Hawe & Clifford

[2007] FamCA 106

FAMILY COURT OF AUSTRALIA

HAWE & CLIFFORD [2007] FamCA 106

FAMILY LAW - CHILDREN – Final Child Welfare orders made by consent for 3 year old child - Earlier contravention proceeding brought by father resolved - Acknowledgment of provisions of s 60B Family Law Act (1975) and effect upon children of strained parental relations.

s 60CA; s 60CC(1) Family Law Amendment (Shared Parental Responsibility) Act 2006; s 60B Family Law Act (1975) (as amended)

L v B (2005) FamCA 242; H v J & Anor (2006) FamCA 1398

APPLICANT: Mr Hawe

RESPONDENT: Ms Clifford

FILE NUMBER: MLF 1615 of 2004

DATE DELIVERED: 1 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 1 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Puckey

COUNSEL FOR THE RESPONDENT: Ms Bartal

SOLICITOR FOR THE RESPONDENT: Russell Kennedy

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1615  of 2004

Mr Hawe

Applicant

And

Ms Clifford

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me with consent orders to be made by way of final disposition of the proceedings between Mr Hall, (“the father”), and Ms Clifford, (“the mother”).  Mr Puckey appears for the father and Ms Bartal for the mother. 

2. The mother, who is a veterinary surgeon by occupation, commenced cohabitation with the father in February 1999.  He is a sales manager, as I understand it, involved in information technology.  The child L was born in April 2003.  Following unhappy differences between the parties, they separated in January 2004. 

3. Theirs has not been an untroubled journey through the pathway of litigation.  The mother caused to be issued a Form 1 Application on 22 April 2005, the father caused to be filed a Form 2A Response on 6 June 2005 and thereafter the parties were locked in bitter litigation.  More recently, the proceedings came before me in the Judicial Interim Hearing List on 19 January 2006 being the return date of two Form 18 Applications for Contravention filed by the father on 8 September 2006 and 28 September 2006.  The father alleged contraventions by the mother of orders made by this court on 7 June 2004 as varied on 14 September 2005 and 6 October 2005.

4. I well recall that at the commencement of the proceedings on 19 January 2006 I took the opportunity to discuss with Mr Puckey of counsel, who appeared for the father, and Mr Grant of counsel, who appeared on behalf of the mother, the advantage of resolving overall the dispute between their respective clients by way of final orders in a dignified and commonsense manner.  Although negotiations took place between them that day, it proved to be an unachievable aspiration.  As a result, the matter proceeded before me and was part-heard with the father giving evidence and being cross-examined.

5. In the meantime, with the advent of a further date to continue and determine the contravention applications, the parties through their respective practitioners, and commendably in my view, reached consensual resolution by way of final orders.  They are to be congratulated on demonstrating consummate dignity and responsibility, particularly as it impacts favourably upon their son.

6. The principles governing a matter such as this are set out in the Family Law Amendment ( Shared Responsibility) Act 2006 (“the Act”). Albeit the parties are seeking orders by consent, there is nevertheless, given the nature of welfare jurisdiction, obligations on judges of this court to be satisfied that the orders are appropriate orders to make in the circumstances. Accordingly, in deciding whether to approve these orders I must regard the best interests of the child as the paramount consideration. See s 60CA of the Act. In determining what is in the child’s best interests, I am obliged to consider those matters set out in s 60CC(1) of the Act which represent “primary” and “additional” considerations. 

7. For the assistance of the parties, there are two primary considerations.  The first is the benefit to the child of having a meaningful relationship with both of his parents.  The second is the need to protect the child from physical or psychological harm and the like, which is not relevant to these proceedings.  The benefit to the child of having a meaningful relationship with both parents is epicentral to his future development under the guiding hand of both his mother and his father. 

8. The provisions of the amending legislation indicate that such considerations are to be given particular importance.  Accordingly, they are described as "primary" and, as the note to s 60CC points out, are consistent with the first two objects of Part VII, as set out in s 60B of the Family Law Act 1975. They are accordingly matters requiring very careful consideration.

9. In the circumstances, I am satisfied with the proposed orders which sit seamlessly with the preliminary discussion we had on 19 January 2007.  The parties have saved themselves considerable legal expense but, more significantly, the worry and anxiety of litigation and being locked into a pathway which ultimately could only disaffect them even more.  The negative impact upon the child would be obvious.

10. I appreciate that there has been considerable past difficulty between the parties, for such was evident from the two Contravention Applications that were brought by the father which were part-heard before me.  I was fully seized with all the relevant affidavit material filed by and on behalf of both of the parties to those proceedings. 

11. I need only say this. There is an obligation, duty and a responsibility on both parties to nurture, raise and develop the child. Such are the provisions of s 60B of the Act prescribing the objects and principles of the welfare jurisdiction. There is also an obligation on the part of each of the mother and father to foster the image of the absent parent when the child is with them. That requires discipline and an ability to sublimate any antipathetic feelings one may have against the other in order to benefit the best interests of their son. As I said in an earlier decision of L v B (2005) FamCA 242:

    “I am not looking to the actions of a perfect parent in a utopian world but one who recognises the importance of such qualities and strives to achieve that desired end.”

12. Recently, I had to consider the effects upon children of stress and tension demonstrably evident between their parents.  It is worthwhile repeating here what I had to say in H v J & Anor (2006) FamCA 1398:

    “There is one further matter that I wish to raise and that is that the affidavits address issues that suggest, and I rather suspect that such is the fact, a high degree of tension within the household of the mother and the co-parent arising from the litigation.  What I have to say now is addressed to all three parties to understand that issues of stress should be avoided in the best interests of D.  The affidavits of the respondents reveal that their home environment was, as matters then stood, one affected by elements of stress to varying degrees.  I emphasise that it can only be in D's best interests to ameliorate as much as possible this most undesirable situation. 

    Such a position was forcefully addressed by Dr Jennifer McIntosh in a paper "Enduring Conflict in Parental Separation: Pathways of Impact on Child Development", (Journal of Family Studies, Vol. 9, No. 1, April 2003), focussing upon the known impacts of entrenched parental conflict on the development of children.  In the course of her paper, Dr McIntosh had this to say:

    “… unresolved, enduring parental (a term which is used in the paper in the traditional heterosexual families but which can apply equally to any family constellation) conflict can violate children's core developmental needs and threaten their psychological growth ...  These findings provide a strong impetus to child focused practices in Family Law dispute resolution.  They point to a need in the practitioner for an unapologetic mindfulness of the needs of children.  The challenge that this research throws down to the practice front is real:  to deal with this not as the ‘flavour of the month’, nor the latest itch in the Attorney-General's Department, but as a fundamental, evidence-based push for evolution in practice.”  (Pages 63-4)

    Later, under the heading "Through a Developmental Lens: Impact of Parental Conflict", Dr McIntosh went on to say:

    “Secure family environments and emotionally responsive parenting, in all family constellations, provide the core foundation for the developmental needs of children.  Certain developmental goals for children at different stages are more easily threatened by virtue of their age-related ability to understand nuances and implications of parental conflict.” (Page 65)

    Later in the course of her paper, under the heading "Impacts of Parental Conflict on the Core Developmental Tasks", Dr McIntosh said:

    “Enduring parental conflict disrupts the very organisation of emotional experience in any childhood.  This type of disruption may have both escalating and cumulative developmental consequences.  It interrupts vital attachment processes in infancy and toddlerhood, with high intensity conflict linked with the development of insecure and disorganised attachment styles …  In turn, this interrupts the development of emotional security, with children becoming more prone to negative emotional arousal and distress, less able to regulate their feelings, less optimistic about their ability to cope, and less able to cope.

    Later:

    “A child's ability to regulate their emotions and behaviours develops primarily in a family context.  It is promoted by parental soothing, collaborative conflict resolution, discussion of emotions and the events that elicit them, and coaching of adaptive responses.  When these normative parental functions are eroded by conflict, children's inability to regulate their own emotions and to adapt in a socially competent manner can be sorely compromised.”  (p 66-67)

    I have taken the time to address these fundamental issues for the benefit of the parties so that the future development for D will be one travelled free of ignorance.  …”

13. It is my ready expectation that this will be the end of the litigious pathway between these two clearly loving parents.  I wish them both the best in the circumstances and congratulate them again on having the dignity, commonsense and strength in coming to this arrangement.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Guest.

Associate: 

Date:  26 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as HAWE & CLIFFORD