Kallam & Roystone
[2021] FedCFamC2F 497
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kallam & Roystone [2021] FedCFamC2F 497
File number(s): ADC 5830 of 2020 Judgment of: JUDGE BROWN Date of judgment: 3 December 2021 Catchwords: FAMILY LAW – Parenting arrangements for a child who is three years old – where parties have different rosters – where the parties cannot agree on time arrangements – best interests of the child – how a court determines a child’s best interests – shared care arrangement – where the child has always had a shared care arrangement – where the parties mistrust each other – where the parties have no capacity to co-parent and solve problems – nature of an interim hearing – assessment of risk – where shared care regime is a protective factor for the risk posed. Legislation: Family Law Act 1975 (Cth), Pt VII, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68LA Cases cited: Mazorski v Albright (2007) 37 Fam LR 518
B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Russell v Russell [2009] FamCA 28
MRR v GR (2010) 240 CLR 461Division: Division 2 Family Law Number of paragraphs: 115 Date of hearing: 26 November 2021 Place: Adelaide Counsel for the Applicant: Ms Betro Solicitor for the Applicant: Andreyev Lawyers Counsel for the Respondent: Mr Praolini Solicitor for the Respondent: Legal Services Commission of South Australia Counsel for the Independent Children’s Lawyer: Ms Horvat Solicitor for the Independent Children’s Lawyer: J Richard Croft ORDERS
ADC 5830 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KALLAM
Applicant
AND: MS ROYSTONE
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
3 DECEMBER 2021
THE COURT ORDERS UNTIL FURTHER OR OTHER ORDER THAT:
1.The applicant, Mr Kallam (hereinafter referred to as “the father”) and the respondent, Ms Roystone (hereinafter referred to as “the mother”, and collectively referred to as “the parties”) have equal shared parental responsibility for the child X (‘the child’) born in 2018.
2.The child live with the mother and the father on an equal time basis on the basis delineated in orders (3) and (4) hereof.
3.The child live with the father in a four-week rotating schedule in accordance with the father’s work roster as follows:
(a)In week one: commencing on 6 December 2021 and each fourth week thereafter, from 12.00pm on Monday until 9.00am on Friday, being a four-night period;
(b)In week two: commencing on 15 December 2021, and each fourth week thereafter, from 12.00pm on Wednesday to 9.00am on Monday, being a five-night period;
(c)In week three and four: commencing 24 December 2021, and each fourth week thereafter, from 12.00pm on the Friday of week three, until 9.00am, on the following Wednesday, being a five-night period;
(d)The father’s time will revert to the week one arrangement as set out in order 3(a) above on the week commencing 3 January 2022, and continue in a four week rotating schedule as outlined in orders 3(b) and 3(c) above.
4.The child live with the mother at all other times he is not living with the father pursuant to these orders.
5.The child spends time with both parties for special occasions as follows, noting that the child’s time ordinarily spent with the parties be suspended during these periods:
Christmas
(a)In 2021 with the mother from 5.00pm Christmas Eve to 3.00pm Christmas Day and each alternate year thereafter;
(b)In 2021 with the father from 3.00pm Christmas Day to 5.00pm Boxing Day and each alternate year thereafter;
(c)In 2022 with the father from 5.00pm Christmas Eve to 3.00pm Christmas Day and each alternate year thereafter;
(d)In 2022 with the mother from 3.00pm Christmas Day to 5.00pm Boxing Day and each alternate year thereafter.
Easter
(e)In 2022 with the mother from 5.00pm Easter Saturday to 3.00pm Easter Sunday and each alternate year thereafter;
(f)In 2023 with the father from 5.00pm Easter Saturday to 3.00pm Easter Sunday and each alternate year thereafter.
Birthdays
(g)If the child’s birthday falls on a school or kindergarten day, the child is to spend time with the party that does not ordinarily have the child in their care on that day from the conclusion of school/kindergarten until 7.30pm.
(h)If the child’s birthday falls on a weekend or non-school or non-kindergarten day, the child is to spend time with the party that does not ordinarily have the child in their care on that day at such times on that day as may be agreed between the parties in writing.
(i)If one of the parties’ birthdays falls on a school or kindergarten day, the child is to spend time with that party, in the event that he or she does not already ordinarily have the child in their care on that day, from the conclusion of school/kindergarten until 7.30pm.
(j)If one of the parties’ birthdays falls on a weekend or non-school or non-kindergarten day, The child is to spend time with that party, in the event that he or she does not already ordinarily have the child in their care on that day, at such times on that day as may be agreed between the parties in writing.
(k)If one of the child’s half-siblings’ birthdays falls on a school or kindergarten day, The child is to spend time with the parent of that half-sibling from the conclusion of school/kindergarten until 7.30 pm.
(l)If one of the child’s half-siblings’ birthdays falls on a weekend or non-school or non-kindergarten day, The child is to spend time with the parent of that half-sibling on that day at such times on that day as may be agreed between the parties in writing.
Mother’s Day and Father’s Day
(m)If Mother’s Day falls on a day when the child is spending time with the father, then his time with the father is to be suspended and the child will spend time with the mother from 9.00am until 5.00pm on Mother’s Day.
(n)If Father’s Day falls on a day when the child is spending time with the mother, then his time with the mother is suspended and the child will spend time with the father from 9.00am until 5.00pm on Father’s Day.
6.That all handovers are to occur with the father collecting the child from the mother’s residence at the commencement of his time and the mother collecting the child from the father’s residence at the commencement of her time.
7.Both parties be restrained and an injunction is granted restraining them from:
(a)Physically disciplining the child or permitting any other person to do so; and
(b)Using or consuming any illegal substance for a period of 12 hours prior to and during any time the child is in their care, or allowing any other person to use or be under the influence or any illegal substances in the child’s presence.
8.That each party keep the other informed of changes to the child’s health while he is in their care and as soon as practicable inform the other parent of any medical emergency involving the child.
9.The parties keep each other informed of their current mobile telephone numbers.
10.The parties utilise email/text or a co-parenting application such as “Our Family Wizard” to communicate with the other party about the child.
11.That the child continues to attend B Children and Family Centre.
12.The parties engage in co-parenting counselling via an organisation such as C Counselling.
13.The parties continue with co-parenting counselling until cessation of the intervention is advised by the counsellor.
14.Within seven (7) days of a suitably qualified counsellor or therapist being appointed to conduct the co-parenting counselling pursuant to order (12) above, the counsellor be provided with a copy of these reasons for judgment.
15.By June 2022, the parties contact D School to complete the intake process including all documentation to enrol the child to commence Reception at the beginning of the 2023 school year.
16.The proceedings be adjourned for directions to 3 June 2022 at 9:30am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kallam & Roystone has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
Mr Kallam (“the father” or “Mr Kallam”) and Ms Roystone (“the mother” or “Ms Roystone”) are the parents of X born in 2018 (“X”). The current proceedings relate to arrangements for X’s care, particularly how a regime can be successfully inaugurated through which X will live with each of his parents for strictly equal periods of time.
Ostensibly, the parties agree that this will be the best outcome for X. However, they cannot agree how such an arrangement can be implemented, given practical and logistical issues arising in their respective family and employment situations. The dispute arises at an interim stage.
It is a case about rosters. The father has one roster, the mother and her children from an earlier relationship live and work to another roster. X, given he must attend child care and in time will go to kindergarten and then primary school, has another roster. Each of these rosters is different.
Accordingly, the parties come to court to ask it to determine the best shared care or equal time regime for X, as the parties themselves cannot agree how this should be configured. Or, to put the question another way, how X’s time, with each of his parents should be divided, in specific terms, so that in the abstract the time is equal.
The nature of the parties’ dispute raises a dilemma for the court, given the nature of the legislation which must be applied. In most cases, shared care arrangements for a child, arise between separated parents, who communicate easily and empathetically with one another, and who have a shared capacity to resolve problems quickly and as easily, as soon as they arise – as they inevitably will – when the care of a young child is concerned. Axiomatically, they are not the sort of people who are unable to agree a calendar.
These are the types of condition precedents, which the court must consider before it makes an order for shared care and indeed are mandated by the relevant provisions of the Family Law Act 1975 (Cth) (“the Act”). The fact that the parties in this case cannot agree on how X’s time, with each of them is to be apportioned, indicates that they do not have the kind of relationship, which the shared parenting legislation envisages, as being in X’s best interests, as well as being one which is reasonably practicable to implement.
As such, the subject matter of the case is somewhat counter-intuitive. It seems inevitable that the parties’ living arrangements will change over time, and life will throw up for each of them unforeseen emergencies and exigencies, with which they will have to cope and adapt.
To a certain extent, it is axiomatic, from the nature of the issues in dispute between them, that Mr Kallam and Ms Roystone do not have the resources to resolve these likely issues, as they crop up from time to time, and clearly this will not be helpful for X and his sense of emotional stability.
The danger is, of course, that the parties themselves are more focussed on serving their individual needs and aspirations than those of X, who relies on his parent for continuity and stability in arrangements for his nurture.
It is sadly impossible for the court to reconcile the parties’ various rosters, which will be acceptable, not only to the parties themselves, but also the individuals associated with them – their current partners, grandparents and X’s half siblings.
Necessarily, whatever is the structure of the relevant order, someone will feel aggrieved and unheard by the court. This is regrettable and may be the source of further conflict between the parties, which will not be helpful to X. The case cries out for a child-centred compromise, more focussed on the future than the past.
In resolving the case, the court’s guiding compass must be what is best for X, not the parties themselves. At first blush, the best outcome for X is one that reduces the conflict between his parents, and gives X the most meaningful level of relationship with each of his parents.
BACKGROUND
The father was born in 1991. He is employed as a tradesman in Town D. He works to a 28 day roster, which is best described as follows – five days work followed by four days leave, which then recurs and rotates. His work shift is a combination of day and night shifts and resets every 28 days. Mr Kallam receives a base salary of approximately $140,000.00 per annum but, with overtime, it increased in the last financial year to approximately $160,000.00.
It is the father’s case that he is part of a large family based in Town D. His father works full time and his mother works part-time in a local supermarket. His grandparents also live in Town D. They have each been involved in providing care for X in the past. He also has three brothers, who have young families. Accordingly, it is his position that X is at the centre of a close extended family based in Town D.
The mother was born in 1991. She is employed as a casual hospitality worker, at the Employer E. She works between 9.00am and 2.00pm from Tuesdays to Fridays. She estimates her annual salary to be about $40,000.00.
When Ms Roystone is working and X is not in the care of his father, X attends a child care centre in Town D called B Children and Family Centre. Places at the centre are reasonably flexible but two days’ notice is required for cancellation.
The parties live in reasonable proximity to one another. I was told it is about a two minute drive between their respective homes. Child care and the kindergarten and primary school X will attend from 2022 onwards are also close by.
Ms Roystone has two children from an earlier relationship. They are F born in 2014 and G born in 2016. F and G live in a shared care arrangement, on a week about basis, with their mother and their father, Mr H.
This adds a further complexity to arrangements for X’s care. The mother want to ensure that X spends as much time as possible with F and G so that he has the most meaningful level of relationship with each of his siblings.
In these circumstances, it is the mother’s position that the easiest way to bring about the required equal time regime is to divide X’s time, with each of his parents, on a week about basis. In this way, X would regularly spend seven consecutive days with her and F and G and then seven consecutive days with his father.
This will also be easier for her work to because of its predictability and conformity with her routine. Essentially, just by looking at a calendar, she will know which is her week and which is Mr Kallam’s week. She will also be able to tell Mr H, F and G, who will also easily understand it, given their lives too are scheduled by reference to the conventional week. From her perspective, the same cannot be said of Mr Kallam’s proposal, which will confuse everyone.
In these circumstances, on the mother’s case, it would fall to the father to make arrangements for X’s care, when he is at work, as many working parents are required to do, as would be inevitably the case, if his roster coincided with the times X came into his care, pursuant to the shared cared care regime.
Such an outcome is unacceptable to Mr Kallam. It is his case that this would not be in X’s best interests because, in practical terms, due to his roster, X would not be in his care, other than in theoretical terms, for equal periods of time, as other members of his household and family members would be called upon to care for X, whilst he is at work. Accordingly, Mr Kallam seeks a regime for X to be in his care that will segue with his 5/4 rotating roster.
From Ms Roystone’s perspective, this will not be workable as it will lead to not only X, but also she, F and G having to live to Mr Kallam’s regime. Given that she and Mr Kallam are long separated, she feels such an outcome is both untenable and unfair, given one of the functions of the Act is to enable separated parents to live distinct lives. In response, it is the father’s position that both X and the mother will be able to adapt and adjust to whatever rigours arise in their lives because of the application of his roster to their lives.
The parties began their relationship in 2016 and began to live together when the mother learnt she was pregnant with X. They separated in August of 2018, when X was about six months of age.
On any view, the parties do not have a history of being mutually involved in providing care for X. From a very early stage, X has been a child who has moved been two households. For reasons which will be expanded upon, it is also apparent that there is a significant level of mistrust between those two households.
The parties disagree as to the extent of their involvement with X, when he was a baby. From the mother’s perspective, she was always X’s primary carer, even though she continued in the paid workforce, expressing breast milk to enable X to be fed whilst away from her. On the other hand, because of the mother’s commitments, it is the father’s position that he was significantly involved in providing for X’s care, although he too continued to be engaged in the same degree of employment as previously.
Ms Roystone describes the parties’ relationship as being consistently tumultuous. It seems axiomatic that the parties have not had a secure and trusting relationship with one another, either before or after their separation. The mother asserts that the father was controlling of finances and punched her on one occasion.
Nonetheless, following separation, they were able to agree on a regime, which saw them each significantly involved in providing for X’s care, on an ad hoc basis. I am unclear what was the rationale for this regime other than it is the flavour of the mother’s case that the father has a domineering and assertive personality and forced her to do what suited him.
It is the father’s position that the parties themselves did not have the ability to make the arrangement work satisfactorily and therefore they engaged in a process of family dispute resolution, which resulted in an agreement between them dated 19 March 2020, which read, in part, as follows:
The current informal arrangement between Ms Roystone and Mr Kallam is such that X lives with the parties in a shared care arrangement, X living with Mr Kallam pursuant to his rolling roster, which is a 4 days on, 5 days off, 5 days on, 4 days off repeating roster.
The parties agree to put all of the children’s needs first and foster a stronger sibling relationship between them.
That the parties will continue with the current arrangements pursuant [to these notations].
With the greatest respect to the drafter of this agreement, it does not seem to have advanced matters to any great degree or led to any lasting consensus between the parties. Matters seem to have become further complicated by the fact that the mother has formed a new relationship with another person, Mr J; whilst Mr Kallam has formed a relationship with Ms K.
The father commenced the current round of proceedings on 8 December 2020. At this stage, he sought orders that X live exclusively with him; he have sole parental responsibility for the child; and the mother spend only supervised time, with X, at times deemed appropriate by the court.
In support of his application to make such a significant change to the existing arrangements for X’s care, he alleged that X had been presented to him with bruises, cuts and what appeared to be bites and abrasions to his body. He suggested that Mr J might have caused these injuries.
In addition, he alleged that X had begun to exhibit signs of sexualised behaviour and his penis appeared to be inflamed. On the basis of these concerns, he had withheld X from the mother’s care. In her response filed on 15 December 2020, the mother sought that the parties be conferred with equal shared parental responsibility for X; that the child live with her; and spend time with his father on alternate weekend for 5.00pm on Friday until 5.00pm the following Sunday.
She confirmed that X had suffered an inflamed penis, which she attributed to deficits in Mr Kallam’s attention to the child’s hygiene. She confirmed that there had been a tense confrontation between the father and Mr J over the issue. It is further her positon that X, whom she describes as an extremely active and adventurous child, had bruised his head when he had accidentally fallen. In these circumstance, it was her case that there was no justification for the child having been withheld from her.
Both parties have secure accommodation in Town D – the mother is renting; the father appears to own his home. Mr J has a daughter from an earlier relationship, L, who was born in 2019. She spends regular time with Mr J on weekends.
The interim applications were originally assigned to Senior Judicial Registrar Heuer. She obtained information from SA Police (“SAPOL”) and the Department for Child Protection (“the DCP”) regarding the allegations of abuse relating to X. She also elected to appoint an Independent Children’s Lawyer (“ICL”) to safeguard the interests of X. The ICL is Richard Croft, an experienced Adelaide family lawyer.
Mr Croft is to be regarded as a party of equal importance to the parents themselves. Pursuant to the provisions contained in section 68LA of the Act, he is under a statutory duty both to gather evidence and examine it and then advocate the outcome, which best serves the interests of the child whom he represents.
In late December of 2020, whilst evidence was being gathered from external sources, Senior Registrar Heuer ordered that X spend day time periods of time with his mother, four times each week. This regime soon broke down, as the father once again withheld the child from the mother, leading to her bringing further urgent proceedings. In response the father alleged that X had come into his care with more unexplained injuries. Concerns were also raised in respect of the mother’s alleged illicit drug use.
When the case returned before Senior Judicial Registrar Heuer, in mid-February of 2021, Her Honour, confirmed her earlier orders, which were buttressed by injunctive orders concerning Mr J and illicit drug use. It was also at this stage that a Family Report was ordered.
The report was prepared by Ms M, an experienced family consultant with qualifications in social work. Her report was released to the parties in September 2021. As yet, the methodology adopted by Ms M and the rationale of the recommendations made by her have not as yet been subject to exhaustive scrutiny, in court, through any process of cross-examination.
On 13 May 2021, the mother filed yet another application for the delivery of X to her in accordance with the existing orders and thereafter an extension of her time with X, including to overnights. She deposed that Mr Kallam had taken X to be examined by a medical practitioner other than his customary general practitioner on the basis of unexplained injuries, including bruising around his anus. In this context, the mother’s solicitor issued subpoenae to the various doctors consulted by Mr Kallam.
In response, the father sought to maintain the existing regime until the Family Report was to hand. He confirmed that he had made reports to police that X had been assaulted in his mother’s care. He also confirmed that he had not put anything in the communication book directed by the court because he had nothing to report in respect of X.
In the lead up to the further interim hearing before the Senior Judicial Registrar, the mother provided a negative hair follicle test. She confirmed that X had been interviewed by officers from the DCP at the Women’s and Children’s Hospital and injuries sustained by him were designated to be non-suspicious.
On 9 July 2021, Senior Judicial Registrar Heuer ordered that X live with each of his parents on the basis of a split week on a fortnightly basis or a 3/4 4/3 night basis. This has resulted in a child support assessment which sees the father paying the mother the sum of $355.00 per week in child support for report as a result of the disparity in the income, notwithstanding the equal time regime.
Mr Kallam sought a review of this order in concert with his current application for the court to make orders for X to spend time with each of his parents on an equal time basis in line with his work roster. As a consequence the matter came before me for the first time in early August. Given the imminence of the release of Ms M’s report, all agreed that no useful purpose would be served in proceeding with the review, which was dismissed.
The Family Report was released on 20 September 2021. By this time, the dispute between the parties had generated a significant number of documents and consumed much court time. As this summary indicates, the parties fervently mistrust one another and have limited capacity to solve the problems which are likely to arise from parenting a rambunctious three year old over two households.
In the Family Report, Ms M alluded to some sensitive issues raised with her by Ms Roystone, which related to her being the subject of serious abuse whilst a child in the care of a relative significant to her. In this context, Ms M raised the prospect of Ms Roystone undergoing a course of professional therapy to assist her processing the abuse received in her own childhood to assist her to become a better parent to X.
Mr Kallam wishes the court to make orders to this effect, which would compel Ms Roystone to undertake a course of therapy. Ms Roystone resists this proposal. The view of the ICL is that if Ms Roystone wishes to take the advice proffered by Ms M that is a matter for her but it is not likely to be helpful to compel her to do so against her wishes.
THE NATURE OF AN INTERIM HEARING
As I have already indicated, although there have been many hearings before the court, the case remains at an interim hearing stage and has not as yet been fixed for final hearing. As in all cases concerning children X’s best interests are the paramount or most important consideration.
Although the legal principles to be applied at the interim and final hearing stage are the same, the format of the two types of hearing are fundamentally different. Interim hearings take place in a truncated form, without cross-examination.
Often, at an interim hearing stage, the evidence, particularly of an expert nature, is limited. As such, the court is not able to make conclusive findings of fact or make an accurate appraisal of the credit or parenting aptitude of the parties concerned.
At the final hearing stage, the evidence is much more extensive and more thoroughly canvassed. The parents concerned are subject to scrutiny through cross-examination and perhaps asked questions, about their past conduct or future motivation, which they may find difficult or uncomfortable to answer. Necessarily, it is a more emotionally bruising experience.
Very often the court makes attempts to deflect the parties from the need to embark upon a potentially destructive, costly and time consuming final hearing, which also may be significantly delayed because of the pressure of other cases on the court’s time.
Frequently parents are referred to Alternative Dispute Resolution (“ADR”) to assist them to reach a compromise about parenting issues. This is sensible because of the simple fact that although parents appearing in family law proceedings are separated, they remain in potentially life-long relationships as parents. Family Reports may form the basis for useful ADR discussions.
The parties in this case were referred to such an ADR process, following the release of Ms M’s report but unfortunately remain deadlocked about the central issue as to how an equal time regime is to be configured between them.
It is frequently the case, as in the current matter, that recommendations made by an expert are highly controversial between the parents concerned, particularly if the recommendations made favour a significant change to existing provisional parenting regimes, implemented at an earlier stage.
In this context, one parent may seek to re-agitate parenting arrangements in advance of the scheduled final hearing, for which the report was ordered in the first place, on the basis of recommendations made. This scenario has the potential to create its own dilemmas, which include the following:
·It is the court, not the expert, no matter how well qualified, who is charged with the determination of the case concerned;
·This is because it is the court which is best placed to make findings of fact, regarding issues of credit, based on how witnesses, including expert ones, perform under cross-examination;
·However, any such expert has a significant advantage over the court because they have the opportunity to have a face to face interaction with the child or children concerned, which the court will never have;
·On the other hand, the expert does not have the advantage of seeing witnesses, particularly parents, subjected to the forensic scrutiny which cross-examination provides;
·In addition, as with any interim hearing, at this stage, the methodology of the expert concerned, including whether their recommendations are based on some misconception or misunderstanding of the evidence, cannot be subject to scrutiny.
For these reasons, at the interim hearing stage, the court must be careful in how it approaches the recommendations provided by a Family Report. On the one hand, the court should avoid an excessive number of interim hearings.
On the other, such reports are highly influential in shaping the court’s view as to the outcome best suited to serve the interests of any child affected by the proceedings before it. In addition, it is invariably the case that a child’s best interests will be served if a final hearing can be avoided.
HOW THE COURT DETERMINES A CHILD’S BEST INTERESTS
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration.[1]
[1] Family Law Act 1975 (Cth) s 60CA.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
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.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright,[2] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[2] See Mazorski v Albright (2007) 37 Fam LR 518, 526 [26] (Brown J).
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act, as contained in section 60B, is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).
There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (a); (b); (d); (f); (g); (i); (j) & (l) of section 60CC(3) are potentially relevant, both at this stage and at a subsequent final hearing. These subparagraphs deal with the following issues:
·The views of any child concerned and any factors impacting on that view, particularly the maturity or level of understanding of the child;
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The effect of any change on the child concerned;
·The capacity of the parents concerned to provide for the emotional and intellectual needs of the child concerned;
·The maturity of the child concerned
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Any family violence involving the child or a member of the child’s family; and
·The outcome least likely to lead to the institution of further proceedings.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[3]
[3] See B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, 735 (Nicholson, Fogarty and Lindenmayer JJ).
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general.”[4] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[5]
[4] Ibid 734.
[5] See Russell v Russell [2009] FamCA 28 at [141] (Ryan J).
The primary considerations are generally to be given more emphasis, arising as they do directly from the aims and principles of the Act. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
SHARED PARENTING
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for their parents to have equal shared parental responsibility for him or her.[6]
[6] Family Law Act 1975 (Cth) s 61DA.
However, the presumption is subject to rebuttal. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence.[7]
[7] Ibid s 61DA(2).
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for their parents to have such equal shared parental responsibility for the child concerned.[8]
[8] Ibid s 61DA(4).
Significantly, the presumption can be rebutted, at the interim stage, if it would not be appropriate in the circumstances then prevailing for it to be applied.[9] The father seeks to be conferred with equal shared parental responsibility, for X, with Ms Roystone. The mother agrees with this.
[9] Ibid s 61DA(3).
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and the type of time a child spends with their parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both their parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending ‘substantial and significant’ periods of time with each of their parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression ‘substantial and significant time’ is defined in the Act at section 65DAA(3). It means time that allows a child to spend time with a parent on both weekends and holidays and days during the working or school week.
More significantly, it is time that enables a parent to be involved in a child’s daily routine and in occasions and events, which have particular significance to the child. Again, the aim of the legislation is to enhance the parent/child relationship through mechanisms that enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart the parties’ homes are; the parties’ current and future capacity to implement shared care arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from sections 65DAA(1) and (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made (and with equal effect a substantial and significant time order).[10]
[10] MRR v GR (2010) 240 CLR 461, 466 [13] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. This is because sections 65DAA(1) and (2) are expressed in “imperative terms” and oblige the court to consider both questions. The affirmative answer to both being an essential jurisdictional fact before an equal time or substantial and significant time order is made.
Accordingly, courts such as this one are directed to consider the reality of the situation which confronts parents and children, not merely whether it is desirable, in the sense of the child’s best interests alone, that an order for equal time be made for the child to spend time with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[11]
[11] Ibid 466-7 [13] and [15].
This encapsulates the dilemma arising for the court. On the one hand, it must be a good thing that the parties have agreed, at least in theoretical terms, on the equal time regime for X. The relevant legislation encourages parents to agree about the future parenting of their children [section 60B(2)(d)].
However, it would be naïve, given the parties’ fractious history with one another, to consider that it will be easy or even objectively feasible for them to implement the temporally complex regime advocated by Mr Kallam over the not unreasonable objections of Ms Roystone or to reach a conclusion that the prospect of still more acrimonious litigation between them is not highly probable.
THE FAMILY REPORT
Ms M was positive in her descriptions of both parties. Both were described as having a warm and loving regard for X. Ms Roystone denied having issues in respect of illicit drug use. She did, however, provide a history of developmental trauma, which of course is not something for which she can be held personally responsible. Each party denied allegations of physical abuse of X.
Both parties described their communication with one another as being either strained or non-existent. Issues relating to unilateral changes in kindy and general medical practitioner were raised with Ms M. Nothing untoward was observed by Ms M in her observations of each parent with X. Each was described as age appropriate, supportive and caring.
Issues of concern, raised by Ms M can be summarised in the following terms:
·Parental conflict prevented the parties from communicating effectively;
·The risk of X being exposed to parental conflict was high, which had long term development implications for him;
·Ms Roystone’s risk of ongoing substance abuse, notwithstanding her negative hair follicle test;
·Ms Roystone’s history of developmental trauma might have reduced her capacity to be emotionally available to her children and not allowed her to develop a template for the provision of safe and secure attachments for them;
·To be effective, a shared care arrangement needed continuous and meaningful communication between parents in respect of their children;
·Parental conflict was distracting and had the potential to undermine the child and parent being attuned to each other;
·Axiomatically, Ms M did not consider that parties had a sufficiently developed co-parenting relationship to sustain shared care. In this context, she recommended co-parenting counselling.
However, Ms M favoured shared care for two major reasons. Firstly, it was the only regime for care which X had ever known. Secondly, it was a protective factor, for X, given the concerns she had identified so far as Ms Roystone was concerned. In this context, she noted that the current regime did not allow X to spend either substantial and significant time or equal time with his father due to the rigours of his roster.
Whilst Ms M acknowledged that it was important for X to spend time with G and F, she considered, at this stage of his development, it was more important for him to have secure and stable relationships with each of his parents.
She wrote as follows:
Upon noting X's attachment and care history, and concerns about Ms Roystone's parenting capacity, care arrangements that facilitate Mr Kallam's active and involved parental role would function as a safeguard to X. This is in terms of either assisting to mitigate possible risk of harm to X in relation to Ms Roystone or compensating for Ms Roystone's parenting deficits. In the report writer's opinion, the information obtained for this assessment about the possibility of Ms Roystone causing X harm do not appear sufficiently substantiated hence there appears a lack of basis to suggest that Ms Roystone should not have an equally active and involved parental role, particularly in the context of her accessing relevant support services, such as trauma processing therapy and an attachment based parenting course.
Ms Roystone asserted the importance of X spending significant and substantial time with his siblings. F and G. Whilst this is important, X's primary developmental need, is a sufficiently secure and stable relationship with his parents to support his healthy psychological wellbeing.
Given the observations made during this Assessment, the responses provided by all those who were interviewed and upon consideration of Federal Circuit Court documents, it is the report writer's opinion that care arrangements that would best meet X's needs and support his development, and wellbeing, would be for the said child to live with the parties in an equal shared care arrangement, that coincides with Mr Kallam's work roster, whereby X is in Mr Kallam's care when Mr Kallam is on rostered days off from work, which is 14 days of a 28 day roster and with Ms Roystone for the remainder of the 28 day roster.[12]
[12] See Family Report of Ms M dated 15 September 2021 at [76]-[78].
Ms M supported equal shared parental responsibility; urged clear orders to be made in respect of special occasions; and, as previously indicated that the parties engage in co-parenting counselling. Given the mutual allegations of excess physical discipline and issue relating to substance abuse, she proposed injunctions in relation to these matters.
Ms M acknowledged that she was not to be regarded as the finder of fact in regards to issues of family violence and whether the mother had deliberately harmed X. She proposed anger management for Mr Kallam if allegations of coercive and controlling family violence were made out and, again as previously indicated, a course of trauma processing therapy for Ms Roystone.
To their credit, the parties have been able to agree on arrangements for special occasions; to attend at co-parenting counselling; the primary school X is to attend; and each to be restrained from physical discipline and the use of illicit substances. They also agree to use a parenting app and keep the other informed as to contact details and issues arising in respect of X’s health. Mr Kallam does not persist in the application for an injunction regarding Mr J.
They remain in conflict about how the shared care regime is to be implemented, and in regard to anger management counselling for Mr Kallam and trauma processing counselling for Ms Roystone. The ICL, having considered Ms M’s report, favours X living with his parents in the manner recommended by her.
DISCUSSION
I remain concerned about the implications of a shared care regime for X given the almost permanent state of conflict between the two parties concerned, and their endemic inability to communicate with one another. These are not supportive factors for the arrangement on which the parties have agreed and raise a very significant possibility that there will be a lot of future litigation between the parties, which will not be emotionally helpful for X.
However, I do not propose to stand in the way of the arrangement on which X’s parents have agreed about his care. Clearly, equal time is the only arrangement X has ever known and, as such, the court must be careful in bringing about any abrupt change in how he is parented. I can also see a great deal of sense in Ms M’s view that it will be more of a protective factor, for X, than a damaging one, notwithstanding the obvious problems in the parties’ capacity to co-parent.
I am also acutely aware that if I elect to adopt the father’s position, the mother will be very upset and vice versa. For obvious reasons, this outcome will only lead to more rather than less disagreement between the parties, which will not be helpful for X, who must continue to be cared for in the shared care regime irrespective of how time is configured.
The benefits Ms M sees for X in him having the most extensive relationship possible with his father militates more in favour of Mr Kallam’s position than that of Ms Roystone. Although I accept that it is somewhat oppressive for Ms Roystone to have to live by Mr Kallam’s regime, the primary emphasis is on what is the best outcome for X. I accept that the best outcome for him is to have as much of his day to day care provided by his father rather than others, in his paternal family, at this stage of his development.
The adoption of Mr Kallam’s roster as the basis for the shared care regime will not lead to any great diminution of the quality of X’s relationship with his mother. Although she will have to continue to work, her hours are consistent on a weekly basis unlike the father’s. So although the continuation of the current regime or a week about basis has the potential to reduce X’s time with his father, the contrary does not have the same effect so far as the mother is concerned.
Although Ms Roystone will have to concentrate on when the roster shifts around it will not be impossible for her to check when handovers will be scheduled to occur given the fact the roster resets every 28 days and is predictable to this extent. However, this will depend on her keeping up to date with the four week rotations and marking them on a calendar well in advance. I do however fear that she is not the sort of person who has the ability to easily adapt in this way, or that Mr Kallam will be inclined to remind her given his past attitude to the communication book. This is a major risk factor.
X’s relationship with his half siblings is important, but on balance it is more significant that the protective factors arising from shared care are facilitated. Apart from the parties’ difficult co-parenting relationship and the possible deficit which are likely to arise in respect of Ms Roystone’s ability to adapt to the 28 day roster, there are no practical impediments to X being cared for by his father. The parties live in the same small rural community in Town D, where their homes and the various places which X must attend fall in small compass.
For these reasons, I propose to make the orders on which the parties have agreed in respect of special occasions and ancillary matters, but otherwise implement the 28 day shared care regime advocated by the father. I do not propose to mandate any regime of therapy or anger management at this stage for either party. I do not think compulsion is likely to achieve the outcome desired by Ms M. In my view, it would be more useful for the parties to contemplate the issues identified by her and then elect to do what she has recommended.
The final issue is what should be the next procedural step in the case. In my view, it is premature to allocate a final hearing date. Given the resolution of the interim issues, it is sensible to see how well the parties adapt to the shared care regime and wait to see if there is some diminution in the conflict between them. The reduction of the conflict is the reason why the parties have been advised to undertake the co-parenting counselling which they have agreed to.
In these circumstances, I will adjourn the case for mention in the middle of next year. Perhaps, at this stage, if issues remain outstanding, consideration can be given to the engagement of some form of ADR. I will authorise the release of the reasons for judgment to the person whom the parties will engage to provide them with the co-parenting counselling, on which they have agreed.
For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 3 December 2021
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