JANCOS & CAGNEY
[2019] FCCA 3111
•30 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JANCOS & CAGNEY | [2019] FCCA 3111 |
| Catchwords: FAMILY LAW – Parenting – equal shared care arrangement – where child wishes for the status quo to remain – Mother seeking primary care – Father seeking continuation of equal shared care arrangement – significant parental conflict – lack of parental communication – issues as to schooling – where the child should complete her primary schooling – where the child should commence high school – best interests of the child. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: Beckham & Desprez [2015] FamCAFC 247 |
| Applicant: | MS JANCOS |
| Respondent: | MR CAGNEY |
| File Number: | MLC 5658 of 2018 |
| Judgment of: | Judge Carter |
| Hearing dates: | 2, 3, 4, & 5 September 2019 |
| Date of Last Submission: | 8 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Wheeler |
| Solicitors for the Applicant: | Resolve Conflict Lawyers |
| Counsel for the Respondent: | Ms Dellidis |
| Solicitors for the Respondent: | MST Lawyers |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the child X born … 2009 (“X”).
During school terms, X live with her Mother.
During school terms, X spend time with her Father on a two week rotating cycle as follows:-
(a)in week one and each alternate week thereafter, from the conclusion of school (or 3.30pm) on Thursday until the commencement of school (or 9.00am) on Monday, or to the commencement of school (or 9.00am) on Tuesday if Monday is a non-school day;
(b)in week two and each alternate week thereafter, from the conclusion of school (or 3.30pm) on Thursday until the commencement of school (or 9.00am) on Friday; and
(c)at such further or other times as may be agreed between the parties from time to time.
Unless otherwise agreed, both parties do all such acts and things and sign all such documents to enrol X in or retain her enrolment at school as follows:-
(a)at U Primary School for 2019 and 2020; and
(b)at A High School to commence in 2021.
BY CONSENT, THE COURT ORDERS THAT:
X spend time and communicate with the parties on school holidays and special occasions as follows:-
(a)during the term one Easter school holidays, if the Easter weekend falls on the first week of the school holiday period:-
(i)with the Mother from the conclusion of school on the final day of school term until 5.00pm on the second Monday of the school holiday period; and
(ii)with the Father for the remainder of the school holiday period until the commencement of school on the first day of second term;
(b)during the term one Easter school holidays, if the Easter weekend falls on the second or third weekend of the school holiday period:-
(i)with the Father from the conclusion of school on the final day of school term until 5.00pm on the first Thursday of the school holiday period; and
(ii)with the Mother for the remainder of the school holiday period until the commencement of school on the first day of second term;
(c)with each party for one half of the end of term two and term three school holiday periods as agreed, and failing agreement, with the Father from the conclusion of school on the final day of school term until 5.00pm on whichever day constitutes the midpoint of the school holiday period;
(d)in odd numbered years, for the Christmas period and long summer school holiday period as follows:-
(i)with the Father from the conclusion of school on the final day of fourth term until 10.00am on Boxing Day;
(ii)with the Mother from 10.00am on Boxing Day until 10.00am on 2 January;
(iii)with the Father from 10.00am on 2 January until 5.00pm on whichever day constitutes the midpoint of the remainder of the long summer holiday period; and
(iv)with the Mother for the remainder of the long summer holiday period until the commencement of school on the first day of the first school term;
(e)in even numbered years, for the Christmas period and long summer school holiday period as follows:-
(i)with the Father from the conclusion of school on the final day of fourth term until 10.00am on Boxing Day;
(ii)with the Mother from 10.00am on Boxing Day until 10.00am on 28 December;
(iii)with the Father from 10.00am on 28 December until 5.00pm on whichever day constitutes the midpoint of the remainder of the long summer holiday period; and
(iv)with the Mother for the remainder of the long summer holiday period until the commencement of school on the first day of the first school term;
(f)X is to communicate with the Mother by telephone, video-call or electronically (such as WhatsApp or Messenger) on Christmas Day for a period of thirty minutes as agreed between the parties, and failing agreement, from 10.00am until 10.30am; and
(g)at such further or other times as may be agreed between the parties from time to time.
Notwithstanding any other order:-
(a)X is to spend the Mother’s birthday with the Mother from the conclusion of school (or 10.00am if a non-school day) on the Mother’s birthday until the commencement of school (or 10.00am if a non-school day) the following day;
(b)X is to spend the Father’s birthday with the Father from the conclusion of school (or 10.00am if a non-school day) on the Father’s birthday until the commencement of school (or 10.00am if a non-school day) the following day;
(c)X is to spend Mother’s Day with the Mother and Father’s Day with the Father from 5.00pm the preceding day until 4.00pm on Mother’s Day or Father’s Day respectively;
(d)on X’s birthday:-
(i)in odd numbered years, X spend her birthday with the Mother from the conclusion of school (or 10.00am if a non-school day) on her birthday until the commencement of school (or 10.00am if a non-school day) the following day; and
(ii)in even numbered years, X spend her birthday with the Father from the conclusion of school (or 10.00am if a non-school day) on her birthday until the commencement of school (or 10.00am if a non-school day) the following day; and
(e)at such further or other times as may be agreed between the parties from time to time.
X’s usual arrangements during school terms be suspended during school holidays and recommence at the commencement of the school term as if the suspension had not occurred.
Each of the Mother and the Father do all such acts and things necessary to keep the other fully informed at all times in relation to:-
(a)the address at which X is living;
(b)their contact telephone numbers and email address;
(c)interstate or overseas travel plans with X, including providing contact details during their travel; and
(d)any significant issue or event in relation to X’s health, wellbeing or development of importance to X.
Each of the Mother and the Father:-
(a)immediately notify the other of any serious illness or injury experienced by X requiring medical treatment whilst X is in their care;
(b)forthwith inform the other of any medical, dental or other health practitioner with whom X is scheduled to consult with or has consulted with and authorise the other parent to make all reasonable enquiries of such practitioner/s concerning X’s health; and
(c)forthwith provide the other copies of any reports or records provided to them respectively by any medical, dental or other health professional attended by X.
Each of the Mother and the Father are hereby authorised to:-
(a)receive information, notices, reports, class lists and family contact details and photographs directly from X’s school and/or any other associated provider of extra-curricular or sporting activities attended by X;
(b)attend all events parents are invited to and permitted to attend including, but not limited to, open days, concerts, parent-teacher interviews, sports days and like events; and
(c)provide a copy of these orders to any school and/or the provider of any extra-curricular activity or sporting event attended by X.
Each of the parties be and are hereby restrained from denigrating the other to or in the presence or hearing of X.
THE COURT FURTHER ORDERS THAT:
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Jancos & Cagney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5658 of 2018
| MS JANCOS |
Applicant
And
| MR CAGNEY |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties have been unable to reach agreement regarding the care arrangements for their daughter, X. X was born on … 2009 and is 10 years old. It is common ground that she has been in a shared care arrangement since she was around five years of age, although there appears to be some small dispute as to precisely when that arrangement commenced.
The parties agree that they should have equal shared parental responsibility for X, share the school holidays and special occasions, and ensure that each parent is kept informed about issues pertaining to X. They have proposed a raft of consent orders reflecting those agreements, which I will make. However, the parties do not agree as to the care arrangements for X during school term. There is also a dispute about whether X should remain at her current primary school next year, and where she should attend secondary school the year after that.
The Mother seeks to change the week-about arrangement so that X lives on a primary basis with her. In her Initiating Application filed on 23 May 2018, the Mother’s proposal for time during school terms was that X spend three nights per fortnight with the Father. She now proposes that X spend four nights per fortnight with the Father during school terms. The Mother’s preference is that X remain at U Primary School for the balance of this year, and then start at Suburb E Primary School in 2020 for her final year of primary school. The Mother says this will enable X to develop new friends in grade six. She will then be able to move with that cohort of friends to A High School when she commences high school in 2021.
The Father filed his Response on 6 July 2018. At that time, he sought that X live primarily with him and spend three nights per fortnight with the Mother. When the matter was first listed for Final Hearing on 4 April 2019, the Father’s position was that during school terms X spend two out of three weekends with the Mother, from Friday to Monday, and otherwise live with him.
The matter was not able to be reached in April and was adjourned to September 2019, where the matter proceeded. The Father’s position at that time was that the week-about arrangement should continue. He proposes that X remain at her current and familiar primary school for the balance of her primary education. He then proposes that she attend V High School or Suburb B School for secondary schooling.
It is to his credit that the Father has altered his position. To an extent, it reflects that there has been somewhat of a reduction of the difficulties and tension in the parties’ co-parenting relationship, which was clearly prevalent in 2017 and 2018.
Background
The Mother is aged 31. She is a labourer with Employer W and is employed on a full-time basis. She lives with her husband, Mr F (“Mr F”) in Suburb N. They do not have any other children.
The Father is aged 33. He is self-employed on a full-time basis as a professional. He is engaged to Ms G (“Ms G”), with whom he lives in Suburb H. Ms G’s three children; 18 year old Z, 11 year old AA and four year old BB also reside in that home. I anticipate the Father and Ms G have by now welcomed another child into their home, as Ms G was heavily pregnant during the Final Hearing.
The parties commenced their relationship in 2005 and began living together in 2006. X was born on … 2009 and the parties separated shortly thereafter, living under the same roof until May 2009. At that time, the Father moved out of the parties’ home and moved in with his parents in Suburb J.
The parties, to their credit, were able to put in place suitable arrangements for X’s care. Her time with the Father has gradually increased as she has aged, in accordance with her needs and developmental capacity.
In 2012, the Father purchased a property at Street K, Suburb H (“the Suburb H home”) and moved in there.
In 2014, X commenced her prep year at U Primary School in Suburb CC. The parties subsequently agreed to implement a shared care arrangement for X and she commenced living with each of them on a week-about basis.
On … 2016, following a brief relationship with Ms L, the Father’s child DD was born. The Father has not met DD nor pursued any relationship with her. It was his evidence at trial that he hoped to have a relationship with her in the future, but he does not have any current plans to pursue that relationship.
By 2017, it is common ground that X was on occasion behaving and making statements in such a way that each parent began to have concerns that a shared care arrangement was no longer in her best interests.
It is the Father’s case that X started to express a wish that she spend more time with him, and that she wanted to live with him and became distressed and resistant at times when returning to her Mother’s care.
It is the Mother’s case that X was struggling with the shared care arrangement as the Father was endeavouring to undermine her relationship with X, and pressuring and manipulating X to want to live with him. She says this resulted in X becoming disconnected, defiant and anxious.
In January 2018, the Mother and Mr F moved into their current residence at Street M, Suburb N (“the Suburb N home”). The Suburb N home is approximately 36 kilometres from X’s primary school. It is the Mother’s case that this involves a significant drive from her home to X’s school. The Mother says the Father knew she was looking to buy in that area prior to her doing so.
In February 2018, the Father and Ms G moved to Suburb EE. The Father says it took him around 38 minutes to drive from his home in Suburb EE to X’s primary school in Suburb CC, which was not significantly different to the drive from the Suburb H home. Upon moving to Suburb EE, the Father rented out the Suburb H home. It is common ground that the Father did not advise the Mother that he was moving from Suburb H to Suburb EE prior to him doing so.
On 17 July 2019 the Father and Ms G moved back to his Suburb H home. The Father says that home has five bedrooms and that X has her own room. I note there are two adults, Ms G’s three children, and now their new baby living in the home. The Father has deposed that it is anticipated Ms G’s eldest son will move out from the Suburb H home in the near future.
Procedural history
As I have set out, the Mother issued these proceedings on 23 May 2018. The Father’s response was filed on 6 July 2018. At that time, both parties were seeking primary care of X, and that she spend three nights per fortnight with the other parent, together with a sharing of holidays and special occasions.
The matter first came before the Court on 10 July 2018. Orders were made by consent for the week about arrangement to remain in full force and effect. Further orders were made by consent for X to travel overseas with the Father on a holiday between 31 August 2018 and 1 October 2018. The matter was adjourned to 14 November 2018 for mention, with a Family Report to be prepared in the meantime.
The parties met with Ms O, psychologist (“Ms O”) in August 2018 and undertook further interviews with her via telephone on 22 October 2018. A Family Report was completed by her dated 29 October 2018 (“the Family Report”). This was filed under cover of affidavit on 25 March 2019.
The matter then came before the Court on 14 November 2018. Further orders were made by consent that the parties attend upon Ms P, family consultant and family therapist (“Ms P”), for reportable family therapy. Additional orders were made for each parent to complete a post separation parenting course and for care arrangements for X over Christmas.
Ms P met with the parties and X on 20 December 2018, along with Mr F and Ms G. She then conducted joint sessions between the parents on 1 February 2019, 21 March 2019 and 29 March 2019. Further family therapy did not occur, substantially as a result of the Mother’s then-lawyers writing a letter to the effect that the Mother did not agree with further therapy. It is the Mother’s case, which I accept, that her solicitors had misunderstood her position, and the letter written did not reflect her instructions.
Between 7 February 2019 and 28 February 2019, the Father completed a parenting orders program. He deposes he found the course very beneficial and that he is now more aware of, and has techniques for, overcoming problems in the parties’ communication.
On 15 February 2019 the Mother completed a parenting after separation program.
The matter was listed for Final Hearing on 4 April 2019. The matter could not be accommodated that day as I was part-heard in another matter. Orders were made that day adjourning the matter to 2 September 2019 for Final Hearing with priority.
Following the Father’s return to Suburb H in July, 2019, he altered his position regarding his proposals for X and it is now his position that the equal shared care arrangement should continue.
The evidence
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
At the outset of the proceedings, an objection was made, and upheld, regarding the admissibility of material contained in the Mother’s affidavit filed on 29 August 2019. That affidavit was filed out of time pursuant to my orders on 4 April 2019, when the matter had first been listed for Final Hearing. The parties had by then, filed material upon which they were relying at trial. Orders were made on 4 April 2019 for the parties to file updating affidavits not less than 21 days before the trial, and affidavits in reply not less than 14 days prior. A further order was made pursuant to which neither party was to file any further affidavits contrary to those orders without leave of the Court. The Mother’s affidavit was filed just four days prior to Final Hearing. It was not an updating affidavit, but sought to traverse the entire history of the relationship and post-separation arrangements.
I made an order that only the parts of the Mother’s affidavit filed 29 August 2019 that were by way of update were admissible. A significant consideration in that determination was that the Father’s material had been drawn in response to the Mother’s previous affidavit material. His material in response would then have made little sense, and it would have been an inefficient use of Court time for the Father to then specifically respond to the Mother’s late-filed affidavit, particularly when Counsel for the Mother confirmed the material covered in that affidavit was in substance the same, although it differed in form.
I also note that in April 2019, Counsel were able to agree in relation to a number of other objections in the Mother’s material. The Court was provided with a redacted copy of the material, in which the objectionable material has been struck out.
In relation to the parties’ affidavit material in general, it is most unfortunate that each of the parties has set out at some length substantially historical allegations.
For instance, the Mother asserts the Father had issues with alcohol at the commencement of their relationship, that he could be aggressive and controlling towards her, as well as physically violent. She deposes to incidents that she says occurred between 2005 and 2009.
The Father, similarly, included historical allegations that are unlikely to be of assistance given the ambit of the dispute. For instance, in his Notice of Risk filed on 6 July 2018, the Father asserted that X was at risk due to the Mother having a diagnosis of “bi polar [sic] and post-traumatic stress disorder”, and that she had a history of using illicit substances including “ecstasy and ICE”. He said he did not know whether the Mother was compliant with treatment or medication relating to her mental health, or whether her use of illicit substances had continued.
In his affidavit filed contemporaneously with his Response on 6 July 2018, the Father alleges that:-
a)he had been assaulted by the Mother in December 2010;
b)in 2008 the Mother had been charged with assault against a third party; and
c)in 2005, the Mother was admitted to the Suburb Q hospital with concerns for her mental health.
He further deposes to the Mother having used illicit substances, with such concerns predating the parties’ separation in 2009.
Given that the parties have substantially worked co-operatively following separation regarding the care arrangements for X, such historical allegations are of little relevance. This is particularly so given that the parties had agreed to implement shared care arrangement for X, which has been in place for approximately five years, in circumstances where neither party was asserting X’s time with the other parent required supervision. Such historical allegations do not assist either party’s case. At the Final Hearing, the Father did not assert that X was at risk in the Mother’s care due to drug abuse or mental ill-health, nor did the Mother assert that the Father is an inappropriate carer on the basis of violence or alcohol abuse. In those circumstances, the decision to include evidence that seems gratuitously critical of the other parent reflects poorly on each deponent.
The Mother’s evidence
The Mother relied on her affidavits filed on 23 May 2018 and 2 April 2019, and those parts agreed as admissible in her affidavit filed on 29 August 2019. In addition, she relied on an affidavit from the maternal grandmother, Ms R (“the maternal grandmother”) filed on 13 March 2019.
I had the benefit of hearing extensive evidence from the Mother as well as hearing some evidence from the maternal grandmother. The Mother impressed as a concerned and attuned parent, with significant insight into X and her needs. She gave credible evidence and made appropriate concessions. She appeared to be a truthful and honest witness.
The Mother says she recognises the importance to X of having a meaningful relationship with both of her parents. However, it is the Mother’s position that an equal shared care arrangement is no longer working for X. She says X has begun to struggle living in two separate homes, coping with the parties’ different ways of parenting, and experiencing different lifestyles in each house.
In particular, the Mother raises concern that the Father has undermined the mother-daughter relationship and has encouraged and manipulated X to reject her Mother. She says X has made statements suggesting her Father tells her that he loves her more, and that her relationship with her Father is more reliable and stable than her relationship with her Mother and maternal family. She says this causes X to struggle to transition between the parties’ households, and causes her to become distressed, and experience intense conflicts of loyalty. The Mother says on occasion, X has said mean and hurtful things to her, which X later regrets, and becomes distressed and upset for having said.
The Mother deposes that the Father has a competitive attitude about X’s parenting. She says the Father has said he will “fight to my dying breath” to have full custody of X. She also deposes to the Father trying to “outdo” her in relation to gifts. She gives the example that when the maternal grandmother gave X a guitar, the Father gave X a violin the following week. She further says the Father will shut down conversations X has with him that are positive about her Mother’s household in telephone conversations, redirecting her to positive experiences with him.
She says further that the Father can be inflexible, putting his needs before X’s. For instance, she refers to an occasion when the Mother was available to care for X, but rather than allowing the Mother to provide care for X, the Father took X to work with him for eight hours, leaving her sitting in the car for much of that time.
She says these behaviours by the Father have a profound effect on X, and have resulted in X at times:-
a)being disrespectful and cold to the Mother;
b)experiencing minor panic attacks;
c)taking 24 to 48 hours after coming home to return to her normal self;
d)being extremely clingy towards the Mother on occasions; and
e)at other times being “sheepish, anxious, nervous and withdrawn”.
In her oral evidence, the Mother described X as returning from her Father’s home as “flat” and “quiet”.
The Mother says X needs a stable home base. She says it will be beneficial for X to go to a primary school closer to the Mother’s home from 2020, as the travel to which X is currently subjected is detrimental to her welfare and development. She says Suburb E Primary School is a few minutes from her home, which would dramatically reduce the amount of time X current spends in transit. The Mother says X is often tired after travelling home from school, and that the length of time travelling impacts on X’s capacity to be involved in extra-curricular activities.
The Mother outlined that whilst she had looked for housing closer to X’s current primary school, the houses she was able to afford in that area did not meet her lifestyle requirements. She described herself, X and Mr F as being “outdoorsy” people, wanting space and a beautiful environment. The Suburb N home is a large house with a garden and a pool. The Mother maintained she had advised the Father that she was looking further afield, and that she told him reasonably promptly upon purchasing the Suburb N home.
The Mother also said that whilst her current employment is near X’s primary school, she does not intend to remain there. She expressed a desire to undertake a course, but that she has not pursued other options for employment or training at this stage, as her “life is on hold” pending the outcome of these proceedings. She also said that Mr F’s place of work varies, as he is in construction, so he is not reliably able to assist in transporting X to or from school.
In terms of extra-curricular activities, the Mother agreed she had not enrolled X in any, although the Father had arranged sports for X. The Mother said she really appreciated that the Father arranged the sports lessons, which were at her suggestion. In terms of sports, she said that she would have liked X to play somewhere more convenient for both parents. The Father appears to have unilaterally enrolled X with a team that was convenient for him at a time when he was residing in Suburb EE, and X has continued to play there. I accept that it would have been difficult for the Mother to transport X to Suburb EE to play, and I further accept that there were other teams with whom X could have played that both parties could have more conveniently facilitated.
The Mother outlined her ongoing frustration at the difficulties she perceives the parties have had in reaching agreements. She said she has struggled to communicate with the Father, including arranging tutoring assistance for X, obtaining extra help for X at school, the location of X’s sports, the provision of a mobile telephone to X, whether X should see a psychologist and even a dispute regarding X’s haircut.
The Mother was asked about the quality of the Father’s parenting. She said he is a committed and involved parent but the parties have different parenting styles, including different approaches to screen use, movies and bedtime routines. It appears, however, that the Mother has relied on X’s accounts of at least some of these matters, rather than discussing issues or concerns directly with the Father. For instance, the Mother said that in relation to X’s iPad use, she has not discussed this issue with the Father as these proceedings have been, in her view, an impediment to any such communication and discussion. Similarly, the Mother apparently relied on what X had told her about X having to buy a gift for Ms G from the Mother’s Day stall at school, using monies provided to X by the Mother. The Mother understood that the Father had directed X to “give up a gift” that X had chosen for her Mother to give to Ms G. Under cross-examination, she conceded that it was possible, as asserted by the Father, that X had wanted to give a present to Ms G. These examples are illustrative of the negative interpretation the Mother has of what occurs in the Father’s household, in circumstances where there is little trust and limited communication between the parties.
In her oral evidence, the Mother conceded she had not facilitated a relationship between DD and X, as she had deposed to doing in her affidavit. This relationship has not been facilitated by the Mother notwithstanding that X has told her on several occasions that she would like to see her sister.
Notwithstanding her description of the Father’s manipulation of X, under cross-examination, the Mother conceded that she and X are currently “in a good spot” and that their relationship is meaningful.
Evidence of the maternal grandmother
The maternal grandmother impressed as a caring and loving grandmother, who is very supportive of her daughter and granddaughter. Much of her affidavit covers historical matters that are of limited relevance to the dispute I must determine.
The maternal grandmother shares the Mother’s concerns that the Father is undermining the relationship between X and the Mother. She bases this on comments X has made to her and conversations she has overheard between X and the Father, in which the Father has told X how much her pets miss her, or reminisces about previous occasions, rather than allowing her to enjoy her time with the maternal family. She also deposes that on Christmas Day in 2018, she heard X repeating to the Father several times on the telephone that she loved him, which the maternal grandmother interpreted as placing pressure on X to “maintain her father’s emotional wellbeing”.
The maternal grandmother says X has told her that her Father has encouraged her to “keep secrets and be secretive” from her Mother. She says that over the last couple of years, she has witnessed X’s increasing anxiety, and her “sullen and bratty” behaviour for a day or two upon returning to the Mother’s home.
Some of the matters to which the maternal grandmother deposes are her interpretation of the Father’s behaviour, and her beliefs as to the impact on X or the inappropriateness of that behaviour. I put no weight on her evidence in that regard.
The Father’s evidence
The Father relied on his affidavits filed on 6 July 2018, 21 March 2019 and 12 August 2019. In addition, he relied on an affidavit of the paternal grandfather Mr D (“the paternal grandfather”) filed on 6 July 2018 and an affidavit of Ms G filed on 22 March 2019. Neither the paternal grandfather nor Ms G were required for cross-examination, and accordingly their evidence is unchallenged.
The Father gave his evidence in an honest and straightforward manner. He was child-focussed and made appropriate concessions. He also impressed as being a loving parent to X, despite on past occasions being unaware of the impact on X of some of his behaviours.
The Father describes that X occasionally showed signs of anxiety and/or sensitivity. In his affidavit material, the Father asserts that in about 2017, “X started to express a wish to spend more time with and, indeed live with me”. He says when he spoke to X about her wishes, she told him that the Mother did not give her attention, yelled at her, was more interested in the television, and that X was too scared to speak to her Mother about her feelings. In his oral evidence, the Father agreed that he had encouraged X to tell her Mother what she wants, being that she wants to live with him and that the Mother does not pay her enough attention. It was not until Ms P and the facilitators of his parenting course pointed out to him that this was inappropriate, that he has begun to understand the position in which he was placing X in these conversations.
The Father deposes to there being a lack of closeness in the relationship between the Mother and X. He told Ms O that following the overseas trip in … 2018, X “became quiet and anxious instead of being her happy self” when she was to return to the Mother’s care, telling him “I cry myself to sleep” at her Mother’s home.
In his affidavit filed on 6 July 2018, the Father asserted he had concerns about X living with her Mother, and proposed that X should instead live with him. He deposed that he had concerns that the Mother “does not have the ability to care for X on a day to day basis”. Those concerns were based on the distance between X’s school and the Mother’s home, that the Mother had involved X in inappropriate conversations, and that he had some concerns about the Mother’s past use of illicit substances, lack of compliance with prescription medication, and the possibility of the Mother’s mental health deteriorating.
Whilst he did not completely resile from those concerns under cross-examination, stating he does not know what occurs in the Mother’s household, his case was not run on the basis of there being any real risk. In my view, it appears that the Father’s application for primary care was somewhat opportunistic. There is no basis for his alleged concerns that X is at risk in her Mother’s care, and he sought primary care in response to the Mother’s application.
Under cross-examination, the Father described X as a very sensitive child, who takes things to heart and at times appears anxious and nervous. He said when X brought her Mother up in conversation, or when it was time to return to the Mother’s home, she would start showing signs of being anxious and nervous, such as “going quiet” and not being her “usual self”. He gave evidence that she started to express a wish to spend more time with him around the end of 2016, and that she was expressing it more frequently and strongly by mid-2017. He said she would say every week, over and over, that she wanted to live with the Father more. He said X’s anxiety and reluctance escalated in 2017, and then diminished over the next year.
The Father strenuously denies that he has in any way encouraged X to reject her Mother. He says he has always and will continue to promote an ongoing and meaningful relationship between X and the Mother.
In his oral evidence, the Father said that there have been occasions where X has wanted to stay with him at the conclusion of their time together, and that X’s wishes are important. He repeated his evidence that X was previously expressing a wish to live with him, that he sought primary residence of her in his initial response after she expressed that to him, and that was what she wanted. It appeared to be an underlying theme in the Father’s evidence that – at least until recently – X’s wishes should be implemented where practicable. The Father also gave evidence that he learned from the parenting course he completed earlier this year that children may say things to please a parent. He said that he considers it possible that X was just saying things to him that he wanted to hear.
Evidence of Ms G
Ms G was not required for cross-examination. She is supportive of the Father’s position. She says the Father and X have an excellent relationship, and she has not witnessed him discuss the proceedings or be critical of the Mother to or in X’s presence. She says she and X have a warm relationship, and X and her children get along well. I accept her evidence.
Evidence of the paternal grandfather
The paternal grandfather was not required for cross-examination. He too, is supportive of the Father, describing him as “unconditionally committed to X” and “a doting father”. I accept his evidence.
The parenting relationship and X’s behaviour
It is the Mother’s case that the Father has compelled and manipulated X to reject the Mother. The Mother says the Father has videoed X asking who she wants to live with and which parent she loves more. She says X is rewarded by her Father when she tells him she loves him more or that she wants to live with him. The Father categorically denies that he has engaged in this behaviour, or that he has ever recorded X asking her about these issues. On the evidence, I accept that X has said this to the Mother. However, I am not able to find that the Father did record X in this way. One explanation is that X told her Mother that this occurred, even though it did not. The level of conflict between the parties, and the impact of being in the centre of that conflict, makes this a plausible explanation.
The parties’ co-parenting relationship has significantly eroded since 2016. The following incidents highlight the deterioration in that relationship and the impact of that on X. Coupled with the evidence of Ms P, as set out below, it seems unlikely the parties are able to salvage their previous co-operative parenting relationship, and this will continue to negatively impact on X.
X’s text message to the Mother in April 2016
In April 2016, X sent a text message to her Mother, using the Father’s phone. The text reads:-
I mum i love my dad’s to much i dont want to go back to your house i was thinking I could stay with my dad until dad gos…
[sic]
The Mother responded:-
Hey baby I know you love your dad but I’ll see u [sic] just after 3 tomorrow, love you lots
X wrote back:-
No I am going to stay at my dad’s house I mean it.
In his oral evidence, the Father seemed to suggest he had no control over this message being sent. He said he gave X that phone, for open communication, and X wrote that text. He said he did not know about the text before it was sent. There is no evidence that he told X this was not an appropriate way to communicate with the Mother, or that he followed that text up by communicating himself with the Mother.
The Father appeared to have limited insight into the message X may have gleaned from her Father allowing her, at the age of seven, to use his mobile to write such a text to her Mother, particularly when there were no apparent consequences for her doing so.
X’s Sports
It is common ground that the Father unilaterally enrolled X in a sports team in late 2017. At that time, he was living in Suburb H, but must have been already planning the move to Suburb EE. As he had not discussed his move to Suburb EE with the Mother, it seemed somewhat bizarre to her that the Father had chosen a Suburb EE sports team in which to enrol X.
Towards the end of 2017, the Mother says there was an escalation in the Father’s narrative against the Mother. She says further that the Father is unable to maturely respectfully communicate with her, and that he sent inappropriate, abusive and derogatory messages to her on a number of occasions. In support of her assertion, the Mother has exhibited a number of text messages exchanged between the parties in December 2017. It is apparent that in that exchange, both of the parties use inappropriate language to the other.
On around 9 December 2017, the Mother brought X to sports on her weekend with X. The Father was late to attend and provide X with her uniform. It appears there was an unpleasant exchange between the parents, with the Mother asserting the Father was rude and demeaning to her, embarrassing her in front of the other parents.
The parties then communicated about the incident by text message, which commenced with the Mother sending the Father a text as follows:-
Don’t you ever carry on like that in a public place again, Just like X’s school, If you can’t keep ur shit together in front of families and children, u need to leave.
It is embarrassing and humiliating for someone to speak to a women like that in public.
This will never happen again, as will not be coming back,
She is happy to play sports anywhere she has said that 100 times we will find some where close to both our houses or half way,
Please do not reply as I can’t not handle your childish and outrageous attitude right now
[sic]
The Father responded:-
You seriously need to pull ya head out of your fucking ass an stop trying to control everything. You are so fucking self absorbed you think everything is about you!!!
How about you actually ask what X wants for once!!
She doesnt even want to live with you every time she is with me she says it an she is so open about it now she wants to tell you but she is just so scared of you because she thinks you will just yell at her an i have said to her it needs to come from her cos when i have said it before you think im full of shit she has been saying it for years now how about you actually listen an take the time to its not about me as much as you think it is its not about you its about X an she wants so stop being a fuck head
[sic]
He sent another message shortly thereafter as follows:-
You are seriously pathetic. You started shit before i even got there you didnt even ask for her uniform once you really just think about ya self. Wont even let me take X to sports an make her stay at your friends house when you were working anyway its so sad that you do this shit to X out of spite to me its disgusting you need to get over yaself.
X notices it! An the things she says to me she is unhappy with you. You wont even let her call me but you may actually know these things if you made the time for her an she was able to talk to you but shes so terrified that you will yell at her, like you always do! im saying this on X’s behalf. Personally i honestly couldnt give a shit about you an the less i have to deal with you the better. But X has asked me just the other week that she wants to sit down with me an you so she can actually feel safe to tell you these things herself!!
But any bet you wont let her do what she wants will ya!!!
The Mother replied:-
You are living in another world Mr Cagney, you are a fucking scum bag.
Using me as an excuse saying it my fault she can’t see X on Christmas,
You have done this her whole life,
You have manipulated her saying horrible stuff to her,
You just try and be the fun dad and do nothing important or real,
I’m done with this
I accept the Mother’s evidence regarding the exchange at sports. Tension between the parties was extremely high at that time. They both communicated with the other in a highly inappropriate manner in both these text messages and the messages that followed.
Christmas 2017 and X’s mobile telephone
In an exchange on Christmas Day 2017 the parties disagreed about the arrangements for the long summer holidays. A text message exchange ensued in relation to those arrangements. The Mother called the Father a liar and said he needed help. She wrote “it’s Christmas try and control your self [sic] for one day will you”. The Father responded:-
No you the messed up one Ms Jancos you are so full of shit an you’re the one that causes the shit like alays think what you want with oh must be a new gf or ya pathetic shit get something new. Not even about that its that I dont take you fucked up bulshit any more like i have aways said an when X comes to me telling me shit yep gonna have her back!! Not dropping everything to catch up for coffee with you like last time start shit before even there!! You’re the last person I want to deal with. No difference in talking on the phone dont need to see you
So yeah pull ya head in dont msg back not dealing with you today
[sic]
He later wrote a text message to the Mother saying “You have no idea the amount of shit she comes to me about an how un happy she is with you!! [sic]”.
Later that day, the parties communicated by text message when the Father gave X a mobile phone for Christmas, which she unwrapped that morning at her Mother’s home. The Mother was unhappy about the telephone and told the Father that X was too young to have a phone. In a lengthy exchange the Father said he had given it to X so she could play games, listen to music and call him whenever she wanted. He said the Mother does not answer the phone when he calls. As part of a text message, he told the Mother “dont be a grinch an take her present off her shes almost 9 an can have it to communicate with me so yes shes having it [sic]”.
The Mother texted the Father back and told him that the matter was not “up for debate”. The Father responded “Stop being a fucking cunt of a thing let her have her phone so she can talk to me your [sic] fucked up!” He later sent a second message that read “Your [sic] pathetic you really are fucked fuck off”.
The Father acknowledges that subsequent to this exchange, on one occasion, he did put the phone in X’s schoolbag, securing it at the bottom of the bag under the lining. The Mother says X was under the impression that she needed that phone to contact her Father in the event that the Mother tried to kidnap her. The Father said he only did that on the one occasion as he was concerned he may be late one particular day to collect X and he wanted her to have a telephone so he could communicate with her if he was running late. He said he then forgot to take the phone out of the bag before X returned to her Mother’s home. I understand the Mother left the phone in the bag, and it has not subsequently come to her home again.
The provision of a mobile telephone to a child is a fraught issue that most parents have to deal with. It is not appropriate that one parent should unilaterally determine that a child is to be provided with a mobile phone without any discussion with the other parent. It is particularly inappropriate that in this matter it was given as a gift on Christmas. It placed the Mother as the ‘mean’ parent who took X’s gift away. The Father’s response on Christmas Day to the Mother’s understandable hesitation at an eight year old being given a mobile telephone without previous discussion, was immature, disrespectful, disproportionate and lacking insight. This is also an example of the Father acting in a way that could encourage X to view him more favourably than the Mother.
To his credit, the Father acknowledged his texts were inappropriate and said he was “ashamed” by the language he used.
X’s overseas trip with the Father in … 2018
X travelled overseas with the Father to Country S and Country FF for a period of approximately six weeks in … 2018.
The Mother deposed that the Father did not facilitate or encourage X to remain in regular contact with her during the period of travel, and that it was very difficult to arrange communication. On one occasion, during a video call whilst X was on a cruise, the Mother said X was extremely flat, plainly did not want to be on the phone and kept looking at her Father during the call.
The Father says he did encourage and facilitate communication as best he could during the trip. He says the internet was inconsistent, and there were times where X was engaged with activities and did not want to speak to her Mother. He says there were a number of occasions when X attempted to call the Mother’s telephone and there was no answer and has a call log setting out ten missed calls to this effect. He admits he was in the cabin with X during the video call, as he was not comfortable leaving X on her own in the cabin. However, he says he did not interfere.
On behalf of the Father, a series of text messages exchanged between X and her Mother were tendered, demonstrating that there was communication between X and the Mother during the period of travel. I accept that the communication may have been less frequent than the Mother wanted, but it does not appear from the evidence that the Father was difficult or obstructive in regard to X speaking with the Mother.
The Mother deposes that on 1 October 2018, she was due to collect X from school after her holiday with the Father. Whilst waiting for X to arrive, the Mother says X called on the Father’s mobile and asked if she could stay another night with the Father, saying she wanted to see Ms G’s children. The Father deposes that although he told X she could not stay an additional night, X “insisted” on calling her Mother. He said he told X she could not stay, but he then provided the telephone to X so she could phone her Mother and make the request.
It is inappropriate that the Father allowed X to telephone her Mother and request another night at his home. It put the Mother on the spot and made her again appear to be inconsiderate of X’s desires. The Father should have been firm with X that the arrangements to return to the Mother were not negotiable. Had the Father wanted an additional night, he should have approached the Mother himself and not permitted X to try to make those arrangements.
Counselling for X
After returning from the overseas trip, the Father wanted X to see a psychologist and told the Mother that it was X’s idea to speak to an independent person about her feelings.
In a message the Father sent to the Mother on 4 October 2018, after telling the Mother she is “always so far off the truth” and that she is hypocritical, he wrote:-
To keep you up to date I am booking X in for counselling ask [sic] she has asked me to because she feels as though she will benefit from talking to a professional. I will let you know the details once the appointment is confirmed
The Mother responded, suggesting that the parties could discuss the matter at Court in November, or the lawyers could have some discussions about it if the Father was not of the view that it could wait until then. She said it is a big decision, and one that should be made with the input and agreement of both parents. The Father’s response was highhanded. He wrote:-
Feel free to contact your lawyer Ms Jancos. X has come to me yet again an now asking to speak to someone. I will be booking her an appointment so she can. As I said I will inform you of X’s appointment in due course once confirmed so you are well awear of there details an costing.
[sic]
The Mother again responded saying this was a matter that should be decided by both parents and that each parent should be involved. The Mother also said that if the parties did arrange counselling with a child psychologist it should be someone around X’s school area so each parent could take her on their week, rather than fortnightly appointments close to the Father’s home.
The Father responded as follows:-
No Ms Jancos I do not agree. I do not see how going to court again in a few weeks should be any reason to hold off on X seeing someone. With X coming to me asking me to get her to speak to someone I will address any issue she has immediately.
An no I do not believe that X will need weekly sessions. But I will leave that to the professionals to decide an you don’t know either.
I have spoken with 4 different people an this one seemed the best.
Again it will be up to X to who is right for her. Not what is best for me or for you. But best for X so it is some where to start for X an to go from there.
That’s the whole thing Ms Jancos that I think you may not understand. It’s what is best for X and what X wants.
So I will start her here next week an we can work from there.
[sic]
As already observed, the Father’s attitude in relation to this issue was high-handed. He was dismissive of the Mother and her concerns and appeared determined to implement arrangements for X to see a counsellor or psychologist that he alone had chosen and was convenient for him only. There seems to be no appropriate basis upon which he should be unilaterally making such determinations.
The Father apparently viewed X’s requests as determinative of the matter. They are not. Whether a child is to see a psychologist or counsellor is a parenting decision that should be made jointly by the parents. It was inappropriate for the Father to seek to exclude the Mother from that decision, or in any way limit her involvement in the appointment of such a professional. Conversely, the Mother’s reluctance to have X attend upon a psychologist, particularly one engaged solely by the Father, was entirely reasonable. I note that Ms O subsequently advised the parties she did not recommend X having a psychologist at the time. The Father subsequently cancelled the appointment he had made.
The Mother expressed some concern that X was using the word “psychologist”, as it was not a word she believed X would know unless the Father or Ms G had used it with her in discussions. My greater concern is that if X was asking for counselling, then X may perceive her situation between warring parents as intolerable, and that she is the one who bears the burden of having to ‘fix’ the current conflict. If it was X who initiated the request, that reflects a child who was suffering considerable emotional distress that she felt unable to deal with on her own.
X’s knowledge of Court proceedings
The Mother says X’s affect was extremely flat on 13 November 2018, the night prior to a mention of this matter before her Honour Judge Williams (as she then was). The Mother says that X told her that night, “Mum please don’t go to court, please just don’t go…I know you have court tomorrow. Just don’t go mum, you need to stop”. The Mother said X also said Court is extremely expensive and “costs thousands and thousands of dollars”. The Mother says she had not told X about the Court date the following day.
The Father denies that he has spoken to X about court or the cost of litigation. He says it is the Mother who has told X about there being a judge to decide the dispute.
The Mother acknowledged she had given X an age appropriate response when X asked what “custody” meant.
The Mother also read the Family Court produced booklet “Why am I going to see a Family Consultant” that she downloaded from the internet with X. I am satisfied that providing this information to X was appropriate.
It is perhaps unsurprising that X has become aware of the Court proceedings. She is the centre of the dispute, and between at least the end of 2017 and approximately May 2019 it was the focus of each of her parents to secure her in their primary care.
X’s birthday and the concert with the maternal grandmother
On around 23 November 2018, the Mother advised the Father that the maternal grandmother wanted to take X to a concert on a day that fell during the Father’s time, being 2 February 2019.
The Father sought to resolve the matter by agreeing to X going to the concert in exchange for X spending the night of her birthday, also in February, in his care. He told the Mother that X wanted to spend that night with him.
In my view, the Father was attempting to secure what he saw as an advantage for himself, conflating the two issues of X’s attendance at a concert and the arrangements for X’s birthday. He required that the Mother agree to him having X in his care for her birthday in exchange for X attending the concert. I have some concerns he was also involving X in these discussions, given that he refers a few times to what X has told him she wants in the parties’ exchanges.
X’s illness in December 2018
During the week of 3 December 2018, X was in her Father’s care. She was unwell and did not attend school for the week. The Father continued to work. It is his evidence that X was appropriately cared for by Ms G in his absence.
The Mother did not and does not have Ms G’s mobile number. That meant the Mother was unable to contact X during the day to check on her and see how she was feeling. The Mother sent the Father message through the parenting application ‘OurFamilyWizard’ on 7 December 2018 asking again for Ms G’s telephone number. The Father declined to provide her number, and said the Mother could communicate with him, he would not hand out his partner’s number without discussing it with her, and the Mother should use the Father’s phone number as a point of contact. He deposes that he did not provide the number “as there has been a strained relationship between Ms G and Ms Jancos”.
It remains completely unclear to me as to why the Father would not provide the Mother with Ms G’s mobile number. The Mother has provided the father not only with her mobile number, but with the number of her partner and the contact details of any person who provides care for X. That is appropriate and sensible parenting.
It is common ground that the Father facilitated a call and the Mother did speak to X that evening when the Father returned home from work. The Mother did not explain that in her affidavit material.
X’s haircut
In April 2019, the Father took X to get a haircut. There is no explanation as to why he did not discuss this with the Mother beforehand. The Mother was upset about the haircut. She said X’s hair is very dry, curly, and frizzy, and she had deliberately not taken X for a haircut for two years in an effort to grow out her hair. She said that X is self-conscious about her hair, and does not like how curly it is, and that by cutting the hair, X’s hair was very short and unmanageable. She said although X was initially pleased with the haircut, that after it was washed, the curls made it spring up very short, which upset X. The Mother said she has been very careful to ensure she compliments X on the haircut and did not let X know that she was angry at the Father about it. The Mother also complained that Ms G straightens X’s hair, causing it further damage.
The Father said it was his intention only for the hair to be trimmed, as requested by X, and that because her hair was so dry and damaged, a lot more was cut off than anticipated.
This dispute highlights the poor communication between the parties and the capacity for what might otherwise be minor parenting decisions to become new battle grounds. It also places X squarely in the centre of the conflict.
Ms G’s pregnancy
The Father did not tell the Mother when Ms G became pregnant, nor when they became engaged. Through other avenues, the Mother became aware in … 2019 that the Father and Ms G were expecting baby and were engaged.
X had not mentioned either the pregnancy or the engagement to the Mother or her family. The Mother says when she told X that she was aware X was soon to be getting a new sibling, she says X “responded in horror”, apparently unsure how to react to her Mother knowing this information. The Mother says she was quick to reassure X that this was good news and that if X was happy and excited, then so was she. The Mother expressed concern that X does not feel comfortable talking openly about exciting developments in her life, and worries that the Father has expected X to keep secrets from her.
It is unclear why the Father had not formally told the Mother about the pregnancy or engagement. In response to the Mother’s material, he deposes that “Ms G and I have chosen not to publicise our engagement and only a few close friends and of course X and Ms G’s family know”. If he expected X to not disclose the information, that reflects poorly on him. Equally, if he anticipated that X would tell the Mother, that suggests limited insight into the potential discomfort X may have in delivering such news, given the stress and tension between her parents.
Evidence of Ms P
The parties attended upon Ms P on four occasions between 20 December 2018 and 29 March 2019. During the family counselling, Ms P had the opportunity of meeting with each of the parties, as well as conducting observation sessions between the parents, X, and each of her step-parents.
Ms P describes each the parents as being “very determined to have the matter concluded in their favour”. Nevertheless, she said each parent persisted in an attempt to resolve the dispute. Ms P outlined the parents’ communication as being problematic. She did not see the parties’ written communication, but described that in sessions they each interrupted the other, bickered, focused on blaming the other parent, were overly concerned with the other’s wrongdoing and struggled to listen to the other parent’s point of view. She said on occasions, the Father acknowledged he could have managed some issues differently.
When meeting with X, Ms P noted “it became clear that she believed she needed to make mum and dad happy again”. She noted that X does not like being involved other parents in their dispute, and that she wants her parents to talk to each other rather than “tell her stuff”. It was Ms P’s view that:-
X is far too caught in the conflict and the disputes to be able to form her own view without having been overtly and covertly influenced from each parent. X needs a decision made for her to take the pressure away from her thinking she has to choose between her parents. It is my view that X has been under a great deal of stress which raises her anxiety.
Indeed, Ms P observed that X:-
…has been forced into the position of feeling that she is responsible for her parent’s well-being. This demonstrates a lack of insight into X’s emotional well-being.
[sic]
Ms P was concerned that each parent is trying to prove that they are the “better parent” which is causing X difficulties, and that this needs to stop. She noted that X “struggles with the shared care arrangement and she would rather mum and dad talk to each other rather than ‘tell her stuff’”.
Happily, Ms P noted that X appeared to have “warm and close relationships” with both of her parents as well as with each of her step-parents. She also observed that both parents are:-
…very responsible caring parents who each try to meet intellectual needs, day to day emotional needs and practical needs of X.
However:-
They are not meeting X’s overall emotional needs given the conflict between them.
Ms P noted that each parent was focused on the belief that the dispute is about “having X the major percentage of the time”, although the Father was able to leave open the option of shared care. She said the parties were focused on the fear that one or other would lose X if she lived with the other parent the majority of the time, seeing this as a “win/lose competition”. In her view, Ms P said recognising that it may be in X’s best interests to live primarily with one parent would not be a negative, but rather it would reflect well on the parent willing to make that compromise.
The Family Report
Ms O conducted interviews with the parties and X on 29 August 2018 and spoke again with the Mother and Father by telephone on 22 October 2018. She prepared a reported dated 29 October 2018.
When she interviewed the parties, Ms O described the Mother as presenting as “thoughtful about her caregiving role and committed to supportively parenting X”. That is also how she presented at trial. She said the Father also presented as “thoughtful and committed to meeting X’s needs”, which again accorded with his presentation at the Final Hearing.
Ms O formed the impression that the Father believed X had a stronger connection with him than with the Mother. She expressed some concerns that the Father at times presented as “focussed on meeting his needs in the relationship with X” and:-
…demonstrated a level of limited insight about his role in the past relationships and on such factors as the impact of separation from her mother for X”.
Ms O records that the Father:-
…referred a number of times to his likely emotional distress if X ‘chose’ to live with her mother and that in his view, the child would not be psychologically affected by any extended separation.
Ms O observed that X has a close, warm, loving and supportive relationship with both of her parents. However, she noted that at times X presented as wary and anxious, indicating a level of anxiety when both of her parents were present. Ms O said X’s relationship with Mr F was close and connected, but her relationship with Ms G seemed more distant.
It is the view of Ms O that the parties’ failure to sustain appropriate and effective communication with each other “has resulted in the anxiety and conflict of loyalty experience and demonstrated by… X”. In those circumstances, she recommended the parties attend joint parenting therapy as X’s emotional wellbeing is “the symptom of her parents’ limited capacity at this time to manage their relationship”.
Whilst generally positive about both parents and their parenting skills, Ms O expressed some concern that the Father at times appeared to be focusing on meeting his needs over those of X. Ms O further considered that the Father’s relative dismissal of any distress X may experience being separated from her Mother:-
…also indicates a level of limited insight into emotional attachment relationships and the parental caregiving role. His attitude might also reflect the presentations by X of loyalty conflict with the child might feel the need to shut down her feelings of connection to her mother when she is in Mr Cagney’s care and by expressing her preference for her father when in her mother’s care. If this dynamic continues, X’s healthy psychological development will be considerably compromised, given the emotionally divided life she may feel obligated to pursue.
Ms O observed that in her view, it seems likely that X feels unable to express a close and loving relationship with her Mother to her Father, and that X feels a need to demonstrate to her Father behaviour that is rejecting of her Mother. Ms O also said that X must however:-
…be freed from the developmental burden of supporting her father’s emotional wellbeing and from the guilt that she would experience when adopting the reported rejecting behaviour towards her mother”.
In these circumstances, Ms O recommended that the parties engage with family therapy as a matter of “some urgency.” Ms O warned that if the parental communication was not improved, X was at risk of developing “further symptoms of psychological dysfunction”. She said at paragraph 52 of the Family Report:-
The one factor that presents as a risk in X’s context is the co- parental relationship…whether Ms Jancos and Mr Cagney can communicate civilly about and plan for X together; whether they can manage conflict; whether they can be consistent but responsive to the schedule; whether they value X’s relationship with the other parent and whether they can ensure low stress transitions between their care.
Ms O was of the view that the weekly shared care arrangement had not protected X from anxiety and stress. She observed that if the parents lived closer to each other so that travel had not become a stressor, and if the parenting relationship was “more settled”, a continuation of equal time might have been appropriate. However, in the circumstances as presenting at the time the parties saw Ms O, she said an arrangement where X lived primarily with her Mother was recommended. She suggested X could spent alternate weekends with her Father between Thursday or Friday to Monday, and for one evening each week, together with a sharing of the holidays. She said that arrangement would have the benefit of not requiring X to travel the long distance between school and her Father’s then home in Suburb EE each school day every alternate week. She also recommended X remain at U Primary School, which she described as being a “safe haven” for X.
The Family Report was prepared almost 11 months prior to the Final Hearing. A number of matters have occurred in those intervening months, including:-
a)the parties have had the assistance of Ms P;
b)the Father has returned to live in Suburb H;
c)the parties have both completed post-separation parenting courses; and
d)the Father’s position has altered substantially, in that he now proposes a continuation of the long-term status quo, rather than a change of residence in his favour.
Evidence of Ms O at trial
When cross-examined by Counsel for the Father, Ms O made a number of concessions, including:-
a)she had put some weight on her belief that the Mother was supporting a relationship between DD and X, which is inaccurate;
b)she formed the view the shared care arrangement was forced upon the Mother, which also does not appear to be an accurate reflection of the commencement of shared care;
c)she said she had put weight on the allegations that the Father had been violent to the Mother and to other women. Much of that evidence was struck out by consent on the basis of objections. She also acknowledged that the Mother may have been embellishing her evidence to improve her case;
d)she had put some weight on her concerns the relationship between X and Ms G appeared lacking, and that the relationship between the Father and Ms G was relatively recently commenced. Those concerns do not appear to be supported by the evidence at trial. It appears the relationship between the Father and Ms G is committed, stable and long term, and according to Ms P, the relationship between X and Ms G is warm and appropriate; and
e)whilst Ms O maintained that the complaints X made about her Father suggested that the Father was attempting to marginalise the Mother, she conceded there was nothing in her observations that suggested the relationship between X and her Mother was anything but strong and positive. She agreed X’s attitude towards her Mother was unequivocally positive and there was no evidence of it being eroded based on her observations.
Ms O confirmed her concerns that the Father may be more focussed on his needs than the needs of X. Ms O also said she sees both parents as very capable, and that they managed the care of X for many years without the need to resort to lawyers or obtain orders. She described their relationship as relatively co-operative until recent times.
Ms O also maintained that X was very anxious about both her parents being in the waiting room, and that she is very aware they do not get along. She said her major concern was what she described as the Father’s limited insight.
As set out in her report Ms O considered that if geography was not an impediment, then perhaps five or six nights per fortnight with the Father, or even a continuation of the shared care arrangement, could be workable, provided the parental relationship is improved. She further conceded that her recommendations from 12 months earlier could be given less weight given the developments and evolution of matters between the parties.
Ultimately however, Ms O stood by her recommendations that X should have a primary home base. She said that when she saw X in August 2018 she had the overwhelming sense that X felt emotionally torn between her parents. Whilst X was equally attached to each of her parents, she felt unable to show that, and was demonstrating emotional distress as to how to navigate her relationship between her parents. That was why Ms O recommended family counselling. It was her view that if family counselling did not assist, then providing X with a place of primary residence, so she can “get a sense of where she belongs emotionally”, remained an appropriate recommendation.
School issues
The parties agree that X will remain at U Primary School until the end of this year.
In 2020, the Father proposes that X continue at U Primary School. The Mother proposes she move to Suburb E Primary School.
In 2021, when X starts school, the Father’s proposals are:-
a)V High School in Suburb GG. That school is less than 5 kilometres from his home, and some 45 kilometres from the Mother’s home. He says that is not impracticable as the Mother works in the Suburb HH area and will therefore be able to deliver X to and from school. He says it is a small school, and given that X has at times struggled academically, this will be of benefit to her. He also says V High School has a focus on sports, which is a sport X currently plays and enjoys. Given that the Father’s proposal is for equal time, this proposal makes limited sense. It would require X to undertake extensive travelling each alternate week from her Mother’s home to a school close to her Father’s home;
b)Suburb C School. This is 32 kilometres from the Mother’s home and 15 kilometres from his home; or
c)Suburb B School. That school is approximately halfway between the parents’ homes. It is a school the Mother proposed, although due to an error in her affidavits, she had erroneously proposed Suburb B High School.
The Mother proposes, on the basis that X primarily lives with her, that X attend:-
a)Suburb E Primary School in 2020. The Mother says this is a feeder school to Suburb A secondary College and accordingly, if X attends Suburb E primary school next year, she will make friends who will then commence at the same high school with her the following year. That school is 3.5 kilometres from the Mother’s home and 40 kilometres from the Father’s home; and
b)A High School when she starts year 7 in 2021. That school is 2.5 kilometres from the Mother’s home and just over 42 kilometres from the Father’s home.
If X remained in a shared care arrangement, the Mother proposed Suburb B School, or Suburb J as options for secondary schooling.
U Primary School is 36 kilometres from the Mother’s home and 10 kilometres from the Father’s home. In terms of travel time:-
a)the Mother deposes that it takes around 37 minutes to drive between her home and U Primary School, although it can take up to 1 hour; and
b)from the Father’s current address, I note in his affidavit filed 21 March 2019 at paragraph 16 he described the drive between his Suburb EE home in X’s current primary school as being a 38 minute drive, and at paragraph 19(e) he says the drive from his home in Suburb EE “does not differ significantly from when we were living in Suburb H”.
Accordingly, if X remains at U Primary School, whilst she has the benefits of stability and security, X will have to continue to endure significant travel time. This is a matter she has raised as being problematic for her.
There are significant benefits to X remaining at U Primary School until the end of 2020. She has been at that school since Prep. She is doing reasonably well, has friends and appears settled. The Father says additionally she is in a class with AA, and the girls are close.
A change in primary school would subject X to a major upheaval by changing schools. Ms O said school should be a “safe haven” for X, and that “given her academic vulnerability, a change of school is likely to be stressful and impact on X’s capacity”.
However, a change in primary school, if coupled with a change in residence, would relieve her of the significant burden of travel on the days she travels between her Mother’s home and school. Suburb E Primary School is within a few minutes’ drive of the Mother’s home. Travel from her Father’s home, however, would be longer than she currently endures.
If shared care arrangements remain in place, the arguments in support of X attending Suburb B School include:-
a)it is a school approximately halfway between the parents’ homes. According to the Google Maps that were tendered, the school is approximately 33 kilometres from the Mother’s home and approximately 20 kilometres from the Father’s home. I understand it may take around 35 to 45 minutes’ drive, taking a little longer from the Mother’s home; and
b)it is a school that both have identified as being one which would potentially suit X and her needs.
The Father’s proposal that X remain at U Primary School next year, and then attends a high school approximately equidistant between the parties’ homes, overlooks the benefits to children of being able to attend a school close to where they live. Lengthy travelling to and from school can be tiresome and burdensome, and as already observed, it is something X has highlighted as being problematic for her.
The Father’s evidence was that in running his company, he starts around 7.30am. He works from a number of different locations, including Suburb EE, Suburb KK, Suburb LL, Suburb MM and Suburb T. He relies on Ms G to assist with delivering X to school in the mornings. I do not know where the Father and Ms G intend to send AA to secondary school, or BB to primary school. Ms G will also have the care of their new baby. Potentially, Ms G could be driving children to a number of different locations each morning before school, which could become unwieldy.
Attending a school in between her parent’s houses may also make it more difficult for X to participate in extra curricula activities as there is less time after school available for her to do so, given the time spent in transit. Further, she may not have the same opportunities to develop friends and social networks close to her home, or to build a sense of “community” as referred to by Ms O. These concerns are as valid in relation to primary school as they are in relation to secondary school.
I note the Father sensibly conceded in his evidence that if X was living primarily with the Mother she should attend a school closer to the home at which she primarily resides.
Ms P was asked about the questioning of schooling in the event X were to live primarily with the Mother. She said there were benefits to X remaining at her current school, as it is enough for her to deal with her parents’ conflict without the added burden of an unnecessary school change. However, she said there were also benefits to X changing primary schools in 2020, attending a school closer to her home and making friends with those who would move into the same secondary school as she does.
Ms O agreed with those observations. She added that as X presented as a social girl, she anticipated she had the capacity to establish a new social network even if she started at a secondary school without an established friendship group.
The relevant legal principles
The legislation
Part VII of the Family Law Act 1975 (“the Act”) guides the process in relation to the making of parenting orders.
Section 60B of the Act sets out the objects of Part VII. They are to ensure that the best interests of children are met and hence, the objects act as a guide:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to children, the Court must consider the best interests of the children as the paramount consideration.
When determining X’s best interests, there are two primary matters or considerations, and a number of additional matters or considerations, which I am required to take into account.
Section 60CC(2) of the Act sets out the two primary considerations I must consider:-
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I must also weigh and consider the additional considerations set out in section 60CC(3) of the Act. I will turn to those primary and additional considerations later in these reasons.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is “proper”, and how the Court’s discretion is to be exercised, the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 at paragraph 18 said:-
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
Parental responsibility
Section 65DAA of the Act sets out, inter alia, that if an order provides for equal shared parental responsibility, the Court must consider firstly whether equal time is in the child’s best interests and whether an order to that effect is reasonably practicable. If the answer to either of those questions is negative, I must then consider both whether substantial and significant time is both in the child’s best interests and reasonably practicable. This is the approach set out by the High Court in MRR v GR [2010] HCA 4, in which the High Court emphasised the Court must be satisfied both that the order is in the child’s best interests and reasonably practicable, before consideration can be given to the order being made (emphasis added).
In this case, the parties agree there should be an order for equal shared parental responsibility. That is an appropriate order in the circumstances of this case. It is the Father’s proposal that time should remain on a shared care arrangement. Accordingly, I must follow the legislative pathway as already set out.
There is no requirement that the Court consider the question of best interests or reasonable practicability in any particular order, as per Beckham & Desprez [2015] FamCAFC 247. However, it is suggested by the Full Court in Starr v Duggan [2009] FamCAFC 115 at paragraph 38 that a logical approach would be to:-
first make findings concerning the relevant s 60CC factors;
then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
I shall follow that logical approach.
The considerations pursuant to section 60CC of the Act
In making parenting orders, the best interests of the children are the paramount consideration. The Act provides two primary considerations pursuant to section 60CC(2) of the Act, described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour said at paragraph 3:-
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.
The Court must give greater weight to the need to protect a child from harm, if there is a conflict between those “twin pillars”.
The parties agree that X will benefit from having a meaningful relationship with both of her parents. The proposals of both parents would promote that relationship.
It is the Mother’s case that the Father has engaged in manipulative actions and behaviours which have undermined X’s relationship with her Mother, creating a sense of competing loyalties. She says that places X at risk of emotional harm.
Although the Father initially asserted in his Notice of Risk that there were risk issues in the Mother’s home, this was not pressed at trial. I note however in his oral evidence that the Father struggled to acknowledge that X was not at risk in the Mother’s home.
Ms O raised some concerns in her report that X feels a need to demonstrate rejecting behaviour towards the Mother when she is with the Father, and that X bears some of the burden of supporting her Father’s emotional wellbeing. Ms O said that X’s long-term outcomes are a risk if her parents are unable to develop a more civil and respectful communication. She said further that if these matters are not addressed:-
X is at risk of developing further symptoms of psychological dysfunction such as behavioural acting out and dysfunctional relationships with significant figures as she reaches adolescence and then young adulthood.
Other than the risk to X’s emotional wellbeing as a result of the conflict and lack of communication between her parents, I am satisfied this is otherwise not a case in which X is at risk of being exposed to harm. As I have already said, whilst both parents raised historical allegations against the other, those matters are of very limited weight given the ambit of the dispute and the totality of the parenting history.
The additional considerations pursuant to section 60CC(3) of the Act
Any views expressed by X and any factors (such as X’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to her views
X articulated to Ms O that she needs both a mum and a dad. She was also clear that she wants the current shared care arrangement to continue. Indeed, Ms O said “X expressed a strong preference for the current arrangement of equal shared care to remain in place”.
In her oral evidence, Ms O said that weight should be given to those wishes. This is particularly so given the Mother’s own evidence that at the time of the Family Report interviews, X was less affected by what she described as the Father’s manipulation. She also said that if X continues to express a view for shared care, which it is understood she does, then more weight can be given to those wishes. She confirmed that there was nothing in X’s presentation that suggested she had been coached to express that view.
X also expressed that she does not like the amount of travel she endures travelling between each parents’ home and her school. The travel time was according to Ms O the only significant reservation that X had about the current arrangements. X did also say that she sometimes “gets annoyed” at the Father’s home because she wants “privacy”.
I note also the Mother’s oral evidence regarding X’s response following a court appearance at the end of 2018. At that time, the parties agreed to continue the shared care arrangement. The Mother said X was very happy that nothing had changed. She said X was very stressed that “she was going to lose one parent”, or be taken away from one parent.
Similarly, in his oral evidence, the Father said that on one occasion earlier this year, X burst into tears when he collected her from school. She said she did not want to choose between her parents.
Ms O noted that it “is apparent that X feels emotionally caught about the relationship with her parents” and X has been exposed to her parents’ conflict, which appears to have resulted in behaviours that Ms O describes as indicative of “anxiety, distress and emotional dysregulation.”
It is also clear that X is anxious about having to “choose” or alternatively to “lose” a parent. As Ms P observed, “X is far too caught in the conflict and the disputes to be able to form her own view without having been overtly and covertly influenced from each parent”.
I note further that notwithstanding X’s views, the reality is, as observed by Ms P, that X has struggled with the shared care arrangement. These observations lessen the weight that I ultimately place on this consideration.
The nature of X’s relationships with each of her parents and other relevant persons
Notwithstanding the Mother’s concerns that her relationship with X was under attack, it is apparent X has a close, secure and loving relationship with her Mother. Ms O describes observing the Mother as being “playful, warm and engaged” with X and that X was “equally playful and warm” in response. She said that “X presents with strong bonds to her mother and to Mr F who was warmly involved with X”. Ms O said there was nothing in the mother-child interaction that suggested X had any fear of her Mother.
It is also apparent that X’s relationship with her Father is strong, close and loving.
In regards to X’s relationship with her parents, Ms O writes that “X presented with an equally strong bond to both parents with an appreciation of the respective contributions to her development”. She experiences both of them as interested, helpful, loving and understanding of her. Ms P’s observations were also that X has a warm and close relationship with both of her parents.
Ms O’s observations of the relationship between X and Ms G raised some concerns. However, Ms P has subsequently interviewed X and observed that relationship to be far more positive. I put more weight on Ms P’s observations and on Ms G’s unchallenged evidence in this regard.
X also has a positive and warm relationship with Mr F, as well as with members of her extended family on both sides. That includes her relationship with Ms G’s children and with her grandparents on both sides.
Although the Mother asserted in her material that she facilitates a relationship between X and her sister DD, there is no evidence to support that. She has taken X to see DD once only, shortly after she was born. Although she may have an intention to support that relationship, she has in reality taken only very limited action to give effect to that intention. The Father says at this time he is not pursuing a relationship with DD. It is unfortunate for X that the Father has taken that stance, as it deprives her of the opportunity to form a relationship with DD. It may also send a message to X that parents can rank their children in priority, or that some children are not worth making an effort for.
X has by now welcomed a new sibling into her life. Even though brand-new, that relationship is, and should be, important to her. It should be fostered and nurtured.
The extent to which each of X’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to X and to spend time and communicate with her
It is not in dispute that both parents have done all they can to be involved in decisions regarding X’s long term care, and to participate and be as involved as they can be in her life.
The extent to which each of X’s parents has fulfilled or failed to fulfil their obligations to maintain her
It is also not in dispute that the parties each provide for X when in their respective households. Whilst there was at some stage a child support assessment in place, the parties reached an agreement that neither would require child support from the other.
The likely effect of any change in X’s circumstances, including the likely effect on her of any separation from either of her parents or any other significant person
There is some debate as to when the week-about arrangement commenced. It has been in place for approximately five years, which is a substantial period of time from X’s perspective.
The Mother asserts that if the time arrangements are altered as sought by the Mother, and X attends a school close to her primary residence, whilst X will spend less time with her Father, she will derive considerable benefits. Those may include:-
a)X will have a stable primary home base, which will give her a stronger sense of where she belongs emotionally;
b)She will be relieved at least in part of the burden of feeling emotionally responsible for her Father, and her conflicts of loyalty will lessen;
c)she will spend considerably less time commuting between home and school;
d)she will have the opportunity to participate in extra curricula activities local to her home base; and
e)she will be able to develop friendships with children living close to her home.
There was little evidence from Ms P as to the impact on X if her time with her Father is reduced from an equal shared care arrangement. Ms P said she asked the Mother if she thought X would experience any difficulty with that. The Mother is reported to have said that X would cope.
In my view, there is likely to be an emotional impact on X if the current arrangements are changed. She has been in a shared care arrangement for some time, with the week-about arrangements having been in place since around the time she started school. That enables X to spend weekend and weekday time with each parent. Altering this arrangement may impact on X’s relationship with her Father and those in his household. If X’s time in the Father’s home is reduced, that will impact the amount of time X is able to spend with her new sibling. Ms P said it is very important that X has the opportunity to build a strong relationship with all her siblings, including her newborn brother.
Having said that, if X’s time with the Father is reduced to 5 nights per fortnight, rather than a week-about arrangement, this would not likely require a major adjustment on X’s behalf. She would still be spending substantial and significant time with her Father and the members of his household during both the school week and on weekends.
The practical difficulty and expense of X spending time with and communicating with a parent and whether that difficulty or expense will substantially affect her right to maintain personal relations and direct contact with both parents on a regular basis
The Mother asserts that X’s travel between homes and her current primary school, and the secondary school proposed by the Father, creates a practical difficulty for X in the shared care arrangement continuing.
Whilst X bears a not insignificant travel burden, the Father says the travel is not so onerous that it creates a practical obstacle to the continuation of shared care.
I note that X identified the travel to school as difficult. At that time, she was travelling between her Mother’s home and U Primary School one week and her Father’s then home in Suburb EE and U Primary School in the other week. Although the Father has now moved closer to the school, according to his own evidence, the travel time continues to be roughly similar.
The capacity of each of X’s parents and any other significant person to provide for X’s needs, including emotional and intellectual needs
Despite the Father’s assertions regarding concerns about the Mother’s parenting capacity, these concerns were not pursued at trial. Implicit in his proposal that orders be made for equal time is a concession that the Mother is well placed and able to meet X’s needs.
The Mother’s case is that the Father’s parenting capacity is somewhat impaired, that he has exposed X to psychological harm by undermining X’s relationship with the Mother, and that he has placed his needs above X’s at times.
Ms O observed:-
As individuals, Ms Jancos and Mr Cagney present overall with sound attitudes about the responsibilities of parenting and they have both demonstrated the ability to provide for their child’s welfare, safety and development, given X’s presentation at this assessment.
In her oral evidence, Ms O said that the Father presented to her with a sense of being more focussed on his needs, at times over the needs of X. She also suggested he had some emotional reliance on X.
Ms P described both parents as being responsible and caring, but she raised real concern as to the parties’ capacity to focus on X’s needs and prioritise those above their desire to “have the matter concluded in their favour”. She raised concerns about their poor communication, their struggle to listen to the other parent, and the impact this has had on X. X is left caught in the conflict, and feeling she is responsible for her parents’ wellbeing. In those circumstances, Ms P said the parents are not meeting X’s emotional needs.
I share the concerns raised by Ms P, that the parties are focussing on this as a win/lose battle for time with X, which distracts their focus from X’s best interests. It places her in the centre of their conflict, and causes her to feel both that she is responsible for the happiness of each of her parents, and that she is somehow required to choose between them.
During his oral evidence, the Father was able to acknowledge that as a result of Ms P’s input, as well as following the completion of the parenting course, he was able to understand better the need to keep X out of the parental conflict. He also said he now understood that the poor communication between the parents affects X’s mental health and that he is willing to undertake therapy to “fix” his relationship with the Mother in order to assist X. Ms P confirmed in her oral evidence that there were times the Father was able to acknowledge that he could have taken a different approach. I accept that he now has greater insight. However, it remains to be seen whether he modifies his behaviour, or indeed, whether the Mother can modify hers.
Ms P said in her evidence that whilst she hoped the parties may have been able to move forward, that “did not happen….they were not able to move on”. She said that whilst the Father appeared to have the attitude to an extent that he wanted to work on their relationship, the parties were “very much in their own corner”, and “neither were prepared to look at a different way to move forward”. These issues are likely to be problematic if shared care continues.
Accordingly, whilst both parents clearly love X and want the best for her, little will change for X in terms of being the centre of the conflict, unless both her parents commit to changing that for her.
If the parental relationship continues as it is, Ms O said in her oral evidence that X may be living an emotionally divided life, experiencing ongoing conflict of loyalties, a belief she is somehow responsible for her parents’ well-being, and is at risk of developing more significant symptoms of anxiety. She said that the Mother appeared to understand the risks for X, but the Father seemed unaware of the consequences of his focus on X.
I have had the valuable opportunity to see the Father give evidence over a protracted period, subsequent to the parties undertaking some parenting counselling and education. He expressed remorse and regret for a number of inappropriate responses. He expressed some understanding of how his choices impacted X. However, I remain concerned at the lack of parental co-operation, and the observations of Ms P that the parties remained oppositional and unable to progress from their particular points of view. This strongly mitigates against the continuation of a shared care arrangement.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and of either of her parents, and any other characteristics of X that the court thinks are relevant
The matters relevant to this consideration have already been expressed earlier in this judgment.
Whether X is an Aboriginal child or a Torres Strait Islander child
This consideration is not relevant to these proceedings
The attitudes to X, and to the responsibilities of parenthood, demonstrated by each of her parents
I have already touched on many of the matters relevant to this consideration. The parties have both demonstrated that they are committed parents, who both take their responsibilities towards X very seriously.
In my view, one of the responsibilities of parenthood includes finding ways to respectfully appropriately communicate with the other parent, and to be child focused in those communications, looking for solutions and resolutions to disputes that will benefit the child.
It is abundantly clear that at times both parents have been disrespectful to the other in communication. The tone and content of the Father’s communications in particular are troubling. Not only has he been derogatory and abusive towards the Mother, he has at times involved, or allowed X to be involved in the dispute. He has also been high-handed and inflexible at times.
I accept the evidence of both parties that X was struggling to switch between homes in 2017 and into 2018. I accept that she did say to her Father that she wanted more time with him. I also accept that she made comments to her Mother that were rejecting of her. As Ms O and Ms P observed, X is caught in her parent’s conflict. It is not surprising that X has been observed by both her parents to act in the manner she has, and to have said the things about the other parent as they report. It does appear, however, that some of these complaints and behaviours have settled down throughout the later part of 2018 and into 2019. Notwithstanding that observation, when seen by Ms O in August 2018 and by Ms P in late December 2018, she was described by both professionals as being an anxious child, well aware of the parental conflict, and squarely at its centre.
I note that Ms O observed “in this family long-term outcomes are at risk if Ms Jancos and Mr Cagney cannot develop a more civil and respectful communication relationship.” I share those concerns. Again, this consideration counters against the continuation of a shared care arrangement being in X’s best interests.
Any family violence involving X or a member of her family
Although both parents made allegations about the other parents’ past behaviour, including the Mother referring to an incident between the Father and a previous girlfriend, these matters were not explored at trial. As already set out, the allegations were historical and of limited relevance to the issues in dispute.
There is no Family Violence Intervention Order in place. There was an Intervention Order in place some time ago, and I place little weight on that consideration.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to X
Both parties seek final orders. In my view, it is in X’s best interests that final orders are made. The proposals of both parties would be unlikely to lead to further proceedings.
Reasonable practicability and best interests
I now turn to the legislative pathway. I must consider firstly, whether equal time is both reasonably practicable and in X’s best interests. If the answer to either of those questions is no, then I must consider whether substantial and significant time is both reasonably practicable and in X’s best interests.
I am not satisfied that an order for equal time is either reasonably practicable or in X’s best interests.
In terms of practicability, an equal time order would require X to endure significant travel to and from a school in between her parents’ homes until the completion of her secondary schooling. As already set out, that will significantly deprive X of the opportunity to participate in friendships and activities close to her home and be a part of a community close to her home. The additional travel is burdensome and tiring. It diminishes the time X will have to participate in activities, undertake homework or to simply unwind at home.
The travel requirements will likely mean she will be wholly reliant on her parents to transport her to and from school. Although public transport may be an option, no evidence was adduced as to how that might be accommodated. It is most likely that if it were available, public transport travel would increase the length of her commute, further depriving X of time at home or time to participate in social or extra-curricular activities. The Father’s evidence was that he will be reliant, at least in part, on Ms G in transporting X. If the Mother has to drive X to and from school, that will impact on her capacity for employment. Although she currently works close to X’s school, she has expressed an intention to pursue other avenues of employment. The current arrangements would not readily permit that.
Additionally, as already set out in detail, I have significant concerns about the parties’ communication and co-parenting relationship, and their capacity to manage a shared care arrangement moving forward. Whilst they were reasonably co-operative until sometime in 2016, the parenting relationship has been in serious difficulty since then. The prognosis for improvement as outlined by Ms P is poor. This mitigates against an equal time arrangement being practicable or workable.
The impact on X of the strained parental relationship whilst living in a shared care arrangement has been significant. Both parties, by around 2017, had formed the view that shared care was not working for X and that she was struggling with the arrangement. In 2018, both parties sought orders that she live primarily with that parent, on the basis that the shared care arrangement was no longer working for X. That continues to be the Mother’s position. The Father altered his position in May 2019, after the matter was first listed for Final Hearing. Given the Father’s complaints about the Mother in his affidavit material, that may have been a strategic decision by him, rather than a genuine belief that such an arrangement is in X’s best interests.
I am satisfied that an arrangement whereby X lives primarily with the Mother and spends substantial and significant time with the Father is both in her best interests and reasonably practicable. X will have the benefit of having a stable and secure home base with an attuned parent. This will alleviate her sense of being caught between two warring parents whose capacity to communicate is compromised. By spending five nights in her Father’s household each fortnight during school term, her relationships with her Father, her new sibling and those in her Father’s household will be maintained.
In my view X should remain at U Primary School for the completion of her primary schooling, and then move to A High School in 2021. Whilst X will continue to endure a longer commute to school in 2020 from both parents’ houses, she will have the comfort and stability of staying at a familiar school whilst she adjusts to the changed parenting arrangements.
Upon commencing secondary school, whilst the commute to and from school from her Father’s home will continue to be long, and will even increase, the majority of her travel will be from her Mother’s home. That travel is minimal. Overall, her travel time will be significantly reduced. I have already set out the benefits to X of attending a school close to one primary home. I note both parties agreed that if X lived primarily with one parent, she should attend a school closer to that parent’s home.
I wish to stress that my decision should not be seen as punishing the Father or rewarding the Mother. This was a finely balanced case. My concerns centred on the impaired parental communication, the poor parental relationship since 2016, the poor prognosis for improvement to that relationship, and the emotional distress and internal conflict the parents’ conflictual relationship causes and has caused X. I am also very mindful of the potential consequences for X should she remain caught in an unchanging dynamic of warring parents. As already set out at length, the ongoing parental conflict is a risk factor for X. Additionally, the issue of extensive travel time for X was significant. It is hoped that the parties find ways to address their communication and move forward.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of Judge Carter
Date: 30 October 2019
Key Legal Topics
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Family Law
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