the re-establishment of a number of relationships on a day-to-day basis. On top of that, there was the very considerable stress of litigation in this Court.
The psychologist was of the view, however, that the mother “did not present as clinically depressed or anxious” and there were “no cognitive problems evident and [the mother] was a thoughtful personal historian who evidenced a good ability to reflect on her past and relate that to her current and future circumstances.” The report goes on:
She was keen to address some of her past relationship issues in order to understand her relationships better and avoid the problems of the past. [The mother] indicated she was also experiencing a measure of unresolved grief in regard to her father’s current illness with cancer, and she was hoping to have the opportunity to express some of those feelings in a therapeutic environment.
The first of the matters addressed in the passage just quoted is a matter also raised by the husband. It can be seen exemplified in a Case Outline filed on his behalf on 1 November 2010. That document sets out (from June 2005) a series of alleged relationships had by the mother. As I read it, only one is alleged to involve a co-habitation with a person (for approximately two months).
Interestingly, however, what is missing from that same outline is any reference to that which is referred to in the report of Ms T (whose report the father relies upon). Ms T reports of the mother and father continuing a relationship post-separation. The mother described it to Ms T as the father
… not really wanting to have a “real relationship” with her, yet also being unable to let her go so that she could have another relationship with someone else. [The mother] said the situation continued on after [the father] began his relationship with Ms [S].
Indeed, the report goes on to give Ms S’s view:
36.Ms [S] is philosophical about [the mother] and [the father’s] “affair” which continued well after she and [the father] began their relationship in April 2007. Having been friends for years, to the extent that [the mother] shared her personal problems, Ms [S] found out when [E] told her in April 2008. This was later confirmed in a phone conversation with [the mother]. She believes “both are to blame” and while she said she will never forget, she has “moved on” and does not hold any grudges about it. She said she continues to respect [the mother] as [E’s] mother. Describing the episode as “it’s buried. It’s past. …”
The allegations by the father about instability and interpersonal relationships sit, as a result, a little ill with me. Indeed, I am left to wonder about the role that this “relationship” (which involved two consenting adults who were the parents of a young child) played in feelings currently experienced by E to which earlier reference has been made. It seems to me highly likely that this “enmeshed relationship” (as Ms T describes it) is hardly likely to have assisted a young child whose parents have, apparently, separated and all that implies for a child.
The report from the mother’s psychologist refers to something which, I would have thought, was, in any event, predictable: that “it was hard making the move to live by herself without a partner to co-parent…”. Her partner and the father of her two young children was in Queensland and, I would have thought, more importantly, so was her young daughter.
Mr L’s absence from the proceedings in either affidavit or personal form is both puzzling and troubling. He is not a deponent in the mother’s case (despite participating in the home visit by Ms T in January 2009 and in interviews with Ms F a few weeks prior to the trial). Equally puzzling and troubling is the fact that the mother’s primary trial affidavit (and, too, her reply affidavit) – although speaking of her home town in South Australia, friends, family, schools and the like – makes not a single mention of Mr L. Nor, save to depose (par 53) as to what occurred previously in Brisbane, is Mr L’s child, Y mentioned in the affidavit. The latter is significant because he was a member of the mother’s household before (as emerged in the witness box) returning to his mother’s care in Victoria.
The mother’s affidavit was sworn on 14 October 2010, a week before Mr L and the mother saw Ms F and only a month or so prior to the trial. The mother does not depose to any facts that describe the situation in her home, insofar as they relate, or might relate, to Mr L, despite deposing to many facts about matters external to the household and persons (including extended family) within that external environment.
What results is the absence of an account about the family environment and dynamics constituted by the mother, Mr L and two tiny children, when, on the mother’s proposal, E is to be introduced into it. That might be seen to be particularly important given that there was an absence by Mr L for six months or so, (at an important and difficult time for the mother) and where, as emerges from Ms F’s report, day to day absence from the mooted environment will continue:
26.[The mother] confirmed that her partner [Mr L] is working for […] (a Construction Company) in Adelaide. He has a permanent position with them, and thus works up in Adelaide during the week and spends weekends in [D] with her and their sons. She stated that he is very happy in his job, and this arrangement seems to be working out for them.
Of course, it needs to be appreciated that, at the time of the interview for that report, Mr L had only been in that employment for a period of about six weeks or so. The mother confirmed in the witness box that the arrangement referred to by Ms F pertained, although she indicated that, depending on the time at which work was completed by Mr L, he would sometimes drive back to D during the week. (D is, apparently, about 1.5 hours drive from Adelaide where Mr L works.)
Counsel for the father suggested that the unexplained absence of an affidavit by Mr L is sufficient to found a Brown v Dunn (1893) 6 R 67 (HL) inference. I would prefer to say, in the Division 12A environment, that the absence of a first-hand account of important matters relating to the mooted day-to-day household and care arrangements for E within a family constellation in a new physical environment is a significant omission. It gives rise to concerns on my part about the stability of the relationship between the mother and Mr L and leaves the Court with a significantly less-than-complete picture of the day-to-day environment which E would be entering if orders were made for her to live with the mother.
The events leading up to the trial are also relied upon, in part, to found a concern by the father about the mother’s stability.
On 25 February 2010, the parties (each represented by the same counsel representing them in the ultimate trial before me) appeared at a time when consent orders were made. At that time, Mr Baston, counsel for the mother indicated to the Court that:
… my client no longer pursues an application that the child primarily reside with her. She wishes – and is in the process of relocating to Adelaide. And we are largely, if not – largely in agreement about what time my client ought spend with the child, but not in agreement. We would think if your Honour could provide us – soon rather than later – with half a day or a day to determine that issue, it would then take this matter out of your Honour’s list.
Counsel went on to say that:
As best I can tell you, the extent of the disagreement between us, without revealing too much [of settlement negotiations] ... is the split up of the school holidays – whether X weeks over Y weeks. And the circumstances in respect of some mid-term contact …
Ultimately, as will be clear, the mother’s position changed from that which has just been outlined.
I am not persuaded that I should draw any particular inference - whether about stability or otherwise - from that circumstance. The mother gave evidence in the witness box, which I accept, that she “missed her baby” (a reference to E) and I have earlier referred to the contents of her psychologist’s report and to what I consider to be unsurprising aspects of the stress under which the mother found herself when that decision was made in February 2010.
Ultimate Findings and Orders
There is, in my judgment, no doubt about two central findings that inform an ultimate judgment about E’s best interests.
The first is that each of her parents need to obtain whatever professional assistance that is needed and to muster their respective emotional resources to bring their endless dispute to an end so as to co-parent in a co-operative, unified way. Secondly, as E matures into a young woman, it will in my view be necessary to recognise that her views, too, will mature as will the reasons for those views. Respect will need to be given to them if E is to reach her true potential.
Regrettably for E, I consider the former highly unlikely in the short or medium term. I sincerely hope I am wrong. I am also pessimistic about the latter; I hope I am wrong about that also.
Even more regrettably for E, as a result of an absence of agreement by her parents, a decision about with whom she lives, and how decisions about her ought be made, will be left to someone who is a stranger to her. Such is the nature of parenting decisions by a court.
I have earlier made findings about each of the Act’s two Primary Considerations and the important issue of E’s views. I have also earlier made findings about a number of the Act’s other Additional Considerations, in the context of the central issues in this case which emanate from the concerns I have about E’s emotional state and current level of functioning.
I turn now to the conclusions reached about how those findings should find reflection in Orders that best meet E’s best interests.
Parental Responsibility
The current level of dysfunction in the parental relationship, the nature and longevity of the conflict between the parents (which emerged even during the trial in respect of Exhibit F1) and the fact that I find it difficult to discern any evidence that would persuade me of optimism for the future, combine to inform a conclusion that these parents have little if any prospect of engaging in the nature and level of communication required of people who are to share parental responsibility.
The triumph of hope over expectation might give rise to a different conclusion, particularly in light of the additional considerations I consider to be relevant to a decision about parental responsibility earlier discussed. Ms F’s recommendation for an order for “sole parental responsibility” can be seen to reflect the matters giving rise to pessimism earlier discussed (she asked rhetorically “how many more chances should these parents get?”).
The father seeks orders similar to those I made in Carlson and Ors & Bowden [2010] FamCA 432. Ultimately, I consider orders of that type – according, after a compulsory process of consultation, the ultimate decision to the parent with whom E is ordered to live – to be in E’s best interests.
Put in terms required by the Act, I consider that the presumption of equal shared parental responsibility is rebutted in E’s best interests. I consider that the conflict between these parents is highly likely to regularly invade decisions about “major long term issues” for E, and, as the earlier discussion will, I think, make clear, that conflict has an on-going significant detrimental effect on E.
That order has the effect that the mandatory process provided for by s 65DAA does not apply – to use the words of the Full Court in Goode v Goode, the “issue of best interests is at large”. There is no necessity to consider s 65DAA in the manner outlined by the High Court in MRR v GR, above.
In any event, it might be observed that the practical reality of the parties’ positions precludes an order being made for either equal time or substantial and significant time within the meaning of the Act.
Live With and Time
As will already be clear from the earlier discussion, although I consider that the issues central to a determination of E’s best interests can be identified and referenced to the statutory Considerations, I do not consider that clear ultimate findings about the orders which best reflect E’s best interests emerge. While the enquiry into best interests remains – as it always has been (see eg. Jurss & Jurss (1976) 9 ALR 455), here the result of the process required by the Act results in, as Ms F put it, a decision about the “least worst alternative”.
I consider the evidence reveals the mother to be an anxious person with somewhat emotionally compromised and unsettled past. I consider her move to South Australia which, as a result of the interim decision made by me, meant leaving E in Queensland with her father, is indicative of a need for regular and close emotional support from her family. That, of course, is perfectly understandable on one level. But, a resultant consequence was separation from E and, thereafter, the contemplation of effecting an agreement giving effect to that in final orders. That, together with what is revealed from the mother herself and her psychologists report earlier referred to, speaks to me of a needy and dependant mother.
That does not seek to condemn an otherwise loving mother who plainly loves E dearly and cares for her appropriately. But, it does raise for me real concerns about the stability that might be offered to E within a new family environment that would consist of:
· a needy and somewhat emotionally fragile mother with two very young children to care for;
· E coping with change to a new place, school and day to day family environment; and
· a partner who is absent for the vast majority of the day to day parenting time.
In light of the issues raised by Ms F and earlier discussed relating to abandonment and the erstwhile non-establishment of a primary attachment, I think E will have difficulty coping with the final decision of this court. I consider that leaving her in the day to day care of her father exposes her to the least change and greater level of current stability. I consider each to be extremely important for E as she adjusts to a final order being made about with whom she is to live.
It will be obvious from all that I have earlier said that I consider that E should spend as much time with her mother as the practicalities of life and geography will permit. But, it should also be obvious to loving, caring parents that the practicalities of a yet young child’s life are built around the need for stability and predictability, and around the promotion of routines that form the emotional touchstones for a growing child.
The proposals for time by each of the parties for the other are similar. Each provided for time outside of school holidays centred on certain long weekends and the like. I consider, consistent with the findings earlier made, that this time should be slightly longer than what is proposed to account for flying and some settling in. I consider the benefit of seeing her mother outweighs any possible detriment of missing the odd day of school.
It is vital to observe that the orders for time are preceded by the recognition that it is always possible for parties to agree upon arrangements.
It might be thought interesting that each party suggests the other should pay for E’s flights to the other should she live with them. It might be noted that among the Act’s Principles is that parents share duties and responsibilities for children.
Given what has earlier been referred to about E’s fundamental need to see each of her parents co-operating and working together in her best interests and given that, in any event, it seems to me fundamentally important that children receive tacit acknowledgement from each of their parents that they each support and promote, in practice as well as theory, the continuation of a meaningful relationship with each of them, it seems to me vital that the parents share the expenses associated with her seeing each of her parents.
Each party seeks that the other comply with restrictions on the times when planes can depart and land in their respective cities. I can take notice, as it seems to me (s 144 Evidence Act 1995 (Cth)) that flights between Brisbane and Adelaide are not as frequent as between the eastern seaboard cities and, further arranging flights, particularly at school holiday times can be difficult enough as it is. I will not impose time restrictions – parental common sense and child focus can take care of that issue.
I will make provision for communication by email and other means such as Skype (together with telephone communication unrestricted by anything other than reasonableness and, again, parental common sense and child focus). So, too, I will make the orders sought by the father in respect of the passing on of gifts, but will add a similar provision relating to the passing on of gifts to E by a parent.
There are, as it seems to me, features about the use of e-mail or Skype which, if unrestrained, distinguish it from telephone communication. Not the least, the “immediacy” of the latter and its visual components and the capacity of each to interfere with routines for E, point to a need to limit the (very generous) frequency and extent that I otherwise attend its use in the Orders.
Both parties agreed that E would benefit from having the orders made explained to her by a Family Consultant. My chambers will liaise with the Director of Child Dispute Services so as to effect that occurring, if at all possible, after school on the day judgment is delivered. No order is necessary to give effect to that.
For those reasons, I make the orders set out at the commencement of these Reasons.
I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 23 November 2010.
Associate:
Date: 23 November 2010
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