King and King
[2013] FMCAfam 287
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KING & KING | [2013] FMCAfam 287 |
| FAMILY LAW – Interim parenting – children – question of equal shared parental responsibility – order as to shared parental responsibility – parental responsibility as to limited issue of education to vest in mother in best interests of children. |
| Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA |
| Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 Goode and Goode [2006] FamCA 1346; FLC 93-286 MRR v GRR [2010] HCA 4 Collu & Rinaldo [2010] FamCAFC 53 Mazorski v Albright[2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Lansa & Clovelly [2010] FamCA 80 |
| Applicant: | MS KING |
| Respondent: | MR KING |
| File Number: | WOC 803 of 2012 |
| Judgment of: | Foster FM |
| Hearing date: | 15 March 2013 |
| Date of Last Submission: | 15 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Richardson SC |
| Solicitors for the Applicant: | Barkus Doolan Kelly |
| Counsel for the Respondent: | Mr Dura |
| Solicitors for the Respondent: | Broun Abrahams Burreket |
ORDERS
That pending further order the mother and father have equal shared parental responsibility in relation to the children [X] born [in] 2006 and [Y] born [in] 2008 as to major long term issues in relation to the said children being issues about the care, welfare and development of the said children of a long-term nature and includes (but is not limited to) issues of that nature about the children's religious and cultural upbringing, the children's health, the children's names, and changes to the children's living arrangements that make it significantly more difficult for the children to spend time with one or other of the parents, provided always that pending further order the mother have long term parental responsibility in relation to the question of the children's education (both current and future).
IT IS NOTED that publication of this judgment under the pseudonym King & King is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 803 of 2012
| MS KING |
Applicant
And
| MR KING |
Respondent
REASONS FOR JUDGMENT
Proceedings
These are parenting proceedings commenced by the applicant mother by application filed on 3 September 2012. The present application before the court is the applicant mother’s further amended application filed on 13 March 2013.
The applicant mother seeks parenting orders in relation to the children [X] born [in] 2006 and [Y] born [in] 2008.
In the further amended application the mother seeks interim orders that she have sole parental responsibility for the said children, that the children live with her and that the children spend defined time with the respondent father.
The father filed his response on 14 March 2013. He also seeks parenting orders in relation to the subject children. He seeks orders that provide for the parties to have equal shared parental responsibility for the children that the children spend defined time with himself and the mother.
The proceedings first came before the court on 7 September 2012. On that date the court made interim orders by consent that facilitated the mother travelling overseas with the children for the purposes of a holiday during the period from 20 September 2012 to 5 October 2012. Otherwise the court ordered the parties to attend a child dispute conference with a family consultant on 21 November 2012. The parties were ordered to file further documents and proceedings were adjourned to 29 January 2013 for directions.
On 29 January 2013 the matter was once again before the court. On that day the parties agreed to consent orders that facilitated the youngest child attending preliminary interviews at [S] School and otherwise that each of the parties ensure that the children attend school and/or day care as applicable on the days that they are required to attend. Once again the court ordered that the parties file and serve appropriate documents and proceedings were adjourned to 15 March 2013 for interim hearing as to parenting.
On 15 March 2013 the parties agreed to consent orders as to parenting and orders were made that in summary provided for the children to reside primarily with the mother and to spend time with the father during school term on alternate weekends and Tuesday/Wednesday in the off week and at such other times as they may reasonably agree. The parties also agreed as to the children's time with the father and mother for the purposes of special days and school holidays.
Otherwise on 15 March 2013 the court made orders by consent appointing an Independent Children's Lawyer for the children, for the Independent Children’s Lawyer to request urinanalysis testing of each of the parties and for the appointment of Dr S as a single expert on the instructions of the Independent Children’s Lawyer.
The parties were unable to agree as to the allocation of parental responsibility on an interim basis and the interim hearing proceeded as to that discrete issue.
The mother relied upon the following documents:
a)her further amended application filed on 13 March 2013,
b)notice of child abuse filed on 13 March 2013,
c)her affidavit filed on 1 March 2013,
d)affidavit of Ms T filed on 13 March 2013,
e)the mother’s financial statement filed on 25 February 2013.
The father relied upon the following documents:
a)his response filed on 14 March 2013,
b)his affidavit filed on 14 March 2013,
c)his financial statement filed on 14 March 2013.
Background
The applicant mother is presently 41 years of age. She resides in rental accommodation in [omitted] in Sydney with the two children.
The parties commenced cohabitation in 1996 and married [in] 2002. The parties separated on a final basis on 30 March 2011.
The subject children are the children of the parties’ relationship.
The mother asserts that for the period between 1995 and 2006 she was the primary income earner in the household with the father in and out of employment over that period of time. Subsequent to the birth of the child the mother asserts that it was agreed between the parties that she would not engage in paid employment and she would stay home to care for the children.
The mother asserts that following the birth of the eldest child in April 2006 their relationship deteriorated with the father remaining out late at night and returning home affected by alcohol and/or drugs.
In 2007 the parties separated under the one roof but reconciled prior to the birth of the youngest child in April 2008.
The mother asserts that she was the primary carer of the child and that the father to a great extent was unavailable to the children. She asserts that the father rarely spent any regular time with the children and on most weekends spent little or no time with the children.
Due to their financial circumstances the parties in 2008 and 2009 realised their property investment portfolio. The father in early 2009 was unemployed through a period thereafter of about 10 months and the parties were dependent upon financial assistance from the paternal grandfather to meet their living and other expenses. This financial assistance was paid directly to the father by his father.
Subsequently the father asserted that the paternal grandfather would no longer provide financial assistance unless the parties moved into a small apartment at [omitted] owned by the paternal grandfather. The parties moved to this property in October 2009.
The mother asserts that after this time the father became even more difficult, distant and erratic in his behaviour. She asserts that the father resorted to verbal threats of violence directed towards her. The mother asserts that the father exhibits significant aggressive tendencies, displaying on many occasions incidents of road rage, routinely abusing pedestrians and other road users. In January 2013 the youngest child informed the mother of how frightened he was when the father became involved in an incident with a taxi driver in whose car they were travelling.
The mother asserts that she spoke to the paternal grandfather on a number of occasions about the father’s behaviour and wrote to the paternal grandfather expressing her concern in relation to the father's mental state, the relationship and the stress within their domestic circumstances.
The mother asserts that the father continued his drinking and drug taking and the abuse of her got worse. When home she asserts that the father slept most of Saturday and Sunday afternoons, returning home often between 3.00am and 6.00am most weekends. She says that she and the children rarely saw him except when he was readying himself for work in the mornings. The mother asserts that the father provided no financial information to her as to his financial circumstances and over the final two years of their relationship the father lived very privately and separately from her.
The father refused to provide her with regular income for household and living expenses and there were periods when she was without a motor vehicle. Indeed in one circumstance the parties’ motor vehicle was left in a parking station for 12 months as the father refused to pay for its re-registration.
The mother asserts that the father has been abusive to and denigrating of her with such behaviour occurring in the presence of the children. On 30 March 2011 the father had denigrated the mother in the presence of the children. The father then proceeded to throw all of the mother’s clothing, shoes and personal items outside the front door of their apartment into the communal hall way, saying to her "when I have finished removing every trace of you, I will then throw you down the stairs, you pathetic excuse for a woman. I'm going to break every bone in your body. You’re a fucking joke, you're an embarrassment.” The mother replied "you're destroying our children with this behaviour” the father replied "I am going to ensure the children will know what kind of mother you are, I will ensure they will have nothing to do with you”.
The mother subsequently managed to spirit the children away from the apartment and they all ran to the car parked down the road. Notwithstanding the mother contacting the paternal grandfather the mother and her children thereafter were displaced living with friends and family. The father refused to move out of the family's apartment so as to allow the mother and children to return. Subsequently the father said to the mother "I pity you. You have got nothing. We are going to destroy you. I warned you my family will ensure you will not have the children, it's only a matter of time. You are a failure, a member of the general public. We own the legal system and you are gone. I will destroy you, financially and professionally.”
Subsequently in June 2011 the mother was able to move into a friend's unit at [omitted] with the children. Thereafter the father continued to threaten the mother financially and to defame her to her employer and her employer’s clients.
Text messages from the father to the mother subsequent to separation are abusive, manipulative and financially attempting to coerce the mother. In particular the father from time to time has refused to pay the private school fees for the eldest child unless the mother reverts to her maiden name. The father has paid one half of the child’s school fees and the mother has no financial capacity to make any payment in relation to same. The father has sought to use the child's continuing enrolment at private school as a form of coercion against the mother. He seeks to have the mother pay one half of the child’s school fees for her continuing attendance at private school. Somewhat surprisingly the father's own financial circumstances reveal for his part absolutely no capacity to continue to pay private school fees for the eldest child.
The father does not pay child support to the mother although on
13 December 2012 the father was assessed to pay child support in the sum of $1,314.33 per month. That assessment was based upon a provisional adjusted taxable income for the father of $217,404. Subsequent to separation the paternal grandfather provided funds to the mother to assist with her rent and living expenses of the children. The father said to her "the money will continue if I am happy with the access arrangements”. Subsequently payments from the paternal grandfather ceased in December 2012 save for one payment to meet outstanding pre-school fees for the youngest child.
The mother remains concerned about the father's state of mind and his violent temper.
The father relies upon his affidavit filed on 14 March 2013. The father asserts a relationship with the mother that is at complete odds with the mother’s assertions as to his abuse, domestic violence and coercion. Indeed it is difficult to identify that the parties are talking about the same cohabitation.
The father has now re-partnered and he and his partner are expecting their first child in late March 2013.
The father has recently resigned from what appears to have been a well paid employment so as to spend he says more time with the children and the new baby. The father previously was employed as a [omitted] for the last three years. He asserts that his contract with [omitted] ended on 11 January 2013 subsequent to him taking extended leave to spend time with the children over the recent Christmas school holiday period. The father formally resigned his employment on 20 February 2013 although he asserts that he is still "technically employed" by [omitted] until 20 May 2013.
The father suggests that after 20 May 2013 that he will obtain employment similar to that that he had at [omitted]. The father acknowledges that the paternal grandfather has provided some financial support for the mother and children.
It appears to be the father's wish that the eldest child attend private girls’ school and the youngest child a private boys’ school. Yet he acknowledges that at present he has no capacity to pay such fees and expresses some doubt as to whether the mother would have a capacity to contribute to such fees unless she returned to full-time employment.
The father denies the mother's various allegations as to his conduct.
Documents produced on subpoena by the New South Wales Police Service reveal that on 7 September 2006 an offence of common assault relating to an incident on 24 April 2006 was proved as against the father but without proceeding to a conviction the court placed him on a 12 month good behaviour bond.
The Nature of Interim Proceedings
In Marvel v Marvel[2010] FamCAFC 101; (2010) 43 Fam LR 348 the Full Court (Faulks DCJ, Boland and Stevenson JJ), discussed the difficulties associated with making findings on contested evidence as follows:
120. As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.…………In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122. Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
The Law
The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
“(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”Section 60CA provides that in deciding whether to make a particular parenting order, the court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s.(2)) and additional (sub-s.(3)) considerations that the court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a. there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence [s.61DA(2)],
b. in interim proceedings where the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s.61DA(3)].
c. if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s.61DA(4)]If the presumption in s.61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s.65DAA which requires the court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
In Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286 the Full Court (Bryant CJ, Finn and Boland JJ) discussed the application of the presumption in s.61DA to interim proceedings at [56], the Full Court said:
“In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
The Full Court in Goode and Goode provided a “framework” as to how applications for parenting orders are to be determined. The High Court in MRR v GRR [2010] HCA 4 affirmed the legislative pathway. This included:
“(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);”
In Marvel the Full Court further observed at [106]-[107] in relation to the need to consider whether the presumption in 61DA applies in interim proceedings:
“……. we are satisfied the legislation required his Honour to turn his mind to whether or not the presumption applied, or whether under s 61DA(3) he should not determine that issue. That he did not do.
We have already alluded to the fact that the legislation, after the amending Act, imposes on a judicial officer determining a parenting application, be it interim or final, consideration of a number of provisions of Part VII. We are conscious, particularly for judicial officers determining interim parenting matters in a busy court, such as the Federal Magistrates Court, and where issues may be narrowly confined, or there is only a single issue to be determined, that the requirements of Part VII are onerous, particularly if an order for equal shared parental responsibility has been or is to be made. However the legislation mandates the path which must be followed.
Although s 61DA(3) should not be applied in a broad exclusionary manner in interim proceedings, it appears to us that it is likely to have greater relevance in matters where a narrow issue is in dispute in interim proceedings, particularly if equal time or substantial and significant time orders are not in issue. The exclusion may also be relevant where there are numerous and complex factual issues which are incapable of determination at an interim hearing. The practical effect of the application of s 61DA(3) is that the task and complexity of decision making on a narrow issue or issues is reduced.
However the task still requires some reference to s 61DA(1) and (2) and the giving of reasons, which may be very brief, why it is considered appropriate for the exception in s61DA(3) to be applied.”
The Presumption
The court has reservations as to whether in all circumstances of this matter the presumption should apply.
As set out above in this the court’s reasons for judgment there are reasonable grounds to believe that the father has engaged in the abuse of the children or domestic violence as contemplated in the terms of section 4AB of the Act if the court accepts the evidence of the mother.
However the court is not in a position to determine facts in issue. Otherwise the court needs to be satisfied that in all the circumstances it is not in the best interests of the children for there to be an order for equal shared parental responsibility.
In that circumstance the orders to be made by the court as to parental responsibility fall to be determined by reason of a consideration of the best interest considerations set out in section 60CC.
However in view of the parties’ agreement as to interim parenting orders the resolution of the outstanding discrete issue will not enliven each and every one of the considerations.
Best Interests
As the Full Court preferred in Collu & Rinaldo [2010] FamCAFC 53 as the court turns to look at the best interests considerations set out in s.60CC it should firstly consider the additional considerations.
The Additional Considerations
Section 60CC(3):
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
Understandably there is no evidence before the court in relation to this consideration as it impacts upon the discrete issue for determination. Accordingly this consideration is of no relevance.
b)the nature of the relationship of the child with:
i)each of the child's parents; and
ii)other persons (including any grandparent or other relative of the child);
The court is satisfied by reason of the physical circumstances of the children during cohabitation and the parties’ respective employment obligations during that period that throughout cohabitation the mother was the primary caregiver for the children and as such to the children she represents their primary attachment.
The nature of the relationship between the children and the father is somewhat clouded by the mother's allegations in relation to his behaviour including his abusive, derogatory and coercive behaviour towards the mother in the presence of the children. The circumstances of final separation cause the court some significant concern. Whilst the court is satisfied that the father has a significant relationship with the children the court is conscious that that relationship is clouded by issues as to the father’s emotional stability and anger management.
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)to participate in making decisions about major long-term issues in relation to the child; and
ii)to spend time with the child; and
iii)to communicate with the child;
An overview of the relationship in the context of this consideration is referred to above. In circumstances of the parties having a significantly conflictual relationship both prior to and after separation with many of the issues alleged by one and denied by the other unresolved, an assessment of this consideration awaits final determination. This consideration is of no relevance in the context of the present determination.
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
In the present circumstances the father has voluntarily resigned his employment and at present provides little or no financial support for the mother and children. The mother as it were has relied upon handouts provided by the paternal grandfather but even those were subject to conditions and ceased when the mother relocated her residence from Sydney's eastern suburbs to [omitted]. The mother otherwise provides for all of the children's needs in terms of accommodation and financial support.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This is not a relevant consideration for the present purpose.
e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a relevant consideration.
f) the capacity of:
i)each of the child's parents; and
ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
This consideration has some significance. The court is satisfied that the mother has an adequate capacity in this regard by reason of a consideration of the circumstances of cohabitation and the period post separation.
The court has reservations in relation to the father's capacity in this regard. His manipulation and coercive use of the issue of private school fees places the eldest child and to some extent the youngest child at risk of being removed from their current enrolments in circumstances where the court expects that such removal would have an adverse impact on the children.
However to allow, as the husband asserts, private school fees to accumulate in arrears by reason of the mother’s inability to meet half of the school fees demanded of her by the father is in the court’s view entirely inappropriate. It places the children, more particularly the eldest child at risk of effectively being expelled from school for non-payment of fees. How that circumstance is explained to a child of her age must at best be problematic.
In the court’s view this consideration favours the mother at least in the interim having parental responsibility for schooling and educational issues so as to remove from the father the ability to manipulate and coerce the mother as he has done particularly in relation to his alleged demands that the mother changed her surname.
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The children are at a young age. The question of education does not need to take precedence as yet. Nor should it be the focus of conflict between the parties as described above.
h)if the child is an Aboriginal child or a Torres Strait Islander child:
i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
In the context of this consideration the court is concerned that the father has demonstrated an inappropriate attitude to particularly the eldest child in so far as it touches upon the prospect of disruption to her educational circumstances and the imposition of an unachievable financial burden on the mother. The mother’s concerns in relation to this issue can only be reflected inappropriately on the child especially in circumstances where she is excluded from attendance for non-payment of fees by her present school.
j) any family violence involving the child or a member of the child's family;
There are many unresolved issues touching upon this consideration that await final trial at which time the court will be able to make appropriate findings of fact.
k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the court in, or in proceedings for, the order;
v)any other relevant matter;
This is not a relevant consideration.
l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These are interim proceedings limited to the discrete issue of parental responsibility. The court has made orders as to the provision of a single expert's report and in such a circumstance the court is unable to have regard to this consideration.
m) any other fact or circumstance that the court thinks is relevant.
This is not a relevant consideration.
The Primary Considerations: s.60CC(2)
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 the Full Court at 83,476 accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The parties have agreed on interim orders as to the primary residence of the children and the time they shall spend with the father. The discrete issue for determination as to parental responsibility is not assisted by a consideration of this factor.
Section 60CC(2)(b) – need to protect
The court has touched upon this issue above in the context of parental capacity and attitude. Whilst the expanded concept of family violence provided for in section 4AB could include conduct such as is alleged by the mother against the father, the court is comfortably satisfied that it is appropriate to consider the issue before it by reference to the additional considerations referred to above.
Parental Responsibility
In Lansa & Clovelly [2010] FamCA 80 (“Lansa”) Murphy J referred to the issue of conflict between parents in disputes over parenting orders. His observations have relevance in this matter. He said:
“Conflict and its Central Role in this Case:
50. The rights of children, and assertions as to their best interests are, in many highly conflicted parenting cases ending in trials, refracted through a prism of each parent’s creation which contains their interpretation of the children’s best interests clouded by the (often unstated and sometimes denied) assertion of parental rights, both of the type earlier described and of a more self-centred type. In my judgment, such is the case here.
51. Where there is conflict of a chronic and debilitating kind, as there is here, the issue is further considerably clouded by assertions and counter-assertions of past and present “wrongs” said to support ultimate assertions about the best interests of the children and said to “justify” the exercise of rights by a parent or, at least, to explain why those rights are being exercised in a particular way. Again, in my judgment, such is the case here”….
Murphy J continued and said:
“Reducing Conflict
80. It will be clear from what I have said about conflict and its central place in these children’s best interests that, if a proposal or proposals are found to be significantly likely to reduce the conflict between these parents, any such proposal or proposals might be thought likely to be significantly beneficial for the children and, thus, strongly indicative of a result consistent with the children’s best interests…”
Murphy J then discussed the issue of parental responsibility under the Act, the Court said:
“141. The ambit of the legislative provisions referred to thus far is narrowed by reference to s65DAE and the Note to s65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
142. Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s65DAE(2))…….
144. Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
145. Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s65DAE(1) and (2)).
146. Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision….”
Murphy J then said:
“152. Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
“In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss.60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.
We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter His Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as His Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.”
153. As the Full Court points out, it is open to the Court to find that “the track record of the parents [is such that it] would suggest a high probability of deadlock, which would inevitably lead to further proceedings.” Equally, it seems to me, that circumstances of pervasive, and apparently intractable, conflict can point to the process of consultation and endeavour to reach agreement required by the Act being productive of yet more conflict and consequent strain and stress for the children; something surely contrary to their best interests.
154. Yet, subject to specific Court order to the contrary, it needs to be borne in mind that the statutorily-required process is in respect of “major long-term issues”. There should, it seems to me, be good reason why, it is in the best interests of the children, for a finding that both parents ought not equally and jointly be involved in the sort of major decision embraced by the definition. It can readily be envisaged that high conflict can be a good reason. All the more so, it seems to me when one, or both, parents are affected by issues such as drug or alcohol addiction, mental health issues and the like.
The court is mindful that issues as to parental responsibility in the present matter at least on an interim basis are limited to the vexed question of the children's education. The overshadowing circumstance of this issue is that the father has sought to use the issue to intimidate, manipulate and coerce the mother for his own purposes.
In all the circumstances the court is satisfied that the parties should have equal shared parental responsibility for the children for the question as to education which on an interim basis should repose in the mother.
The court will make orders accordingly.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Foster FM
Associate:
Date: 28 March 2013
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