Lafayette and Fontaine

[2010] FamCA 1250

FAMILY COURT OF AUSTRALIA

LAFAYETTE & FONTAINE [2010] FamCA 1250

FAMILY LAW – CHILDREN – Best interests of the child – Whether the mother should be permitted to relocate interstate with the child – Consideration of meaningful relationship – Whether the parents should share parental responsibility equally 

Family Law Act 1975 (Cth) ss 60CA, s 60CC(2), s 60CC(3), s 60CC(4), s 61B, s 61DA(1), s 61DA(2), s 61DA(4), s 64B, s 65DAA, s 65DAC

Aldridge & Keaton (2009) FLC 93-421
Marvel & Marvel (No. 2) [2010] FamCAFC 101
McCall & Clark (2009) FLC 93-405

APPLICANT: Ms Lafayette

RESPONDENT: Mr Fontaine

FILE NUMBER: CAC 261 of 2009

DATE DELIVERED: 5 November 2010

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 5 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr K. Hubert

SOLICITOR FOR THE APPLICANT: Capon & Hubert Lawyers & Mediators

COUNSEL FOR THE RESPONDENT: Mr J. Millar

SOLICITOR FOR THE RESPONDENT: Watts McCray Family Lawyers

Orders

IT IS ORDERED THAT:

1. The orders of 27 May 2009 be discharged.

2. The father, Mr Fontaine, have sole parental responsibility for the child M born … December 2005.

3. Notwithstanding Order 2, the father will inform the mother, Ms Lafayette, about:

   (a)All serious medical issues relating to the child;

   (b)The names of the child’s medical practitioners and of any other practitioners of a similar sort, be they dental practitioners or psychologists upon whom the child may be attending;

   (c)Details about her schooling including any information about the child’s progress; and

   (d)Any major events in the child’s life including important visits either by her, or to her, and about her activities.

4. The father will authorise and direct the following to provide information, including school reports and photographs, to the mother upon her request:

   (a)The child’s school, her school teachers and any counsellor at the school (in the last case subject to normal professional confidentiality); and

   (b)The child’s doctors, dentists, therapists or other medical or allied professionals including information about her treatment, her diagnosis and her prognosis from time-to-time.

5. The father will consider consulting and discussing with the mother major decisions affecting the child’s wellbeing.

6. Notwithstanding the above orders, the father will have the right to make decisions about the child’s long-term care, welfare and development.

7. The child live with her father commencing Thursday, 25 November 2010 from the end of day care on that day.

8. The child spend time with her mother as follows:

   (a)From 8:00am 2 December 2010 to 19 December 2010 and from 7 January 2011 to 22 January 2011;

   (b)For one-half of all other ACT school holiday periods, commencing first term 2011, being the first-half in even numbered years, the second-half in odd numbered years and alternating thereafter; and

   (c)For two weekends during ACT school terms as agreed and to coincide with special days, if possible, and if there is no agreement the third and seventh weekend after the commencement of school, such time to commence as early as possible on Friday;

   (d)For time in Canberra at times agreed between the parents, with the mother to provide the father with four days notice of her intention to visit Canberra; and

   (e)Such further and other times as the parents agree.

9. The mother meet the costs of air travel for the child for six contact visits per year, and the father meet the costs of air travel for the child for six, and the parents will alternate such costs commencing with the mother for the period 2 to 19 December 2010.

10. Each parent may telephone or communicate by Skype or web cam with the child whilst the child is in the care of the other parent between 6:30pm and 7:30pm ACT time on each Monday, Wednesday and Sunday and on special days, and if the child expresses a wish to telephone the other parent, then the parent with whom the child is with will facilitate that telephone call.

11. On or before 25 November 2010 the mother will provide to the father the child’s Blue Book, birth certificate, the toy “Spunky” and a copy of all family photographs including the child which she holds on her computer.

IT IS NOTED THAT:

1. The parents agree that each will accompany the child for the first four contact visits with her mother in Queensland.

2. The father will endeavour to promote and continue the child’s relationship with her family in Canberra.

IT IS NOTED that publication of this judgment under the pseudonym Lafayette & Fontaine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 261 of 2009

MS LAFAYETTE

Applicant

And

MF FONTAINE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. In this matter, the proceedings before the Court relate to where M (“the child”) born in December 2005 is going to be living.  The child is nearly five years old. 

2. The situation that has existed for the child for almost all her life has been that she has spent significant time with each of her parents.  That situation is one which the Family Consultant suggests would be in fact preferable for the child to continue.  The possibility of that occurring has been removed by the decision made, and I think it is fair to say, unilaterally, by the applicant mother, that she would move to Queensland and that she would move irrespective of whether or not the child would go with her.  That is, I think, honestly and reasonably sustained by her and is really an unequivocal fact in these proceedings.

Parental Responsibility

1. What I am being asked to do in this matter is to make a parenting order as that term is defined under s 64B of the Family Law Act1975 (Cth) (“the Act”). In making such an order, I am obliged, as has been summarised in large measure by Mr Millar in his address, and by Mr Hubert implicitly in his address, to take account of a number of factors.

2. First and foremost, under s 60CA, the Act requires that I should regard the child’s best interests as my paramount consideration. That does not mean that I place it as the only consideration, but it does mean that, in the end, it is that which must prevail over others if there is to be a sense of conflict.

3. Under s 60B the Act provides some guidance as to the interpretation of the provisions of Part VII, which sets out the Objects and Principles upon which matters determined under the Act will be governed.

4. I should also indicate that, as Mr Millar pointed out, s 61DA(1) of the Act imports a presumption which means that I should presume generally that it will be in the best interests of the child for the parents to share equally parental responsibility. This presumption should be applied unless, inter alia, there are evidentiary matters, such as the existence of family violence or abuse or factors that establish that it is not in the child’s best interests, which negate the application of the presumption (s 61DA(2) and s 61DA(4) of the Act refers).

5. It is easy enough to see why the Legislature would have thought that it was imperative or important, or even desirable, that the primary position should be that the parents should have equal shared parental responsibility for a child.  That, of course, is different from saying the parents should have equal rights in respect of the child.

6. It is really undeniable that once parents have conceived and ultimately borne a child, they might say, “Well, I don’t have any responsibilities any more”.  The responsibilities incurred at the moment of conception, unfortunately, or fortunately, depending on which way you want to look at it, continue for the rest of the child’s life.  As a matter of legal right, it terminates when they are 18 years of age.  As those of us who are older realise, it goes on a lot longer than that.  In practical terms, a parent can never set aside the responsibility he or she has for a child.  Nevertheless, in practical terms, when one looks at what the definition of “parental responsibility” is, it is important to consider how this can be reasonably interpreted in the context of this matter.

7. “Parental responsibility” in relation to a child is defined under s 61B of the Act means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. In practical terms, this means that it is expected that the parents would in fact make decisions that relate to the long‑term factors influencing a child together (see s 65DAC of the Act). That assumes, of course, that they have the ability to share all the matters that encompass parental responsibility. In this case, I say that it is not because of violence, it is not because of other factors, it is because of the nature of the relationship between the parents themselves that, in my opinion, this is no basis upon which the parents in this case can properly share that responsibility.

8. I note that in Marvel & Marvel (No. 2)[1] the Full Court of the Family Court (Faulks DCJ, Boland & Stevenson JJ) acknowledged the circumstances in which it might be inappropriate to make an order for equal shared parental responsibility.  The Full Court stated (at [103]):

   It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.

   [1] Marvel & Marvel (No. 2) [2010] FamCAFC 101.

9. It may or may not have been possible in circumstances where the parents were living in the same town and sharing care on a regular basis.  It may have been that when things have calmed down a bit and each of them had settled into their new relationships, which I hope suit them better than their last one, they might come to some ability to share those responsibilities.  However, given their distance geographically in the future and given that they have been unable even to communicate orally for some months now, it seems to me that there is very little hope that for the foreseeable future there will be any significant sharing of parental responsibility. 

10. Accordingly, it seems to me that the best that could happen so far as the child is concerned is that the person with whom she is primarily living, and there has to be someone with whom she is in future going to be primarily living, will have that responsibility.   I would hope, by means of the orders that I make, to emphasise that that does not absolve that parent from an obligation to seek to share that responsibility so far as he or she is able to do so with the other parent.  To that end, I have circulated to the lawyers for the parties, and I believe they have discussed them with their clients, formal orders which I have made in a number of other matters, which require the parent with whom the child is living to give notice to the other parent about a whole range of things and to provide authorisation and direction to those who are in some way associated with the child to provide information to the other parent without having to drag it out through the parent with whom the child is primarily living.

11. In addition, it will require and authorise the parent with whom the child is principally living to make sure that all relevant information about her medical treatment and any consultations or diagnoses she may receive are communicated to the other parent. 

Where the child will reside

1. Accordingly, in my opinion, in this matter it is clear that the presumption must be rebutted because of the nature of the relationship between the parents, and it seems to me that while in some cases it may have some sort of therapeutic effect to make parents share that responsibility, in this case that does not exist for the reasons that I have given.  I am left with having to make a decision between two competing proposals for where the child will live and the sort of relationship she will have with both of her parents.  In this context, unlike some cases, the form of what is to happen is agreed with the exception of where the child is primarily to live.

2. There are on the evidence before me no doubts that the applicant mother will live in Queensland for at least six years.  That is her commitment, subject always of course to the overriding consideration of what her employer requires of her.  But that is her clear and unequivocal desire, as stipulated in the documents she has put to her employer and also the likely result when I look at the information supplied.  It is probable that she will stay even longer there, and she indicated that, as I understood it in her evidence, and she and her partner, Mr F, have made a commitment to each other and have cemented this (no pun intended) with a house in a place relatively near to the mother’s employer. 

3. Therefore, for the foreseeable future at least the mother and Mr F will be living in Queensland, they will be working in Queensland, and on her declared intention, and I accept that there is nothing inappropriate about it, the mother wishes to pursue to the best of her ability and to the limit of her capacity, her career with her employer.

4. On the other hand, the respondent father is likely to remain living permanently in Canberra.  Although he moved with the mother earlier in her career, he has determined that his career lies in Canberra.  While I accept a proper concession made by his counsel that his skills are largely portable, in practical terms, he sought to remain where the child had spent the first, essentially, five years of her life, and where she had been settled.  He has a new relationship with Ms K.  They are also committed to a longer term relationship and there are practical obstacles to her leaving Canberra, just as there are practical factors preventing Mr F from leaving Queensland, as again, it was pointed out by Mr Millar in his address.

5. Whatever happens, the child is not going to be able to spend five days a fortnight with her father and nine with her mother as she has done in the past, and the arrangements for her care are that she will have to live principally with one parent and spend some more limited time with the other parent.  What that time is has become, perhaps, closer to being agreed during the course of proceedings.  It involves, necessarily, that she will spend school holiday time with the parent with whom she is not primarily living.  It involves, there seems to be agreement, that so far as the finances of the parties will allow and other exigencies such as postings, coursework, requirements of work and other things are concerned, her spending some additional time during the term with the other parent.

6. This is consistent with what the Family Consultant has suggested. It is consistent with the need of a five‑year old, according to the Family Consultant and acknowledged by the parents, to have limited absences from a person with whom she has been very closely associated in the past. It is really a question of determining where, in the child’s best interests and in accordance with the other matters that I am to take into account under the Act, she might best primarily live.

The best interests of the child: primary and additional considerations

1. In coming to that conclusion, (again as Mr Millar has pointed out,) the Act prescribes that I have to take into account certain matters, and they are set out in s 60CC of the Act.

2. The Act prescribes that these considerations should be broken up into two categories: primary and additional considerations.  In Aldridge & Keaton,[2] the Full Court of the Family Court (Bryant CJ, Boland & Crisford JJ) held that the Act does not (at 83,825):

   …direct any particular weighting or priority to any provision in [Part VII] (although we note the division of the s 60CC factors into primary considerations and additional considerations. It is clear however from the [Explanatory Memorandum] that while the use of the word “primary” is intended to stress the importance of the consideration in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary considerations.

   [2] Aldridge & Keaton (2009) FLC 93-421.

3. It is a proper consideration of all of the matters set out in s 60CC that is to be taken into account, not simply those that are afforded nominal primacy by s 60CC(2). However, for convenience, I should probably start at the primary considerations which are, and which, sensibly, in this case, focus the attention of the parties and the Court on what should be the major decision.

4. The first of the primary considerations in s 60CC(2)(a) of the Act is “benefit to the child of having a meaningful relationship with both of the child’s parents”.

5. The concept of a meaningful relationship is obviously not one which is totally static.  It received substantial consideration in the decision of McCall & Clark (2009) FLC 93-405. In the cases reviewed therein, it becomes clear that a meaningful relationship will, in fact, have a different meaning depending upon the circumstances of the parties, the age of the child, and the nature of that relationship in the past, and the possible relationship in the future. It is, perhaps, although it is not relevant in these proceedings, brought into relief by the provisions of s 65DAA of the Act, which, if I had made an order for equal, shared parental responsibility, would require that I consider a number of matters, including whether or not it would be in the child’s best interests that she should spend equal time with each of her parents, or substantial and significant time.

6. Relevantly, in that context, the Court is directed that it must determine whether it is reasonably practicable for the arrangements that are suggested to be brought into account.  That concept of reasonable practicability, to some extent, governs the interpretation of what is meaningful.  It is not meaningful for the child to have every second weekend with her father or mother in this situation.  It is not meaningful for her to spend five days a fortnight; it is not practicable for those things to occur.  When she has what each of the parties is committed to, that is a relationship with the other parent, it must be in the context of what is possible, given the determinations that have been made which ensure that she is now living significant distances apart from each of them.

7. Accordingly, the orders that I need to make must ensure she has that meaningful relationship, which includes taking account of the qualifications that I have mentioned in summary in my introduction to this judgment as matters which were regarded as important by the Family Consultant and accepted by the parties.  That is, a person of her age must have an opportunity to spend time with the other parent;  must not feel under any pressure to either have that time or not to have that time because of whatever the attitude of one parent may be to the other; and that there must be, so far as possible, a chance for her to feel comfortable in either her mother’s home or her father’s home  and for her to have the support, love, care and encouragement from each of her parents which she needs at her young age.

1. I comment also, and it is a matter of agreement by counsel for both the father and the mother, that this is not a matter in which the second of the primary consideration in s 60CC(2)(b) of the Act has any bearing upon the decision. It is not suggested by either parent that for the child to live primarily with the other, or to have the sort of time with the other parent, as is suggested by both, in effect, now, would in any way require a calculation of a “need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

2. That is not to say that some of those factors have not been the subject of affidavit material before me, but I think quite properly, in the course of the finalisation of these proceedings, no claim is made, particularly by the mother in relation to the father, that those are factors which would bear upon my decision.  Such is the concession of her counsel, and such is the proper concession of her counsel in the light of the evidence that I have before me. 

3. The additional considerations have substantially been covered by Mr Millar in his address and I do not propose to go through them one at a time because to do so would be not only tedious, but unreasonable.  I make the following specific findings apropos the additional considerations. 

4. I accept that at her age, the child is not of a maturity that she could properly be said to have expressed views which would assist in my determining where she might live (s 60CC(3)(a) of the Act refers). I indicated to counsel that I felt that part of the Family Consultant’s report was particularly poignant, in that the child was obviously avoiding making any decision which she felt would cause either of her parents any sadness. To some extent, both parents can take a measure of pride in the fact that they have a daughter who, at five, is so mature in her ability to care for both of her parents.

5. On the other hand, it is a sad thing that in this equation, we have a situation where the child is effectively being asked, and her views are being asked to be considered, because her parents are unable to make that decision for her.  It seems to me that it is really important for her parents to set today behind them when they move on, and to take the view that she should be able to enjoy being a five‑year old, and not have to try to be a 25 year old and to accept the responsibilities of the adults that should be taking those responsibilities from their young child who has been unable to do. 

6. It is not in contest before me that each of the parents has a good relationship with the child (s 60CC(3)(b) of the Act refers). Naturally enough, when one read the affidavits of the parties, there are incidents in the break‑up of their relationship which have caused each of them to say and do things which I would hope they might, upon mature reflection, feel that they would not do again. Each of them has called the other names; called the other by terms which are inappropriate; have behaved himself or herself in ways which I think are far from representing what would be appropriate for someone they would hope would have a good relationship with their daughter. However, there is no doubt in my mind in the evidence before me, (and I can only operate on that evidence,) that the child is very close to both of her parents.

7. To say that her mother has been the primary carer is probably accurate.  To say that her father had not had a substantial part in her early life is inaccurate.  It is the case that she has had the advantage of having both parents fulfilling a significant role in her life through almost all of her young years.  This has reflected in the fact that she is described by the Family Consultant as “a bright, happy little kid” who has got an articulate nature and who is capable of talking about both her parents in an appropriate way.  That means that there is nothing in that equation which would cause me to take the view that I should prefer one arrangement over the other based purely upon the nature of the relationship between each of the parents.

8. Obviously, as the Family Consultant has indicated, there would be advantages for the child in having both of her parents available to her more regularly. But that is not a choice that is available. The second factor that probably bears upon this is really a different reflection of that and is the “willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent” (s 60CC(3)(c) of the Act refers). This, Mr Hubert, on behalf of the mother, suggested has been referred to as the “friendly parent provision”. I think that somewhat both understates it and overstates it. It is not reasonable to expect people who really cordially detest each other to sit around saying, “I really like your father” or “mother,” as the case may be and that therefore, “You should spend time with them and have a good time”.

9. I suggested during submissions by the Family Consultant that irrespective of the relationship each of the parents may have with the other, it is a matter that they must learn to own (in what, I presume, are psychological terms).  But that that should not prevent the development of a proper and easy relationship of the child with the other parent.  I do not accept that either parent has, to a substantial degree, yet come to a proper understanding of what that means.  In particular, I do not accept that has been shown by the conduct of the mother.  I know that she repeated and repeated, on at least four occasions that I can remember, that she made that distinction and that she was committed to a continuing relationship between the child and her father.  I do not believe her actions have demonstrated that so far.  I hope that they might do so in the future.  To the extent that there is to be a contrast between the parents in relation to this matter, I believe that the father has shown a greater willingness to encourage the child in her relationship with her mother than the mother has with the father. 

10. The change in circumstances in living so far away from the other parent is likely to be, as the Family Consultant set out, a very distressing one (s 60CC(3)(d) of the Act refers). The words that she used – and I do not quote verbatim – go something like this:  The child may feel guilty.  She may feel that she has not been good enough.  She may feel that it was her fault that the parents have separated.  She may feel that if her mother goes to Queensland and if she does not go that her mother had rejected her.

11. The question of how you maintain the connexion by, for example, telephone would not be sufficient to overcome that need on her part.  She might internalise the feelings that she has and she may not express them to either of her parents but that would not mean that she would not be feeling those things and she may manifest her distress by acting out or regressing.  She may have toileting problems and she may not be capable of organising her day in an appropriate way.  She may start asking for assistance in things when it’s not necessary for someone of her age to do that.  Whatever happens, it is going to have a major effect on the child.  There is no doubt that she is the one who, in all of this, is going to suffer.

12. When you look at it, what happens is this.  Each of her parents has apparently happily re-partnered.  Each of them has accommodation.  Each of them is pursuing his or her career.  The only person in the middle of all of this is the child who does not get to have the two parents she started off with.  That is an unfortunate thing.  It is she who is going to be the one affected. 

13. There are practical difficulties associated with whatever is going to happen about the time that she spends with either parent because to preserve any form of meaningful relationship is going to be both expensive, difficult and time-consuming (s 60CC(3)(e) of the Act refers). That is the inevitable consequence of these proceedings.

14. I am satisfied that each of the parents has (relevantly) the capacity to look after the child and to provide for her needs (s 60CC(3)(f) of the Act refers). I do not necessarily accept the dichotomy that has been put forward by Mr Hubert about the fact that the father provides some form of fun times and perhaps emotional intelligence support. I am not quite sure where he got the emotional intelligence from on the evidence, but it is probably something the father would happily accept.

15. I do not also accept that all of the intellectual development of the child has been a matter for the mother.  I think both of the parents, quite clearly, have the capacity to provide what is necessary for the child provided they can put aside their own animosity towards each other and put her interests ahead of their own.

16. So far as each of the parents and their responsibilities are concerned and how they have demonstrated that I have indicated during the course of addresses that I am not satisfied either parent has entirely put the responsibilities of parenthood on top of other matters (s 60CC(3)(i) of the Act refers). The obvious example of this is the fact that neither is prepared to accept that the child might actually derive benefit from seeing the other parent while she is at day care – rather than sticking rigidly to the terms of a court order.

17. I am not satisfied in this matter that there is any family violence which would affect the decision that I have taken (s 60CC(3)(j) and s 60CC(3)(k) of the Act refers). I am aware that there is a domestic violence order that has been in place. I am aware of the allegations that are made about a number of factors none of which, in my opinion, bear upon, in any substantive way, what my decision should be.

18. I note in relation to the domestic violence order that there was never a determination on the merits.  In those circumstances, there is no issue estoppel about the conduct that may have been asserted to form the basis for the application for the order. 

19. Finally, I agree with Mr Millar that in the factors I am to take into account in the ordinary course of events and there is still one other matter that I need to come to (s 60CC(3)(l) of the Act refers). While it is necessary that there should be a decision so that the parties can get on with their lives, it may not constitute the end of proceedings between the parties because a lot of things will change over the course of the next 13 years until the child becomes an adult in her own right.

20. Finally, it does seem to me, however, that this is a matter where some factors are clear and there is no argument. One is the mother’s decision to remove the possibility of the child having a significant and substantial time with each of the parents. I do not believe that that is a factor that I can totally disregard in these proceedings (s 60CC(4) and s 60CC(3)(m) of the Act refers).

Conclusion

1. For the reasons that I have stated above, this is a very finely balanced decision.  The child is fortunate in that she has two parents who are both capable and willing to provide her with care and love her.  But in the end, in the exercise of my discretion, that the balance must be decided in her remaining in Canberra with her father and that she should, therefore, live primarily with him.

2. The father should have sole parental responsibility for her subject to the qualifications I have identified.  The child should spend time with her mother in substantially the ways that have been discussed between the parties. 

3. It seems to me that I should provide an opportunity for the lawyers for the parties to work with their clients to provide some substance to the form of the orders that we have already agreed.  In that context, I will not make any final orders today although I indicate that if the parties are unable to reach agreement by, I would suggest, noon on Tuesday of next week that I will make the orders in any event.  

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 5 November 2010. 

Senior Legal Associate:

Date: 4 February 2011