Joris and Joris
[2008] FMCAfam 832
•14 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JORIS & JORIS | [2008] FMCAfam 832 |
| FAMILY LAW – Parenting – equal time or substantial and significant time – high conflict family – credibility of allegations made against father by mother – wishes of child – equal time not in child’s best interests and not reasonably practicable. |
| Family Law Act 1975, ss.60CC, 61DA, 65DA, 65DAA |
| References: Johnston J, Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making (1995) 33 Family and Conciliation Courts Review 415 McIntosh J, Chisholm R, Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research, (2008) 20(1) Australian Family Lawyer 3 Smyth B, Time to rethink time? The experience of time with children after divorce, Family Matters No. 76, Winter 2005 |
| Applicant: | MR JORIS |
| Respondent: | MS JORIS |
| File Number: | SYM 8021 of 2006 |
| Judgment of: | Altobelli FM |
| Hearing date: | 17 June 2008 |
| Date of Last Submission: | 18 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Reynolds |
| Solicitors for the Applicant: | Tonkin Drysdale Partners |
| Counsel for the Respondent: | Ms Clifton |
| Solicitors for the Respondent: | David H Cohen & Co |
ORDERS
That the parties have equal shared parental responsibility for the Child [B] (“the Child”) born in 1998.
The Child live with the Father.
The Child spend time and communicate with the Mother as follows:
(a)Each alternate weekend from after school on Friday to before school on Monday; and
(b)Each alternate Thursday from after school to before school on Friday; and
(c)Half of all school holidays as agreed between the parties but failing agreement, being the first half in even numbered years and the second half in odd numbered years with the relevant changeover times being 9.00am on the day after school ends, 4.00pm on the day which represents the mid-point of the holidays, and 4.00pm on the day prior to the resumption of school.
Notwithstanding any orders herein contained the parties will ensure that;
(a)The Child lives with the Father for Christmas in even numbered years from 4.00pm on Christmas Eve to 2.00pm on Christmas Day and with his Mother from 2.00pm on Christmas Day to 4.00pm on Boxing Day; and
(b)The Child spends time with the Mother for Christmas in odd numbered years from 4.00pm on Christmas Eve to 2.00pm on Christmas Day and with his Father from 2.00pm on Christmas Day to 4.00pm on Boxing Day; and
(c)The Child live with the Father on Father’s Day from 4.00pm the day before to 7.00pm on Father’s Day; and
(d)The Child spends time with the Mother on Mother’s Day from 4.00pm the day before to 7.00pm on Mother’s Day.
That each party do all things and sign all documents necessary to authorise and direct any school attended by the Child to discuss with the other party the Child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletters or other written material produced by the school and distributed to parents or relating to the Child specifically and both parties shall be entitled to fully participate in any and all activities at the school or connected with the school.
The each party shall at all times keep the other informed as to all medical, dental or other health related treatment being undertaken by the Child and the identity of the treating professionals and each party shall be able to communicate directly with any treating professionals as to any health related treatment being undertaken by [B] without necessarily first referring to the other party.
That each party shall ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the Child and including sufficient details to enable both parties to be consulted with respect to and fully advised regarding such illness and condition and any treatment recommended or provided and to visit the Child if hospitalised.
Both parties are hereby restrained from speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Child’s hearing.
The parties shall not remove the Child from the Commonwealth of Australia without the written consent of the other party.
That in the event the parents cannot reach a joint decisions about:-
(a)a major long-term issue involving the Child; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders; which involve the child,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
(a)The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
(b)The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
IT IS NOTED that publication of this judgment under the pseudonym Joris & Joris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 8021 of 2006
| MR JORIS |
Applicant
And
| MS JORIS |
Respondent
REASONS FOR JUDGMENT
Introduction
[B] is 10 years old. He is caught in a terrible crossfire of conflict between his parents. In one trench is his father, the applicant in these proceedings, Mr Joris. He is 43 years old, lives at [P] on the NSW Central Coast and works at [H], a northern Sydney suburb, about a 90 minute commute from home. In the other trench is [B]’s mother,
Ms Joris. She is the respondent in these proceedings. She is 34 years old and lives at [N] a suburb immediately to the north of [G], again on the NSW Central Coast. She works at [T], somewhat further north but still on the NSW central Coast. The parents in this case are litigating over where [B] should live and how much time he should spend with each parent. Despite the withering cross-fire, [B] actually seems to be coping reasonably well with his parents’ separation though there are serious indications that if this conflict does not end soon, he may well suffer irreparable emotional harm.
[B] currently lives with his father, at [P], and attends school at [W] public school. He is in year 6 this year, and it is anticipated that he will attend high school in 2009 at [R] School at [R].
The parents commenced their relationship in 1995, married in 1997, and separated in March 2002 after a relationship of about seven years duration.
Background
The father’s application is for [B] to continue living with him, and spend substantial and significant time with his mother. At the hearing the father’s proposal was that [B] would live with his mother from after school on Thursday to before school on Monday each alternate week together with one evening in the other week. The mother’s proposal at the hearing was that there be an equal time arrangement in relation to [B]. No alternative position was adopted at the hearing. In her Amended Response dated 14 February 2008 she had proposed that [B] live with her and have substantial and significant time with the father.
In appears relatively uncontentious as between the parties that from the date of separation in March 2002 through to about October or November 2005, [B] lived primarily with his mother. Since that date, however, he has lived primarily with his father. The father commenced these proceedings in November 2006. It is uncontested as between the parties that between March 2002 and October 2005 [B] experienced a number of changes to where he was living, and where he was going to school. Based on his mother’s own evidence, she moved out of the former matrimonial home at [E] on separation, initially to one residence at [O], and then another home at [O]. [B] was placed in pre-school initially. In November 2002 the mother and [B] moved to [East G], and presumably at the beginning of 2003, [B] was enrolled at [East G] public school. In May 2003 they moved to [Y] and the mother commenced a relationship with Mr K. In October 2003 they moved to [O] again, and [B] was enrolled in [W] School. In September 2005 the mother and [B] moved to South Australia and [B] attended a school there, for a relatively short period of time. During the September school holidays in 2005 [B] spent time with his father back in the former matrimonial home which he continued to occupy. For various reasons [B] did not return to South Australia, but by October 2005 the mother returned to Sydney, initially living in [M]. [B] was enrolled at [M] School. By October or November 2005, however, [B] returned to live with his father in the former matrimonial home at [E] and recommenced attending [W] School where he still presently attends. His mother continued to live in [M] for a period, but in October 2006 moved to [N], where she still currently lives. [B] and his father have moved comparatively recently to their current home at [P].
On 15 December 2006, after a short interim hearing, I made orders for equal shared parental responsibility, for [B] to live with his father, and for him to spend time with his mother for half of the forthcoming Christmas school holidays together with a number of ancillary orders dealing with collection and return of the child, telephone communication, restraining the mother from removing the child from the greater Sydney metropolitan area, and a watchlist order.
On 28 February 2007 I made further orders, this time specifically dealing with the issue of [B]’s time with his mother. I ordered that he spend time with her each alternate weekend commencing Friday immediately after school through to the following Monday before school, and each alternate Thursday from immediately after school through to 8pm, together with one half of the school holidays and special days.
Regrettably, the matter again came before me for interim orders on
31 July 2007but the father’s application was dismissed.
On 4 February 2008 the matter yet again came before me for interim orders, this time on the mother’s application. Her application was dismissed. I ordered that [B] be returned to his father and granted liberty to apply for a recovery order if that did no take place.
It is most unfortunate that this matter has such a long history of litigation which has included several interim applications in respect of which I’ve had to make reasoned interim orders. There is a high level of conflict between these parents. Communication and cooperation between them is limited, if not nonexistent at times. And yet it is clear beyond doubt that they both love [B], that he has a meaningful relationship with them and, no doubt, needs them, and, indeed, wishes to spend more time with his mother. These matters are abundantly clear from the two reports prepared by Dr Janina Szyndler dated 14 May 2007 and 28 December 2007, as well as the oral evidence she gave at the hearing.
At the final hearing of this matter on 18 June 2008 both the mother and the father were represented by their solicitor and counsel, both relied on the affidavits they had filed in the proceedings, and both gave evidence and were cross-examined.
Issues
I need to make an order that is in the best interests of [B]. Fundamentally, this is a dispute about time, irrespective of whether one uses the label “lives with” or “spends time with”. Whilst it is trite to say that a decision has to be made in the child’s best interests, this deceptively simple statement masks a quite significant complexity. The considerations are particularised in s.60CC of the Family Law Act.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental Conflict and Shared Parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Meaningful relationship s.60CC(2)(a)
The family reports, together with the evidence of both parents, satisfy me that [B] has a meaningful relationship with both his father and mother. None of the possible options for dividing time in this case could have an impact on this.
Protecting [B] from harm s.60CC(2)(b)
Both parents raised issues in their evidence about this consideration. Ironically both issues were the subject of interim determinations by me, and on both occasions were dismissed by me.
In the father’s affidavit filed 20 July 2007 he deposes to a telephone conversation with the mother on 17 July 2007 in which she allegedly said:
I’ve told you before and I will tell you again, I brought [B] into this world and I will take him out of it, you will never get shared care.
The father was concerned that the mother might harm the child. The mother presents her version of this incident in her affidavit sworn
25 July 2007. She agrees that she became upset as a result of the matters that led to this incident, denies that she said the words attributed to her, and deposes to never having threatened to take either her life or that of her son.
I was not concerned about this incident when the matter came before me on 31 July 2007. I am not concerned about it now. It was an example of the metaphorical “storm in a teacup” but it does, regrettably, provide an insight into the level of conflict between these parents, and their inability to deal with communication and conflict without resorting to litigation.
In the mother’s affidavit filed 11 January 2008 she deposes to a number of events which, if true, would be potentially serious. She used these events as the justification for retaining [B] in her care contrary to court orders. By way of overview, she asserts that [B] made disclosures to her, and to the police, that his father had assaulted him at his birthday party in 2007, inappropriately punished him, and drank to excess. As a result of the disclosures made by [B], she believed that he was at risk of harm in his father’s care, and, indeed, that his father’s time needed to be supervised.
The evidence about these disclosures, and the mother’s concerns, is found in three different sources. First there is the mother’s affidavit filed 11 January 2008 which purports to depose to events taking place on the 6th, 7th and 8th of that month i.e. reasonably contemporaneously to the making of the affidavit. Second, there is the statement of the grounds relied upon in support of the application which led to the grant of a Provisional Order (Ex Parte) Apprehended Domestic Violence Order on 8 January 2008. This, there is the wife’s own oral given at the hearing.
It should be noted that when the matter was relisted before me on
4 February 2008as a result of the mother’s concerns and the breach of the orders I dismissed her application and, in effect, ordered [B] to forthwith returned to his father failing which a recovery order would issue. I had no hesitation is doing so, even in an interim hearing where the evidence could not be tested, because of the inherent unreliability of the evidence on which the mother relied, and the significant inconsistencies in her evidence. Indeed, if I recall correctly, I was quite robust in my criticism of the mother for taking the unilateral actions she did, and exposing [B] to such stress, on the basis of such poor evidence. Alas, even that did not deter the mother or her advisers from revisting the same issue, with the same evidence, at final hearing.
I do not propose to set out, at length, the evidence contained in the mother’s affidavit or the grounds in support of the AVO. All of this is self-evident from the affidavit of the mother filed 11 January 2008. I will set out why I do not accept the mother’s evidence and why, therefore, I have no concerns about the safety of [B] whilst in his father’s case.
a)The event that precipitated the disclosures by [B], if indeed they occurred at all, was the provision of information to the mother that was, on its face, so inherently unreliable, that no reasonable parent would have acted on it unless motivated by an improper purpose. [C] is a friend of [B]. [C]’s mother has a friend whose name does not appear in the evidence, but I will call her ‘Ms X’. Ms X told [C]’s mother that in January 2007 at [B]’s birthday party she saw the father in these proceedings grab [B] around the throat in the presence of other children. [C]’s mother conveys this information, in January 2008 (i.e. one year later) to the mother in these proceedings. The mother in these proceedings then acts on this ‘old’ allegation, conveyed to her by someone who did not see it, without first seeking to verify the same or even discuss it with the father. Dr Szyndler, the Family Consultant, was cross-examined by the mother’s counsel about the reasonableness of the mother’s subsequent actions in contacting the police. She said words to the effect “the allegation was raised quite some time after the event based on something said to a person who was not there…most parents would seek to verify what actually happened first.” In my opinion this is an understatement. It did not stop the mother from proceeding.
b)The disclosures eventually made by [B] were made as a result of the mother’s persistent asking of leading questions on the 6th, 7th and possibly even the 8th of January 2008. Her questioning was leading, even on her own evidence. At no stage was any alternative hypothesis explored with [B].
c)[B]’s first response to his mother was that, in effect, he recalled nothing at all. But [B]’s friend [C], who happens to be there during this questioning says to him , according to the mother “yes you do [B], me and [D] saw your dad grab you and shake you when we were sitting in my mum’s friend’s car leaving your party.” [B] then says, according to his mother “Oh yeah, I remember now”. This disclosure leads the mother to further question [B], and leads to further disclosures. However, the mother does not explore this with [C], the other boy [D], or their respective parents, or the ‘friend’ who was driving the car. Rather she persists with questioning [B] that night and into the next.
d)The mother then takes [B] to [G] Police Station on 8 January 2008 where a statement is made. However this statement contains some significant inconsistencies with the affidavit. For example, she discloses to the Police that the context of these disclosures was not what [C]’s mother said to her, but rather a discussion about bullying (which is never mentioned in the affidavit). Another example is that what [C] is alleged to have said to [B] (see paragraph above) changes to “But [B] your dad hits you all the time”. Furthermore, the Police statement records [B] as saying that his father drinks one to two bottles of wine each night, whereas in the affidavit it was “dad drinks a bottle a night, sometimes three”. Of course it should be noted that, sometimes, inconsistencies in evidence do not mean the evidence is untrue. But one must not lose sight of the present situation. The mother is the central figure in all of the events that allegedly occur over 6, 7 and 8 January 2008, and there are two written records created of these events within days of their happening. Inconsistencies in this context are much harder to understand.
e)There is a further inconsistency in the oral evidence of the mother given at the hearing. She said that the discussion about “bullies” took place in the car, and not over dinner as deposed in the affidavit. Furthermore [C] reminded [B] of what allegedly occurred not just once, but twice. Moreover in cross-examination the mother agreed that [B] could have been exaggerating about how much his father drinks.
f)When these allegations were put to the Family Consultant she expressed surprise. The mother had not expressed concern to her about the father’s disciplining of [B]. The allegations were inconsistent with the strong self-esteem that she observed in [B]. Indeed there was nothing she observed in [B]’s behaviour that was consistent with him suffering abuse. She acknowledged, however, that she did not directly explore with [B] whether he had been abused, however noted that he was not at all reticent to express his opinions and was, indeed, quite chatty. The inference was that [B] would have had the opportunity to say something about abuse or inappropriate discipline had he wanted to.
g)Finally, I have reservations about the mother’s credibility generally. She agreed in cross-examination that she had made up a statement in one affidavit that she had to have a lump in her breast surgically removed. I have real doubts about the mother’s allegation that the separation was caused by the father’s family violence (mentioned for the first time in the last of her four affidavits) and that she had disclosed this to the Family Consultant (who was very surprised by this as it had never been raised with her).
All of these matters lead me to conclude that there are no concerns about [B]’s welfare whilst with the father either arising out of the alleged assaults or indeed generally. Regrettably, however, these matters reflect very poorly on the mother. She had ample opportunity in these proceedings to demonstrate to me that she had some insight or understanding of how [B] might have experienced her persistent questioning of him, the police interview, indeed the AVO proceedings, and depriving him of time with his father contrary to court orders. She expressed no regret about her actions and, indeed, is still contemplating the possibility that [B] might have to give evidence in those proceedings. When asked about whether she felt the proceedings would have to go ahead her response was to the effect “Someone’s got to know what the father is doing”. If that response was meant to convey the belief in her mind about the father assaulting [B], despite the evidence to the contrary, it is strangely inconsistent with her position in these proceedings that [B] should spend equal time with his father. In the present context her response indicates to me a singular incapacity to understand the situation from the child’s perspective. All of these matters reflect poorly on the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between [B] and his father (s.60CC(3)(c)) ; her capacity to provide for the emotional needs of the child (s.60CC(3)(f)); as well as the mother’s attitude to the child and the responsibilities of parenthood (s.60CC(3)(i)).
Views expressed by [B] (s.60CC(3)(a))
The evidence in the Family Reports quite plainly indicate that [B] is an intelligent, articulate boy who has expressed the view that he would like to spend more time with his mother. My orders will need to reflect that. In submissions the father’s counsel indicated that he now proposed each alternate week from Thursday after school to Monday before school, together with time one evening of the other week. I do not believe that this is enough. It was not submitted (quite properly I believe) that the views expressed by [B] favour the equal time arrangement proposed by the mother.
Nature of the child’s relationships (s.60CC(3)(b))
As indicated above, [B] enjoys a meaningful relationship with both parents. I express some concerns about the nature of this relationship as well as the fervent hope that the resolution of these proceedings will put an end to the conflict between the parents once and for all. I sense that there are some unresolved emotional issues between the parents that are still contributing to current tensions. This leads one or both of them to potentially use [B] as a weapon to seek to harm the other. As I said at the commencement of these reasons, [B] is caught in the cross-fire of the conflict between his parents. This must stop now, for his sake. I urge each parent to carefully reflect on the nature of their relationship with [B] and each other, and work to eliminate any aspect of that relationship that would lead to that parent harming [B], even inadvertently.
Willingness and ability to facilitate and encourage a close and continuing relationship (s.60CC(3)(c))
Regrettably each parent has, since separation, unilaterally withheld [B] from the other, even after orders have been made. There was ample evidence before me in the affidavits and oral evidence about the parents’ inability to agree about [B] spending time with both of them and their respective families, over Christmas 2007 and his birthday in 2008. That these events happened during these proceedings, in the sure knowledge (one would surmise) that there would be critical scrutiny of them in court, is remarkable and provides a sad reflection and insight into the appalling level of conflict between them. Quite frankly, neither parent is better than the other having regard to this additional consideration under s.60CC(3). As the Family Consultant stated in her oral evidence, this family needs clear, transparent orders dividing time and responsibilities with minimal opportunities for physical contact between the parents.
Likely effect of changes of circumstances s.60CC(3)(d)
[B] has experienced a significant amount of change in his life, and I am very reluctant to cause further significant change to occur. He has been to at least four different schools. In his father’s care he has experienced only two homes, with the last change quite recent. In his mother’s care he has experienced at least six homes. He will go to high school next year and the evidence indicates that this is on a direct bus route from his father’s home. The greatest change would be brought about by acceding to the mother’s proposal. It would not just be a physical change, however, as the Family Consultant noted how different the parents are in their personalities, and, one would infer, parenting styles. Indeed the Family Consultant said words to the effect “they are polar opposites…that is part of the problem”. The mother’s proposal would involve the greatest change for [B]. I do not believe that this change would be in his best interests.
Issues of practical difficulty and expense (s.60CC(3)(e))
Whilst this concept overlaps with the concept of ‘reasonable practicability” in s.65DAA(3), there are also significant differences. Paragraph (e) seems to focus on practical i.e. tangible issues relating to implementing an order for time and communication. The other subsection goes much further. In the present context there are no issues of practical difficulty and expense, whatever order I make. Next year [B] will attend [R] School which is, in very broad terms, located between his father’s home in [P] and his mother’s home at [N]. Both parents seem committed to ensuring that [B] maintains his curricular and extra-curricular activities and friendships. Both parents work and both use before and after school care facilities.
Capacity to provide for [B]’s needs (s.60CC(3)(f))
I have already expressed some of my concerns about the mother’s capacity to provide for her son’s emotional needs. As the father is also an active participant and sometimes protagonist in the conflict between the parents, this reflects poorly on his understanding of his son’s need for both parents to stop fighting over him. And yet I have more faith in his ability to focus on his son. He has provided stability for [B] for almost three years now. Both Family Reports recommend no change to the current living arrangements other than for more time with the mother. Both parents can provide for the physical needs of [B], though in the past it is clear that the mother has struggled at times and has not had money to provide even basic necessities such as gas and milk. It seems as if the mother is now gainfully employed and living in stable accommodation so one hopes these issues will not reoccur. Because of the concerns I have about the mother’s capacity to provide for her son’s needs I do not believe that her proposal is in the best interests of [B].
Attitude to child and responsibilities of parenthood (s.60CC(3)(i))
The major issue here is the high level of conflict between the parents, and how this helps to inform decision making about a parenting arrangement that is in [B]’s best interests. The hostility and conflict between the parents is self-evident. Both counsel in their closing submissions referred to this. The Family Consultant refers to this in her reports and in her oral evidence. Of particular significance was
Dr Szyndler’s observation that the parental conflict actually increased between her first and second reports, and the parents’ capacity for communication actually decreased. As she said in her evidence:
when there is high conflict, parents can use any ambiguity in arrangements to increase the conflict… if parents can communicate anything is possible, but if the can’t communicate then anything becomes a problem.
In cross-examination by the father’s counsel Dr Szyndler seemed to emphasise that [B] has a strong bond with his father, despite the parental conflict, and that this should be maintained. She favoured block-time with the mother, structured in a way to allow diverse interactions between mother and child. She certainly preferred overnights rather than just afternoons and evenings. Her recommendation in both reports were quite clear – that [B] continue living with his father but that he spends substantial and significant time with his mother.
In cross-examination by the mother’s counsel Dr Szyndler was asked to consider the mother’s proposal for equal time. Initially she resisted this because of the negotiation and communication problems that the parents experienced. But she then agreed that the communication problems are not necessarily alleviated by the mother having less than equal time, and she seemed to agree that equal time might mean less changeovers which reduces opportunities for conflict. What she wasn’t asked by counsel, however, was whether there were other ways to deal with conflict at changeovers, and communication problems would be exacerbated by equal time. The mother’s counsel’s final submission on this point was that Dr Szyndler conceded that is was not inappropriate for there to be equal time. With respect, I do not believe that this is what Dr Szyndler was saying. The facts of this case are very plain. There are two households. There is no communication between them. There is little trust between them. There are two very different parenting styles in each household. There are enormous logistical issues involved in equal-time parenting, and in my opinion few parents whose matters need to be determined at a final hearing have the skills to be able to successfully implement equal time. These parents do not. Whilst both parents contribute to the conflict, equal time creates an environment where there is the risk that [B] is further exposed to the metaphorical cross-fire between the parents. In any event, conflict at changeover may be alleviated by changeover taking place at school.
Thus, whilst both parents can be justly criticised for aspects of their responsibilities towards parenthood, on balance the mother’s proposal is the one that ignores the realities of the dysfunctional nature of the relationship between the parents.
Conclusions about best interests based on s.60CC
Having regard to the matters set out above I find that:
a)[B] enjoys a meaningful relationship with both parents;
b)There is no evidence that [B] needs to be protected from harm as a result of abuse, neglect, or family violence;
c)[B] has expressed a view to spend more time with his mother, but this does not necessarily mean equal time;
d)The mother’s proposal for equal time will bring about the greatest change in [B]’s circumstances, and his current needs are for stability;
e)There are no issues of practical difficulty and expense that arise from either parent’s proposal;
f)Both parents have the capacity to meet the physical needs of [B], but the father has the greatest capacity to provide for his emotional needs;
g)The high level of conflict between the parents reflects poorly on their attitudes to [B] and to their responsibilities of parenthood but, on balance, the mother’s proposal for equal time is more problematic having regard to this conflict.
The totality of the evidence, including the expert evidence of the Family Consultant, leads me to conclude that the mother’s proposal for equal time is not in the best interests of [B]. However, he should spend more time with his mother but I would like to achieve that by minimising the opportunities for conflict associated with changeovers and the parents coming into contact with each other. His school is, of course, the best venue for a safe changeover so wherever possible his time with his mother will coincide with a school day. The father proposes Thursday to Monday each fortnight i.e. four nights, plus one evening (not overnight) during the other week. The Family Consultant would prefer that this other evening be overnight. I believe five nights per fortnight is in [B]’s best interests. The choice is between one five night block each fortnight, or one four night block and then another night. [B] clearly has a good relationship with his mother and so I believe having the opportunity to speed weekly time is appropriate provided changeover occurs at school. Thus I propose to order Thursday to Monday each alternate week, plus the Thursday night of the offer week.
Equal Shared Parental Responsibility: s.61DA
The father seeks an order for equal shared parental responsibility. The Family Consultant supports this. The mother’s application is silent in this regard. Having regard to the terms of s.61DA and to the evidence, there is no reason to rebut or negate the application of this statutory presumption.
Equal Time or Substantial and Significant Time: s.65DAA
The mother seeks an order for equal time. The father’s proposal is, in effect, and order for substantial and significant time. Section 65DAA requires me to consider whether equal time or substantial and significant time is in the best interests of the child, and whether it is reasonably practicable. For the reasons that I have set out above, I do not believe that equal time is in the best interests of [B]. I further believe that such an arrangement is not reasonably practicable having regard to the concerns I have already expressed about the parents’ capacity to communicate and capacity to implement such an arrangement: s.65DAA(5)(b) and (c).
Conclusion
Accordingly the order I make is that [B] lives with his father and spends time with his mother from after school on Thursday to before school on Monday each fortnight, then from after school on Thursday to before school on Friday in the alternate week, as well as half the school holidays.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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