Kalich and Callahan
[2011] FMCAfam 444
•13 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KALICH & CALLAHAN | [2011] FMCAfam 444 |
| FAMILY LAW – Parenting – limited issues in dispute – wishes of children – on-going anxiety of one parent and impact on children and parenting relationship. |
| Family Law Act1975, ss.60B(1), (2), 60CA, 60CC(2)(a), (3)(a), (b), (c) (d), (e), (f), (g), (i), 61DA, 65DAA |
| Champness & Hanson (2009) FLC ¶93-407 Collu & Rinaldo [2010] FamCAFC 53 MRR v GR (2010) 240 CLR 461 McCall v Clark (2009) 41 Fam LR 483 Mazorski v Albright (2007) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 SPS & PLS (2008) FLC ¶93-363 |
| Applicant: | MS KALICH |
| Respondent: | MR CALLAHAN |
| File Number: | CAC 306 of 2009 |
| Judgment of: | Neville FM |
| Hearing date: | 24 February 2011 |
| Date of Last Submission: | 9 March 2011 |
| Delivered at: | Canberra |
| Delivered on: | 13 May 2011 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
ORDERS
All previous parenting orders be discharged.
The Mother and the Father have equal shared parental responsibility for the children, [Y] born [in] 1996 and [Z] born [in] 1998.
The children live with the Mother.
The Father spend time with the child [Z] as follows:
(a)Every alternate weekend from Friday after school until Monday before school.
(b)One week-night in the “off week” during the school term from after school until before school the following morning.
(c)Half of each school holiday period, unless otherwise agreed between the parties.
(d)Christmas 2011 from 4:00pm on Christmas Eve until 4:00pm on Christmas Day, and each alternate year thereafter.
(e)Christmas 2012 from 4:00pm on Christmas Day until 4:00pm on Christmas Day, and each alternate year thereafter.
(f)On the day of the Father’s birthday on [date omitted] from 10:00am to 8:00pm, excluding school hours where it falls during school week.
(g)On the day of the child’s birthday on [date omitted] from 3:00pm to 7:00pm, excluding school hours where it falls during the school week.
(h)On the day of sister [A]’s birthday on [date omitted] from 3:00pm to 8:00pm, excluding school hours where it falls during the school week.
(i)At any other times by agreement between the parties.
(j)Any changes to the above arrangements to be made by agreement between parties.
The Father spend time with the child [Y]:
(a)As per the child’s wishes as arranged between the child and the Father.
(b)Such time to include overnights, weekends, holiday periods, Christmas and birthdays.
(c)The Father is to notify the Mother as soon as practicable of any arrangements made for spending time with the child to the email address or mobile phone number pursuant to order 11.
The children spend time with the Mother on Mother’s Day and the Father on Father’s Day. In the absence of agreement, the time should be from 2:00pm to 8:00pm.
The changeover for both children take place:
(a)During school term at either the children’s schools or the Father’s home.
(b)During school holidays or public holidays by the Father collecting the children from the Mother’s home and the Mother collecting them from the Father’s home.
The Father may communicate with the children at any time via their personal mobile phones or email.
The Father will facilitate the social, sporting and extracurricular activities of the children that take place during his time with the children.
The communication between the parents in relation to the children be made via email or mobile phone.
Each parent maintain a consistent mobile phone number and email address for the purpose of order 10 so each is always available for communications involving the children.
Each parent will, as soon as practicable, contact the other in the event of a medical emergency relating to, or hospitalisation of any of the children while in their care.
In the event that either parent intends to take the child [Z] away from the ACT region, they will advise the other party in writing and provide an address at where the child will be staying and phone number on which he may be contacted.
IT IS NOTED that publication of this judgment under the pseudonym Kalich & Callahan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 306 of 2009
| MS KALICH |
Applicant
And
| MR CALLAHAN |
Respondent
REASONS FOR JUDGMENT
Introduction
Briefly stated, this case is of genuinely very narrow compass. Indeed, when one considers the orders sought by each of the parties, there is, in fact, a very significant amount of agreement – albeit unacknowledged (perhaps deliberately so). The only issue to be determined relates essentially to what time Mr Callahan spends with his son, [Z].
It should be immediately noted that there are three children of the marriage: [X] (aged 17), [Y] (aged 14) and [Z] (aged 12). For obvious reasons, no orders are sought in relation to [X]. And both parties effectively seek orders whereby [Y] spends time with her Father according to her wishes. As recorded in one of the detailed family reports before the Court, [Y] confirmed that she sees her Father regularly (i.e. weekly) and makes arrangements directly with him in this regard.
It is in the light of this factual matrix that the orders now sought and the submissions made in support of them relate particularly, if not exclusively, to [Z].
I should also note that, (a) given the limited scope of the dispute, (b) the detailed expert evidence from two highly experienced family consultants, and (c) the agreement of the parties, the matter has been determined, by agreement, on the basis of written submissions only.
These reasons proceed as follows: (a) orders sought; (b) summary of legal principle; (c) evidence of the family consultants; (d) consideration, discussion and resolution.
Orders Sought
The Applicant Mother’s orders sought are set out below:
1.The Orders in relation to the children made on 25 February 2009 be dismissed.
2.The children [Y] born [in] 1996 and [Z] born [in] 1998 live with their Mother.
3.That [X] and [Y] spend time with their Father in accordance with their wishes.
4.That [Z] spend time with his Father every second weekend from after school Friday until the following Monday morning with his Father. (I note in this regard that [Z] is able to bus from the [omitted] School to the Father’s home in [omitted] {bus number [omitted]}, so that he can arrive at the Father’s home at 4pm. It is my submission that given the distances between my home, [Z]’s school and the Father’s home, that mid-week time is difficult and disruptive for [Z], particularly in his first year in a new school).
5.That the Father facilitates [Z]’s social, sporting and school activities while in his care.
6.That the Father ensure that [Z] has his own bedroom at the Father’s home.
7.That the Father ensure that no inappropriate material is able to be accessed by the children on the Father’s home computer.
8.That [Z] spend time with each parent in the school holidays as agreed, and with the other parent from 3pm Christmas Eve to 12 noon Christmas Day is the parents are in the same locality over the Christmas period.
9.That in the event that either parent intends to take [Z] away from the ACT region, they will advise the other party in writing and provide an address at where [Z] will be staying and phone number on which he may be contacted.
10.That each parent will, as soon as practicable, contact the other in the event of a medical emergency relating to, or hospitalisation of any of the children whilst in their care.
11.That the Mother have sole parental responsibility for the children.
12.That notwithstanding Order 11, the Mother will inform the Father about:
(a) All serious medical issues relating to the children;
(b)Details of the children’s schooling including any information about their progress
(c)Issues relating to the children’s religious and cultural upbringing, if any;
(d) Changes to the children’s living arrangements; and
(e) Any major events in the children’s life.
13.That the Mother will authorise and direct the children’s schools (subject to normal professional confidentiality) to provide information to the Father upon his request.
14.That the Mother will consult and discuss with the Father major decisions affecting the children’s wellbeing.
The Respondent Father’s orders sought are as follows:
1.That all previous parenting order be discharged.
2.That both the Mother and the Father have equal shared parental responsibility for the children, [Y] (DOB [omitted] 1996) and [Z] (DOB [omitted] 1998).
3.That the children live with the Mother.
4.That the Father spend substantial and significant time with both children.
5.That the Father spend time with the child [Z] as follows:
(a)Every alternate weekend from Friday after school until Monday before school.
(b)One weeknight per week during the school term from after school until before school the following morning.
(c)Half of each school holiday period.
(d)Christmas 2011 from 5:00pm on Christmas Eve until 5:00pm on Christmas Day, and each alternate year thereafter.
(e)Christmas 2012 from 5:00pm on Christmas Day until 5:00pm on Christmas Day, and each alternate year thereafter.
(f)On the day of the Father’s birthday on [date omitted] from 10:00am to 8:00pm, excluding school hours where it falls during school week.
(g)On the day of [Z]’ birthday [date omitted] from 3:00pm – 8:00pm, excluding school hours where it falls during the school week.
(h)On the day of sister [A]’s birthday on [date omitted] from 3:00pm – 8:00pm, excluding school hours where it falls during school week.
(i)At any other times by agreement between the parties.
(j)Any changes to the above arrangements to be made by agreement between parties.
6.That the Father spend time with the child [Y]:
(a)As per the child’s wishes as arranged between the child and the Father.
(b)Such time to include overnights, weekends, holiday periods, Christmas and birthdays.
(c)That the Father notifies the Mother as soon as practicable of any arrangements made for spending time with [Y] to the email address or mobile phone number prescribed under paragraph 12.
7.That the changeover for both children take place:
(a)During school term at either the children’s school or the Father’s home.
(b)During school holidays or public holidays by the Father collecting the children from the Mother’s home and the Mother collecting them from the Father’s home.
8.That the Father may communicate with the children at any time via their personal mobile phones or email.
9.That the Father facilitates social, sporting and extracurricular activities of the children that take place during his time with the children.
10.That the Mother facilitates the Father’s time with the children.
11.That the communication between the parents in relation to the children be made via email or mobile phone.
12.That each parent maintain a consistent mobile phone number and email address for the purpose of paragraph 11 so each is always available for communications involving the children.
Summary of Legal Principle
A convenient summary of principle relevant to these proceedings is provided by Brown J in her oft-cited “twin pillars” statements in Mazorski v Albright. Respectfully and gratefully I adopt her Honour’s comments. Brown J said:[1]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[1] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[2]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[2] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall v Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
To the above needs to be added the Full Court’s observation in Champness & Hanson, at [191]:[3] “… the expression “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a “meaningful relationship.””
[3] (2009) FLC ¶93-407 at p.83,513.
I note the following from the experts in the case, the family consultants.[4]
Evidence of Family Consultants
[4] Because both parties referred to the reports of the Family Consultants in their written submissions, it may properly be inferred that both reports, dated respectively 10th August 2010 (the report of Ms W) and 23rd February 2011 (the report of Ms L), should be taken as having been admitted into evidence. In this regard, see the judgment of Warnick J, sitting as the Full Court, in SPS & PLS (2008) FLC ¶93-363.
The Family Report of 17th August 2010
As noted in para.4 of her Report, Ms W recorded the following as the relevant issues to be considered:
a)The Father’s role as parent to [Z];
b)The allegations made by the Mother of mental illness, drug and alcohol use by the Father’s [new] Wife;
c)The suggestions by the Mother that the Father will be imminently charged with some undisclosed offence to be dealt with in “another jurisdiction”;
d)The acrimonious and hostile relationship between the parents.
e)The high level of anxiety for [Y] and [Z] regarding their relationship with their parents in the light of the parental acrimony;
f)The absence of all communication between the parents and the need for the children to negotiate their relationship with their Father;
g)The resulting long term impact on [Z] and his sister’s development living with their parent’s hostility.
Ms W further recorded the following in her report.[5] First, she observed the children’s anxiety around their parents’ relationship, which was discussed individually with both parents. Both children expressed the burden they carried living between such a toxic parental relationship. Each of the children presented a picture of “walking on egg shells” around their parents.
[5] The material contained in this summary of matters is taken from Ms W’s assessment at par.6.1 of her report.
Secondly, it was concerning to the Family Consultant that the Mother appeared to attempt to portray to [Z] a demonic picture of his Father and to manoeuvre him into beliefs in line with her own. Ms W commented that the damage that the parents’ relationship is doing to the children was expressed to the parents but neither appeared able to consider any way that they could resolve their acrimony with each other.
Thirdly, Ms W noted (at para.6.2 of the report) that the “flexible” arrangements for [Z] were particularly difficult for him, because it required him to negotiate arrangements between two hostile parents. Despite his assertions to the contrary it seemed that prescribed times that he spends with his Father for alternate weekends and overnight during the week will ameliorate him having to balance his parent’s needs and views against his own and make for a smoother transition between his parents homes. Ms W recorded that Mr Callahan expressed his readiness to facilitate [Z]’s sporting and social commitments while he is his care. He also denied any risk factors for the children with his Wife.
In relation to each of the children, I note summarily some of the matters noted in the report of Ms W. For example, she recorded that [Z] considered his Father’s new wife (Mrs C) as being “really nice”, that she is “always happy and nice”, and that he ([Z]) considered his baby sister ([A]) to be extremely cute, which I take to suggest that he is enamoured of his baby sister.
[Z] said that he ‘texts’ his Father to make arrangements with him when he knows what times suit his Mother and when he is free of his sporting commitments. He also said to the consultant that he hoped the relationship between his parents might calm down in the future, and become normal. [Z] seemed to suggest to the consultant that his Mother’s comments about his Father – presumably over earlier relationships, but since separation from Ms Kalich, and now his marriage to Mrs C and their new baby, and perhaps his hobby of drawing and painting nudes - that “all this stuff is pretty weird.”[6] In short, [Z] was acutely aware of his Mother’s thoughts and criticisms about his Father and Father’s Wife.
[6] See the August 2010 Family Report, par.5.5.
Rightly, the family consultant highlighted [Z]’s concern about how stressed his Mother is, that her stress affects her health, and that if he did something wrong, he was “adding to her stress.”
[Z]’s main objection to spending permanent times with his Father was his desire not to miss out on other important things in his life like holidays, friends and sport.
Concerning [Y], she confirmed that there was a 12 month period in which she did not speak or see her Father but that has now changed and she describes her Father is positive terms such as “unique, friendly and nice”.
[Y] sees that the disrespect between her parents causes discomfort and creates a tense situation for the children.
Recommendations of the First Family Report
In the light of her observations with the parties and the comments and views generally of the children, Ms W recommended that [Z] spend regular times with his Father unless there is, considered by the Court, some risk to his wellbeing in his Father’s care at night.
She also recommended that orders be made regarding the time that [Z] spend with his Father to avoid the child in having to negotiate arrangements.
Mr Callahan should facilitate [Z]’s social, sporting and school activities while in his care, and that [Y] should continue to spend time with her Father in accordance with her wishes.
The Family Report of 23rd February 2011
The issues highlighted by Ms L in this report are;
a)Mr Callahan’s ongoing concern is that Ms Kalich continued to undermine his relationship with [Z].
b)
Mr Callahan expressed alarm and frustration regarding
Ms Kalich’s allegations concerning him and Mrs C. He informed Ms L that her allegations are based on lies from a former partner. Mr Callahan stated that Mrs C had gone to the effort of obtaining a letter from her doctor to indicate that she has no mental health or drug issues. He stressed: “[Ms Kalich] should know this – [X] stays overnight.”
c)In relation to the children being exposed to inappropriate material on his computer, Mr Callahan stressed that “the kids haven’t had access to anything inappropriate – [Ms Kalich] has a very defined view of what is inappropriate.” He remarked to Ms L that, on one occasion, one of the children saw an image on the computer that some might regard as inappropriate and added: “that’s been rectified”. Mr Callahan explained: “the images were artistic poses” and added “my hobby is to paint and draw – nude art”. He informs “there is no nude art on the walls or in the house”.[7]
[7] There are some annexures to Ms Kalich’s affidavit, filed on 9th September 2010, which contain some images that are said to have been posted to a blog site of Mr Callahan’s, as well as some rather childish chat from Facebook, said to be between Mr Callahan and a former female acquaintance. In the absence of the opportunity to test such matters, which of themselves appear to be relatively minor, it would be unsafe to draw too many conclusions. However, I share some of Ms Kalich’s concern certainly in relation to the blog postings in the event that any of the children were to access them, and assuming that they are from Mr Callahan.
d)
Mrs C informed Ms L that she, too, is distressed by Ms Kalich’s allegations. She stated: “I was very upset to read that I’m on happy pills – I cried”. She reported that the allegations about drug use and mental illness “couldn’t be further from the truth”. Mrs C remarked: “I didn’t know this is what she [Ms Kalich] thought until I read the last document”. She stressed: “the last time I was at the doctor’s, I got a document saying I have no drug issues or mental health issues – ever.” In this regard, I note that attached to Mrs C’s affidavit, filed on 10th February 2011, is a letter from her general practitioner which confirmed, among other things, that her treating doctor had no concerns in relation to
Mrs C concerning “drug dependency or mental illness.” For my part, for Ms Kalich to continue to raise “issues” regarding
Mrs C’s mental health and other matters (such as drug dependency) in the light of the medical evidence provided to the Court – modest as it is – borders on the reprehensible.
e)Ms Kalich continued to raise concerns about [Z]’s care while with his Father, including (as previously noted) the stability of Mrs C. Somewhat curiously (to put it as neutrally as possible), Ms Kalich said that she was concerned that Mr Callahan would abduct [Z].
f)
She informed Ms L that much of her information about
Mr Callahan comes from a former partner. I simply observe that, contrary to Ms Kalich’s view, who considers such a person to be a “reliable source”, the not infrequent experience in matters before this Court would indicate that such a source is anything but reliable.
g)Ms Kalich alluded to a sexual assault said to have been perpetrated by Mr Callahan against her. She suggested that there were, or might be, other legal proceedings in this regard. Again, I simply observe that there is no material before the Court to substantiate such an allegation. Indeed, none of the children hinted at any such matter as recorded by both experienced family consultants. Because it is such a serious matter to raise, even by allusion, it would be as well for Ms Kalich to seek appropriate legal advice or possibly risk facing some punitive action to prevent such matters continuing to be ventilated without proof or action being taken. To leave such a matter, as it were, ‘hanging in the wind’, respectfully, is dangerous and, if left unsubstantiated or unpursued, grievously unfortunate for all concerned, especially for Mr Callahan.
Views of the Children
The following “views” of [Z] and [Y] are taken also from Ms L’s February Report (especially at paras.23-26).
[Z] indicated that he has a good relationship with both parents and all of his siblings and that he enjoys being in each of their homes. He noted again (as he did when he met with Ms W) how much he enjoyed, and how good it was, having a ‘baby sister.’
[Z] does not support his Mother’s view that he has any problems with staying overnight with his Father. The flexible arrangement that is currently the method of facilitating contact with his Father appears to be a source of discomfort for [Z] as it presents difficulty in him being the communicator between his parents.
[Z] does not appear to have issues with his Father attending sporting or school events for either changeover purposes or as support. Rather, the tension around his Father’s attendances is derived from Ms Kalich’s strong desire to exclude Mr Callahan. Indeed, [Z] remarked to Ms L: “She [Ms Kalich] just does not want to be near him.”
[Y]’s relationship with her Father has regulated itself since the initial family report in 2010. It appears that the flexibility enabling [Y] to communicate with her Father and see him as she wishes is able to work successfully in this case.
With some insight, [Y] observed to Ms L that it was better for [Z] to have set times with his Father so that he ([Z]) did not have to choose. [Y] also noted the genuine and general difficulty, commonly encountered in all families, concerning communication. She observed that sometimes she was ‘left out of the loop’ in communication between [X], [Z] and Mr Callahan, and how Ms Kalich liked to know of arrangements several days in advance so that ‘she can plan things with us.’ Her basic solution or recommendation is that Mr Callahan simply ‘text’ Ms Kalich of any arrangements made with the children. In part, this is so that when [X] and or [Z] forget to keep their Mother informed, she would at least learn of developments directly from
Mr Callahan. Indeed, if that could occur, it would be a significant step in the right direction. The question is whether Mr Callahan would do it and or whether Ms Kalich would ‘tolerate’ it. I have some confidence in the former, but not complete confidence in the latter. As [Y] noted, with considerable understatement, in relation to her parents: “… if they would just communicate, it would work a bit better.”[8][8] Family Report at para.30.
Recommendations of Report
By way of summary, Ms L opined as follows.[9]
[9] The following is taken from paras.31-33 of her February 2011 report.
First, Ms L observed (again, respectfully, with considered under-statement) that it is a great pity that [Z] cannot, without constraint, enjoy the presence of both parents at significant events in his life, because of the ongoing discord between the two adults. There is no doubt that [Z] loves both parents and enjoys time in each of his homes. At his age, a flexible arrangement moving between homes is often the most suitable. Yet the transitions between [Z]’s homes seem, more often than not, to provide a reason for ongoing contention between his parents. It might well benefit [Z] if the time he spends with his Father is defined along the lines proposed by Mr Callahan. It will be recalled that Ms W made a similar recommendation in her August 2010 Report.
If, unfortunately, it remained an issue for Ms Kalich that Mr Callahan not be present at [Z]’s sporting venues, Ms L suggested that it might be possible for Mr Callahan to drop off and collect [Z] from his weekend sporting commitments a little distance from the venues. That said, for my part, one would hope that once these proceedings are over and some stability and less stress is achieved in both households it might be possible for Mr Callahan to attend any sporting event and that, with sufficient physical distance between his parents, [Z] would be spared the embarrassment and foolishness of parents bickering (or worse) in public. There needs to be a break-out of common-sense and basic civility. Alas, I am unaware if the Court has sufficient powers to ensure, let alone to order, that common-sense and civility prevail for the betterment of the children, as well as their parents and all others affected by the otherwise on-going discord.
In relation to Ms Kalich’s concerns about Mrs C, Ms L recorded her hope that Ms Kalich might now feel some reassurance given a medical practitioner’s report that Mrs C is free of any mental health or drug issues. Ms L confirmed that Mrs C presented as an emotionally well-balanced, pleasant and competent individual. She further recommended that it might be helpful for Ms Kalich and Mrs C to meet with a counsellor from an agency such as Relationships Australia to discuss their roles in relation to [Z] and his sisters.
Consideration, Discussion & Resolution
The Court’s responsibility is to determine orders that are in the children’s best interests.[10] This occurs following consideration of the evidence and the statutory matters set out in Part VII of the Act, to which I have earlier referred, and which are summarised in the cases to which I have also referred, such as Mazorski v Albright.
[10] See s.60CA of the Family Law Act 1975 (“the Act”).
To a very significant degree, the views of the children are strongly determinative of the most appropriate orders in this case.[11] Given their ages and the clarity and common-sense of their views, they should be given very significant weight.
[11] See s.60CC(3)(a).
It is also clear that both children ([Y] and [Z]) have a good and close relationship with both parents.[12] And, notwithstanding Ms Kalich’s concerns, neither child indicated, or even hinted, that there was any neglect or lack of ability on the part of either parent to provide for their needs.[13]
[12] Generally see s.60B(1) & (2), and ss.60CC(2)(a) and 60CC(3)(b).
[13] See s.60CC(3)(e), (f) & (g). In this regard, I do not consider the inability of Ms Kalich to provide for [Y] to travel to Germany to be an adverse reflection on her. See para.5.7 of Ms W’s report of August 2010. In my view, the orders made in [Z]’s best interests are not impacted by s.60CC(3)(d). To the degree that the considerations of that sub-paragraph are relevant, they are caught up, and have been already addressed, by those parts of these reasons that deal, for example, with [Z]’s relationship with his baby sister, [A].
I have already intimated that I have some concerns about Ms Kalich’s ability or willingness to promote the children’s relationship with their Father. However, the opposition seems to me more one of logistics and practicality than anything else – as well as some obvious communication issues (and some others to be noted shortly). In any event, given the security of the children’s relationship with their Father, I do not consider there to be any issues genuinely here.
Certainly, the communication issue between the parents is concerning. To state the obvious, communication is a central matter in any relationship, and is of crucial concern in parenting matters. In my view, communication is a matter that is comprehended by many parts of Part VII, not least being s.60CC(3)(c) and (i). I certainly agree with Ms L’s recommendations that the parents attend a post-separation parenting course to assist them in their communication and other necessary skills in dealing with their respective responsibilities, post their own separation.
Indeed, I would hope that counselling on a number of fronts will assist Ms Kalich in particular. Given the number of concerns she raised in the course of the various attendances at Court, and in her submissions, it suggested, at times, that she has (in many ways understandably) still not been able to move on (or move on sufficiently) from the separation from Mr Callahan. That grief (so to speak) may be compounded by
Mr Callahan having re-married, and further, having had another child to which [Z] and the other children have apparently become significantly attached.
It is certainly the case that a number of her concerns are without foundation, as I have indicated. And I need not repeat my concerns – for both parties – in relation to the “suggestion” that Mr Callahan had, at some stage in the past, sexually assaulted Ms Kalich. That matter needs to be dealt with appropriately, and as quickly as possible.
In the light of the above discussion, the following may be confirmed as to what is agreed between the parties, as evidenced by their respective orders sought.
Both parties agree that the children should live with their Mother.
Both parties agree to leave [Y]’s time with her Father as a flexible arrangement to be agreed upon as the need arises.
Both parties agree that [Z] should spend time with the Father every second weekend from afterschool Friday until Monday before school.
Both parties agree that the Father be allowed to facilitate the sporting, social and schooling activities of [Z] while in his care. The prospect of missing out on such activities seemed to weigh on [Z]’s mind, as noted earlier, in relation to having fixed time with his Father. As both parties have agreed for the Father to facilitate such outings, a resolution seems to have been reached on his issue.
Both parents are similarly minded in relation to Christmas, so that [Z] should spend from 3pm or 5pm Christmas Eve to 3pm or 5pm Christmas Day with one parent, and this arrangement would alternate on a year about basis. There remains an issue as to the exact time of changeover. Given that dispute, it seems that the only option is to fix the mid-time point of 4pm for changeover – unless otherwise agreed between the parties.
In relation to the school holidays, the Father seeks half of each school holiday period. The Mother’s “orders sought” offer, ‘as agreed’. For the sake of definition, certainly, and to minimise the number of issues ‘to be agreed’, in my view it is best that the orders reflect half school holidays – unless otherwise agreed between the parties.
The Father seeks one night with [Z] during the week that he does not have any other contact with him. The Mother shows concern that this would cause disruption. The family reports support that unless the Father is unable to care for [Z] then there should not be a problem. It seems reasonable that one night in the off week would be appropriate.
The Father outlines specific contact time for special occasions within his family. In my view, these requests do not seem unreasonable.
The only issue would seem to be that if Mr Callahan’s orders sought were to prevail, and if [Z]’s birthday falls on a school day, he would spend from the end of school until 8pm with [Z] leaving very little time for the Mother to spend with him. In the circumstances, absent agreement, some adjustment to Mr Callahan’s orders sought should be made on this point.
The Father outlines additional orders in relation to changeover venues and communication with both the children and their Mother via email and text message. These orders are not unreasonable.
Similarly, for the sake of completeness, Ms Kalich’s orders sought in relation to the requirement of one parent to advise the other of any medical or other emergency is entirely appropriate. Likewise in relation to a parent giving notice to the other of any trips with [Z] outside the ACT, and contact details. In this regard, however, it seems that most of the communication, in any event, is by the children with the parents.
Curiously, neither set of orders makes provision for Mother’s or Father’s Day. In the absence of agreement, that time should be from 2pm until 8pm with the relevant parent on the relevant day.
Although the Mother expresses a wish to have sole parental responsibility due to the conflict between the parties, in my view, the evidence is such that the evidentiary thresh-hold to rebut the presumption in favour of equal shared parental responsibility has not been established.[14]
[14] See s.61DA.
With an order for equal shared parental responsibility comes the requirement to consider the provisions of s.65DAA. As recently prescribed, the High Court has commented as follows on the operation of that section. Thus, in MRR v GR, at [13] and [15], the Court said (internal citations omitted):[15]
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences ("if it is") refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child's best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
[15] Section 65DAA is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
[15] MRR v GR (2010) 210 CLR 461.
The circumstances of this case are such that an equal time arrangement is not sought by either party. Taking due account of the High Court’s emphasis on “practical assessment”, and having regard to what is in the best interests of the children here, and having regard to their relevant and clearly expressed views, the orders as sought by both parents satisfy the requirements of s.65DAA in relation to [Z] spending substantial and significant time with his Father. Moreover, in a relatively short time, it is more likely than not that he will follow the course sought by his sister [Y], and accepted by the parents, whereby the relevant time with both parents will, quite quickly, become a function of the needs and views of the child, [Z], as they are now in relation to both [X] and [Y].
In conclusion, in my view, the orders sought by Mr Callahan, but as qualified or amended as I have indicated according to those sought by Ms Kalich, are in [Z]’s and [Y]’s best interests.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 13 May 2011