Kilduff and Gros
[2017] FamCA 808
•13 September 2017
FAMILY COURT OF AUSTRALIA
| KILDUFF & GROS | [2017] FamCA 808 |
| FAMILY LAW – CHILDREN – With whom the child lives – Where the child has been in her brother’s primary care since her mother’s infirmity and subsequent death – Where the father seeks the child’s residence – Where both parties can meet the child’s physical and academic needs – Where the brother has shielded the child from his resentment of the father – Where the child’s relationship with the father has bloomed since the child has lived with the brother – Where the father’s commitment to support and promote the child’s relationship with the brother is not so clear – Concluded the father is not the favoured candidate for the child’s residence merely because of his paternity – Concluded a change in residence would necessitate a greater degree of confidence about the father’s parenting capacity then the evidence warrants – Ordered the child live with the brother and he have sole parental responsibility |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 64B, 64C, 65AA, 65C, 65D, 65DAA, 65DAC, 65DAE, 69ZW |
| Aldridge & Keaton (2009) FLC 93-421 Bondelmonte v Bondelmonte [2017] HCA 8 Goode & Goode (2006) FLC 93-286 Maldera & Orbel (2014) FLC 93-602 Slater v Light (2011) 45 Fam LR 41 Valentine & Lacerra (2013) FLC 93-539 |
| APPLICANT: | Mr Kilduff |
| RESPONDENT: | Mr Gros |
| INDEPENDENT CHILDREN’S LAWYER: | Bowlen Dunstan and Associates Pty Ltd |
| FILE NUMBER: | MLC | 3117 | of | 2016 |
| DATE DELIVERED: | 13 September 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 28 & 29 August 2017 |
REPRESENTATION
COUNSEL FOR THE RESPONDENT: | Not Applicable Not Applicable Mr Ambrose |
| SOLICITOR FOR THE RESPONDENT: | Morgan Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Eidelson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Bowlen Dunstan and Associates Pty Ltd |
Orders
All former orders in respect of the child B, born … 2008, are discharged.
The applicant shall have sole parental responsibility for all “major long-term issues” (as defined in the Family Law Act) related to the child.
The parties shall have parental responsibility for the child in respect of all day-to-day decisions that are not “major long-term issues” in the child’s life whilst ever the child is in their respective care.
The applicant shall forthwith take all reasonable steps to ensure the child receives grief counselling in respect of the death of her mother for as long and as regularly as recommended by the counsellor nominated for that purpose by the Independent Children’s Lawyer.
The child shall live with the applicant.
The parties shall take all reasonable steps to ensure the child spends time with the respondent as follows, or as otherwise agreed:
(a)During school terms, each alternate weekend from 7.00 pm Friday until 7.00 pm Sunday, commencing on the first Friday of each term.
(b)During the first half of the Autumn, Winter and Spring school holidays.
(c)In the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
Orders 5 and 6 hereof are suspended during the following periods:
(a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the respondent from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day and with the applicant from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day in odd numbered years, with the same arrangements in reverse in even numbered years.
(b)Between 7.00 pm Saturday and 7.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the child shall spend time with the applicant on the Mother’s Day weekend and with the respondent on the Father’s Day weekend.
For the purpose of implementation of Orders 5, 6 and 7 hereof:
(a)The respondent (or his nominee) shall collect the child from the applicant (or his nominee) at the applicant’s home at the commencement of the child’s time with the respondent;
(b)The applicant (or his nominee) shall collect the child from the respondent (or his nominee) at the respondent’s home at the conclusion of the child’s time with the respondent;
(c)All school holidays are deemed to commence at 7.00 pm on the last day of school term;
(d)The first week of the Autumn, Winter, and Spring school holidays ends at 7.00 pm on the second Saturday after the holidays commence;
(e)The weekly rotations in the Summer school holidays are measured in increments of seven consecutive days; and
(f)The last rotation in the Summer school holidays ends at 7.00 pm on the last day preceding the day upon which the child is due to return to school, regardless of whether it is a full week.
The parties shall take all reasonable steps to ensure the child communicates privately by telephone with:
(a)The respondent each Wednesday at 6.00 pm when the child is living with the applicant and for that purpose the respondent shall telephone the child on the telephone number provided to him by the applicant and the applicant shall ensure the child is able to receive the respondent’s calls on that number at that time.
(b)The applicant each Wednesday at 6.00 pm when the child is spending time with the respondent and for that purpose the applicant shall telephone the child on the telephone number provided to him by the respondent and the respondent shall ensure the child is able to receive the applicant’s calls on that number at that time.
(c)The party with whom the child is not then staying, on the child’s birthdays at 6.00 pm and for that purpose the party with whom the child is not staying shall telephone the child on the telephone number provided by the other party for that purpose and the party with whom the child is staying shall ensure the child is able to receive the other party’s calls on that number at that time.
The respondent is restrained from consuming alcohol during any period in which the child spends time with him.
Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other party about the condition and treatment of the child.
The applicant shall authorise and request the principal of any school attended by the child to provide to the respondent, at the respondent’s expense, copies of all school reports and school photograph order forms relating to the child.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period or upon his confirmation of the applicant’s arrangement of the grief counselling for the child in compliance with Order 4 hereof, whichever is the latter.
The costs payable by the applicant to the respondent pursuant to Order 2 made on 12 July 2017 are due and payable within four months of the date of these orders.
Any and all other outstanding applications are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kilduff & Gros has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 3117 of 2016
| Mr Kilduff |
Applicant
And
| Mr Gros |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings entail the determination of the most appropriate parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) for a child, now eight years of age.
The proceedings were contested between the child’s half-brother (“the brother”) and the child’s father (“the father”). The child’s mother died in 2016, before the proceedings were commenced.
The child has been in the brother’s primary care since the mother’s illness and hospitalisation in February 2016 so, in circumstances where both he and the father presented as competent residential carers, attention centred upon which of them was better able to cater to the child’s future needs. The father advocated for reversal of the current interim orders, but the brother and Independent Children’s Lawyer both submitted for retention of the existing regime, which latter outcome was vindicated by the evidence.
Short history
The mother and father lived in an apparently turbulent relationship between 2006 and 2013. The child was born in 2008.
The brother was born in 1993 to the mother’s prior relationship, but he lived with the mother, father, and child.
There was some factual controversy about the level of the father’s involvement in the child’s life in the period between his separation from the mother in 2013 and her illness in early 2016, but it is unnecessary to resolve the controversy because it now makes no difference. Even if the father was as uninvolved or as disinterested as the brother contended, he now has a completely different attitude. His keen contest of these proceedings was testament to that.
After the mother and father separated in 2013, the child remained in the mother’s primary care. That remained the case until she fell ill in February 2016 and was hospitalised, at which time the brother took over her primary care. While the mother was alive but still unconscious, the Victorian Department of Health and Human Services (“the Department”) took an interest in the family and brokered an agreement between the brother and father to the effect that the child would remain in the brother’s primary care, but would visit the father regularly on alternate weekends. The father said he consented to that agreement on the implicit understanding it would only apply whilst the mother was hospitalised, but no such caveat is evident from the report provided by the Department to the Court in May 2016 pursuant to an order made under s 69ZW of the Act. Regardless, the father’s consent, even if offered conditionally in the manner he asserted, manifested his acceptance that the brother was capable of providing adequate care for the child.
The mother died, apparently without regaining consciousness, in 2016. The father learned of the mother’s death about a week afterwards and decided to retain the child in his care. He alleged he did so after consulting the Department and being advised she should remain with him, but that is unlikely, given the Department reported to the Court that it then regarded the brother as the child’s preferred primary carer.[1]
[1] Department s 69ZW report dated 30/5/16
In any event, in response to the father’s unilateral retention of the child, the brother commenced these proceedings on 12 April 2016 seeking to recover the child from him.
Interim orders were first made on 19 April 2016, providing for the child to live with the brother and to spend time with the father on alternate Sundays.
Further interim orders were made on 28 June 2016, providing for the parties to have equal shared parental responsibility for the child, for the child to live with the brother, and for the child to spend time with the father on alternate Sundays and for a few hours each Tuesday evening.
More interim orders were made on 12 April 2017, expanding the time spent by the child with the father to alternate weekends (Friday afternoon until Sunday evening) and half of all school holiday periods.
The parties complied with the interim orders until trial in August 2017.
Proposals
The brother abandoned the proposal set out in his Further Amended Initiating Application filed on 26 July 2017 and instead pressed for the orders set out in the alternate minute of orders he tendered in final submissions.[2] Although the minute of orders revealed an application for him and the father to have “joint parental responsibility”, he confirmed during submissions his acceptance that the designated residential carer for the child should hold exclusive parental responsibility for her, at least in respect of all “major long-term issues” in her life (s 4(1)). He proposed the child should continue to live with him.
[2] Exhibits R1 and R2
Similarly, the father abandoned the proposal set out in his Amended Response filed on 8 June 2016 and instead sought the orders set out in the minute of orders he tendered during final submissions.[3] His primary proposal was for the child to live with him and for him to have sole parental responsibility for her. He inconsistently proposed that, if the child instead lives with the brother, he and the brother should have equal shared parental responsibility for her, but that is an issue to which it is necessary to later return.
[3] Exhibit F1
In effect, the parties propounded mirror-image orders. They each wanted the child’s residence, but they each proposed the child should spend substantial time with the other, which they agreed should comprise alternate weekends during school term, half of all school holiday periods, and other special occasions. As for the visits on alternate weekends, each party conceded they should start on Friday evenings and conclude on Sunday evenings because of their respective work commitments. Consequently, the parties were unable to practicably arrange any regime approaching “shared care”, which the Family Consultant posited as a reasonable alternative in this case.
The Independent Children’s Lawyer sought the orders set out in the minute of orders he tendered in final submissions.[4] He ultimately supported the brother’s proposal and resiled from the guarded support he tentatively expressed for the father’s proposal, on the Family Consultant’s recommendation, at the outset.
[4] Exhibit ICL1
Evidence
The brother relied upon the affidavit he filed on 26 July 2017.
The father relied upon:
(a)The affidavit he filed on 8 June 2017;
(b)The affidavit he filed on 7 August 2017; and
(c)The affidavit of his partner, Ms C, filed on 8 June 2017.
The parties and the Independent Children’s Lawyer also relied upon:
(a)The report by the Department to the Court, pursuant to s 69ZW of the Act, dated 30 May 2016; and
(b)The Family Report dated 19 July 2017.
Legal principles
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC).
The Act imports a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).
The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.
In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.
Best interests – primary considerations
By reason of the mother’s untimely death, the child now only has one “parent”. Self-evidently, the brother is not the child’s parent and so the nature of their relationship and the benefit derived from it by the child is only an additional consideration (s 60CC(3)(b)) and not a primary consideration (s 60CC(2)(a)). Nonetheless, it is a vitally important component of the evidence and remains influential in the determination of the proceedings.
The child’s relationship with the father is now warm and loving, though it appeared to the Family Consultant to be “superficial and lacking in…emotional depth” when she first conferred with the family in May 2016.[5] As things now stand, the child’s relationship with the father is important to her and she derives benefit from it, which situation should undoubtedly be preserved. The father contended it was one reason why the child should now live with him, but that does not necessarily follow, since the child will continue to derive benefit from their relationship irrespective of whether she lives with him or only spends substantial amounts of time with him. The child’s relationship with him has bloomed over the past 15 months whilst she has lived with the brother, so her relationship with him is now just as important as her relationship with the brother. Neither relationship takes precedence over the other in the child’s life. They are both equally important to her.
[5] Family Report, para 59
Neither party contended the child was in need of protection against harm by reason of her subjection or exposure to neglect, abuse or family violence while in the care of the other. The parties’ respective criticisms of the other’s past alleged shortcomings dissolved during the trial once they realised the relative unimportance of the allegations to the ultimate question which required determination between them. In the circumstances, as the father’s counsel correctly submitted, s 60CC(2)(b) of the Act was rendered irrelevant as a consideration in the proceedings.
Best interests – additional considerations
Both parties can meet the child’s physical needs, though they each need assistance because of their respective employment commitments. The brother works weekdays and needs to place the child in day-care before and after school, commencing at 7.00 am and concluding at 5.00 pm. The days are long and tiring for the child, but she would incrementally cope better with that arrangement as she ages. By comparison, the father works on Saturdays and on four weekdays. He needs the paternal grandmother to attend his home by 6.00 am on the days he works to care for the child. He finishes work by 2.00 pm and can collect the child from school on school days. His proposed arrangement for the child’s care is preferable because she does not need to wake and rise so early for school on weekdays, but the advantage is not substantial.
Both parties can meet the child’s academic needs, though they both have quite different ideas about how her academic advancement and social integration is best promoted. The evidence does not allow a firm finding as to which party’s ideas are preferable. The brother has vastly improved the child’s school attendance and scholastic performance since assuming her primary care in February 2016, but the father did establish contact with the child’s school, conferred with her teacher, reads with the child on weekends, and proposes to be as diligent as the brother with her homework if she lives with him instead. The child presents a parenting challenge because she was diagnosed with ODD and ADHD, but both parties are opposed to the child’s medication and both seem equivalently equipped to deal with her uncontained behaviour, because they have each developed “effective strategies” to manage her.[6] The Family Consultant considered the father allowed the child to be more “exploratory”, which she regarded as advantageous, but she still acknowledged the benefit the child had derived from the structure, routine, and stability introduced into her life by the brother.
[6] Family Report, paras 53, 63
The greatest margin of difference lies in the parties’ capacity to meet the child’s need for emotional sustenance from her relationships with both of them. The relationship between the brother and father has fluctuated between acrimony and civility, but the brother has effectively shielded the child from his resentment of the father. As the Family Consultant observed, despite his personal misgivings about the father, the brother has supported the child’s relationship with him.[7] In fact, his support for that relationship has been so unconditional that, within little more than 12 months, the child was able to develop her filial relationship with the father from merely “superficial” to deeply meaningful, which is a remarkable reflection upon the brother’s insight and capacity to meet the child’s emotional needs.
[7] Family Report, para 60
The father’s countervailing commitment to support and promote the child’s relationship with the brother is not so clear. He does not encourage the child to telephone the brother when she is with him, but said he was willing to facilitate their communication if she requested it.[8] He seemed not to appreciate that, being aware of the conflict between them, the child would likely have been reluctant to ask him for help to telephone the brother. The father lacked the sensitivity and insight to realise that. An insightful parent in that situation would have proactively facilitated the child’s communication with the brother.
[8] Family Report, para 38
The father is now committed to his relationship with Ms C, who has a much more forceful personality than him. It is likely she will exert influence over his decisions and upon his conduct related to the child, particularly since she seemed keen to fulfil the role of the child’s step-mother. She was less restrained than the father in expressing criticisms of the brother which were objectively unwarranted by the evidence. She maintained the child was “intensely fearful” of the brother, which she apparently attributed to some deficit in his parenting capacity,[9] when the father had no such concerns. In combination, the father and Ms C are a formidable force with which the brother needs to contend and his significance in the child’s life would likely be appreciably diminished if the child lives with the father.
[9] Family Report, para 48
The father was justifiably critical of the brother’s decision to terminate the child’s counselling in 2016, because he did so in breach of an interim order, but the breach is extenuated by his reliance upon the professional advice of the child’s existing counsellor that no more was needed.[10] The brother said in cross-examination he now accepts the child would benefit from more counselling to help her grieve the loss of the mother. More counselling would clearly benefit the child if, as the Family Consultant believes, she is “highly attuned” to the brother’s own unresolved grief over the loss of the mother.[11] The Independent Children’s Lawyer sought an order compelling the child’s submission to more counselling,[12] irrespective of the allocation of parental responsibility for her, and such an order is made.
[10] Family Report, paras 22, 54
[11] Family Report, para 64
[12] Exhibit ICL1, Order 15
Despite the Family Consultant’s marginal preference for the father over the brother as the child’s primary carer, she remained troubled about the father’s fragility to any adversity in his life. Even though the father produced negative drug screens over the past year, she considered he would remain vulnerable to relapse to the misuse of alcohol or use of illicit drugs for “a very long time”, which period she was unwilling to quantify. The father has undoubtedly improved his condition since he first presented to the Family Consultant as dishevelled,[13] but the Family Consultant retained nagging doubt about the plenitude of his recovery.[14] She said in cross-examination the father minimised the consequences of his past behaviour, which raised questions about his insight and the durability of his rehabilitation.
[13] Family Report, para 32
[14] Family Report, para 62
The child expressed views but, because of her young age and relative immaturity, no weight is reposed in them. She initially told the Family Consultant she did not wish to live with the father, but then whimsically expressed her wish for the brother, father, and Ms C to all live together with her.[15] She obviously wants the conflict around her to cease.
[15] Family Report, para 50
Conclusions and orders
The presumption of equal shared parental responsibility does not apply in these proceedings because, without needing to ascribe blame, the father admitted family violence was committed during his relationship with the mother (s 61DA(2)(b)). Even if that were not so, the death of the mother now means it is impossible for the father to share parental responsibility with her and the child’s best interests would not be met by such a pointless order (s 61DA(4)).
As the child’s sole surviving parent, the father retains exclusive parental responsibility for the child, absent an order providing differently (ss 61C(1), 61C(3), 61D). But the father did not advocate for no order to be made. In fact, he asked for the opposite. He proposed an order be made granting him sole parental responsibility if the child lives with him, but if she lives with the brother instead, an order for equal shared parental responsibility be made. There was, of course, an irreconcilable inconsistency in his submission. If, as he contended, the parties were unable to share parental responsibility for the child in the manner demanded by law (s 65DAC), then one party must be conferred with parental responsibility for the child to the exclusion of the other, regardless of with whom she is ordered to live and, furthermore, it would be absurd for the party with whom she is to live not to be the one vested with such authority.
The father argued it would be a momentous decision to strip him, as the child’s sole surviving parent, of at least a share in her parental responsibility, but his submission was misconceived because the Act does not favour parents over non-parents in disputes under Part VII of the Act (see Maldera v Orbel (2014) FLC 93-602 at [79]-[81]; Valentine & Lacerra (2013) FLC 93-539 at [42]-[43]; Aldridge & Keaton (2009) FLC 93-421 at [59]-[61], [75]-[81], [83]).
Parental responsibility is automatically conferred upon a child’s parents by the Act (s 61C), which responsibility the parents may exercise either jointly or independently (see Goode v Goode (2006) FLC 93-286 at [33]-[39]). It is unnecessary to debate the issue of who holds parental responsibility for a child unless litigation ensues. If that occurs, the Act then imports a presumption for the parents to be granted “equal shared parental responsibility” for the child but, if for one reason or another the presumption does not apply or is rebutted, the decision about the allocation of parental responsibility is at large. The decision is discretionary and is driven by the paramount consideration of how the child’s interests would best be advanced by the conferral of parental responsibility (ss 60CA, 65AA). The child’s parents do not, either individually or collectively, enjoy a privileged position. No party to the proceedings bears any legal or evidentiary onus to prove the parents should be divested of parental responsibility. The Act prescribes the persons with standing to initiate proceedings under Part VII of the Act (s 65C) and “parenting orders”, which orders include those allocating parental responsibility for a child (s 64B(2)(c)), may be made in favour of either a parent or “some other person” (s 64C; Bondelmonte v Bondelmonte [2017] HCA 8 at [49]-[50]).
In this case, the evidence revealed the brother and father are diametrically opposed about some important current decisions that need to be made about the child’s welfare. The father thinks the child should attend a special needs school, whereas the brother thinks she would be better served remaining in the school environment with which she is familiar.[16] The father thinks the child should be assessed for autism, but the brother disagreed and does not want her to be labelled. The father thinks the child should have more counselling to deal with her grief over the mother’s death and, while the brother now agrees, he formerly disagreed and put a stop to it.[17] The Family Consultant ultimately recommended that the party designated as the child’s primary carer should have exclusive parental responsibility for her. The brother and Independent Children’s Lawyer agreed and, while the father wanted equal shared parental responsibility if the child is ordered to continue living with the brother, his proposal foundered on the illogicality of its contradiction with his contention that he must have sole parental responsibility for the child if she instead lives with him.
[16] Family Report, paras 20, 21, 42, 52
[17] Family Report, paras 22, 42, 54
The party with whom the child lives should have exclusive parental responsibility for all “major long-term issues” in the child’s life. Otherwise, the parties shall have parental responsibility for all other incidental issues in the child’s life, which responsibility they may exercise independently of one another (s 65DAE).
When considering the question of with whom the child should primarily live, the Family Consultant considered the filial relationship trumped the sibling relationship, but the Independent Children’s Lawyer conversely argued that the brother’s proven parenting capacity trumped the father’s hypothetical parenting capacity.
The Family Consultant expressed her ultimate recommendation in respect of the child’s residence thus:[18]
…in the absence of unacceptable risk to [the child] in the care of her father, it is likely to be beneficial to [the child] should the adults in her life resume their role with her, in that [the father] parents his daughter and [the brother] and [the child] engage in a sibling relationship.
[18] Family Report, para 65
The Family Consultant said in cross-examination the child needs the brother as a “big brother”, not as a “father”. She said the child was craving a “normal family environment”, which she thought was better provided by the father and Ms C than by the brother. But she was impelled to concede the brother’s proposition in cross-examination that there are many permutations of a “normal family” these days. In an objective sense, the father offers no more “normality” for the child than the brother. He still retains separate accommodation from Ms C and he will still require external assistance to care for the child around his work commitments.
It was difficult to resist the inference that the Family Consultant simply defaulted to a stereotype and favoured the father over the brother because she prioritised his filial relationship with the child. The Act eschews stereotypes and requires consideration of which party offers the greatest advantage as the child’s primary carer. The child’s derivation of benefit from a filial relationship is a primary consideration in the determination of how her best interests are ensured (s 60CC(2)(a)), but the father is not the favoured candidate for the child’s residence merely because of his paternity. The determination of how to promote the child’s best interest is a discretionary decision based on the matrix of factors prescribed by the Act (s 60CC), in which process the additional considerations (s 60CC(3)) can feasibly outweigh the primary considerations (s 60CC(2)) (see Slater v Light (2011) 45 Fam LR 41 at [45]).
When asked in cross-examination whether she harboured any concern about the brother’s parenting capacity, the Family Consultant answered “absolutely not”. She said he had done everything that could be expected of a primary carer after he took over the role from the mother in February 2016. She was quite satisfied either party could satisfactorily fulfil the role of the child’s primary carer.
The brother believes the father has no real understanding of the commitment required to care for the child on a full-time basis, as he has done.[19] The Family Consultant agreed the father was an “untested” parent and the brother was committed to the child’s continuing primary care.[20] The father admitted in cross-examination he did not seriously doubt the brother’s capacity to continue caring for the child, though he believed his own capacity was comparable. Ms C, however, held a different view. She deposed to her belief the brother lacked the “maturity, insight and instincts” to be a parent.[21] In cross-examination, she grudgingly conceded he “took a role” caring for the child, but she did not consider he was parenting the child “appropriately”. She believed the child could only ever receive “basic and adequate” care from him, implying she and the father had much more to offer.
[19] Family Report, para 25
[20] Family Report, para 30
[21] Ms C’s affidavit, para 29
If, as the father currently intends, he forms a long-lasting relationship with Ms C, it is likely she will foment continuing animosity between the father and brother, albeit unintentionally, but her barely concealed derision of the brother will likely influence future dealings between the parties. The child will be the principal victim of that paradigm, because she is already aware of the conflict between the parties, which awareness will only increase as she matures, meaning the deleterious effects upon her will be more acute. Conversely, if ever the relationship between the father and Ms C breaks down, the father will be a single man caring for the child, just as the brother now is. He is no better placed than the brother.
In February 2016, in an extraordinary demonstration of devotion and selfless commitment by a young man, the brother elevated the child’s needs above his own needs and desires and has maintained the commitment ever since. The Independent Children’s Lawyer correctly observed in final submissions he had “runs on the board” as the child’s primary carer. Given the Family Consultant’s concession that both parties would provide the child with satisfactory primary care, the father could not point to any features of the evidence that would strongly motivate any significant change to the existing functioning regime.
The Independent Children’s Lawyer submitted the father’s substitution for the brother as the child’s primary carer would be a “leap of faith”, but that is perhaps too pejorative. Nonetheless, such a change would necessitate a greater degree of confident speculation about the father’s parenting capacity than the evidence warrants. He is undoubtedly interested in the child and wants the best for her, but: he needs external help to care for her (as does the brother); he still lives alone (as does the brother); he will probably not cohabit with Ms C before about May 2018, when their respective current leases expire; if Ms C does cohabit with the father and the child, the clash of wills between the father and brother will not likely diminish and the tension may escalate to strife; and the father’s hands are already quite full ensuring his vulnerability to relapse does not transform into an actuality.
When the father articulated to the Family Consultant why the child should instead live with him, the principal reason he gave was “as her father he should be providing primary care”.[22] He fell into the same trap the Family Consultant apparently did, assuming his paternity was dispositive. The supplementary reasons offered by the father were inconsequential. The brother is young, but he has done a fine job as the child’s primary carer so far. The brother also has income from employment and his home is no less stable than the father’s. Ms C may offer the advantage of a mother figure, but that advantage may well come at the cost already described.
[22] Family Report, para 43
The father conceded to the Family Consultant the child may struggle with any residential transition, but he considered the change would be best in the long run.[23] He may be right, but that again entails supposition. Retention of the child’s existing routine would require no adjustment at all.
[23] Family Report, para 43
In cross-examination, the Family Consultant suggested that a residential regime “more like a shared-care arrangement” could be considered for the child, which necessarily implied her belief the child is already well cared for by the brother and the transition from one household to the other need not be so pronounced. Unfortunately, that is not practicable. Neither party sought an “equal time” regime and each party maintained that, if the child lived primarily with the other, their working commitments would necessarily confine the child’s visits to only weekends (commencing on Friday evenings and concluding on Sunday evenings).
On balance, the evidence favours retention of the existing regime, which works, rather than changing the child’s residence, which would require a gamble on the father’s future parenting performance, even though it may be a reasonably safe bet. The argument put by the brother and Independent Children’s Lawyer for continuity rather than change was, eventually, more persuasive.
In the event of an order requiring the child to live with the brother, the father proposed the child should spend time with him on alternate weekends (Friday evenings to Sunday evenings), half of school holidays, and other special occasions. There was no real contest about orders to that effect, but the peripheral details of the proposed orders differed and, since such differences were barely the subject of any mention, they must not be regarded as particularly significant. The parties both proposed detailed orders regulating, way into the future, the child’s birthdays and significant anniversaries related to the mother,[24] but that level of complication is rejected. The parties would be better suited by elegant simplicity. The orders will make special provision for the Christmas period, Father’s Day, and Mother’s Day, the latter of which is important to the brother. No special provision is made for Easter or birthdays, other than telephone communication on the child’s birthdays. The parties can agree otherwise if they want.
[24] Exhibit R1; Exhibit F1, Orders 4(g), 4(h), 5(b)
The parties both live on the north-west fringe of Melbourne, within reasonable proximity of one another, so the fortnightly exchange of the child between them does not involve undue expense or difficulty. In the main, exchanges of the child between the parties have been civil, though the parties disagreed about how they should exchange the child in the future.[25] The brother suggested the father could collect the child from school on Friday, but the father said he would not start weekend visits until 7.00 pm, so school collections was not an option. The travelling should be shared by them. The father can collect the child from the brother at the beginning of the child’s visits and the brother can collect the child from the father at the conclusion of the child’s visits.
[25] Family Report, para 37; Exhibit F1, Order 4; Exhibit R1, Order 4(a)
An injunction restrains the father from consuming alcohol while the child is in his care, to which injunction the father acceded in cross-examination.
The orders provide for the child to communicate by telephone once each week with the father when living with the brother and once each week with the brother when spending time with the father during school holidays. Extra provision is made for the child’s birthdays. Prescriptive orders are better than the father’s and Independent Children’s Lawyer’s exhortation for reasonable freedom,[26] because telephone communication has been problematic in the past.[27]
[26] Exhibit F1, Order 8; Exhibit ICL1, Order 8
[27] Family Report, paras 38-39
The father sought an order compelling him to ensure the child’s cognitive assessment,[28] but it remains unexplained whether that proposal was conditional upon the child living with him. Aside from the order proposed by the Independent Children’s Lawyer about the child’s submission to further counselling, other decisions about any cognitive assessment of the child will be made by the brother as an incident of his sole parental responsibility for the child.
[28] Exhibit F1, Order 6(a)
The remaining orders are either consistent with applications mutually made by the parties and Independent Children’s Lawyer or are self-explanatory and could not be the subject of rational opposition.
The costs order crystallises the brother’s liability under the order formerly made in the proceedings by the Registrar, in terms that suited both parties.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 13 September 2017.
Associate:
Date: 13 September 2017
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