Klein and Farr
[2011] FMCAfam 1361
•19 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KLEIN & FARR | [2011] FMCAfam 1361 |
| FAMILY LAW – Application for final parenting orders – where the child shall live – time spent with other parent – child’s best interests. |
| Family Law Act 1975 (Cth) ss.60CC, 61B, 61C, 61DA, 65DAA, 65DAC |
| Goode & Goode [2006] FamCA 1346 Marsden and Winch (No.3) [2007] FamCA 1364 Mulvany v Lane [2009] FamCA 76 McCall & Clark [2009] FamCAFC 92 MRR v GR [2010] HCA 4 Friscioni v Friscioni [2010] FamCA 108 Hall & Hall (1979) FLC 90-713 Collu v Rinaldo [2010] FamCA 53 Mallahan & Mallahan (2010) FamCA 631 Mazorski v Albright [2007] FamCA 520 G & C [2006] FamCA 994 Saunders (1976) FLC 90-078 Starr & Duggan [2009] FamCAFC 115 |
| Applicant: | MR KLEIN |
| Respondent: | MS FARR |
| File Number: | DGC 4323 of 2010 |
| Judgment of: | O’Sullivan FM |
| Hearing date: | 10, 11 & 12 October 2011 |
| Date of Last Submission: | 18 November 2011 |
| Delivered at: | Dandenong |
| Delivered on: | 19 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Stanley |
| Solicitors for the Applicant: | Bayside Solicitors |
| Counsel for the Respondent: | Ms H. Dellidis |
| Solicitors for the Respondent: | McMullan Solicitors |
| Counsel for the Independent Children’s Lawyer: | Mr R. Curtain |
| Solicitors for the Independent Children’s Lawyer: | CE Family Lawyers |
ORDERS
All previous parenting Orders in relation to the child, [X] born [in] 2004 (“the child”) be discharged.
The mother and father have equal shared parental responsibility for the child.
The child live with the father.
The child spend time with and communicate with the mother as follows:
(a)during the school term each alternate weekend from the conclusion of school or 3.30pm if a non school day Friday to the commencement of school or 9.00am if a non school day on the Monday.
(b)each Wednesday during the school term from the conclusion of school or 3.30 pm if a non-school day to the commencement of school on the Thursday or 9.00 am if a non school day.
That the child spend additional time with the mother as follows:
(a)For one week in each of the Term 1, 2 and 3 school holidays commencing as agreed and failing agreement for the first half of each holiday from the conclusion of the last day of school term until 6.00pm the following week.
(b)during the long summer holidays on a week about basis commencing from the conclusion of the last day of school term until 6.00 pm the following week.
(c)by telephone each Tuesday when the child is not in the mother’s care, between 6.00 pm and 6.30 pm, with the mother to place a call to the father’s mobile phone and the father to ensure the child is made available to take such call and not be placed on loudspeaker;
(d)by telephone at any other time the child expresses a wish to speak to the other parent and each parent facilitate the child making contact with the other parent;
(e)on the child’s birthday and the mother’s birthday in the event the child is not in her care, from 3.30 pm until 6.30 pm if a school day or from 2.30 pm until 6.30 pm if a non-school day and the child shall spend time with the father for the same periods in the event the child is already with the mother on the child’s and the father’s birthday;
(f)on Mother’s Day from 10.00 am until the commencement of school Monday and the child shall spend time with the father from 10.00 am Father’s Day until the commencement of school Monday in the event the child is already with the mother on Father’s Day;
(g)as may otherwise be agreed between the parties in writing.
(h)the child spend additional time with the mother during the Christmas festival as follows:
(i)in 2011 and each alternate year thereafter from 4.00 pm on 24 December until 3.00 pm on 25 December;
(ii)in 2012 and each alternate year thereafter from 3.00 pm on 25 December until 4.00 pm on 26 December;
Where changeover does not occur from school on a school day it take place at the [omitted] Train Station or as otherwise agreed between the parties in writing.
In the event the father or mother is unable to care for the child due to work commitments during school holidays or health issues, the other parent be provided with the first option to provide care for the child.
That until further order the mother and father:
(a)promptly take all prescribed medication; and
(b)be and are hereby restrained from drinking alcohol to excess when having the child in their respective care.
Until further order the parties personally and through their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the child and from permitting any other person to do so.
The parties arrange therapeutic counselling for the child either through the child’s school, [S] School or alternatively such counselling organisation as agreed between the parties.
Both parties do all such acts and things and sign such documents as is necessary to ensure the other can receive all school reports, newsletters and information from the child’s school.
The parties forthwith commence and maintain a communication book with respect to the child, which book shall travel with the said child between the parties’ respective places of residence.
Both parties shall contact the other in the event the child suffers any serious illness or medical emergency whilst the child is in their respective care within a reasonable time.
The Independent Children's Lawyer be at liberty to provide a copy of this order to the Principal of [S] School and the Department of Human Services.
The appointment of the Independent Children's Lawyer be discharged.
All extant applications be otherwise dismissed and removed from the Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Klein & Farr is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 4323 of 2010
| MR KLEIN |
Applicant
And
| MS FARR |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern an application for parenting orders under the Family Law Act 1975 (“the Act”) filed on 20 December 2010.
The applicant in these proceedings is Mr Klein aged 44 (“the father”). The respondent is Ms Farr, aged 43 (“the mother”). The mother filed a response on 28 February 2011.
The parties met a rehabilitation clinic in September 2003. There is one child of the relationship namely, [X] born [in] 2004, aged 7 (“the child”). The parties separated in 2005.
Background
Before turning to the procedural history it is timely to set out the background facts. Where in these reasons there is a statement of fact those are, unless otherwise specified, findings of fact.
The father is 43 years of age as is the mother.
The parties commenced a relationship in 2003 after meeting whilst they were both patients at the [omitted] Clinic. The mother had previously been an in patient there in 2002.
The mother has 3 other children from a previous relationship all of whom live with their paternal grandparents. The mother’s former partner and the father of those children died from a heroin overdose in 2004.
The child was born [in] 2004.
After the child was born the mother alleged the father had been stealing from the trust account set up for her other children. The mother was also admitted back into the [omitted] Clinic but subsequently released.
The parties separated on or after the middle of 2005. The child remained living with the mother.
The father met Ms R (his current partner) in late 2005. Since the father and Ms R commenced a relationship there have been a number of separations. More recently the father and Ms R have resumed cohabitation.
The father commenced proceedings for parenting orders for the child in late 2006. On 29 May 2008 final parenting orders for the child were made by Turner FM. Those orders provided inter alia for the child to live with the mother and to spend substantial and significant time with the father (“the 2008 Orders”).
The parties operated in accordance with the 2008 Orders up and until March 2009. In that month the mother was admitted to the [omitted] psychiatric unit having “psychologically de-compensated.”
Shortly thereafter the mother was released from the psychiatric unit at the Monash medical centre and has subsequently been diagnosed with a thyroid condition.
The mother became homeless as a result of a dispute with her brother and family about her residence and the police attended. The father provided some very limited assistance to the mother to obtain short term accommodation when she was homeless. However after her release from hospital the mother was unable to find stable housing.
At the time of the mother’s admission to the psychiatric unit the child came into the care of the father. Between March 2009 and May 2010, the child spent time with the maternal grandparents as arranged between them and the father but did not see the mother. The child spent time with the maternal grandparents during this period almost every weekend and on other special occasions.
The child began grade prep at [S] School (“the School”) near the father’s home at the start of 2010.
The mother appears to have reconciled with her father, who lives with his wife, on the Mornington Peninsula in early 2010. The mother returned to live with her parents and/or in that area, in emergency or other accommodation, at or around that time.
Having had no contact with the mother for the previous 18 months, in May 2010 arrangements were made between the maternal family and the father for the child to be reunited with the mother. The child then spent time with the mother almost every weekend for the next six weeks by arrangement with and on terms agreed to between the parties.
During the course of 2009 and 2010 the father arranged for the child to attend various specialists and in conjunction with the School ensured the child received specialist assistance to address learning and other difficulties that the child had.
In July 2010 there was a dispute between the parties about whether the child would return to live with the mother in accordance with the 2008 Orders.
As a result of this the father did not make the child available to spend time with the mother or the maternal grandparents. This situation continued up and until December 2010 when the child was removed from the School by the mother and the paternal grandfather.
Before doing so the mother and her father sought advice from a number of lawyers and police but did not advise the father or the School before attending at the School with copies of the 2008 Orders to remove him.
After the mother removed the child from the School in December 2010 the child did not see the father again or attend the School he had been enrolled in until and after the father commenced these proceedings and the Court made interim orders on 2 February 2011.
The mother has been living in a house provided by Peninsula Youth and Family Services since December 2010.
The father and Ms R live together along with the child and Ms R’s son from a previous relationship.[1] The child has progressed into Grade 1 at the School.
[1] see interim orders made 2 February 2011 and 3 March 2011
Procedural history
As noted earlier the father commenced these proceedings by application filed 20 December 2010. The father’s application was given a first return date of 1 February 2011. However by the time of the first return date the father had filed an amended application on 19 January 2011.
On the first return date the father was represented as was the mother, albeit not initially. On 1 February 2011 after making an order pursuant to s.11F of the Act the matter was adjourned to 2 February 2011 to allow the mother time to get material before the Court and for her solicitor to make submissions on the appropriate interim orders for the child.
On 2 February 2011 and for the reasons given ex tempore the Court made interim orders which inter alia provided:
“1.The orders made in the Federal Magistrates Court of Australia at Melbourne on 29 May 2008 be suspended until further order.
2.The child, [X] born [in] 2004 (“the child”) live with the father.
3. …
4.The child continue his primary education at [S] School located at [C].
5.The child spend time and communicate with the mother as follows:
(a)each alternate weekend from after school on a Friday until the commencement of school the following Monday commencing on Friday, 4 February 2011;
(b)each alternate Wednesday from after school until the commencement of school the following Thursday, commencing on Wednesday 16 February 2011;
(c)by telephone when the child is not in the care of the mother on a Wednesday and a Saturday from 6.00 pm to 6.30 pm.
6.…”
There were a number of other interim orders made including the appointment of an Independent Children’s Lawyer, restraints on the father and the mother, orders for access to information and the matter was adjourned for interim hearing on 3 March 2011.
The mother filed a response on 28 February 2011.
The proceedings returned to Court on 3 March 2011 and interim orders were made by consent which provided inter alia for:
“UNTIL FURTHER ORDER
1.Paragraphs 5 and 9 of Orders made 2 February 2011 be discharged.
2.The Respondent Mother spend time and communicate with the child [X] born [in] 2001 (“the child”):
(a)during school terms for the first two in every three weekends in a three week cycle commencing 4 March 2011 from the conclusion of school Friday (or the conclusion of school Thursday if Friday is a non-school day) until the commencement of school Monday (or the commencement of school Tuesday if Monday is a non-school day) and recommencing on the first weekend of each school term which is to be deemed Week 1;
(b)during school terms from the conclusion of school Wednesday (or Tuesday if Wednesday is a non-school day) until the commencement of school Thursday (or Friday if Thursday is a non-school day) each alternate week commencing 16 March 2011 and recommencing on the first Wednesday of each school term;
(c)for the first half of all school term holidays commencing from the conclusion of the last day of each school term until 6 pm on the middle day of the holidays;
(d)for half of the long summer holidays commencing January 2 at 6.00 pm;
(e)by telephone each Tuesday and Thursday when the child is not in the mother’s care, between 6.00 pm and 6.30 pm, with the mother to place a call to the father’s mobile phone and the father to ensure the child is made available to take such call and not be placed on loudspeaker;
(f)by telephone at any other time the child expresses a wish to speak with the other parent and each parent facilitate the child making contact with the other parent;
(g)on the child’s birthday and the mother’s birthday in the event the child is not in her care, from 3.30 pm until 6.30 pm if a school day or from 2.30 pm until 6.30 pm if a non-school day and the child shall spend time with the father for the same periods in the event the child is already with the mother on the child’s and the father’s birthday;
(h)on Mother’s Day from 10.00 am until the commencement of school Monday and the child shall spend time with the father from 10.00 am Father’s Day until the commencement of school Monday in the event the child is already with the mother on Father’s Day;
(i)as may otherwise be agreed between all parties in writing.
3.Where changeover does not occur on a school day it take place outside the home of the maternal grandparents in [D] provided the Paternal Grandmother is able to attend and if not at [omitted] Car Park [D].
4.…”
There were a number of other interim orders made including directions for the hearing on 10 October 2011, a family report, psychiatric report and a mention on 5 July 2011. The father filed another amended application on 3 June 2011.
Finally the matter was mentioned on 5 July 2011, no further interim orders were made, and the matter remained listed for hearing on
10 October 2011.
The hearing
The hearing on 10 October 2011 occurred over the course of 3 days. Mr Stanley of Counsel appeared on behalf of the father, Ms Dellidis of Counsel appeared on behalf of the mother and Mr Curtain of Counsel appeared on behalf of the Independent Children’s Lawyer.
Material relied upon
At the commencement of the hearing the parties identified the material they relied on.
Counsel for the father told the Court his client relied on his:
a)affidavit sworn 17 December 2010;
b)initiating application filed 20 December 2010;
c)affidavit sworn 20 December 2010;
d)affidavit sworn 19 January 2011;
e)affidavit sworn 24 February 2011;
f)psychiatric report of the father dated 23 May 2011;
g)psychiatric report of the mother dated 23 May 2011;
h)amended application filed 24 May 2011;
i)affidavit sworn 24 May 2011;
j)family report dated 20 June 2011;
k)affidavit sworn 8 September 2011;
l)affidavit of father’s partner sworn 8 September 2011; and
m)affidavit of father’s mother sworn 8 December 2011.
Counsel for the mother told the Court her client relied on her:
a)her response and affidavit filed 28 February 2011;
b)her affidavit filed 18 June 2011;
c)her affidavit filed 10 October 2011;
d)the affidavits of her father (Mr F) filed 28 February and 20 June 2011;
e)the affidavit of her daughter (Ms E) filed 28 February 2011;
f)the affidavit of her case workers at Peninsula Youth and Family Services, Ms C, filed 2 March 2011 and Ms G filed 20 June 2011; and
g)the affidavit of Dr F (her psychiatrist) filed 5 October 2011.
Counsel for the Independent Children’s Lawyer told the Court his instructor relied on the:
a)the family report dated 20 June 2011; and
b)the psychiatric reports on the father and the mother under cover of the affidavit of Dr K filed 27 June 2011.
The Court has also had regard to a number of documents that were tendered into evidence. These exhibits were:
·ICL1 – the child’s psychological report dated 10 June 2010;
·ICL2 – the child’s speech pathology assessment report dated 5 August 2010;
·ICL3 – the child’s 2010 mid year school reports;
·ICL4 – the child’s 2010 end of year school reports;
·ICL5 – the child’s 2011 mid year school reports;
·ICL6 – agreed chronology;
·R1 – the father’s criminal record; and
·R2 – the mother’s proposed orders.
Initial position of the parties
The father
At the commencement of the hearing Counsel for the father told the Court his client sought the following orders:
“The father seeks that
1.That the parties have equal shared parental responsibility for the child.
2.That the said child live with the father.
3.That the said child spend time with the mother as follows:
· Every second weekend from the Friday after school until the Monday morning school drop off.
· Every second Wednesday from school pick up until school drop off on the Thursday morning.
· On school holidays from the end of term for one week.
· On the mother’s birthday straight after school until 6.30m and for her to then drop him at Hungry Jacks in [C].
· On the child’s birthday straight after school until 6.30pm.
4.That the said child continue his education at [S]’s and get a passport to travel overseas with the father in the years to come, to places such as Bali, Thailand and the United States.”
The mother
At the hearing the mother’s Counsel tendered a proposed minute of final orders which provided:[2]
[2] Exhibit R2
“1. That the child lives with the mother.
2.That the child spend time with and communicate with the father as follows:
(a)each alternate weekend from conclusion of school at 3.30 pm on Friday to commencement of school at 9.00 am the following Monday.
(b)each Wednesday, from conclusion of school at 3.30pm to commencement of school at 9.00 am, the following Thursday.
3.That the child spend additional time with the father as follows:
(a)During school terms on holidays, depending on the father’s work commitments and his ability to ensure that the will be in substantial attendance, from 10:00am on the Saturday following the last day of school to 10:00am the following Saturday.
(b)During the long summer vacation, depending on the father’s work commitments and his ability to ensure that he will be in substantial attendance, on alternate weeks from 10:00am on the Saturday following the last day of school to 10:00am the following Saturday.
(c)On Father’s Day from 5:00pm on the Saturday preceding Father’s Day until 6:00pm Father’s Day.
(d)From 5:00pm on the Saturday preceding Mother’s Day until 6:00pm Mother’s Day.
(e) During the Christmas festival as follows:
(i) In 2011 and each alternate year thereafter from 4:00pm 24 December until 3:00pm 25 December.
(ii) In 2012 and each alternate year thereafter from 3:00pm 25 December until 4:00pm 26 December.
4.That the child communicates with the father via telephone with the father at all reasonable times, with the mother to facilitate and encourage such communication.
5.That for the purposes of changeover, the child will be collected and delivered to school where appropriate, or otherwise the father shall collect and deliver the child from the mother’s premises.
6. The parties are restrained by injunction:
(a)From denigrating the other within the presence or hearing of the child.
(b)From removing the child’s principal place of residence from the Melbourne metropolitan area, or Mornington Peninsula area, without prior consent of the other party.
7.That the mother and the father notify the other as soon as practicable of any illness or injury or condition requiring medical attention and the details of such attention.”
The mother’s minute of proposed final orders also contained as an “alternative” to the above position the following:
“In the alternative, (emphasis added) if the Court decides that the child is to live with the father, then the mother would seek Orders as follows:
1. That the child lives with the father.
2.That the child spend time with and communicate with the mother as follows:
(a)during school terms, for the first two in every three weekends from the conclusion of school Friday (or the conclusion of school Thursday if Friday is a non-school day) to commencement of school) Monday (or the commencement of school Tuesday if Monday is a non-school day) and recommencing on the first weekend of each school term which is to be deemed Week 1;
(b)during school terms, from the conclusion of school Wednesday (or Tuesday if Wednesday is a non-school day) until the commencement of school Thursday (or Friday if Thursday is a non-school day);
(c)for the first half of all school term holidays commencing from the conclusion of the last day of each school term until 6pm on the middle day of the holidays.
(d)for one half of the long summer holidays commencing January 2 at 6:00pm;
(e)by telephone each Tuesday and Thursday when the child is not in the mother’s care, between 6pm and 6:30pm, with the mother to place a call to the father’s mobile phone and the father to ensure the child is made available to take such call and not be placed on loudspeaker;
(f)by telephone at any other time and child expresses a wish to speak with the other parent and each parent facilitate the child making contact with the other parent;
(g)on the child’s birthday and the mother’s birthday in the event the chid is not in her care, from 3:30pm until 6:30pm if a school day or from 2:30pm until 6:30pm if a non-school day and the child shall spend time with the father for the same periods in the event the child is already with the mother on the child’s and the father’s birthday;
(h)on Mother’s Day from 10am until the commencement of school Monday and the child shall spend time with the father from 10am Father’s Day until the commencement of school Monday in the event the child is already with the mother on Father’s Day;
(i)as may otherwise be agreed between all parties in writing.
3.That the child spend additional time with the mother during the Christmas festival as follows:
(a)in 2011 and each alternate year thereafter fromo4:00p, 24 December until 3”00pm 25 December;
(b)in 2012 and each alternate year thereafter from 3:00pm 25 December until 4:00pm 26 December.
4.Where changeover does not occur on a school day it take place outside the home of the maternal grandparents in [D] provided the Paternal Grandmother is able to attend and if not at [omitted] Car Park [D].
5.In the event the father or mother is unable to care for the child due to work commitments during school holidays or health issues the other parent be provided with the first option to provide care for the child.
6. That until further order the mother and the father:
(a) promptly take all prescribed medication; and
(b)be and are hereby restrained from drinking alcohol to excess when having the care of [X].
7. The parties are restrained by injunction:
(a)From denigrating the other within the presence or hearing of the child.
(b)From removing the child’s principal place of residence from the Melbourne metropolitan area, or Mornington Peninsula area, without prior consent of the other party.
8.That the mother and the father notify the other as soon as practicable of any illness or injury or condition requiring medical attention and the details of such attention.”
The Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer told the Court his instructor’s initial view was:
“subject to the evidence the recommendations in the family report appear to promote the child’s best interests.”
The Psychiatric Report
In accordance with orders made on 3 March 2011 a psychiatric assessment and report (“the Psychiatric Report”) was prepared on both of the parties. The Psychiatric Report of the mother was dated
23 May 2011 set out the background to the proceedings, identified the material read by the psychiatrist and the mother’s presentation at interview and said:
“…
OPINION and DISCUSSION:-
72.As always in Family Law matters it is very difficult to know the truth of the various claims made.
74.As I think I said in the report about the father, the opposing sides in family disputes usually present things in very different ways, each highlights the negative aspects of the other, minimise the positives and highlights their own positives and minimises their own negatives.
75.And so often the Affidavits too conform to that aspect, depending upon who they are written in support of.
76.I always emphasise that I am not the trier of fact in these matters.
77.I note that this is a lady who comes from what I understand to have been a reasonably intact family environment. I note she’s had limited education, hasn’t worked much since she had her eldest child, insists that she’s done voluntary work.
78.I note she acknowledges she has a problem with anger and I understand it got her into trouble with the police when she was in her younger years. She acknowledges that she still has problem with her anger.
79.I note that she has had treatment from Dr F and that she has had a few periods of hospitalisation, apparently related to emotional distress associated with circumstances in her life and no doubt dependent to a considerable extent upon aspects of her personality structure.
80.I note she has 3 older children. I have to say I am not able to define with any degree of confidence what sort of relationship she has with them, although the affidavit of her mother would suggest that it’s a close relationship.
81.I note that she had a long relationship with the father of her older 3 children but she acknowledged that he was a drug addict and a heavy drinker and that they were separated at the time she met Mr Klein.
82.I noted then that she had this relationship with Mr Klein – although she refuses to describe it as a relationship – and she refers to him as “Mr Klein”.
83.I understand it was an unsatisfactory relationship and they soon separated but not before they’d had [X], the child in question here.
84.I noted that she stated her husband died during the pregnancy, but she and her husband had gotten back together, she said. I couldn’t define precisely how much contact she and the father had worked out for the child in the early stages and it was something like 50/50. But then she had serious psychiatric problems and she was admitted to hospital and during that period the child, [X], was handed over by her parents to Mr Klein.
85.She was then unable to get contact with the child for some 15 months.
86.Meanwhile she had an overactive thyroid removed and she put on a great amount of weight.
87.She then got regular contact with the child, but apparently in I think November or December of last year, he took the child – apparently which was technically legal as she had Orders dating back some years – but nevertheless Mr Klein took out a Recovery Order and now he has the child but she sees the child frequently.
88.I do note that she has obviously had a fairly unstable time in the last several years. I note she’s on a disability support pension. I note she’s put on a great amount of weight. I note that she takes anxiolytic medication – 4 Xanax tablets a day. I note that she’s had unstable housing but I understand she does have some support from her family although she has “issues to work out with them”.
89.I noted her treating Psychiatrist and others are very positive about her and I say she presents well at this juncture and I say she’s no doubt perfectly capable of having reasonable periods of time with the child and doesn’t necessarily need supervision.
90.Of course the Court here is confronted with the reality that the child now lives with the father and is confronted with the issue of her seeking custody.
91.I have to say that I don’t think she is particularly insightful in terms of her understanding the current situation. She considers that the child is not happy with the father. She considers the child should be with her because she is the mother and she believes that the father doesn’t treat the child well.
92.Certainly she is very critical of the father – and from his history and what information I have it would seem she may well have a basis for being critical of him on the basis of the way he’d been until he’s supposedly reformed.
93.So I say that while she has a lot of support, she is capable of caring for the child unsupervised, but I am acutely aware of the fact that the Court has many other issues to take into account by this stage.
94.I say she needs continuing psychological support of one kind or another – both material and social support if she is to cope adequately with looking after a child.”
There was also a Psychiatric Report prepared on the father dated
23 May 2011 which set out the background to the proceedings, identified the material read by the psychiatrist and the father’s presentation at interview and said:
“OPINION and DISCUSSION:-
48.I haven’t seen any other information about this man so my opinion at this juncture depends upon the history that he provides and the way he presents in interview.
49.Having said that I accept he was attempting to give a good account of himself.
50.This man appears to have come from what was an intact family environment although I noted that his father died when he was aged 12 and I note that his brother died at the age of 18 or thereabouts in an accident and he was close to both his father and his brother.
51.So obviously they were 2 traumatic experiences during his childhood.
52.My understanding is that he did reasonably well in his schoolwork but described himself as being somewhat disruptive and my understanding too is that he’s had a good work record and has earned good money and lost large amounts of money from time to time.
53.From the history that he gives, it seems quite clear then that he lived a fairly wild and out of control life/lifestyle, with a gross abuse of alcohol, drugs, a great number of casual sexual relationships, gambling and I noted too that there were two incidents of indecent exposure, one when he was 16 and one when he was drinking heavily.
54.He’s had a few drink/driving charges.
55.He said that he had been hospitalised for drug and alcohol-related matters 5 or 6 times, indeed on one occasion spent 5 months in a unit but continued to work.
56.I note too that he spent time in Odyssey House but he insists that he hasn’t used illegal drugs for some 15 years now.
57.I should emphasise that I have not seen any documentation about his treatments and could certainly not get detail of what treatment he had had.
58.But anyway he insists he’s been off alcohol completely, no longer gambles; he has gotten his life together and has a good and stable relationship with his current partner.
59.He states that he hasn’t been drinking at all for 8 years now, hasn’t gambled at all for 3 ½ years, hasn’t used illegal drugs for 15 years and lives a stable lifestyle, working and has been looking after his son [X], much of the time since he was born.
60.I noted that he and the mother apparently met while he was in [omitted] Clinic, established a relationship thereafter but the relationship broke down and they finally separated then in late 2005.
61.He eventually got some supervised contact for short periods, then 50/50 and then the mother was hospitalised in March of 2009, had no contact with the child until May of 2010, then saw the child regularly and took the child in December and he got a Recovery Order in February.
62.So at present he has the child most of the time – 70 per cent – she has the child 30 per cent. He said the child is settling in well at school. He said he gets on well with the boy, rarely has to discipline him and said that he’s doing much better this year than in the past.
63.He said the child is involved in [extra-curricular activities omitted] and is settling in well.
64.He works regularly, earns good money, has a good and stable relationship with his current partner and seems to have an appropriate attitude toward his son.
65.As far as I can see then, this is a man who lived a very chaotic life/lifestyle until his early to mid-thirties and he appears to have settled down very well indeed.
66.As far as I know there is nothing to suggest he has any other underlying psychiatric or psychological problem. For example as far as I know there is nothing to suggest he has Bipolar Disorder and it seems to me that all of his problems related to his lifestyle with gross alcohol abuse and illegal drugs.
67.One not uncommonly sees individuals who have lived that sort of life/lifestyle who as they mature, settle down and become very responsible individuals. That’s the impression I get of this man. I note that he attends ‘AA’ and ‘Gamblers’ Anonymous’.
68.His presentation in interview is consistent with the history that he gives, at least in so far as he now presents as a stable, sensible, strong and forceful man without continuing psychiatric disturbance or substance abuse.
69.So at this stage of his life I don’t experience any concern about his ability to look after the child satisfactorily. He seems quite involved in the child’s activities. I am of the view that he would make a good parent.
70.So at this juncture I say there are no continuing psychiatric/psychological problems in him that need to be taken into account in deciding this matter.
71.I must say I certainly have sympathy for his view that the current custody arrangement interferes with the continuity of the boy’s activities – but that is not a function of any psychiatric problem in him.
72.I understand that I am due to see the mother in the near future and will offer further comments in the light of same thereafter.
73.If I can be of any further assistance in the matter, please feel free to contact me.”
Having prepared reports on both the mother and the father the following comments were then made in the Psychiatric Report:
“1a.I have now seen both of these people and read a fair amount of documentation about them.
2a.As we see so often in Family Law matters the two sides present the situation in somewhat different ways – each damming the other and maximising their good points.
3a.As is usually the case there are elements of truth on both sides.
4a.I have no doubt but that Mr Klein has been quite a chaotic individual for most of his life, presents himself as quite reformed now, insisting he hasn’t gambled for some years, doesn’t drink, doesn’t use drugs and that he is functioning well in his life and has had a good and stable relationship and said that he’s looked after the child well and he doesn’t discipline him harshly.
5a.He is happy with the mother having regular contact with the child but wants it to be in such a way that the child has stability and he can cope with the demands of school et cetera.
6a.My assessment of course depends upon him being reasonably truthful in his presentation and if he is being reasonably truthful and has reformed and avoids drugs and avoids gambling and is actively involved in ‘AA’ and “GA”, then I don’t see any problem in him having the child on a long term basis – unless there were evidence that he is not really treating the child well.
7a.The mother is somebody who has obviously had significant behavioural problems over a long period of time and I am of the view that she has marked continuing vulnerabilities and problems. She is not particularly settled in her lifestyle, has issues to work out with her family and has rather rigid views.
8a.I have to say that before I would like to see her having full-time custody of the child, I would like her to be having a much more stable and settled life/lifestyle with much more support.
9a.But having said that I see no reason why she would be perfectly capable of having the child supervised for significant periods of time.
10a.But of course the Court has to keep in mind the issue of how the child is functioning and whether the father is in fact providing a good and stable environment.
11a.So of course the Court has many other issues to take into account here. I can only say that from a Psychiatric perspective at this juncture, each is capable of having unsupervised contact with the child, but I do have reservations about her having long term, full custody of the child in the light of her current life/lifestyle.
12a.When I am putting it this way I am not suggesting that she is not a perfectly reasonable person and may not have a lot to offer the child, but I’m not convinced that her lifestyle is particularly stable at this juncture and I am not convinced there would be justification for the Court to change the basic custody arrangements.
13a.But I must emphasise that I have not seen any Family Report. I have not seen any objective assessment of how the child is functioning or coping.”
Family Report
Pursuant to orders made on 3 March 2011 a family consultant prepared a family report. This was the third report the family consultant had prepared on this family since 2007. This most recent report was dated 16 June 2011 (“the Report”) and done on the basis of the material identified and interviews with the parties. The Report set out the background and summarised the interviews with the parties.
The Report then set out the following evaluation:“…
Evaluation
31.The writer has now interviewed the parties on four occasions since May 2007. The most significant change since the last report in February 2008 is Ms Farr’s psychological breakdown requiring hospitalization and [X]’s change of residency to Mr Klein. These events resulted in Ms Farr becoming homeless and not having contact with [X] for approximately 18 months. Since reestablishing contact the post separation dynamics have resurfaced and the current dispute has all the echoes of previous presentations.
32.At the heart of the matter in the current circumstances are [Ms Farr]’s mental health, her capacity to parent effectively, and where [X] can best achieve stability and continuity at this critical juncture of his life. Both parties have a history of mental health difficulties however; Mr Klein has consistently been able to demonstrate continued improvement and commitment to his rehabilitation. On previous occasions he has provided significant amounts of documentation to support his claims of rehabilitation and there is nothing in the material before the writer, or his presentation on this occasion, to doubt his bona fides in this regard.
33.[Ms Farr] to her credit appears to have endured and come through an extremely difficult period in her life. On this occasion she appeared much more focused and calm and is compliant with her medication for anxiety. However, she appears to have an enduring vulnerability and her decompensating crisis in 2009 was a critical event that left her homeless and even more vulnerable than before. While she appears to be on the road to recovery the writer shares Dr K’s concerns about her ongoing mental health vulnerability and the need for significant long term support.
34.There is some sporadic phone contact with her previous psychiatrist Dr F but she is not under the definitive care of any psychological or psychiatric specialist at present. Her behaviour under stress is still reactive and impulsive as evidenced by her removal of [X] from Mr Klein’s care without any thought to the potential impact on the child, and she continues to lack insight into her mental health difficulties. The writer notes that Ms Farr still does not acknowledge the involuntary admission as necessary and continues to blame others for her circumstances. This lack of insight and acknowledgement about her mental health presents as a significant risk factor in relation to her care of [X]. In this context it is recommended that [X] live with
Mr Klein and spend time with Ms Farr.
35.Mr Klein’s application seeks to reduce the level of parental conflict and disagreement by changing the provisions for joint responsibility. In general, changes to the joint responsibility provisions of Family Law Orders is seen a measure of last resort when the conflict between the parties is viewed as intractable. At a superficial level the circumstances of the case might lend themselves to that view. However, the mental health of both parties has largely driven the disagreement and crises in this case and there have been significant periods of cooperation at other times. It is unlikely that a change to the joint responsibility provisions of the Orders will impact on these dynamics and may act as a restraint to the context resolving over time. In these circumstances Mr Klein’s application for sole responsibility is contraindicated and not recommended at this point in time.
36.The allegations of physical and sexual abuse and firearms have been investigated by the police and DHS and there appears to be no case to answer. However, some discussion and analysis of the psychological and relationship dynamics surrounding the disclosures is required. [X]’s discourse presents as an adaptive functioning strategy that has evolved out of his developmental difficulties and the difficult family circumstances he has endured since birth. This manifests itself in reactive and escalating responses as a way of coping and deflecting the consequences of his social and cognitive deficits and or his way of joining with those that are close to him.
37.Both parties describe this behaviour in relation to his school and peer difficulties. His developmental difficulties mean that he frequently miss reads verbal and non verbal signals and social cues and he has a limited repertoire of responses in dealing with the social complexity he faces. In the school context this has led to lies and avoidance which can be seen as a defensive adjustment to his difficulties. [X] is generally eager to please and this combined with his other difficulties and Ms Farr’s hyper vigilance around the parenting of
Mr Klein sets up a dynamic that becomes mutually reinforcing for them both.
38.Ms Farr provides an exclusive relationship with few challenges or responsibilities for [X] and is overly attentive to everything he talks about concerning his life at
Mr Klein’s. The more he embellishes the allegations, the stronger the protective response of Ms Farr which, in turn, increases the intimacy between them. This circular dynamic leads to increasing confabulation as away of gaining his mother’s attention and approval. Continued professional interviewing around these matters also increases or reinforces the possibility of [X] engaging in this behaviour. [Ms Farr] will need to learn alternative strategies for managing this behaviour if the circular nature of the dynamic is to be interrupted.
39.The current arrangement tends to distort the available recreational time with the parties and inhibits the continuity and consistency of the primary care arrangement. It also impacts on [X]’s ability engage in social and sporting opportunities that require regular attendance or team work. The arrangements are further constrained by Ms Farr being unable to drive.
40.Taking into consideration these factors it is recommended that Ms Farr spend time with [X] each alternate weekend from Friday pm until Monday am, each alternate Wednesday pm until Thursday am, and half of all school holidays with the long summer break taken on a week about basis. Should Ms Farr gain her license and independent transport in the future, and the post separation relationship become more co-operative and settled, it would be reasonable to extend the time to a block format relinquishing the alternate Wednesday and moving to each alternate weekend from Friday pm until Wednesday am.”
The Report then went on to make the following recommendations:
“Recommendations
1.The child [X] to live with Mr Klein and both parties to have joint responsibility.
2.Ms Farr to spend time with [X] each alternate weekend from Friday pm until Monday am, each alternate Wednesday pm until Thursday am, and half of all school holidays with the long summer break taken on a week about basis.
3.The parties to use a communication book for the purpose of communicating about the arrangements and [X]’s health and welfare. This book to travel backwards and forwards with [X].
4.The parties undertake to inform each other in a prompt and timely manner of any medical emergencies.
5.Ms Farr to undertake ongoing psychological counseling and complete a post separation parenting course.
6.Ms Farr to have telephone contact as per the Orders of consent dated 3 March 2011.
7.All days of celebration by agreement or in default of agreement as per customary practice in the matters.”
On the morning of the first day of the hearing the family consultant provided an oral addendum to the Report. This followed an interview with the father’s partner that morning and was with the consent of the parties. The transcript of that evidence, which was provided to the parties, reveals the family consultant had no concerns regarding the father’s partner and her involvement with the child. As will become clear presently the parties had an opportunity to test this evidence in cross examination.
Evidence at the hearing
I have not recited, nor do I intend to recite all of the evidence that was present at hearing although all of that evidence has been considered and taken into account. The Court’s consideration of this matter has been assisted by the helpful written submissions filed by the parties.
The father and the mother each filed affidavits, gave evidence and were cross examined at the hearing. The father’s partner and mother also filed affidavits but only the father’s partner (Ms R) was required for cross examination.
The mother’s father, her daughter, two case workers and her psychiatrist (Dr F) all filed affidavits but only her father and Dr F were required for cross examination.
Dr K, psychiatrist who prepared the Psychiatric Report and the family consultant who prepared the Report both gave evidence and were cross examined.
In Saunders (1976) FLC 90-078 it was said:
“[R]estraint is called for in expressing views about the parties because the need to have regard to the preservation of the ongoing relationship between the parties and between parents and children.”
However, in order to be able to determine this application for parenting orders for the child where those otherwise responsible have asked the Court to make decisions affecting the child it is necessary to form an assessment of the character and personality of the parties in this case.
It is therefore necessary to say something about those who have given evidence at the hearing. I am satisfied both the father and the mother gave their evidence to the Court to the best of their ability. However on the basis of my observations of them as they gave evidence both the father and the mother clearly continue to be haunted by the ghosts of their past and their evidence left the distinct impression they believed this dispute would be resolved on the basis of which parent presented in the better light.
Overall neither party presented as a reliable historian in the sense that their evidence would be accepted unequivocally on all aspects.
Indicative of this was the evidence of the parties over issues that emerged in Easter 2011 when the father was hospitalised or the dispute between the parties as to what assistance was provided to the mother by the father when she was homeless. However, for the purposes of these reasons it is not necessary to traverse the detail of those events and for the purposes of making orders in the child’s best interests it has not been necessary to resolve any conflict in the evidence of the mother and the father.
Evidence of the father
The father gave evidence and was cross examined. The father now works as [omitted]. The father’s evidence was he and Ms R were going to get married. The father told the Court this would be good as the child would have a real mother. In his evidence before the Court the father acknowledged the problems with gambling and alcohol he had in the past. The father was confronted with his police record (including the conviction for obtaining property by deception) in cross examination and I am satisfied acknowledged the errors he had made in the past. The father gave evidence about the impact of ongoing court proceedings concerning the child on his relationship with Ms R now and in the past.
The father’s evidence chronicled the steps he had taken since the child came into his care in March 2009 including getting advice and assistance from paediatricians, psychological assessments, speech therapy and reading recovery programs. Remarkably the father, when asked whether he could give the mother any credit regarding her parenting, said he didn’t know what sort of parent she was. When confronted with the claims he had not advised the mother of the medical and other educational support issues he had arranged for the child the father claimed in relation to matters run through the School they would notify her.
Whilst the father clearly continues to blame the mother for problems in the past and with the child his evidence did elicit an acknowledgement that he should have done more to assist the child earlier. Notwithstanding the reservations about him referred to earlier the father impressed as someone very much committed to the child’s best interests.
Evidence of Father’s partner
Ms R gave evidence and was cross examined. Her evidence before the Court was congruent with the observations of the family consultant to which I will return, as someone with an appropriate relationship with the child. Importantly given her qualifications Ms R’s evidence chronicled the improvements she’d seen in the child’s behaviour and achievements since commencing at the School and the benefits obtained as a result.
Ms R was asked questions about the interaction between her son and the child and gave detailed examples of day to day arrangements which not only had the ring of veracity to them but the hallmark of commonsense. Importantly Ms R’s evidence made pellucidly clear she understood the importance of the mother’s role in the child’s life and had no intention of doing anything after than supporting that. Poignantly she spoke in her evidence of the observable and special relationship between the father and the child and provided obvious day to day examples of this.
Evidence of the mother
The mother gave evidence and was cross examined. The mother’s evidence was her current housing provided by Peninsula WAYYS was available to her up and until 2040 or until a housing commission spot came up. The mother told the Court she had made an application for housing commission spots either at the [suburbs omitted]. The mother told the Court she had been recently diagnosed with post traumatic stress syndrome. There was no proper medical evidence led to support this. In cross examination the mother told the Court she had not worked since 1989.
The mother’s evidence was she was concerned the child was being brought up by someone other than her. The mother became quite animated in the witness box when asked about the father’s partner
(Ms R) telling the court she “didn’t want her or her children near my son.” The mother acknowledged she had been very angry with her family when the child had been allowed to remain in the care of the father when she was admitted to the [omitted] psychiatric unit in March 2009. The mother also told the Court, in the face of the evidence the child had been diagnosed with global developmental delay (see exhibit ICL 1) that she didn’t believe this. The mother told the Court she did not accept the report from the speech pathologist (see exhibit ICL2).
The mother acknowledged in cross examination that she discussed the proceedings with the child notwithstanding orders restraining both parties from doing so. The mother’s evidence was she had discussed that the child may attend a new school with him and when asked whether he would miss his friends at the School she said he doesn’t have friends. The mother’s evidence was despite investigations by the Department of Human Services and police into complaints about guns at the father’s home she didn’t believe that they weren’t still there. However the mother acknowledged in answer to questions from Counsel for the Independent Children’s Lawyer that the child was not at risk from the father. The mother admitted she didn’t pay child support and maintained the father still owes her the $100,000 he stole. This appeared to be a reference to the incident referred to earlier.[3]
[3] see paragraph 9
The mother rejected the suggestion put to her in cross examination that if she came off her medication there may be problems. However the mother did admit in answer to questions in cross examination from the Independent Children’s Lawyer about the dispute in Easter 2011 when the father was hospitalised that she often went into “stress mode” where her children were concerned. The mother acknowledged she suffers an anxiety disorder and continues to take Xanax. Tellingly, the mother told the Court she believed deep down the father wanted the best for the child, was a good father albeit one who was naive who he left his child with.
At the end of the mother’s evidence the Court was left with the distinct impression the mother struggled to separate her own needs from the needs of the child which was consistent with the evidence of the family consultant to which I shall return.
Evidence of the mother’s father
The mother’s father gave evidence and in doing so left the Court in no doubt he steadfastly supports his daughter’s attempts to have the child live with her again.
Evidence of the experts
In considering the evidence of Dr F, Dr K and the family consultant I bear in mind that one should tread on the area of other experts with care. Indeed the virtue of this was borne out in during the hearing when each of the experts made concessions in the face of the evidence that had emerged over the course of the previous two days.
Evidence of Dr F
Dr F was a witness called on behalf of the mother. Dr F gave evidence of her involvement with the mother, her opinion on why the mother may have psychologically de-compensated and been admitted to the psychiatric unit and that the mother needed to link in with and follow the recommendations of her treating medical practitioners.
Dr F’s evidence made plain she had not seen the mother frequently in recent years and when she had done so it was “basically to renew her scripts,” had never seen her with the child and would be concerned if, as the mother reported, she’d been diagnosed with post traumatic stress syndrome.
Evidence of Dr K
Dr K, by consent gave evidence by telephone and his evidence was unexceptional. He made appropriate concessions during cross examination in light of the evidence that had emerged over the course of the hearing.
In answer to questions from Counsel for the mother Dr K confirmed that from a psychiatric perspective there were no serious concerns with the mother. Also in answer to questions from Counsel for the mother Dr K confirmed, having been appraised of the evidence that had been led during the hearing, that the “vulnerabilities” of the mother he had identified in the Psychiatric Report had been “contained.”
Ultimately however it was the insight offered by the family consultant that was of most assistance to the Court in arriving at orders in the child’s best interests. To explain why, it is necessary to set out the family consultant’s evidence before the Court in greater detail.
Evidence of report writer
The transcript of that evidence reveals the following:
“[Counsel for the ICL]
In there you make a recommendation, amongst others, that the mother should have time with [X] each alternate weekend and each alternate Wednesday pm until Thursday am… The evidence so far is that that has worked out successfully. The mother is getting assistance from either her father, mother or sometimes her sister, who can drive a car, and I think even her daughter is available to assist her on those collections and deliveries, because these are a bit problematic in the sense it could be the collection from school to school?
[Family Consultant]
Yes.
[Counsel for the ICL]
What concerns the ICL is the ongoing capacity of that to operate. You suggest further that should she get her licence, that that should be blended in, as it were, to the other weekend time and it should go from Friday to Wednesday. That’s correct?
[Family Consultant]
Yes, sir.
[Counsel for the ICL]
Each fortnight?
[Family Consultant]
Yes.
[Counsel for the ICL]
The evidence from the mother is within six months she expected to get her licence, and a good Samaritan has provided a reliable roadworthy motor vehicle. In those circumstances, would you still recommend that course of adopting this Wednesday overnight only as a short term, temporary measure?
[Family Consultant]
My professional preference all the time is for blocked time, particularly in high conflict situations or in situations where there is the child is younger. Blocked time reduces the amount of transitions and vis-à-vis reduces the amounts of anxiety the child endures in terms of transitioning between the homes, so blocked time would always be my preference. I made those recommendations initially because Ms Farr explained to me at the time of the interview that she had transport difficulties and that she would find two consecutive days on the trot, ie, Monday and Tuesday, very taxing in terms of trying to get [X] to school at the time, so I split the four nights up over the two week period to make it a little bit more doable. But my preference would be for a blocked format in this case, given the level of ongoing conflict and the duration of the matter has been in court.
[Counsel for the ICL]
And that preferably would be a collection from school and return to school, so that the parties don’t have to meet?‑‑‑Absolutely, yes.
[Family Consultant]
Yes…
[Counsel for the ICL]
The mother has provided a document this day… in the alternate, the mother is proposing that she have two out of three weekends, which are the orders, as I understand it, from March this year?‑‑‑
[Family Consultant]
That's correct…
I have some concerns about that arrangement in terms of [X]’s ability to form continuous relationships in terms of his extracurricular activities, in terms of continuity and in terms again, as I say, of the level of transitions that go on. In this particular case, I think can be potentially anxiety provoking for all concerned. What we know about the transitioning of children between divorced couples is that each time the child moves between the two homes, there is a spike an anxiety for the child as they readjust and readapt to the home that they’ve gone to and the home that they’re leaving. The more you can reduce that over the long term, the less chance you’ve got of a generalised anxiety disorder developing later on in life.
[Counsel for the ICL]
…you prefer a block weekend ultimately with mum having her own car and licence and looking from Friday through to Wednesday each alternate period?
[Family Consultant]
Yes. Yes, absolutely, I would see that as the optimal arrangement in this case.
…”[4]
[4] Transcript 10 October 2011 p 2-3
There was then the following exchange during cross examination by Counsel for the mother.
“[Counsel for the mother]
…that’s a recommendation you’re happy to make today when presented with the two options…
[Family Consultant]
The alternate weekend Friday to Wednesday morning would be what – would be the one that I would be recommending as the optimal arrangement.
[Counsel for the mother]
And half of the school holidays and the long summer holidays on a week about basis?
[Family Consultant]
That's correct. Yes.
[Counsel for the mother]
…when do you say… would be an appropriate time to just split the holidays half and half?
[Family Consultant]
… I would be looking at, say, maybe eight, nine.
[Counsel for the mother]
…where you describe it as a reactive or impulsive removal of [X] without any regard to his, you know, continuity and so on… wasn’t as reactive as you…
[Family Consultant]
It certainly may not have been as reactive as I’ve described it in my report, given the explanation that you’ve given to me. But from a psychological point of view and a child focus point of view, it was decidedly ill informed and showed very little concern for the fact that [X] had been in the care of his father and achieved some continuity and stability, and that should have been the priority, and that should have been the focus of any changes, and the process could have been managed far, far better. For a young child to be removed from school after spending 18 months in a continuous and stable environment is, I would say, at the least not child focused.
[Counsel for the mother]
…you would be similarly critical of the father’s lack of child focused concern when he ceased all contact that [X] had been having with his maternal grandparents and the newly reunified relationship with his mother?
[Family Consultant]
Yes. I think there are similar but less the concerns in relation to that, given I think some of Ms Farr’s behaviour in the past…
[Counsel for the mother]
So are you prepared to concede that it’s not necessarily a factor of my client’s alleged behaviour, and that’s yet to be particularised, to some other factor or vulnerabilities going on in their own relationship?
[Family Consultant]
Undoubtedly, and I would agree with you that it’s not – it’s not one single factor. But my concern was… that it is a factor. It is – the behaviour of [Ms Farr] at various times has been a factor in the parenting capacity of Mr Klein and, you know, ipso facto his partner at various times.
[Counsel for the mother]
Can I just ask you what you mean by that, her behaviour?
[Family Consultant]
Well, her behaviour in terms of removing the child from school, her behaviour in terms of this system of – you will notice in my report I talk about confabulation that goes on between them in this level…
…I discuss in my report that this dynamic that goes between them, which is somewhat unhealthy in terms of – it’s the way they operate together - but it’s somewhat unhealthy in terms of some of the difficulties that [X] has developed…
…So what comes out of this dynamic is a whole lot of allegations…
…which I would presume have placed a lot of pressure on their relationship at various times…
[Counsel for the mother]
…Your evidence fairly much coincides almost directly with the evidence of her own psychiatrist, who said that her reactive and impulsive behaviour is really limited to [X]’s parenting in
Mr Klein’s household and my client’s concern, black and white concern, that something bad is happening to him?
[Family Consultant]
Yes. Yes
[Counsel for the mother]
… that you appear to have seized very much on Dr K’s report and have, I would suggest to you, extrapolated beyond your brief to comment as to her mental health vulnerabilities. A fair point?
[Family Consultant]
No, I don’t believe it is a fair point. And I think where I would be extrapolating is that if those contingencies, those systemic contingencies were still ongoing, then they would inevitably have an impact on her mental health, given that those systemic contingencies were part and parcel of her mental health and her decompensating episode in the past.
…as I noted in my report, on this occasion she was a lot more stable and contained in her mood, and I think I actually say that it’s probably the best I’ve seen her.
…Now, given that she now has the support of her family, that she’s now seeing somebody on a regular basis that’s professionally capable of supporting her, and that she has the support of some members of her family, I would say they are positive – they are positive aspects in terms of her capacity to recover and ongoing recovery, yes.
[Counsel for the mother]
Her case is essentially that as well, that things are now in a situation where she can pick up where she left off. And what I’m suggesting to you is that if where she left off was less good than it is now in terms of her presentation and demeanour and circumstances, that in itself is significant to consider, given that she has been [X]’s primary carer from his birth, except for this last period where she hasn’t?…
[Family Consultant]
Are you asking me that would I be recommending that [X] go back to his mother as the full-time primary caregiver? The answer would be no, at this point in time.
[Counsel for the mother]
Even though she is the best she has been, it’s better than where you last left off, where you had previously recommended that [X] be in her care, in light of [X], what I would put to you, is his primary attachment with his mother?
[Family Consultant]
Yes. I think the primary attachment is important and I place great emphasis on it in my work. However, there are some issues and there are some contexts in which the primary attachment comes secondary in terms of considering the best interests of the child, and they are whether there are quite significant mental health difficulties where there are issues of family violence, where there are issues of drug abuse and where there are issues of psychological and emotional abuse, and they tend to pre-empt the issue of primary attachment…
In this case it would be my opinion that [Ms Farr]’s mental health is of restraint, and her parent - and the impact of that on her parenting is a restraint to her being the primary caregiver at this point in time. And I say that in the context of the dynamic that goes between the mother and child, which has become more apparent over time. And I think if you go to my evaluation, I talk about that dynamic, and I see that dynamic as being quite potentially destructive in terms of [X]’s ongoing kind of psychosocial development.
What I would say about this case, since I’ve been seeing her since 2007, is that Ms Farr has presented to me in a variety of emotional and psychological context and conditions. And I spent 15 years in child and adolescent psychiatry working with children, adolescents and their parents, and I am fully aware of ICD 10 and DC4 diagnostic criterias, okay, I’ve used them for 14 years in Cairns. There have been times when Ms Farr has presented to me and it has been quite clear to me that, at the very least, there are personality idiosyncrasies with this lady that often act as a restraint to her parenting effectively. Okay. So whilst it is Dr K’s area of expertise to make the diagnosis, my observation is that her personality structure and the way she interacts with the world, and the way she has interacted with
Mr Klein in the past, and the way she has interacted with [X] presents certain problematic issues and difficulties in terms of her parenting capacity with the child, which I am qualified to assess.
[Counsel for the mother]
…But her relationship with the child is in all other respects positive, isn’t it?
[Family Consultant]
It’s somewhat enmeshed and somewhat unbounded and that is problematic…
[Counsel for the mother]
…this dynamic between [X] and his mother that you describe?
[Family Consultant]
Well, no, I couldn’t say it was positive, because I see this dynamic as quite destructive. So whilst superficially they get on very well, and [X] obviously loves his mother and his mother loves [X], this dynamic that goes between them, this rather enmeshed and unbounded interaction, has the potential to be quite undermining and quite destructive for [X] in the long term, and that’s what needs some level of intervention, some level of containment and some level of management. So, no, I – at a superficial level, yes, they have a positive relationship, they love each other dearly, she has been the primary attachment for him, but this dynamic that goes between them is quite destructive for [X] in the medium and long term in terms of his personality structure and in terms of the way he interacts with the world.
[Counsel for the mother]
…Would it surprise you to learn that Mr Klein is unable to give Ms Farr in evidence any credit of any type in relation to her parenting, her being a mother or a person, except to say that [X] has half her DNA, and that’s the only credit he can give her?
[Family Consultant]
Nothing would surprise me in this case. These two people have been fighting ….. seen a long term war for as long as I’ve been interviewing them, so nothing that they say about each other would surprise me. They are both negative towards each other.
…The dynamics of this dispute are very, very entrenched and are overlayed with the mental health difficulties of both parties over the long term.
[Counsel for the mother]
Having regard to your evidence that nothing is likely to change, that you concede that they’re both as negative one to the other, your recommendations for the future in terms of the amount of time that my client spends with [X] isn’t informed then, necessarily, by – except for the number of changeovers – the length of time – sorry - isn’t informed by this degree of conflict between them or the negativity between them?
[Family Consultant]
I think everything is informed by that in this case. My recommendations are based on trying to strike a fine balance between the many negatives about this case and about [X]’s needs for a relationship with his mother of a relatively substantial nature, and where he’s going to best be able to achieve some continuity and stability in his life. And in my opinion, that is with Mr Klein.
…it’s my opinion at this point in time that [X] needs to consolidate and have firmly in his mind where his – where his place of residence is, where the structure and routine predominantly occurs.”[5]
[5] Transcript 12 October 2011, p-4 to p-16
In Hall & Hall (1979) FLC 90-713 at 78,713 the Full Court made certain observations of a general nature about the role of family reports and the evidence given by family consultants. I also bear in mind what the Full Court in Friscioni v Friscioni [2010] FamCA 108 had to say about the role of family reports in these sorts of proceedings.
In my view the family consultant was prepared to make appropriate concessions during the course of cross examination. The family consultant’s evidence before the Court demonstrated that each of the parties positions had been considered. In the light of this the family consultant’s evidence elaborated on and provided comprehensive reasons for the recommendations made therein.
Whilst the mother urged the Court to prefer the opinion of the psychiatrists over the family consultant the matter is not that straightforward. Neither psychiatrist had seen the child, nor had the unchallenged benefit that the family consultant had in this case of having observed both parents and the child in their respective care over an extended period of time. The family consultant did acknowledge the improvements the mother had made, the additional supports she now had access to and appropriately deferred to the diagnosis of the psychiatrists. However the family consultants evidence was remarkable for the identification of what the child needed and what arrangements would work best for the child.
The family consultant’s evidence was not found wanting, there is no reason not to accept his evidence and I shall accord his recommendations and those in the Report substantial weight.
Submissions
At the conclusion of the hearing on 12 October 2011 the Court made the following directions for the filing of submissions:
“1.The Independent Children’s Lawyer file and serve submissions in writing on the relevant statutory criteria in light of evidence in this matter with minute of proposed final orders by 21 October 2011.
2.The Respondent Mother file and serve submission in writing on the relevant statutory criteria in light of evidence in this matter with minute of proposed final orders by 4 November 2011.
3.The Applicant Father file and serve submission in writing on the relevant statutory criteria in light of evidence in this matter with minute of proposed final orders by 18 November 2011.
4.Judgment be reserved.”
The Independent Children’s Lawyer filed submissions on 21 October 2011. The mother filed her submissions on 9 November 2011.
The father filed his submissions on 18 November 2011.
Final position of the parties
In opening Counsel for the father emphasised that the stability his client’s proposals would afford the child along with all of the assistance that he had obtained for the child in the last 2 years were in the child’s best interests. It was the father’s position that for those reasons in addition to his emotional capacity to support the child and facilitate a meaningful relationship with the mother his position should be preferred.
The father’s final position as set out in the submissions filed on his behalf was:
“It is submitted that the Father’s proposed orders promote practical and emotional stability for [X] whilst ensuring he maintains a meaningful relationship with his Mother.
It is submitted on behalf of the Father that his proposed orders promote [X]’s relationship with his Mother through spending substantial and significant time with her.”
The father’s “proposed orders” are set out at paragraph 41 above.
In opening her client’s case Counsel for the mother emphasised the mother had been the child’s primary carer for most of his life (apart from a period of more than 12 months due to hospitalisation and homelessness). Counsel noted subsequent to this from July to December 2010 the mother had been denied time by the father.
The mother’s case was there was no evidence the child was at risk in her care, her psychological and mental health were good, she had a wide support network including her family to call on and could remain in the current housing for the foreseeable future. Given this the mother’s opening was it was time the child came back to her as his primary attachment figure and in the event that was found not to be in the child’s best interests Counsel for the mother submitted the interim orders (referred to at paragraph 32 above) should be made on a final basis.
As noted in submissions filed on her behalf the mother’s final position was:
“The proceedings relate to parenting arrangements for the child, [X], born [in] 2004 and in particular, with which parent he ought primarily live and how much time he ought spend with the other parent.
PARENTAL RESPONSIBILITY
Whilst the father had earlier in these proceedings sought sole parental responsibility for [X], at trial, neither parent sought any disturbance to the current Order made in 2008 that each parent have equal shared parental responsibility for their son. The Independent Children’s Lawyer did not propose any change to this position.
Equal time
Given that the parties are to have equal shared parental responsibility, the court is required to consider making an order that the child spend equal time with the parents, unless it is contrary to the child’s best interests or impracticable.
None of the parties sought orders that [X] live with his parents on an equal basis and each proposed [X] should have substantial and significant time with each parent, although their proposals for what is the appropriate configuration of that time differed.
Substantial and Significant time
The mother’s primary proposal is that in the event [X] lives with her, the father spend time with him on alternate weekends and half of the school holidays. This is a replica of the time the father had been having pursuant to the Final Orders made in 2008.
In the alternative, in the event an order is proposed to be made that [X] live with the father, the mother adopts and seeks orders to spend time with [X] in accordance with the “preferred” regime of Mr H, namely that [X] spend time with his mother for:
(a)5 nights each fortnight, from the conclusion of school Friday until the commencement of school Wednesday each alternate week during school terms; and
(b)half of all school holidays, with the long summer holidays to alternate on a week-about basis; and
(c)the balance of the orders tendered to the Court and marked as exhibit “AF1;”
The mother accepts the advantages of such a regime as enunciated by Mr H during his evidence, namely that the structure of a block period, as opposed to fragmented periods, minimizes the “anxiety spike” for [X] in experiencing numerous changeovers between households.
Such a regime provides for [X] to have his mother and maternal family involved in his education as well as his extracurricular activities and leisure activities, on a consolidated basis. Despite the distance between the parents’ homes, there is no evidence the mother cannot get [X] to and from school or to his extracurricular activities.”
The reference to the orders sought by the mother in exhibit “AF1” would appear to be a typographical error. The orders sought by the mother are set out earlier at paragraph 42-43 above and were marked as exhibit “R2”.
The Independent Children’s Lawyer’s final position as contained in the minute of orders attached to his final submissions was:
“1.All previous children’s Orders in relation to the child, [X] born [in] 2004 (“[X]”) be discharged.
2.[X] live with the father.
3.[X] spend time with and communicate with the mother as follows:
3.1During the school term each alternate weekend from the conclusion of school or 3.30 pm if a non-school day Friday to the commencement of school or 9.00 am if a non-school day the following Monday.
3.2Each Wednesday during the school term from the conclusion of school or 3.30 pm if a non-school day to the commencement of school the following Thursday or 9.00 am if a non-school day.
4.That [X] spend additional time with the mother as follows:
4.1For one week in each of the Term 1, 2 and 3 school holidays commencing as agreed and failing agreement for the first half of each holiday.
4.2For one-half of the long summer vacation on a week about basis.
4.3Arrangements to share Mother’s Day, Father’s Day, [X]’s birthday and Christmas in each year.
5.Until further Order the parties personally and through their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X] and from permitting any other person to do so.
6.The parties arrange therapeutic counselling for [X] either through [X]’s school, [S] School or alternatively such counselling organisation as agreed between the parties.
7.Both parties do all such acts and things and sign such documents as is necessary to ensure the other can receive all school reports, newsletters and information from [X]’s school.
8.The appointment of the Independent Children's Lawyer be discharged.
9.The Independent Children's Lawyer be at liberty to provide a copy of this Order to the Principal of [S] School and the Department of Human Services.”
Approach to parenting orders
The power to make a parenting order is provided for in s.65D of the Act.
In deciding what informs the discretion under s.65D of the Act, a number of steps are necessary. First, regard must be had to the objects and principles set out in s.60B:
“60B [Object of Part and Principles underlying it]
(1)[Object of Part] 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)[Principles underlying object] 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).”
Importantly, the Court must regard the best interests of the child as the paramount consideration: see s.60CA. When determining the best interests of the children, one must have regard to the ‘primary’ and ‘additional’ considerations that are set out in s.60CC as follows:
“60CC [How a court determines what is in a child’s best interests]
Determining child’s best interests
(1)Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child
having contactspending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f)the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)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; and
(b)has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).”
In Marsden and Winch (No.3) [2007] FamCA 1364 the Full Court discussed the relationship between the primary and additional considerations in s.60CC, saying:
“77.The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
78.It follows that we reject the premise inherent in the husband’s submission that his Honour was obliged to indicate “what factor or factors combined to displace the primary consideration contained in section 60CC(2)(a)”. Firstly, that submission ignores the fact that there is a second primary consideration which his Honour was also obliged to take into account. Furthermore, it is not a question of other factors being needed to “displace” one of the primary considerations. Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [the child’s] best interests. In doing so, he was of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.”
These comments were referred to with approval in Mulvany v Lane [2009] FamCA 76 at [84] where it was said:
“76.It is important to recognise that the miscellany of “considerations” contained in ss.60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.”
The Full Court of the Family Court also said in Starr & Duggan [2009] FamCAFC 115 at [38] and [39]:
“38.A logical approach is to:
·First make findings concerning the relevant s.60CC factors;
·Then consider (based on the s.60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
·Then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s.65DAA(5) – which may be done by referring back to the earlier s.60CC findings.
39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests…”
The mother’s submissions on this factor were:
“The matter is proceeding to final hearing for the second time and there is a need to stabilize the changes in the child’s care which have occurred in the last three years. It is clear that finality and stability is of paramount importance for [X] at this time. The mother submits this is achieved by returning him to her care again.”
The submissions of the Independent Children’s Lawyer on this factor were:
“It is the submission of the Independent Children's Lawyer that an Order providing that [X] lives with his father would least likely lead to the institution of further proceedings in relation to [X].”
The provision of clear boundaries on issues in final orders will afford the parties the opportunity to retreat from the litigation battlefield and focus on solving problems together for the child’s sake.
Final orders in this case are appropriate. This litigation must come to an end for the sake of the child. Litigation about the child has already been a feature of his life for many years. I appreciate that further litigation is not out of the question but I think the making of final orders is the least likely event which will lead to further proceedings.
Any other fact or circumstance
There was no submission made that, and I am satisfied that it is the case, there are no other facts or circumstances that should be taken into account.
Primary Considerations
Meaningful relationship
The father’s submission in relation to this factor were:
“It is submitted on behalf of the Father that his proposed orders promote [X]’s relationship with his Mother through spending substantial time with her.”
The mother’s submissions in relation to this factor were:
“Neither parent makes any assertion that [X] has not had a meaningful relation with each of his mother and father, nor that he has not benefited from such relationship.
None of the parties assert that the child would not benefit from an ongoing, significant relationship with each parent.”
The submissions of the Independent Children’s Lawyer on this factor were:
“The primary considerations are relevant only in relation to sub-section (a). There are no clear or detailed allegations of family violence, as currently defined, that could arise under sub‑section (b).”
In considering the first of the primary considerations in s.60CC it is necessary to consider the benefits to the child of having a meaningful relationship with both parents. In McCall & Clark [2009] FamCAFC 92 the Full Court said:
“[115]The phrase ‘meaningful relationship’ in the context of s 60CC(3)(a) has, not surprisingly, been considered in a number of decisions since the introduction of the amending Act. In Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J, after setting out the definition of ‘meaningful’ and ‘meaning’, said at paragraph 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.
[116]Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders [2007] FamCA 102 (an appeal involving an application by a mother to relocate) agreed with Dessau J’s exposition in M & S (formerly E) (2007) FLC 93-313 of the effect of the amending Act and said at paragraph 33:
The Act sets out in s 60CC several matters for the Court to consider in determining what is in the child’s best interests but does not seek to mandate that any one or other matter becomes determinative in any particular case. For the purposes of this case the legislation requires that there be a primary consideration given to the benefit of the child of having a meaningful relationship with both of the child’s parents but it does not purport to prescribe how that meaningful relationship is best promoted in the circumstances of any one case.
and later at paragraph 36 said:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[117]Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child.
[118]It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).
[119]We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is ‘the prospective approach’ although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
[120] We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
[121]In coming to our conclusions we accept as appropriate the interpretation of ‘meaningful relationship’ set out by Brown J in Mazsorski. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C.
[122]In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.”
In light of the discussion of the relevant s.60CC(3) factors in the long term, the child’s best interests require that the child needs a good modelling of behaviour consistency, predictability, routine and the opportunity for the parents to concentrate on his needs. I am persuaded that I can have confidence that it is more likely that such behaviour will be provided in the father’s household.
The expert evidence indicates that the child has progressed very well in the father’s care. By contrast, there are concerns about the mother’s capacity to provide for the child’s needs. The personality traits that family consultant observed in the mother seems (on the independent evidence before the Court) to make it difficult for the mother to draw boundaries in her relationship with the child. In the face of the mother’s evidence and that of the experts there are legitimate questions about the mother’s capacity to provide for the child’s emotional and other needs. In this regard I refer to and place particular weight on the family consultant’s evidence referred to earlier.
Given this the Independent Children’s Lawyer’s proposal, as limited as the mother might believe it is, is nonetheless necessary to try to protect the child from the limits of the mother’s parenting capacity whilst still providing him with the opportunity to have a meaningful relationship with both parents into the future.
At present the child has a meaningful relationship with the father, however it is less clear how the relationship with the mother will develop over time and what this will mean for the child’s relationship with the father. A primary caring parenting role for the mother, in light of her behaviour to date and even acknowledging all the steps she has taken to date still on the evidence before the Court leaves a risk in that she will not be able to meet all of the child’s ongoing needs.
It appears to me that if the child lives with the father this will ensure the meaningful relationship with the father is maintained, and is more likely to allow the child to develop and maintain a meaningful relationship with the mother and still promote his best interests and protect him from harm.
Protection from harm
The father’s submission on this factor were:
“The Father, agrees with the submissions of the Independent Children’s Lawyer and the Mother that matters of family violence, abuse or neglect (s.60CC(2)(b)) are not raised on the evidence.
The mother’s submissions in relation to this factor were:
“The evidence is that the parents’ relationship has been chaotic and abusive in the past.
The mother asserted in evidence she is afraid the child is at risk of physical and emotional harm in the father’s household. The DHS has not taken any action in response to notifications made arising from [X]’s reports.
The evidence is not sufficient to support a finding that the child is currently at risk of being subjected to abuse, neglect or family violence in either party’s care as defined by the Act.”
The submissions of the Independent Children’s Lawyer on this factor were:
“It is the submission of the Independent Children's Lawyer that the proposals for “live with” and “time with” by the parents and by Mr H at page 11 of the family report dated 20 June 2011 will provide [X] with a meaningful relationship with both parents, whichever is adopted.”
Neither party suggests on the evidence that there was a need to protect the child from harm by reason of being exposed to abuse, neglect or family violence. The Independent Children’s Lawyer did not suggest that this was a case where the harms identified in s.60CC(2)(b) were a matter for consideration in favour of either parties proposal.
Nonetheless given the evidence referred to above and the discussion of the additional considerations the orders that will be made will be designed to avoid, and minimise, the possibility for conflict on issues to become entrenched as it has in the past and afford the child the opportunity to further develop a relationship with both parents in a way that is sustainable and in his best interests.
Parental Responsibility
When considering the specific orders that should be made, it is appropriate to start with a consideration of parental responsibility. This is defined in s.61B:
“61B[Meaning of parental responsibility] In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Section 61C provides for each parent to have parental responsibility, subject to any parenting orders, even if the parents are separated. However, in considering the appropriate parenting orders a presumption that it is in the best interests of the child for the parents to have ‘equal shared parental responsibility’ may arise as a result of s.61DA which provides:
“61DA[Presumption of equal shared parental responsibility when making parenting orders] (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.”
The effect of an order for shared parental responsibility is set out in s.65DAC of the Act as follows:
“65DAC [Effect of parenting order that provides for shared parental responsibility] (1) This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(2)The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.”
In relation to the issue of parental responsibility I note the decision of Murphy J in Mallahan & Mallahan (2010) FamCA 631 where it was said:
“41.The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s.61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s.61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s.61C(2)).
42.Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order (s.61D(1) and (2)).
43.But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s.61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
44.The statutory presumption just referred to is inapplicable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s.61DA(2)), or is rebuttable where the court considers that it is in the bests interests of the children for the presumption to be rebutted (s.61DA(4)).
45.No statutory provision other than s.60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
46.The ambit of the legislative provisions referred to thus far is narrowed by reference to s.65DAE and the Note to s.65DAC. 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.
47.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 (s 65DAE(2)).
48.“Major long-term issues” is defined in s.4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
i) the child’s education (both current and future);
ii) the child’s religious and cultural upbringing; and
iii) the child’s health
iv) the child’s name;
v) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
49.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 s.65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
50.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” (s.65DAE(1) and (2)).
51.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.
52.A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
53.The definition of “parental responsibility” in s.61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the “duties, powers, responsibilities and authority over their child otherwise conferred by law”.
54.If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS[1999] HCA 26; (1999) 199 CLR 160; U v U[2002] HCA 36; (2002) 211 CLR 238).
55.The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
56.An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
57.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:
75.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. [emphasis in original]
76.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.”
The question of any order for equal shared parental responsibility does involve a balancing exercise and I do have some hesitation about making an order for equal shared parental responsibility, because both parties seem to acknowledge that there is difficulty in their communication.
Whilst there is superficial attraction to the father having sole parental responsibility if the child was to live with him as he would be on hand to make decisions, in my view it is quite unjustified and contrary to the child’s best interests to remove the mother from involvement in that role. The reverse is also true.
I am satisfied that it is in the best interests of the child for both parents to be consulted about the child’s education, religious and cultural upbringing and any changes to living arrangements which would make it more difficult for the child to have access to the other parent.
I have considered that the parents do not have a relationship in which they have and can talk freely about the child all the time. However the evidence is that they have been able to work together in the past even with the assistance at times of the maternal family and I am satisfied freed from the ever present prospect of ongoing litigation and with the supports and progress they have made they can do so again.
In my view the presumption set out in s.61DA of the Act applies in this case. There is no evidence of facts that engaged any statutory rebuttal of that presumption. Despite the difficulties that the parties demonstrate in their parenting relationship, I am not satisfied that the child’s best interests demand that I do not apply the presumption.
In light of the position of the parties on this issue, the evidence of the parties, the discussion of the relevant s.60CC considerations and the evidence of the family consultant that there have been significant periods of co-operation it is appropriate to apply the presumption where isn’t otherwise rebutted and for there to be an order for equal shared parental responsibility.
Parenting Time
When deciding upon orders for time between the child and each of the parents or parties, further specific requirements are set out in the Act, if orders are to be made providing for ‘equal shared parental responsibility’ for the children. Section 65DAA states:
“65DAA [Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances]
Equal time
(1)[Court must consider whether equal time is in the best interests of the child] If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)[Court must consider whether the child spending substantial and significant time with each parent is in the best interests of the child] If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)[Substantial and significant time] For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity–the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.”
In MRR v GR [2010] HCA 4 the High Court addressed the relationship between s.65DAA and s.61DA, saying:
“[15]Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1).”
Section 65DAA provides a set of criteria which must be fulfilled in cases where an order for equal shared parental responsibility has been made and consideration is being given to equal time or substantial or significant time. As the High Court said in MRR v GR [2010] HCA 4:
“[13]It is only where both questions [in s.65DAA(1)(a) and (b)] are answered in the affirmative that consideration may be given, under par (c), to the making of an order. … the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.”
The requirement of reasonable practicality ‘requires a practical assessment of whether equal time parenting is feasible’.
Conclusion on parenting orders
As the family consultant noted in the Report at the heart of this matter is the question of where the child can best achieve stability and continuity at this critical juncture of his life. The evidence before the Court is the child’s educational, emotional and physical needs have been and continue to be proactively managed and his special needs and any remedial or other treatment addressed best in the father’s household.
Given the conclusion reached in relation to parental responsibility.
I must consider whether or not it is in child’s best interest for there to be equal time. For the reasons set out above, I am not persuaded that it is in the child’s best interest that there be equal time in this case. Equal time is also not reasonably practicable.I accept the reasons expressed by the family consultant in evidence before the Court and I do not think that an equal time arrangement is suitable. Until such time as these parents improve their parenting relationship and the child is older, an equal time arrangements is more likely than not to deliver difficulties rather than benefits to the child.
Cognisant that none of the parties sought such an order nor was it thought by the family consultant to be in the child’s best interests I am not satisfied equal time for the child with both his parents is in his best interests. In any event I am not satisfied such an arrangement would be reasonably practical having regard to the reality of the situation of the parties, the distance they live apart and the need for the child to have the routine and stability offered by residing with one parent, attending one school (and in this case the School) without extensive daily travel and spending time with the other.
Turning to the question of substantial time ultimately I am persuaded that time involving both school days and non-school days is appropriate but not “the optimal” or what the mother referred to in submissions as the “preferred” arrangement referred to by the family consultant because of the difficulties referred to above.
Whilst the mother’s submissions were to the effect that she would be able to meet the practical requirements of such an arrangement such as ferrying the child to and from school her evidence was she “planned to get her licence” and had access to a car. There is however the evidence that since the interim orders in March 2011 the mother has been reliant on others to transport the child. The mother’s own evidence was whilst she is able to remain in her current housing she had plans to move but they were no more definitive than a number of possible suburbs. Notwithstanding her attempts to provide detail the mother’s position still raised questions as to whether it would work.
I am however satisfied the orders proposed by the Independent Children’s Lawyer more appropriately promote and better meet the child’s best interests. Those orders are capable of working irrespective of the general geographical location in which the parties live provided they are both still able to access transport. It is also a more settled routine for the child at his age and developmental stage. I note the family consultant’s evidence on the importance of this for the child.
Whilst the “optimal arrangement” referred to by the family consultant in his evidence could work were the parties independent, able to travel and have access to transport un-aided and possessed of the skills and ability to communicate even in challenging circumstances that is not the case here. I accept there were reservations by the family consultant about the arrangements (but only in the sense they weren’t the optimal arrangement) ultimately proposed by the Independent Children’s Lawyer but am satisfied in light of the discussion of s.60CC factors that it is both in the child’s best interests and reasonably practicable.
The substance of the orders proposed by the Independent Children’s Lawyer do involve a reduction from the interim arrangements back to time inter alia on each alternate weekend and time during the school week. However as the family consultant’s evidence made plain this was the more “do-able” arrangement. This will allow both parents to be involved with the School and other significant areas of the child’s life along with affording the child stability, certainty, routine, time with both parents during the week and on weekends and special occasions. In coming to that conclusion I have not ignored the family consultant’s reservations but have been persuaded the Independent Children’s Lawyer’s proposal is more likely to promote the child’s best interests because of the parties ability to work under the interim orders. On the evidence at the hearing I can’t be satisfied the block time or “preferred” arrangement is “do-able” or reasonably practicable.
In relation to the balance of the parenting orders, the alternative orders sought by the mother contained detailed arrangements for spend time on special and other occasions. Many of these were similar to the provisions in the interim orders in March 2011. The orders proposed by the Independent Children’s Lawyer made no specific provision for Christmas, birthdays, Mothers Day or Father’s Day, telephone time or changeover or though recommended that there was such time.
The father’s proposal at the end of the hearing was deficient in terms of lack of specificity on those issues.Given the absence of detail and evidence on these issues from the parties themselves on why a particular proposal should be adopted it is necessary to indicate why certain other orders have been made.
The consideration of these matters has been informed by the discussion of the s.60CC factors set out above. In terms of long summer holidays the family consultant’s evidence made clear that anything other than a week at a time was too long and shouldn’t be contemplated until the child is much older.Neither the father nor the Independent Children’s Lawyer made any provision for orders for telephone time in final submissions. There will be orders in relation to telephone time but not as much as sought by the mother. I can’t be satisfied mandating time by telephone twice a week in the absence of evidence on the issue is in the child’s best interests. Given the history of this matter and the issues referred to above once a week is less disruptive and sustainable at the child’s age. There will however be no restriction on the ability of the child to call the other parent. There will also be orders in relation to birthdays, mother’s and father’s day.
In relation to Christmas the Independent Children’s Lawyer’s position simply sought provision for same whilst the father sought from 10.00 pm to 6.30 pm on the day. The mother’s position saw that time over this day and the preceding and following days would be shared in alternative years. This is appropriate and in the child’s best interests.
For the same reasons there will be the arrangements sought by the mother for changeover which will see responsibility for effecting changeover when not occurring outside of the School setting occurring as it has been since early this year as this also is “do-able”. There is nothing to indicate the father can’t continue to drive and be involved in changeovers and the history is he has facilitated changeover and time with the maternal family in the past. This is better for the child than a public car park. The parties are of course able to make their own arrangements and have done so in the past.
There will otherwise be the other orders sought by the Independent Children’s Lawyer in relation to restraints, exchange of information, for counselling for the child and for provision of the orders to the School and the Department of Human Services.
Finally the mother sought a restraint on the child’s residence being changed outside of the Melbourne metropolitan area without prior consent. There was no evidence on why this was needed. Given such an eventuality would be something falling within the definition of a major long term issue and the parties are to exercise equal shared parental responsibility and so would be required inter alia to consult in the absence of evidence indicating the need for it I would decline to make such an order.
It is necessary to mention one further matter whilst the orders sought by the father at various times in the lead up to the hearing sought inter alia a passport and permission to travel the father’s evidence before the Court made plain this wasn’t being seriously pursued and hadn’t been thought through. Neither of the other parties responded to it in terms but in the ultimate and as it wasn’t the subject of submissions or adequate evidence I am not satisfied it is in the child’s best interests to make such an order.
Conclusion
Whilst the purpose of the hearing of this dispute was to determine what parenting orders should be made in the best interests of the child the evidence of the parties at least left the impression that it was from their perspective more about a battle for control over the child. There was a palpable undercurrent to the evidence of the parties. A lot of their evidence concerned issues going back many years and an unresolved intra and inter family dispute over wrongs each side believed the other had visited on them. The continued claims regarding the father’s dealings with money that was for the mother’s other children along with vague references to disputes on the mother’s side of the family are just two examples.
Whilst both parties appeared to accept by their respective positions the needs of the child would be enhanced and developed by being able to have the opportunity to develop a meaningful relationship with the other parent their respective positions, which at various times mirrored the other further reinforced the impression this was a battle for control between them.
In the end though whilst the parties evidence made plain they at least approached this matter through the prism of that history the task for the Court was to determine what orders should be made in the child’s best interests.
Historically mutual distrust has at various times perpetuated conflict between the parents. However on the evidence at the hearing it is the father in the last 2 or more years who has been able to elevate and prioritise the needs of the child. I accept the Independent Children’s Lawyer’s submission that the father is clearly focused on the child’s needs and has made and I am satisfied will continue to make the child’s needs a priority.
Whilst the outcome arrived at was not the “optimal” outcome in this case, it is the Independent Children’s Lawyers preferred outcome and more likely to promote the child’s best interests. It is also an outcome which for the reasons set out above is “more do-able” and both in the child’s best interests and reasonably practicable.
I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of O’Sullivan FM
Date: 19 December 2011
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