JARMAN & BARLOW
[2011] FMCAfam 1566
•11 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JARMAN & BARLOW | [2011] FMCAfam 1566 |
| Catchwords: FAMILY LAW – Final Property adjustment – competing property adjustment applications – assessment of contribution – consideration of section 75(2) factors. |
| Legislation: Family Law Act 1975, ss.13C, 55, 60CA, 60CC, 61DA, 65DAA, 65DAA(5), 69ZT, 69ZN, 75(2), 117, 117(2A) Evidence Act 1995, s.140 |
| Cases cited: Other Articles Cited: |
| Applicant: | MR JARMAN |
| Respondent: | MS BARLOW |
| File Number: | AYC 66 of 2009 |
| Judgment of: | Harman FM |
| Hearing dates: | 13, 14 and 15 December 2010, 9, 10 May 2011 |
| Date of Last Submission: | 10 May 2011 |
| Delivered at: | Albury |
| Delivered on: | 11 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harper |
| Solicitors for the Applicant: | Robb & Associates Solicitors |
| Counsel for the Respondent: | Ms De Vere |
| Solicitors for the Respondent: | Watts McCray Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Boyle |
| Solicitor for the Independent Children’s Lawyer: | Harris Lieberman |
ORDERS
Discharge all prior parenting orders with respect to the child of the relationship X born (omitted) 2008.
X’s parents Mr Jarman and Ms Barlow shall have equal shared parental responsibility for X.
X’s parents shall consequent to the above order consult with each other and make joint decisions with respect to major long term issue decisions as defined in the Family Law Act 1975 including but not limited to:
(a)X’s education including pre school and school;
(b)X’s religious and cultural upbringing;
(c)X’s health and particularly any specialist medical treatment;
(d)X’s surname; and
(e)Any changes to X’s living arrangements which would make it more difficult to spend time with a parent or would impact upon X’s meaningful relationship or potential to develop same with each parent.
That until the commencement of term one in 2012 X shall live with her Father:
(a)From the date of these orders and until 6pm Sunday 15 May 2011;
(b)Thereafter each alternate weekend from 10am Friday until 6pm Sunday;
(c)In each intervening week from 10am Thursday until 6pm Sunday (and with the intention that X will be in her Father’s care for a period from Friday to Sunday and then the following Thursday to Friday)
Commencing from the first term of 2012 and continuing until first term 2013 X shall live with Father:
(a)Each alternate weekend from 10am Thursday until 6pm Sunday;
(b)Each intervening week from 10am Thursday until 6pm Friday (with the intention that X will be in her Father’s care from Thursday until Sunday and then the following Thursday to Friday).
Commencing from the first school term of 2013 until first school term 2014 X shall live with her Father:
(a)Each alternate weekend during school terms from the conclusion of school Thursday until the commencement of school the following Monday (extending to Tuesday if long weekend or pupil free day);
(b)Each intervening week during school days from the conclusion of school Thursday until the commencement of school Friday.
(c)For the first half of each short New South Wales school holiday period from 10am on the first Saturday until 6pm on the middle Sunday; and
(d)For two periods of one week each during the Christmas school holidays commencing December 2013 and being, failing agreement to the contrary between X’s parents:
(i)A one week period commencing 3pm Boxing Day and concluding 3pm 3 January 2014; and
(ii)From 3pm 19 January 2014 until 3pm 26 January 2014.
Commencing term one of 2014 and thereafter X shall live with Father:
(a)In each alternate week during school terms from the conclusion of school Thursday until the commencement of school the following Monday;
(b)In each intervening week from the conclusion of school Wednesday until the commencement of school Friday; and
(c)For one half of each New South Wales school holiday period as agreed between X’s parents or failing agreement, for the first half of each short New South Wales holiday period (as defined above), and alternating between the first and second half of each school holiday period during the Christmas holidays commencing with the first half of the Christmas school holidays commencing December 2014.
X shall live with her Mother at all times other than when living with her Father.
Notwithstanding the above orders X shall spend time with her Mother and Father respectively on the Mother’s and Father’s Day weekends if she will not already be in their care on that weekend and from 6pm Saturday until the commencement of school the following Monday.
Notwithstanding the above orders X shall spend time with her Father for the Christmas Eve/Boxing Day period in each year until and including Christmas Day 2013 as follows:
(a)Christmas 2011 (being a weekend when X would otherwise in her Father’s care) time shall conclude 6pm Christmas Eve;
(b)In 2012 X shall be in her Father’s care from 3pm Christmas Day until 3pm Boxing Day; and
(c)In 2013 X shall be in her Father’s care from 3pm Christmas Eve until 3pm Boxing Day.
Commencing Christmas Day 2014 X shall spend time with the parent with whom she is not spending the first of the Christmas school holidays from 3pm Christmas Day until 7pm Boxing Day.
During 2012 each parent may nominate four periods per calendar year of 7 days each that they will have X in their care for the purpose of a block period of time with her and provided:
(a)The parenting wishing to have that period is to give notice of not less than 14 days to the other parent;
(b)The period of 7 days shall not include Christmas Day or X's Birthday;
(c)If Mr Jarman is having a 7 day period it shall as far as practicable include and incorporate the weekend period he would already exercising;
(d)If Ms Barlow is intending to have a block period it shall occur during a period when Mr Jarman is due to have X in his car for a Thursday to Friday period and not a Thursday to Sunday period.
Each parent shall be entitled to communicate with X by telephone and email at all reasonable times and with reasonable frequency and provided that the parent wishing to contact X shall instigate that communication and the parent in whose care X is at that time shall provide X with such assistance as she may require to speak on the telephone or to use the computer but to otherwise allow her to communicate in privacy.
Each parent shall refrain from and is restrained from:
(a)Discussing these proceedings, any evidence given in these proceedings or any allegation raised in these proceedings with X or any other person other than by way of provision of a copy of these orders and/or as may be strictly necessary to assist in the provision of a therapeutic service to them or X; and
(b)Denigrating, speaking ill of or otherwise criticising or castigating the other parent to or in the presence or hearing of X or allowing causing, permitting or encouraging any other person to do so.
Each parent shall forthwith upon X’s enrolment at any preschool or school cause both parents details to be made known to the school as X’s parents, their details together with those of the paternal grandmother to be recorded as emergency contacts and otherwise do all things, sign all documents and give all consents and authorities necessary to enable both parents to be fully consulted and advised regarding any matter of X and to receive such information or material as they may desire and to attend all and any events or functions or at any time or for any purpose that parents are authorised and permitted to do so.
Each parent shall forthwith and contemporaneous with the event advise the other parent of any significant illness, significant appointment or hospitalisation relating to X and shall provide such consents and authorities necessary to enable both parents to be fully advised and consulted regarding treatment and to visit X if hospitalised.
In the event that either party proposes to make application for variation or enforcement of these orders then until first term 2014 any such application shall so far as is practicable is to be listed before me for determination and not otherwise.
In the event that either party seeks to discuss the operation of these orders or the exercise of equal shared parental responsibility or seeks to review the orders in place then they shall arrange and attend Family Dispute Resolution with an accredited practitioner prior to making any application to this Court and subject to any suggestion of urgency or exemption shall be dealt with by a Registrar or Federal Magistrate.
For the purpose of X passing between her parents:
(a)Changeover shall occur as far as practicable at X’s school or pre school if enrolled;
(b)If X is not enrolled at or attending school or preschool changeovers shall continue to occur through the (omitted) Contact Service or if that service is not available at any time or for any reason outside KFC (omitted).
Each of the parents shall at any time that they are in proximity to each other conduct themselves with dignity and shall acknowledge the other courteously and treat the other with respect and shall ensure that any other person with them also do so.
Each parent is to keep the other advised at all times of their residential address, residential phone number, emergency contact number and email address.
X’s parents shall as far as practicable and save in the case of emergency communicate with each other by email or text message and shall in all communications between them be courteous and respectful of the other and focus upon issues in dispute between them in a non judgmental and constructive fashion.
Each of the parents shall be entitled to provide to their respective counsellor and to X’s treating general practitioner and paediatrician a copy of these orders and with the intention that those persons shall be fully aware of the arrangements in place for X’s care and decision making and to ensure that each is able to participate in those provisions.
PROPERTY
Within 3 months of today’s date the Husband shall pay to the Wife the sum of $78,000.
Upon payment by the Husband to the Wife of the sum of $78,000 that:
(a)The Husband shall forthwith and simultaneous therewith do all things, sign all documents and give all consents and authorities and instructions necessary to transfer to the Wife all of his right title and interest of the property known as and situate at Property B.
(b)The Wife shall forthwith and simultaneously cause the Husband to be released and discharged from any liability to the (omitted) Bank with respect to their first mortgagee encumbering that property and otherwise indemnify the Husband with respect to all outgoings and liabilities with respect to that property.
In the event that the Wife should determine that she does not wish to retain the Property B property then the Wife shall within 21 days of today’s date advise the Husband of that fact in writing and the Husband and Wife shall then each do all things, sign all documents and give all consents and authorities necessary to list for sale and sell that property by private treaty and for the best price achievable and upon completion of sale of that property the following shall apply:
(a)The proceeds of sale of that property shall be distributed in the following priority:
(i)payment and adjustment of any outstanding council or water rates;
(ii)payment out of sale costs including agents commission and legal fees on sale of and discharge of mortgage;
(iii)discharge of the mortgage to the (omitted) Bank;
(iv)in payment of the nett balance remaining to the Wife.
(b)And in such circumstance payment by the Husband to the Wife (pursuant to order 25 above ) shall if possible occur contemporaneous with settlement of the sale (noting the encumbrance of the former matrimonial home is collaterally secured against the Property S property against which the Husband is refinancing) and if not possible then within 6 weeks of completion of the sale of that property
Pending either payment by the Husband to the Wife as above or completion of the sale of the Property B property each of the Husband and Wife shall contribute not less than one half of the interest payment with respect to the mortgage encumbering the Property B property.
In the event the Husband shall fail, neglect or refuse to pay the sum of $78,000 to the Wife within 3 months of the date hereof then the Husband shall forthwith and thereafter sign all documents and give all consents and authorities necessary to list for sale by private treaty and at the best price achievable the property at Property S and upon completion of the sale the net proceeds shall be distributed in the following priority:
(i)payment and adjustment of any outstanding council or water rates;
(ii)payment out of sale costs including agents commission and legal fees on sale of and discharge of mortgage;
(iii)discharge of the mortgage encumbering the property;
(iv)in payment to the Wife in the sum of $78,000 together with interest calculated thereupon in accordance with the Family Law Act and Rules three months from the date of these orders until the date of payment.
Each of the Husband and Wife shall do all things and sign all documents as may be necessary to cause and affect the transfer of registration of the motor vehicle in each parties’ respective possession into that parties sole name.
Pursuant to section 78 each of the parties shall be and is hereby declared as against the other the sole owner both at law and in equity of:
(a)all monies in their respective possession, custody or control whether held in cash or held by any financial institution;
(b)all shares or other investments in their respective custody, possession or control;
(c)any motor vehicle in their possession;
(d)all items of furniture, personalty and chattels in their respective custody, possession or control; and
(e)all contributions to or benefits or entitlements arising from membership of any superannuation fund in their sole name.
Dismiss all outstanding applications and responses and remove all issues from the list of cases awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
Liberty is granted to the parties to restore the matter to my list in the event of any error or clarification with respect to property adjustment.
Grant leave to the Independent Children’s Lawyer to make an application for contribution to costs totalling $16791.45 and as against each party.
Decline to make any order for costs and order each party and the Independent Children’s Lawyer to pay their own costs of and incidental to the proceedings.
Divorce granted to become final one month from today’s date.
Vacate the further listing of the Divorce application 27 June 2011.
IT IS NOTED that publication of this judgment under the pseudonym Jarman & Barlow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALBURY |
AYC 66 of 2009
| MR JARMAN |
Applicant
And
| MS BARLOW |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to competing Applications for both property adjustment and parenting Orders.
The parties to the proceedings are the Applicant, Mr Jarman and the Respondent, Ms Barlow. Mr Jarman and Ms Barlow are the parents of a child, X, born (omitted) 2008, who has very recently turned three years of age.
These proceedings have a lengthy history. The first Application in the proceedings was filed on 11 February 2009. The proceedings have taken some two years to reach a conclusion.
The matter occupied three days of Hearing in December, 2010 and was then adjourned part-heard. The Hearing concluded 9 and 10 May 2011. This Court event marks the sixth day of the Hearing and the conclusion of the matter.
The parties have not been able to agree on many facts. That arises not so much from the inability of the parties or their legal representatives to focus on those issues but from the conflicted state of the evidence in the proceedings, particularly the expert evidence.
At the outset of these reasons I wish to make clear, for the benefit of the parties, that I do not propose to canvass each and every aspect of the evidence that has been led and tested during these proceedings. That is not through any desire to not do so nor to shirk the Court’s responsibility. I do so to adopt a positive attitude which has been absent throughout the conduct of this matter for some two years.
One of the witnesses in these proceedings, the paternal grandmother, Ms E, saliently noted an issue that perhaps pulls together the factual matrix of these proceedings. Ms E indicated at paragraph 15 of her Affidavit, “X is an absolutely delightful girl.” That is, regrettably, something that appears to have been lost in the context of these proceedings and not only by the parties.
I do not intend to canvass every aspect of the evidence, as, in my mind, to do so holds two flaws. Firstly, much of the evidence that was led and tested at great length is not ultimately of considerable relevance or of assistance to me in making findings of fact which support the Orders that I propose to make. Secondly, I am mindful of the fact that these parties, together with the witnesses involved in these proceedings, (including, very partisan family members and expert witnesses who were also, to a large extent, partisan), were highly critical of each of these parents and to a point where one wonders how it will be possible for these parents to rebuild communication and co-operation which was already strained before these proceedings.
If each of these parents could bring forward the love and commitment that I am absolutely convinced that they have for their daughter, in a child focussed way, they will find a way, as there is nothing that I doubt less than the love which each of X’s parents have for her.
The parties and the proceedings
These proceedings, as already noted, were commenced in February of 2009. At that point in time X was a very young child. It is regrettable that X’s parents have been emotionally and financially depleted by these proceedings. The full extent of that depletion is not known at this time. The issues fuelling this conflict, once one was able to blow away the dramatic amount of smoke that was generated, largely without fire, were not particularly complex. Notwithstanding the very complex and myriad complaints made regarding the perceived deficits and deficiencies of each of the parents and notwithstanding those deficits and deficiencies, to the extent that they have been established, X remains, as Ms E observes, a delightful little girl.
That X is a delightful little girl is either a testament to X’s extraordinary resilience or, perhaps, puts into perspective the criticisms that each parent has raised. That she is described as delightful suggests that there is not as much to those criticisms as might have been alleged. If one were to accept that which is alleged of each parent, by not only the other, but the other’s families and the experts, this little girl could not possibly have developed to now be a delightful little child. But that is what Ms E describes her as and that would appear to be common ground between the parties.
The proceedings were commenced after the parents encountered a number of difficulties in establishing arrangements for X. An Apprehended Domestic Violence Order existed at one point in time, but there is certainly no Order at present. The parties were also having grave difficulty, perhaps a continuation of the difficulties they were experiencing prior to and contributing to their separation, in negotiating arrangements between themselves. As a consequence of those difficulties, no satisfactory arrangements could be achieved and it is with no criticism that I indicate that Mr Jarman then filed an Application with this Court.
Following a number of mentions, Interim Orders were made. Prior to that the parties had negotiated arrangements between themselves at a Legal Aid Conference or some form of Mediation. That Mediation resulted in a Parenting Plan, (which at least one of the parties had signed, but the evidence would appear to suggest both had signed, and accordingly, it is properly before the Court). That Parenting Plan, entered into very soon after separation, provided for X to spend two periods of one hour each with her father and to occur at a supervised Contact Centre.
After 5 days of Hearing it is still not apparent why supervision was perceived as necessary. It is perhaps a continuation of the attitudes that are described in Mr Jarman’s evidence, and which, to some extent, are conceded in Ms Barlow’s evidence. During submissions, I had raised with Counsel for the parties, an apparent over-protectiveness or over-anxiety on Ms Barlow’s part, (whether founded in past experience or otherwise) and a sensitivity on Mr Jarman’s part to criticism and fear of exclusion. Those personal traits proved a fairly disastrous combination for these parents, wherein Mr Jarman complains that he was not allowed to participate in this child’s life prior to, let alone after separation, and Ms Barlow expressed concerns, and continues to express concerns after separation, regarding Mr Jarman’s capacity as a parent, although that criticism would appear to have been without any opportunity having been afforded to Mr Jarman to demonstrate his ability.
During the course of the proceedings there have been a number of Interim Hearings. Orders were made at each of those Court events, largely by consent, and which provided for increases in X’s time with her father. The increases were very slow and very gradual. The incremental increases and could best be typified in summarising the evidence, as striking a compromise between the proclivities of parties, being Ms Barlow’s over-anxiousness and over-protectiveness and Mr Jarman’s sensitivity to criticism and fear of exclusion.
The parties experienced an event in August of 2010 which profoundly changed the path of these proceedings. Shortly prior to a scheduled mention of these proceedings (on 18 August) a Report had been commissioned from a Dr E, a clinical psychiatrist specialising in child and family psychiatry. His Report, one could fairly describe in the vernacular, put the cat very much amongst the pigeons.
Dr E's Report was highly critical of Ms Barlow. Although, the wording of the Report in itself does not necessarily state it, the Report does infer a diagnosis of Ms Barlow as suffering from a borderline personality disorder. The Report suggested that there was a very real and present danger to X if continuing in Ms Barlow’s care.
A day or so after the Report’s release, an Interim Hearing occurred. Evidence was given by Dr E who attended by telephone. Submissions were made. Ultimately, Orders were made by the Federal Magistrate before whom the matter was listed which reversed the then arrangement for this little girl. X passed to live full time with her father. X then exercised periods of time, including one night overnight per week, with her mother. It is quite clear that the arrangements as ordered did not proceed as smoothly as they might have, although the parties, as with most things, have very different perspectives about that.
The Report of Dr E has given rise to two further Reports, being a Report relied upon in Ms Barlow’s case of a consultant psychiatrist, Dr S and a Family Report prepared by Ms C.
All three experts attended, and were cross-examined over the last two days of this Hearing. Their evidence I shall return to.
The history of arrangements for X is typified by disruption.
Between February 2009 and August 2010 there had been a very slow and gradual build-up of time between X and her father. This period was typified by ongoing conflict and distrust. There was not conflict of an active physical nature, by and large, but certainly an absolute lack of faith by each parent in the other. In the case of Mr Jarman he perceived and complained of a lack of support of his relationship with X. From Ms Barlow’s perspective, she perceived what she had feared and then believed to be – a demonstrated inadequacy of care on the part of Mr Jarman.
The background of the parties and their relationship
Without intending any disrespect to these parties, it would appear that they have each brought fragility to their adult life and their relationship. Both have experienced trauma in their past. As a consequence of that trauma each has had some periods, whether in the distant past or more recently, of engaging with counsellors and other services to receive assistance and support. That is not, in any way, a criticism of them. They have sought appropriate support and assistance for their circumstances, although each, in the conduct of their case, has thought to be highly critical of the other for doing so.
Ms Barlow, for her part, describes a traumatic childhood, both within her home and within her school, which, on her evidence, and to some extent supported by Dr S’s opinions, has left her anxious and possibly suffering from a number of psychological deficits. Ms Barlow is diagnosed by Dr S as experiencing post traumatic stress disorder, although with recent improvement. Dr S’s prognosis for Ms Barlow’s functioning and recovery is optimistic, certainly more optimistic than Dr E.
Mr Jarman was cross-examined at great length in these proceedings. Mr Jarman’s cross-examination occupied the best part of two days of what was listed as a three day Trial. Mr Jarman was cross-examined regarding matters that went back as far as Years 10 and 11 of his schooling. That is so notwithstanding that Mr Jarman is now a man of much greater age. That cross-examination related to an alleged underlying predisposition for anxiety on the part of Mr Jarman. This was raised as a criticism of Mr Jarman and it was sought to be suggested that there was some more sinister underlying residual manifestation of anxiety in his conduct and behaviour, such as to make him “controlling”. It is suggested that Mr Jarman is over-anxious and over-sensitive to criticisms.
It is difficult to understand why each party felt the need to be so destructive of the other. These are the only parents this little girl will ever have. She loves them both. They both love her. Both parents have deficits but I am yet to experience a case wherein parents do not have deficits. Everybody does. No one has yet come before this Court presenting as saintly and god-like. Each of the parties is a flawed human being who has traversed their own journey in life to arrive at a place where they are doing the best they can.
There are certain criticisms that can fairly be levelled against the parties and I will summarise those briefly. But, to a large extent, what was absent in the conduct of the case, particularly the attacks upon Mr Jarman, was an acceptance of the fact that these parents have experienced great trauma. These parents are predisposed to react to trauma in a way that may not be seen as exemplary but which is a consequence of the fragilities that they have brought to their relationship with each other. Those criticisms, by and large, are mutual, and, by and large, have some factual basis. It is also to be remembered that these parties had a short but intense relationship with each other.
Ms Barlow came to this relationship after two prior relationships which had some occasioned degree of trauma to Ms Barlow. Ms Barlow’s last relationship, prior to that with Mr Jarman, was with a Mr B. That relationship quite clearly ended in the most appalling circumstances, with Mr B being violent, a five-year Domestic Violence Order being made against him, and both Ms Barlow and each of her two children of a relationship prior to that with Mr B, being traumatised and receiving some counselling as a consequence of Victims of Crime funding.
Similarly, Mr Jarman came to this relationship having great expectations of it and great enjoyment of it whilst it lasted. Mr Jarman was not the moving party, by and large, in the termination of the relationship with Ms Barlow. Accordingly, at the time that the relationship concluded, somewhat abruptly and without his active participation in that decision, Mr Jarman was, perhaps, not yet as fully advanced in the state of grieving and acceptance of the ending of the relationship as was Ms Barlow.
And it is in that context and that circumstance that the actions that each of these parents may have undertaken towards each other and regarding each other at different times might be seen as inappropriate. The behaviour of each might also be seen as explicable having regard to the fact that they are human beings who loved each other and whose relationship with the other had come to an end.
The difficulties for each of these parties, and particularly for Mr Jarman, were compounded by the fact that at the time that the relationship ran aground, Ms Barlow was pregnant with the second child of the relationship. The parties had participated in a number of joint counselling sessions and had each consulted their own counsellor, whom they had been engaged with previously, regarding what would occur in relation to that pregnancy.
Great criticism was raised of Ms Barlow (directly with her during cross-examination as well as with each of the expert witnesses) that she had determined to proceed with the termination of that pregnancy following separation and as a unilateral decision. There is some truth in description at least from Mr Jarman’s perspective. Whilst the parties had been discussing the decision that would be made jointly, ultimately the decision was made by Ms Barlow. I do not raise that to be critical of Ms Barlow – it is, after all, her decision. It is her body and, without opening the gate of emotive and political debates regarding those issues, I accept that she was entitled to take the very action that she took. But the manner in which it was taken could be described as insensitive of Mr Jarman’s feelings. Mr Jarman’s reaction to that decision could be described as nothing short of insensitive.
To the extent that one is to be critical of these two parents, who are otherwise decent people and the only parents this child will ever have, it is important to acknowledge that they were in a state of high turmoil and grief and, accordingly, whilst their behaviour was not exemplary for the period of at least 12 months after their separation, this trauma should be borne in mind.
The criticisms that each parent makes of the other as regards X, as I have indicated, are very different criticisms. The substantial focus of Mr Jarman’s criticisms, particularly prior to the release of Dr E's Report, had related to Ms Barlow’s failure to allow him in to X’s life and to allow him to participate and be involved as a parent and support his relationship with X.
Again, when parents have only recently separated and with some trauma surrounding that event it is, perhaps, explicable that a parent is less than fulsome in their support of a relationship if that is, in fact, what occurred. Whether it was or was not, I accept it is how it was perceived by Mr Jarman. But the criticisms that were raised by Mr Jarman increased, particularly following the release of Dr E's Report. The comments that Mr Jarman made and how the recommendations of Dr E were ultimately related by Mr Jarman to others is unfortunate in the very least. To describe to services, as Mr Jarman did, that X had been “removed” from Ms Barlow as she had been found to be an “unfit” parent and that she suffered mental problems which rendered her incapable of properly caring for this child, is not an accurate description of Dr E’s evidence report, although the evidence that Dr E gave when attending by telephone was certainly somewhat more “fired up”. One could understand how Mr Jarman might have got that impression. Although, I am left with the distinct impression that it was an impression he was happy to receive.
Ms Barlow, for her part, had commenced to make criticisms of Mr Jarman as a parent prior to separation. The parties are at odds as regards a number of issues in relation to that very matter, but certainly aspects of it were conceded by Ms Barlow – that she was somewhat restrictive of Mr Jarman’s time with X and preferred to deal with matters regarding X’s care herself, rather than have Mr Jarman do it. That then, combined with the circumstance of separation, created some disastrous results.
There are a substantial number of Exhibits tendered in these proceedings vastly outweighing in bulk the material filed and relied upon by the parties. Perhaps the most instructive of those Exhibits come from material produced by the Contact Centre which these parties initially utilised for supervised visits between X and her father, and ultimately as a changeover venue, (both as regards X passing from her mother to her father for visits and the contrary following August of 2010). The notes that are produced by the Contact Centre are riddled with statements made by each parent. They are statements by each parent which do not do them great credit. In particular, I note the following entries which are representative of the issues that were presented in evidence.
On 14 November 2009 the Contact Centre notes report that Ms Barlow made a comment to staff that Mr Jarman doesn’t put the child to sleep during the visits with him and that is why the child is so tired. It is then noted by the workers that the child had been asleep during the whole visit in contradistinction to the allegation and belief suggested by Ms Barlow.
On 24 January 2010 Ms Barlow is reported as having explained to Centre staff that she had been given a package addressed to Mr Jarman but she had put it in the bin.
On 27 October 2010 Mr Jarman is reported as saying to staff that he had concerns in allowing the child to spend extra time with Ms Barlow (X had only recently passed into his care), as he felt that Ms Barlow was not encouraging a positive relationship with himself and X.
On 6 November 2009 Mr Jarman had expressed to Centre staff that he saw the mother, Ms Barlow, as being manipulative and difficult to deal with and he felt that there was an intention on her part to make him look bad and difficult at every opportunity.
On one occasion Mr Jarman had written the comment “RIP X’s brother or sister” being a reference on the anniversary of the termination.
What stands out in contradistinction to the comments and the snipes that the parents make to the Contact Centre staff are the observations, consistent and continuous in the Centre’s notes, that irrespective of which parent is being observed, a joyous interaction between X and that parent is observed. In other words, whilst these parents fail to see much good in each other, X has no difficulty in seeing the best of her parents, how much they love her and how much she loves them. And it is clearly expressed in each and every observation note.
The further criticism which was levelled at Mr Jarman repeatedly, and including by Ms C and Dr S, is that he is controlling. I am not satisfied, on the evidence that is available to me that that is so. I am satisfied that Ms Barlow may, in the context of the background that I have described, perceive that it is so. I am equally satisfied, however, that when Mr Jarman has asserted that Ms Barlow has been controlling of him that this has been genuinely perceived by him.
In the period immediately prior to and for some months following separation, the best Mr Jarman could obtain as regards time with his daughter, was to have her for a period of half an hour or so at a park in the presence, supervision and observation of Ms Barlow or the two hours a week at the Contact Centre when there would appear to have been no basis whatsoever for supervision. This included, if Mr Jarman walked pushing the pram containing X, Ms Barlow following him.
On 24 October 2010, the Contact Centre notes contain the following:
A request was made for more time by Ms Barlow and Mr Jarman reported that he didn’t know why he should make X available as Ms Barlow had previously not allowed X to attend his grandmother’s wake when he had requested and as was discussed in the psychiatrist’s report.
Similarly, on 8 October 2010 Mr Jarman is reported to have carried X into the Centre, X described as being calm and relaxed and smiling. It is then reported, “Dad patted subject child and said, “It’s okay. Everything will be all right. Daddy loves you””.
Such negative messages to this child are not, however, confined to Mr Jarman. The material, from both of the parties and, more importantly, the material tendered into evidence from other sources, are littered with negative, unhelpful and unnecessary comments and behaviours by each parent.
These reasons are delivered for the benefit of the parents rather than any other Agency. One would hope that, if nothing else, with the support networks that each parent has in place (and I have turned my mind to utilising this Court’s powers pursuant to section 13C of the Family Law Act 1975, to make Orders for therapeutic intervention, but have declined to do so on the basis that each parent is already linked in with a substantial number of services) – that these parents would learn that the greatest danger to their daughter, the most cherished thing in their life, is the conflict between these parents and their attitudes toward and their expression of criticism towards each other.
Each of these parents, no doubt, has failings. As I indicated at the start of these reasons, every parent who comes before this Court does. When those failings rise to the level that they represent a serious and immediate risk to their child’s welfare, this Court will act and will act promptly. However, in this case, the matter has taken on a life of its own, largely through conflicting expert evidence and through each parent’s perceptions fed by that evidence. It has also arisen from family because criticisms of each parent are not confined to Mr Jarman and Ms Barlow.
Evidence
Counsel for each of the parties presented a Case Outline at the start of the matter and each of the documents that were sought to be relied upon has been read. Each of the deponents, save Ms A, a counsellor dealing with Ms Barlow, has been required for cross-examination. That has included the three expert witnesses.
Much was put in submissions as to the findings of credit that should be made with respect to, or more correctly against, each of the parents. I am satisfied from a review of the transcript of the evidence and from the evidence given in the last two days that:
a)Each of these parents has done their best to be honest;
b)The answers that each parent has given, to the extent that their evidence is not corroborated by other independent evidence, is a reflection not of a deliberate intention, particularly in the context of the dispute in relation to X, to mislead the Court or any of the various Report writers, but rather flavoured by their own perceptions.
It is to be remembered that, in reality, before this Court there is no such thing as objective truth. There is perception and there are competing and co-existing realities that each of the parties holds depending upon what they have seen, heard and their predispositions and beliefs. I am satisfied that is what has occurred, by and large, in this case.
I am persuaded by the evidence that these parents have very different personalities. I accept that which is raised as a criticism by, for instance, Ms C, that Ms Barlow is perhaps the warmer, more outgoing parent. As Ms Barlow is described in her evidence, she has an effervescent personality.
I do not accept, however, Ms C’s criticism that Mr Jarman is cold. He has a very different personality but his personality is simply more reserved, more tempered, and more sedate. I am satisfied that it is nothing more. Mr Jarman is perfectly warm and effusive in his interaction with his daughter. However, that interaction is clearly and obviously, from all of the evidence and particularly the Contact Centre notes which I will comment upon again, something that brings Mr Jarman probably the greatest joy and satisfaction of any period in his life. To suggest that he is cold in relation to his daughter is disingenuous, whether it be Ms Barlow’s allegation or Ms C’s.
These parties clearly have very poor communication and with it a very poor ability to see or accept the positives the other offers. Again, that is not unusual and in the context of the dispute between these parties not so unusual that I would be dramatically critical of either. In relation to other witnesses, however, I am critical. One of the witnesses in Ms Barlow’s case was her identical twin sister, Ms S.
I found that Ms S’s evidence demonstrated nothing much short of a poisonous and malicious attitude towards Mr Jarman. If this little girl, X, was living in Ms S’s full-time care I would have no hesitation at all in removing her and placing her with her father as I could not see either how this child could develop a healthy functioning relationship with her father or paternal family if in her care or influence nor how X’s personality could develop appropriately and in a healthy fashion. However, that is not the decision I am faced with. It is clearly a matter for Ms Barlow how much she seeks to involve her sister in her life and through her, the life of her daughter. There have been, from the evidence before me, periods of time when Ms Barlow’s relationship with her sister Ms S has been estranged. That estrangement would perhaps have some benefit to X, although clearly there would be detriments because X has a great fondness, affection and, I am satisfied, close relationship with Ms S’s daughter, A.
Ms E also gave evidence in the proceedings. She was somewhat criticised in relation to her evidence. I accept her as a witness of truth. Indeed, the only issue in relation to any of the lay witnesses arises with respect to Ms S whose dislike and disdain of Mr Jarman was palpable. Ms S could barely contain herself, using every opportunity available to express exactly how she felt about Mr Jarman and the total lack of benefit to X of having him in her life.
I do not accept Ms S’s views. Notwithstanding that, Mr Jarman certainly impressed me as being a very reserved and quiet (and, some might say on that basis, emotionally immature man), he is a man for whom emotions in relation to adult relationships and his daughter are strikingly different.
The expert evidence
The most troubling aspect of this case in my mind is the expert evidence, (and I use the term “expert” loosely). The expert evidence in this case has been entirely unhelpful. That is an unusual experience but it is how it is in this case.
The first Report prepared by Dr E would appear to suggest substantial and significant risks of emotional if not psychological harm to this child. The Report would appear to diagnose, or come close to diagnosing, a significant psychiatric disorder in Ms Barlow founded in a borderline personality disorder. Dr E’s cross-examination did not pass the Makita & Sprowles (2001) 52 NSWLR 705 test, it not being demonstrated that many, if any, of the matters that were relied upon in expressing opinion were established as fact.
Perhaps most curiously, Dr E expressed significant and important opinions regarding Ms Barlow’s relationship and attachment with X, whereas he clearly conceded in cross-examination he has never met X or observed X with her mother. How he could seek to offer such a mischievous opinion, an opinion which was relied upon by this Court at Interim Hearing in August of 2010 is reprehensible. Each of these witnesses, commencing with Dr E, have suggested that they have read and understand and are bound by the Family Court’s Practice Direction titled “Guidelines For Expert Witnesses”. How offering an opinion in relation to attachments between a child and a parent without observing the child, let alone the parent with the child, beggars belief.
The second expert Report, by Dr S, caused me similar concerns. Dr S advanced comments in relation to X’s attachment with her mother, (although not to the extent of Dr E) and criticisms of Mr Jarman, but he had never met either of them neither X nor Mr Jarman. His evidence suggested that he was partisan. But his cross-examination suggested an intolerance of challenge and an inability to step back from anything that he had put in his Report.
I was otherwise left, from the totality of cross-examination of both of the psychiatrists, with the overwhelming impression that they had become more bound up in their professional egos and attacking each other, to the point that when the suggestion was made that they attend at the same time to give evidence by telephone, they had both declined and refused to deal further with the other. These are professionals we are dealing with and that is the example they set to these parents who have a conflicted relationship.
The last Report by Ms C also caused me substantial concern. There are a number of systematic difficulties with the Report. It was conceded very early in cross-examination that Ms C had not really observed X with her father at all, or to the extent that she had, that it had been a casual observation as Mr Jarman, his mother and X were outside playing with a horse and that she had perceived the focus of her job was to prepare a Report which assessed the mother’s relationship and attachment with X.
Ms C gave detail of the time she had spent with each. The times of themselves do not concern me. The nature of the Report combined with the haphazard manner of answering questions during cross-examination gives me no confidence in anything that Ms C has advanced to me.
That then leaves these parties having expended, I do not know how much money, but certainly I would think in excess of $10,000, commissioning Reports, having this child interviewed, having the parents go through three different processes, whether singly, jointly or in combination, for no effect. If one were looking for “bang for one’s buck” from expert evidence, this case does not have it. The expert evidence is flawed and of no assistance whatsoever.
Past care arrangements and chronology
There is not a lot of dispute, surprisingly, regarding the chronology of these parties’ relationships with each other.
The parties are of similar age, although there is some difference between them.
Ms Barlow has two children of a previous relationship with a Mr K. Those children are B, born in 1994, and C, born in 1995.
In 1999 Ms Barlow commenced a relationship, as previously indicated, with Mr B and they subsequently married. There were no children of that relationship, but in 2004 that relationship came to an abrupt end and an Apprehended Domestic Violence Order was obtained. Mr B was also convicted of an assault upon Ms Barlow.
Following that separation and in 2005, Ms Barlow commenced attending upon Ms A, a counsellor, to obtain assistance. Ms Barlow has continued to attend on Ms A on a regular basis.
In March or April of 2006 these parties commenced dating each other. They were initially going out together and, after a short period of time, began to stay overnight with each other primarily at Ms Barlow’s then home.
As a consequence of her relationship with Mr B, Ms Barlow, in October 2006, received funds of $198,593.53 from the sale of a property they had jointly owned at (omitted). In October of 2006 a number of dispersals began with respect to those funds, which I will deal with in more detail briefly, as I wish to deal firstly with issues in relation to X.
In November 2006, these parents commenced to cohabit on a full-time basis. They were subsequently married. There is a Divorce Application before the Court. Each party has given their consent and I will pronounce the Divorce of the parties at the conclusion of these reasons and Orders.
During the relationship the parties purchased a property at (omitted). The parties lived in that home from its purchase in March/April 2008 until their separation.
The parties had the happy event in their life, as it no doubt was at that time, of X’s birth.
The parties separated in the latter part of 2008. There is some contention as to the circumstances and the particular date, but there is agreement that it was certainly in that period of time.
The parties attended mediation or, more correctly, a Family Dispute resolution session through the (omitted) Family Relationship Centre. Agreement was reached and a Parenting Plan drafted to which I have already referred. The agreement reached saw two one hour periods per week of supervised time commence between Mr Jarman and X. It was suggested by Counsel for Ms Barlow that the arrangement must have been appropriate or Mr Jarman would not have agreed to it. The Court is certainly required to take the Parenting Plan into account. However, Mr Jarman provided consent in circumstances whereby he was not, at the time, really spending any time with X (and that which he did spend with X was in Ms Barlow’s presence).
The parties have, during the course of proceedings, entered into a number of sets of Orders which quickly moved X’s time with her father to unsupervised time and certainly by the early part of 2010, X had commenced overnight time with her father.
It is suggested, particularly in Ms Barlow’s case, that difficulties began to present as a consequence of “too much” time being spent by X with her father. That position must be balanced against the more extensive criticisms made clear from the subpoenaed material.
There were a number of attendances and a number of notes tendered in evidence, (Exhibit ICL3), from a consultant paediatrician, Dr M, to whom the parents were referred. Ms Barlow raised a number of concerns in relation to weight loss and hair loss with Dr M. There is certainly some factual basis to support the fact that those matters were occurring, although in relation to the weight loss, Dr M was at all times quite clear that it was nothing at all extraordinary or to be worried about. However, Ms Barlow was worried about it, particularly the hair loss. The context of that, together with other complaints such as diarrhoea, tiredness, etcetera, are that they were suggested, by Ms Barlow, as being symptoms in response to stress created by X’s relationship and time with her father.
Dr M, quite clearly in some of that material, makes references to his seeking to reassure, if not disabuse, Ms Barlow of those beliefs, but they subsisted and continued for some time, if not until quite recently. It was indicated, certainly in an attendance note 15 April 2010, that the type of stress that both parents, let alone X, was experiencing was normal and that the arrangements and concerns that were raised by Ms Barlow did not warrant any substantial rearrangement of the times that were occurring.
Those criticisms are reflective perhaps, of Ms Barlow’s over-protectiveness or over-anxiety. To the extent that I can rely upon any of the evidence, I accept at least what Ms C and Dr S say, that the mother has perhaps moved forward somewhat from that position, although I am not entirely satisfied that she does not still harbour some concerns that X experiences stresses as a consequence of her relationship with her father. I am satisfied that those perceived stresses are a projection by each of the parties, whether in equal or disparate measures, of their attitudes and anxieties post separation.
There is also a criticism raised that Mr Jarman has failed to continue to take X to the (omitted) Playgroup following her coming into his care, whereas he had indicated, particularly to Ms C, that he had continued to take X to playgroup. X has continued to attend playgroup, albeit a different one to (omitted). I made very clear during the course of cross-examination of Ms C, that I would not be critical with Mr Jarman for not attending with X at the (omitted), bearing in mind that Ms Barlow’s sister, Ms S, with her poisonous attitude towards Mr Jarman as demonstrated in the witness box, also attended that playgroup with her child. Whilst there would potentially be a benefit from X having continued to go to that particular playgroup and interacting with her cousin, that potential benefit would have been dramatically outweighed by the stress and anxiety, if not the open confrontation, that would have flowed from Ms S coming into contact with Mr Jarman.
In relation to the financial aspects of the proceedings there is not great factual dispute between these parties and certainly far less dispute than the length of time that this case has occupied before the Court would warrant.
There is no real dispute that at the commencement of this relationship Mr Jarman owned a property at Property S. There is no evidence as to its value at that time, being around April 2006, but there is no real issue either that it was owned and had a mortgage at the time to the (omitted) Bank with a balance of $38,851.
By separation it would appear common ground that the mortgage had reduced to $30,900. Post separation it has increased as a consequence of borrowings to fund legal fees. Again, the Court is not privy to the quantum of costs expended by each of these parties, but there is an insight from various portions of their evidence, as to loans that have been obtained, which would suggest that each party has expended not less than $70,000. That expenditure is about one third of the nett value of the pool of property available. To some extent, costs have been inflated through the circumstances that followed Dr E's Report.
There is also no dispute that at the commencement of cohabitation Mr Jarman had a cash management account with the (omitted) Bank with a balance of $10,172, a (omitted) Fund with a balance of $7,034 and other funds and shares which totalled a little below $9,000. Mr Jarman also owned a motor vehicle, some furniture, and importantly superannuation entitlements with a then value of $42,486. There was a small MasterCard debt.
There is similarly no dispute on the evidence that at the commencement of cohabitation or shortly thereafter, Ms Barlow had the funds from the proceeds of her property settlement of a little over $198,000. She also had cash in a (omitted) Bank account of $6,829, a Honda (omitted) motor vehicle and a payment from Victims of Crime, clearly demonstrating the heinous circumstances of her separation from Mr B, of $9548.
There were a number of liabilities that Ms Barlow had at the time of cohabitation, being a loan of $30,000 from her mother which would appear to have assisted in meeting legal fees for the previous case with Mr B, a loan from an ex-boyfriend, Mr R, of $50,000 and a car loan of $13,000. Accordingly, those liabilities totalled about $93,000.
The contributions made by each of the parties as at the commencement of cohabitation was the subject of considerable evidence and cross-examination. Whilst it is clear that there is no valuation of the Property S property at the commencement of the relationship, quite clearly the property existed and had a modest encumbrance. For the majority of these parties’ relationship the property was tenanted. It still is. Accordingly, the property was of little or no expense to the parties, and in all probability, although the evidence is somewhat unclear, would have produced a small additional income for them.
It is suggested in Mr Jarman’s case, that contribution favours him as to two thirds to one third, on the basis that if one is to take into account the $198,000 which Ms Barlow received, but to then factor in the $93,000 of liabilities, that Ms Barlow had $105,000 to introduce, whereas he had the property, which he asserts was worth not less than $225,000, although there is no evidence as to its value. There is agreement as to its value at present being $260,000. It is not suggested that any substantial work or improvement has been undertaken to it.
During the relationship, as indicated, the parties purchased a property, in which Ms Barlow is presently residing. The parties have, for some time, been each equally contributing to the mortgage encumbering that property, notwithstanding that Ms Barlow is in occupation of it, together with her two children, B and C and for a substantial period, also with X.
Mr Jarman was criticised for his paucity of Child Support. Certainly, to the extent that he has continued to meet one half of that mortgage, that is an amount for which he is entitled to some credit as a Child Support contribution, if not an ongoing contribution.
The property is not to be retained by Ms Barlow, not through any active application on the part of Mr Jarman. It is Ms Barlow who indicates that she does not wish to retain it. I propose to make Orders that afford to Ms Barlow an opportunity, should she wish to, to retain the property as there will certainly be a cash payment made to her by Mr Jarman. However, it is a matter for her whether she wishes to retain it or list it for sale. I do not propose to complicate matters between the parties by providing for formulaic bases for calculation of future entitlements. Orders will be made based on the value of that property as agreed and if Ms Barlow wishes to proceed with the sale, it is entirely a matter for her.
The other aspects of the parties’ evidence in relation to the present composition of the pool of property are not dramatically in dispute.
Neither party agitates that paid legal fees should be added back, notwithstanding that one or both would be entitled to do so. However, that is probably a prudent approach; as it would appear that each of the parents has substantially borrowed the funds that they have expended on legal fees, and accordingly, there would be no nett add back in any event once the liability is taken into account.
Each of the parties retains a motor vehicle. Each of the parties retains modest furniture and personalty, although there is no evidence as to value, save the admissions against interests that each makes.
There is dispute as to whether a sum of $8,000 or $13,000 or any amount at all is owed by Mr Jarman to his parents. There is certainly evidence from Mr Jarman’s parents, both contemporaneous with the alleged advances and post-dating the advance (in the form of a mortgage that is purported to have been executed on or about 4 March 2010). I am satisfied to that extent that there certainly was an advancement. The issue raised by Ms Barlow is that there is no evidence to demonstrate the moneys advanced were applied, as suggested, to payment of credit cards or, if funds were so applied, that the expenditure incurred by use of those cards was jointly incurred or expenditure which the parties jointly had the benefit of. I accept Ms E as a witness of truth and, on that basis, propose to accept her evidence to the extent of advances of $13,000.
Whether expenditure on credit cards was joint or otherwise is not a significant issue. At the time of the expenditure these parties were married. No doubt each of the parties engaged in expenditure, both post and pre-separation and during their cohabitation, with respect to which they had no regard to the other.
Mr Jarman is also criticised, particularly as regards credit in relation to his failure to provide full, proper and adequate disclosure. Certainly, Mr Jarman was less than diligent in that regard. The issue being taken to the extreme that it has, having regard to the very modest asset pool that these parties find themselves with at this point in their life, would appear to be out of proportion to that complained of. What flows from it however is:
a)Ms Barlow was not cross-examined with respect to any aspect of her evidence in relation to the financial proceedings, and accordingly, there is no basis for me to not accept her evidence in its totality. That is not a criticism whatsoever of Mr Jarman or the manner in which his case was run. It was sensibly conceded by his counsel that their primary focus was on determining issues with respect to X, and Mr Jarman and his attorneys being determined to endeavour to contain the case within a reasonable time frame, which ultimately is nearly 100 per cent over time;
b)To the extent that there is any discrepancy in the evidence of the parties (such as the suggestion that there is an unquantified financial resource available to Mr Jarman in the form of his parents, by whom he is employed) I accept the evidence of Ms Barlow. The wage records or documents to corroborate or verify payment, not only of wages, but other financial provision have not been forthcoming and to that extent one can infer that there is a resource available of some value, although that value cannot be quantified.
Having regard to the above, I am satisfied that the asset pool should largely comprise assets as set out in Exhibit M3, and that would see me taking into account:
a)The present nett equity in the former matrimonial home, $97,125;
b)The equity in Mr Jarman’s home at Property S, $229,100;
c)Mr Jarman’s car $4,000;
d)Ms Barlow’s car $6500;
e)Invested funds held by Mr Jarman of $5,816;
f)Mr Jarman’s superannuation entitlements of $59,253; and
g)Ms Barlow’s superannuation entitlements of $1,539.
From that I am prepared to deduct, as I have indicated, the debt asserted to Mr Jarman’s parents in the sum of $13,000. Mr Jarman will ultimately retain liability for sorting that loan out with his parents, rather than any specific Order being made otherwise.
The other assets included within Exhibit M3 and which I do not include are the parties’ present savings, (as they are entirely modest, and in all probability since that document was prepared some six months ago, have been expended), and the furniture, effects and personalty of each of the parents, (as they are not dramatically dissimilar in value and, in any event, there is no evidence to support the figures asserted).
Legal provisions
In relation to X, the legislative pathway is clearly established as was discussed by the Full Court, commencing with Goode & Goode (2006) FLC 93-286, and also by the High Court in MRR & GR [2010] HCA 4.
I am required to commence by considering the proposals of each of the parties. The proposal put in Mr Jarman’s case is that X would continue to live with him. She would spend time with her mother each alternate weekend from Saturday until Sunday, from Friday until Saturday morning in the other week, and from Tuesday until Wednesday in each alternate week as well as for other periods on special occasions and the like.
The proposal put in Ms Barlow’s case, at least in the Minute of Order that was tendered in the case, would see X living with her mother and spending time with her father occurring each Tuesday and Thursday, together with two weekends out of three.
The Independent Children’s Lawyer (ICL) has proposed a graduating regime of time prefaced upon X returning to live primarily with her mother and commencing and continuing for 2011 time spent with her father each alternate weekend from Saturday to Sunday and an overnight period in the other week, together with each Thursday.
It was suggested in submissions closing Ms Barlow’s case that this proposal by the ICL would create far too many changeovers and handovers and would be disruptive. The ICL indicated at the conclusion of submissions that they were content for those periods to be somewhat more consolidated. The ICL otherwise proposed that time would develop in 2012 to be from Friday to Sunday and Tuesday to Thursday in the off week, together with periods of seven days for each parent to have a holiday with X, and that in 2003 (sic – 2013), when it appears common ground X would commence school, that time would then become what might be described as a substantial and significant time arrangement, with X being with her father from Thursday to Monday in one week, and Thursday until Friday in the other week during school terms together with half the holidays.
A number of other Orders relating to special times and non-denigration were proposed.
In submissions closing Mr Jarman’s case it was put that the time arrangements put by the ICL would be appropriate for the parent with whom X did not live. That was a sensible and insightful concession notwithstanding the criticisms made of him.
I am then required to turn to the objects and principles of the legislation. They are not part of the substantive law but are designed to guide the Court’s exercise of jurisdiction in the application of the relevant provisions. The objects and principles of the Act 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.
The principles underlying the objects provide that except when it is contrary to a child’s best interests that children have a right to:
a)Know and be cared for by both their parents;
b)Spend time on a regular basis and communicate on a regular basis with both of their parents and other people significant to their care (which, in this case, would include X’s siblings and her paternal grandparents);
c)Have their parents jointly share duties and responsibilities;
d)Have their parents agree about future parenting; and
e)Enjoy their culture (this is not a significant issue in this case as the parties are from not disparate cultures).
Section 60CA of the Act requires that the Court consider the child’s best interests as the paramount consideration in all that is done. That is also reinforced by Division 12A which sets out the principles for conducting child-related proceedings, and by section 69ZN establishes five principles by which this Court should proceed. These principles commence with considering the needs of the child and the impact of the proceedings on the child. I hasten to add at this point that these proceedings have no doubt had a profound impact on both parents and their children. The second principle is that Courts should actively and directly control and manage the conduct of the proceedings. That was attempted at different points in time, but regrettably it has not contained the matter to three days.
Thirdly, the proceedings should be conducted in a way that will safeguard children against family violence, child abuse and child neglect. Fourthly, the proceedings should, as far as possible, be conducted in a way that will promote co-operative and child-focussed parenting. Regrettably, this matter has not always reflected that principle. Lastly, the proceedings should be conducted without undue delay, and with as little legal formality as possible. The delay that has occurred in the matter is regrettable, but has arisen due to the changing nature of evidence which has compelled the gathering of fresh evidence as well as the fact that the matter is conducted on circuit by an under-resourced Court. The matter has been heard and determined as quickly as possible in those circumstances.
Before turning to the balance of issues, one important issue that will have become apparent from the discussion with respect to expert evidence relates to the requirement to protect this little girl. The case has been typified by allegations of alignment or alienation and has, in tandem, raised issues of alleged psychological harm to this child. More importantly, since Dr E's Report, it has been suggested that there was an immediate and direct psychological risk to this child of continuing in her mother’s care. I made clear to all parties during submissions that I was not satisfied, on the evidence available and to the extent that it had probative value (and, in that regard, I find so little of the expert evidence of assistance), that there was, any real evidence which would support a finding that this child was at risk, physically (although never alleged by either parent) or psychologically in the care of, or by being exposed to either parent, and I so find.
It was suggested in submissions that there was an issue regarding possible neglect, whether in the past or present as a consequence of the father’s care, in that he lacked certain skills, be they emotional or physical. Again, to the extent that such positions may have been agitated, I reject them, and I specifically find that Mr Jarman’s capacity as a parent, both physically and emotionally, is entirely appropriate.
Having considered those matters and returning to the legislative pathway, I am required to turn to section 61DA of the Act and the presumption of equal shared parental responsibility. The presumption does not apply when findings are made of family violence or abuse. The presumption can be rebutted in circumstances whereby the Court is satisfied that it is not in the best interests of the child for it to apply.
During the course of cross-examination, Mr Jarman conceded that on one occasion he had pushed Ms Barlow, having been pushed by her, and on another occasion, had slapped her. The definition of family violence within the Family Law Act 1975 provides that family violence means:
Conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal safety.
Certainly, the concession made by Mr Jarman – whilst I do not refer to it as a matter of great moment or criticism of him – and the consequence that followed, (i.e. Ms Barlow’s unchallenged evidence that she then felt fearful), can do nothing other than compel me to make a finding that family violence occurred on that occasion. As such, I am satisfied that the presumption does not apply. However, whether the presumption applies or not does not fetter the Court’s ability to make an Order for equal shared parental responsibility.
Both parents and the Independent Children’s Lawyer propose that I do so by reference to Murphy J’s decision in Pitken v Hendry [2008] FamCA 186 quoting a previous history of Full Court authority. I am satisfied that the step of stripping a parent of parental responsibility is one of great significance and moment, that should be guided by a full and proper application of the rules of evidence, and the acceptance only of probative value, (notwithstanding section 69ZT of the Act, and an application of that evidence to a high standard is required by section 140 of the Evidence Act 1995).
I am satisfied that I should make an Order in due course for equal shared parental responsibility, and I will do so. The non-application of the presumption also means that the Court is not mandated to consider equal or substantial and significant time under section 65DAA of the Act. However, the fact that the Court is not mandated to do so does not preclude the Court doing so and I propose to consider all time arrangements at large. In considering any time arrangement, the Court is required to consider the dual test of both what is in a child’s best interests (by reference to the factors and criteria set out in section 60CC of the Act) and what is reasonably practicable as defined in section 65DAA(5) of the Act.
Whilst it is preferable to deal with all matters as part of the section 60CC exercise, I propose to deal with reasonable practicality first as that issue was raised separately. These parties live within relative proximity of each other. Certainly, there is no great distance between the parties’ homes nor any proposal that there be distance between their homes that would render substantial time or a shared care arrangement, within its broader sociological definition, as inappropriate or unworkable.
The parents’ current and future capacity to implement any arrangement is again perfectly abundant. Ms Barlow is not presently in paid employment. Mr Jarman is in limited paid employment, although that will no doubt change, but he also has the assistance of his family with whom he presently lives.
The parents’ current and future capacity to communicate is limited. However, it is not entirely broken. It has improved since separation, and no doubt will continue to improve. One would hope that each of these parents should have developed some focus and insight following the conduct of these five days of litigation.
The impact of arrangements on X, be it a shared care arrangement at the lower end of the scheme, being that defined in subsection (3) as substantial and significant time, or an equal-time arrangement would, to my mind, be beneficial, as this child has a great deal to gain, although a great to be guarded against, from each of her parents.
These are parents who love and care for their child, have jointly brought her into the world, and they are the only parents X will ever have. They can both contribute very different but very important things to X’s life, if only their love, support and encouragement. What each of them should leave at the door is hostile or negative attitudes towards the other. I am satisfied and find that each has, and has at different times, harboured and expressed such attitudes. Those reservations aside, I am satisfied that it is beneficial to X to spend as much time with each parent as possible.
In turning to section 60CC of the Act and in considering what is in this little girl’s best interests, I am required to commence by considering the primary considerations. They are:
a)The benefit to the child of a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm.
As would be clear from the above discussion, I am satisfied that each parent has begun to develop a meaningful relationship with X and that there is prospective benefit to X of continuing a relationship with each parent.
I am satisfied that there is no need to protect X from physical or psychological harm from either of her parents individually, although the dynamic of their conflict may be something to which this child should not be exposed. Attempts will be made to structure Orders in a fashion that will permit that protection.
In turning to the additional considerations (which are neither secondary to the primary considerations nor of less importance), I note the following.
Views
X has not expressed to any person any view other than the joy that she gains from interacting with each parent. The Contact Centre notes demonstrate the joy that this child has in her relationship with her parents. This is in contradistinction to the criticisms that each party has sought to highlight.
Whenever either of her parents comes to collect X, she is described as running to the door excitedly, hugging them, and being in every observable fashion delighted in their presence. There have certainly been issues between August 2010 and the present regarding separations from her mother. That is a matter that the evidence, because of its unsatisfactory state, particularly from the three commissioned Report Writers, does not enable this Court to make any findings as to. These difficulties may arise from an insecure attachment with the mother being one of the possibilities acknowledged by Ms C. It may arise from genuine distress to this child from separation from her mother. It may be a combination of many factors, but due to the total inadequacy of that evidence, I am not in a position to make any finding.
The nature of the child’s relationship with each of the child’s parents and other persons including grandparents or other relatives
I am satisfied on the evidence that this child enjoys an excellent relationship with her mother, her father, her paternal grandmother and her siblings, B and C.
The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship
Each of these parents can be criticised on this level. But, similarly, each can be given some congratulation for the fact that neither suggests that the other has, in any substantial fashion, failed to comply with Orders. There was, at the time this Hearing commenced, a Contravention Application which was discontinued, prudently and appropriately, to enable the matter to proceed, but the contraventions alleged were not matters of great moment.
The likely effect of any change on the child, including separation from either parent or any other person, including grandparents or other relatives of the child
That is perhaps a fundamental issue to this case. One of the few aspects of Ms C’s evidence that is of any assistance is her concession of the reality which flows from all social science literature that a relationship and time are not the same thing. Time is an important function of a relationship. Ms C was clear in highlighting, notwithstanding the opinion she had advanced in her Report, that this little girl can and will maintain a relationship with each of her parents and all of the other people of significance, including her siblings, without living with them.
To that extent arguments advanced by Ms C, for example, that it would be detrimental to C to not live with her mother and siblings, are not supported by evidence. When Ms C was specifically asked to identify in what way there would be a detriment, or what factors supported that opinion, she was unable to do so. It would appear on that basis an opinion grabbed out of the air and put in the Report.
It was conceded in cross-examination that this little girl needed more time with each of her parents and certainly the Orders I intend to make will affect that. In my mind, that will have a positive effect on X in continuing her relationship with all of the people who love her, being her parents, her paternal grandmother and her siblings.
Practical difficulty and expense
This is not a substantial issue for these parents, other than through the antagonism in their relationship.
The capacity of each parent
I am satisfied and find that each parent has abundant capacity, save the criticisms which each have raised in the past, in large part without justification. Explicable those criticisms and the reactions of each of these parents may have been. But, at times, the attitudes and behaviours of these parents have not been appropriate. They must be consigned to history.
The child’s maturity, sex, lifestyle and background
This has some relevance in that this little girl has just turned three and, accordingly, arrangements for her already short life must be put into place with stability, and to enable her to progress with healthy relationships and a healthy parenting.
Aboriginality
There is no suggestion X is of an Aboriginal or Torres Strait Islander background.
The attitude of each parent to their responsibilities as parents
I am satisfied that, subject to the matters referred to above, the attitude of each parent is appropriate.
Family violence
There is the one suggestion of family violence, and I am not satisfied that is of such moment that it would occupy any real consideration in my Orders.
Family violence orders
There are no family violence Orders presently enforceable.
Avoidance of future proceedings
As to whether it would be preferable to make Orders that would avoid future proceedings, I am satisfied that the best I can do at this point is to put into place a regime that, based on the evidence that is available, sadly absent expert input, will meet this little girl’s physical and emotional needs, and importantly her relationship needs.
If each of these parents had conducted themselves somewhat differently, and if the expert evidence had been more reliable, this matter would have been capable of resolution at a very early stage without the damage it has no doubt done to each of these parents emotionally, financially, and in their co-operative alliance. However, the case presents itself as it does.
To make Orders that will avoid future proceedings, I prefer to accede to the type of regime proposed by the Independent Children’s Lawyer, a graduating regime of time. I am usually loath to make Orders for a young child that will advance beyond 12 or 18 months. However, in this case, I am satisfied that I can and should, not only to avoid future proceedings, but as I am satisfied on the evidence available to me, that this little girl’s relationship with each of her parents and her attachment with each of her parents is strong and whilst there is no updated evidence, has no doubt strengthened as regards her attachment with her father during the nine months she has lived with him on a full-time basis.
Participation in decisions
Subsection (4) of section 60CC of the Act allows me to make a number of criticisms of parents to the extent that they have failed to participate in decision making or spending time, they have failed to avail themselves of it when offered, or failed to fulfil their obligations financially. Absent the payment of one half of the mortgage payment for the home in which Ms Barlow lives, I might be persuaded, as I was urged to, to be critical of Mr Jarman and his Child Support position. However, I must factor that payment in as financial provision. On that basis, having regard to the income of Mr Jarman, his provision has been abundant. For those reasons, I decline to make any further criticism. As I indicated at the start of these reasons, the parties over five days of evidence have done enough of that for me to not feel the need to enter into that arena.
Property adjustment
In relation to the property aspect of the matter, I am required to firstly consider the composition of the pool of property. That is comprised of the assets, liabilities and resources set out above. I have combined superannuation and non-superannuation assets for the purpose of ascertaining that available for division but I propose to deal with them separately.
I am then required to consider the contributions that each of these parties have made. There is clearly an issue regarding initial contribution in a short relationship. However, as made clear by the Full Court in Pierce & Pierce [1998] FamCA 74, and similar authorities, initial contributions are exactly that, contributions to be taken into account and weighed against all other contributions during the relationship, including contributions of a financial nature, (through wages and income), non-financial contributions and contributions to homemaker and parenting roles.
Overall, I am satisfied that the initial contribution, particularly having regard to the length of the relationship between these parties, favours Mr Jarman, but only very slightly. I do not propose to depart dramatically from an equality of contribution (all other contributions having been equal) and find that the contributions favour Mr Jarman by 5 per cent, so that those contributions are found as 55 and 45 per cent respectively.
In relation to section 75(2) considerations, there are a number of matters that would have relevance to this case.
As I indicated previously, the only matter that I can usefully take from the criticisms of Mr Jarman regarding suggested non-compliance, or lack of candour and frankness in disclosure, is that I have little idea of his income, or the financial resource that might be represented – and it is a “might” – by assistance and provision from his parents. In that regard, I am satisfied that he is probably in a slightly better overall financial position. There is no significant difference between the ages and states of health of the parties.
Each of the parties will, pursuant to the Orders that I propose to make, have the opportunity to retain a property with roughly equal value and fairly modest encumbrance. Those homes would be more than adequate to enable them to support and house themselves and other occupants of their household.
Each of the parties are going to have commitments necessary to support themselves and children, in the case of Ms Barlow, three. Whilst they are not children of the marriage for any purpose other than consideration under section 55 in the Divorce proceedings, they are children in her household, and section 75(2) of the Act does not draw distinction between children and children of a relationship. It focuses upon responsibility and duty.
Ms Barlow has a legal obligation to support those children, at least for some little time. Ms Barlow is clearly entitled to receive an income-tested benefit, but I am not entitled to take that into account as part of these considerations.
Where the parties have separated, I am required to make Orders that will provide a standard of living that is reasonable. Doing the best I can that would not be a factor of any great significance, although it might favour – and, again, it is a “might” – Ms Barlow.
There is no Application for spousal maintenance, and, indeed, if such an Application was made, based on the evidence that is before me, it could not succeed.
There is no issue with respect to the effect of Orders on creditors.
The marriage is very brief. The Full Court has made clear that in such circumstances, with the possible caveat of adjustments regarding the care and welfare arrangements for children, that one might approach the exercise of adjustments under section 75(2) of the Act with some caution, and some conservatism. I propose to do so. But I propose to exercise that discretion, perhaps slightly more favourably in Ms Barlow’s case than is urged upon me by Mr Jarman.
Neither party is presently cohabiting with any other person, although Mr Jarman has a person who he described at one point as a girlfriend. I do not consider that relevant.
For all of those reasons, I am satisfied that a modest adjustment should be made for section 75(2). Whilst the word “modest” was used in submissions in Mr Jarman’s case, I find that an adjustment of 10 per cent should occur. That would lead to an overall division of tangible non-superannuation assets, as to 55 per cent in Ms Barlow’s favour, being 55 per cent of the pool of property that I have described above. I have not included superannuation for the purpose of that percentage division for the following reasons.
Firstly, at the commencement of the relationship Mr Jarman had superannuation entitlements a little under $43,000. They have since grown to $59,253. Clearly his superannuation vastly outweighs Ms Barlow’s, which is $1,539, and accordingly unsplittable.
Secondly, there does not appear to be any contention that at the time of separation Ms Barlow had residual savings at her disposal of a little over $20,000, and possibly as much as $23,000, of which she has had the sole use and benefit. This would more than offset the difference in superannuation.
Thirdly, I am satisfied that this factor should be balanced against, and should obviate any splitting of super. In reality, neither party seeks a splitting Order and as a consequence neither has given procedural fairness to any Trustee. Nor am I satisfied that the disparity in superannuation should result in any further cash adjustment over and beyond each party otherwise retaining all other assets which have not been so particularised.
As a consequence of those findings, I am satisfied that a cash payment should be made by Mr Jarman to Ms Barlow which represents each then retaining 45 and 55 per cent respectively of the nett tangible (non-superannuation) asset pool that I have described. That would result in Mr Jarman making a payment to Ms Barlow, in rounded terms, of $113,000 and, upon receipt of that payment, Ms Barlow retaining the matrimonial home and her motor vehicle. Mr Jarman would retain his property at Property S, his motor vehicle and his superannuation entitlements.
Costs
Consequent to the conclusion of the proceedings, an Application for costs is appropriately made by the Independent Children’s Lawyer in accordance with the conditions of their grant of aid.
Costs Applications, whether made by Independent Children’s Lawyers or parties to proceedings in their own right, are guided by section 117 of the Act.
Subsection (1) provides the general rule that, each party to proceedings should pay their own costs of and incidental to proceedings unless the court is satisfied in accordance with the discretion established by subsection (2), that it is appropriate, and there are circumstances that warrant the making of an Order.
Subsection (2A) sets out a non-exhaustive list of matters that are relevant to consider. Before considering those, and as regards Ms Barlow, it must be observed that subsection (4) precludes the Court making an Order for contribution towards the costs of the Independent Children’s Lawyer if a party to the proceedings “has received” Legal Aid. The terminology of the section is in mandatory terms, precluding the Court. The Court must not make an Order against a legally aided party. I am satisfied, having been advised by the wife’s solicitors that the wife was, at a point in time in the proceedings in receipt of a grant of Legal Aid, that I am precluded by subsection (4) from making an Order as against the wife.
As regards Mr Jarman, and in consideration of the matters under subsection (2A) and others, I am required to consider the financial circumstances of each party. Whilst there is some controversy as to the income of Mr Jarman, his evidence has been that he was receiving an amount, at different times during the course of the proceedings, of between $200 and $450 per week. The property that he owns is otherwise tenanted, but it has expenses and I am conscious that the expenses that each of these parties have incurred is out of all proportion to the pool of property available for division between them, and the issues that would have been in dispute between them with a calm focus upon X’s best interests and without the fanning of flames created by the somewhat unhelpful expert evidence in the case.
Whether any party has been in receipt of a grant of Legal Aid has been dealt with as regards the wife. Mr Jarman has not been legally aided.
The conduct of the parties to the proceedings cannot be criticised. Neither of these parties has occasioned delay. There is some suggestion that the husband, in the financial proceedings which does not involve the Independent Children’s Lawyer, has been less than accommodating as regards discovery, but that is not a matter that I can or should take into account in relation to the parenting aspect of the proceedings especially as regards the Independent Children’s Lawyer.
There was some criticism of Mr Jarman for having brought the Application that he did in August of 2010, however, based on the evidence available at that time, both through Dr E's Report and his cross-examination, not only did the Orders sought by Mr Jarman appear appropriate, but they were accepted as so by the Court. Accordingly, I cannot be critical of him for that. It is not my job in these proceedings, or in this Application, to revisit that decision. On its face, it was appropriate. I am conscious an Appeal was lodged from the decision which has, no doubt, occasioned further cost in the proceedings. I do not know where that Appeal is up to, nor am I concerned by it as it is not a matter for this Court as a first-instance court and one would have thought that the parties might now be spared the expense of prosecuting the Appeal as the Orders appealed against have been discharged.
Whether the proceedings were necessitated by the failure of a party to comply with an Order is not an issue in these proceedings, although clearly the position of Mr Jarman is that the proceedings were necessitated by an inability of the parties to negotiate mutually satisfactory and acceptable arrangements.
Neither party has been wholly unsuccessful in the proceedings and Mr Jarman will, in the fullness of time and by 2014, achieved that which, in February 2009 when he commenced the proceedings, he set out to obtain, being shared care.
Whether any party has made an offer in writing is not relevant for the purpose of this consideration.
Any other matter the Court considers relevant is guided by the remaining sections. Subsection (3) provides that the Court can make an Order for payment or contribution towards the costs of the Independent Children’s Lawyer subject to the prohibition in subsection (4).
Subsection (5) vitiates against the public policy element that was previously agitated, being to make an Order in favour of the Legal Aid Commission when an Independent Children’s Lawyer was provided by that body and so as to ensure the continuing provision of such representation. By subsection (5) the Court is now to disregard the fact that the Independent Children’s Lawyer is funded under a Legal Aid scheme. Whilst there is some real compassion towards the parlous funding of the Legal Aid Commission and the enormous contribution that is made by the Commission to the representation, not only of children but of adults, that is not a matter which the legislation enables me to take into account, and accordingly effectively ends the pre-2006 public policy argument.
I am then required to return to the section (2A) principles and even in making a determination with respect to costs as between a litigant and the Independent Children’s Lawyer, it is not a matter of public policy but a matter of what might be described as the usual common law grounds. If making an Order for costs in circumstances where conduct, behaviour or failure warrant such an Order, Mr Jarman could not possibly be described as falling within any of those categories especially as regards parenting proceedings. He has prosecuted Applications genuinely and with a focus upon his daughter’s best interests.
I am conscious that there would be an issue of injustice and inequity if subsection (4) operated to preclude an Order for contribution as against one party on the basis that they had, at a point in time, been legally aided, and to then make an Order for costs against another litigant who is in no better financial position whatsoever but who was not, for whatever reason, legally aided.
With respect to the Divorce Application, I declare that I am satisfied as to marriage. I am satisfied as to jurisdiction based on domicile. I am satisfied as to separation. I find that the arrangements with respect to the child of the relationship, X are, in all of the circumstances, appropriate.
For those reasons, I make the following Orders (see Orders).
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 8 December 2016
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