Lamont and Lamont
[2017] FCCA 389
•15 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAMONT & LAMONT | [2017] FCCA 389 |
| Catchwords: FAMILY LAW – Parenting – considerations of equal time or substantial and significant time – parents untrusting and non-communicative. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC (2), (3), 61DA, 65DAA, (3) |
| Cases cited: McCall v Clark [2009] FLC 93-405 |
| Applicant: | MR LAMONT |
| Respondent: | MS LAMONT |
| File Number: | LNC 373 of 2016 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 6 & 7 February 2017 |
| Date of Last Submission: | 7 February 2017 |
| Delivered at: | Launceston |
| Delivered on: | 15 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gardiner |
| Solicitors for the Applicant: | Slater & Gordon |
| Counsel for the Respondent: | Mr R Murray |
| Solicitors for the Respondent: | Bishops |
ORDERS
That the parents have equal shared parental responsibility for the child X born (omitted) 2014 (“X”).
That X live with the mother.
That X spend time and communicate with the father as follows:
(a)As from the father relocating to live in Tasmania then until (omitted) 2017 as follows:
(i)Each Tuesday between 11.00 a.m. and 3.00 p.m.;
(ii)Each Thursday between 11.00 a.m. and 3.00 p.m.;
(iii)Each Saturday between 11.00 a.m. and 3.00 p.m.;
(iv)Such other times and variations of the above as agreed between the parties in writing.
(b)As from (omitted) 2017 until (omitted) 2018 as follows:
(i)Each Tuesday between 9.00 a.m. and 3.00 p.m.
(ii)From 5.00 p.m. Saturday until 5.00 p.m. Sunday in the first week of each fortnightly cycle and from 5.00 p.m. Friday until 5.00 p.m. Saturday in the second week of the fortnightly cycle;
(iii)Such other times and variations of the above as agreed between the parties in writing.
(c)As from (omitted) 2018 until (omitted) 2019 as follows:
(i)Each Tuesday between 9.00 a.m. and 3.00 p.m. (or such other day as agreed between the parties if X is at school, pre-school or kindergarten on that day);
(ii)Each second weekend from Friday at 3.00 p.m. until Sunday at 5.00 p.m.; and
(iii)Such other times and variations of the above as agreed between the parties in writing.
(d)As from (omitted) 2019 as follows:
(i)Each alternate Thursday from 3.00 p.m. (or the conclusion of school) until 7.00 p.m.
(ii)Each second weekend from Thursday at the conclusion of school until Monday at the start of school (or 5.00 p.m. if a student free day or public holiday).
(e)On a week about arrangement during the Tasmanian gazetted summer school holidays (as from the 2019/20 holidays) with changeovers to occur on a day, time and venue as agreed between the parties or if not agreed then changeovers to occur on Fridays at 5.00 p.m.;
(f)For one half of each Tasmanian gazetted term school holidays (as from 2020) as agreed between the parties but failing agreement then from the first Friday of the holidays until the second Saturday at 12.00 noon and for these purposes time for X with the father on weekends and Thursdays is suspended during any school holiday time-with;
(g)At such other times and variations of the above as agreed between the parties from time to time.
That provided X’s time with the father should fall on the Mother’s Day weekend in each year then such time will cease at 5.00 p.m. on the Saturday prior to Mother’s Day but should X not be otherwise with the father on the Father’s Day weekend in each year then X will spend time with the father from 5.00 p.m. on the Saturday until 5.00 p.m. on the Sunday of Father’s Day (commencing as from Father’s Day 2018 and for Father’s Day 2017 X will spend time with the father in any event, on Father’s Day from 9.00 a.m. until 5.00 p.m.).
That in any event X will spend time with the father in 2017 from 3.00 p.m. Christmas Day until 5.00 p.m. Boxing Day and each alternate year thereafter and at Christmas 2018 from 5.00 p.m. Christmas Eve until 3.00 p.m. Christmas Day and each alternate year thereafter (and for these purposes time during school holidays set out above be suspended).
That X spend time on his birthday with each of the parents as agreed between the parents.
That changeovers for the purposes of these Orders occur with the father collecting X from the mother’s residence at the commencement of each such time or from school if a school day, and the mother collecting X from the father’s residence at the conclusion of such time or otherwise as agreed between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Lamont & Lamont is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 373 of 2016
| MR LAMONT |
Applicant
And
| MS LAMONT |
Respondent
REASONS FOR JUDGMENT
Applications
These applications are in respect of the parties’ only child X born (omitted) 2014 (aged two years).
The father proposes a final order whereby X spend equal time between the father and the mother on a week about basis. He proposes such an order as from X's fifth birthday in (omitted) 2019. In the meantime, he argues a graduated regime commencing with overnight time as from three months from his pending relocation from New South Wales to Launceston.
The father seeks for an order for equal shared parental responsibility.
The mother’s position is that as from 1st February 2021 X spend time with the father as follows:
a)Each second weekend from the conclusion of school on Friday to the commencement of school on Monday;
b)Each Wednesday from the conclusion of school until 6.00 p.m.;
c)During the summer holidays from 2020/21 on each second week from 9.00 a.m. Thursday until 4.00 p.m. Monday; and
d)During term school holidays from 2021 on each Thursday from 9.00 a.m. until 4.00 p.m. and from 9.00 a.m. on the first Saturday of holidays until the following Tuesday at 4.00 p.m.
She seeks a far more graduated regime towards final orders than does the father.
The mother also proposes an order for equal shared parental responsibility.
Both parties seek orders for special days.
The Issues
The issues between these parents can therefore be isolated as: -
a)Should there eventually be an order for equal shared equal shared time between X and each of his parents or, on the mother's proposal, an order whereby X lives primarily with her and spends substantial and significant time with the father; and
b)Whether X's time with the father increases according to the mother’s more conservative proposal or the father’s more adventurous one?
Both parties are represented by counsel. Both provided trial affidavits and were cross-examined. Neither parent adduced evidence from any other witnesses.
Background
The father is 46 years old. The mother is 33 years of age.
X is the only child of either of the parties.
The parents had been friends by telephone communication for some six years prior to commencing their relationship in 2012. They initially cohabited New South Wales with the mother moving from Tasmania.
The parents married on (omitted) 2013.
X was born on (omitted) 2014.
In May 2015 the father was convicted in New South Wales of a criminal charge involving sexual assault. I understand the particulars relate to sexual misconduct with a woman in her home during his employment with (employer omitted).
On 5 June 2015 the mother and X travelled to her home State of Tasmania and effectively separated from the father. In November 2015 the father travelled to Launceston to attempt a reconciliation but with the final separation occurring in February 2016.
Since the parents’ separation, X has lived with the mother in northern Tasmania. The father has lived in New South Wales. X has since spent sporadic time with the father in Tasmania not including overnight time but involving consecutive days of contact.
Interim orders were made in this Court on 24 October 2016 by consent providing:
a)That the parents have equal shared parental responsibility for X;
b)That X live with the mother;
c)That X spend time with the father as follows:-
i)from 2.00 p.m. – 6:30 p.m. on three consecutive days in the month of (omitted) 2016 with the mother to be present during such time on days one and two;
ii)from 1.00 p.m. to 7:30 p.m. on three consecutive days in the month of December 2016, with the mother to be present for the first hour during the visit on day one;
iii)for four consecutive days in January 2017 and continuing each month thereafter pending trial; and
iv)for such other times as agreed between the parties from time to time.
The Father’s Case
Mr Lamont argues that he has the capacity to provide for X's needs but says that he is willing to graduate his time with X leading to equal time in (omitted) 2019 when X turns five years of age.
The father says that he has committed to relocating to Tasmania. He is in the process of obtaining rental accommodation suitable for himself and X. He hopes to obtain the employment or self-employment in (employment omitted).
The father’s extended family live in New South Wales although he says that he has made friendships during his limited time in Tasmania.
The father argues that the mother is negatively inclined towards him personally by reason of her own and her family's strict and conservative religious beliefs.
Mr Lamont says that he is continuing his personal counselling in New South Wales with visits to the counsellor each 4 to 6 weeks and that he has obtained a referral for continuing counselling in Tasmania. That counselling seems to have resulted from his criminal charges and involve general cognitive therapy.
The father acknowledges that there is not currently a communicative, trusting or co-operative parenting relationship between he and the mother. He expresses a willingness, however, to improve this relationship. He does, nevertheless, acknowledge inherent differences between he and the mother and in particular in respect of religious and social beliefs.
The Mother’s Case
The mother says that she is in the process of obtaining accommodation independent from her family. She has suffered a degenerative back condition requiring surgery in 2015 and continues to benefit from the physical and emotional support of her extended family in caring for X. She also has ambitions of furthering her education so as to obtain employment to better financially support herself and X. She says that she currently receives only statutory minimum child support for X from the father.
The mother too has enlisted mental health counselling and apparently to deal with the stresses of the marriage breakdown and her back surgery.
The mother says that she is generally supportive of X having a meaningful relationship with the father. She questions, however, the father’s experience, skills and insight as to his independent parenting of a young child and therefore seeks the more graduated and slower approach towards overnight time and final orders as opposed to Mr Lamont’s quicker regime.
The mother acknowledges that there is not good communication and trust between she and the father and that their co-parenting relationship is poor. She says that overnight time should not commence for at least a further 16 months during which time there would be gradual increases in X’s day time with the father.
Credit
I have had the advantage of seeing and hearing both parties give evidence in Court and be cross-examined. I found them each to be generally witnesses of the truth giving responses in line with each of their arguments being the mothers more conservative and the fathers more adventurous approaches.
The father in his evidence conceded that as recently as March 2016 he was proposing an order for the infant X to live alternating months in Tasmania with the mother and in New South Wales with him. The father properly admits that he was naive in seeking such are orders. As recently as his amended application filed 25 January 2017 he was asking for an order for immediate overnight time for X with him before retreating at the commencement of the evidence to the regime set out above. My observations of the father were of legitimate eagerness to participate in his son’s parenting and upbringing. Nevertheless, such enthusiasm discloses a continuing naiveté consistent with his understandable lack of experience in caring for young children.
The father remained critical of the mother and blaming of her family in respect of their religious beliefs and what he perceives as their interferences in his relationships with the mother and with X.
The mother gave evidence consistent with her conservative religious upbringing. She is clearly a cautious and anxious parent for X. She was, however, able to be objective and understanding of X's need to have a relationship with the father. She impressed me as a young mother dependent to a large degree on both actual and emotional support. Her evidence was honest but guarded.
The Family Report
I have had the benefit of an insightful and detailed Family Report dated 23 January 2017 authored by Family Consultant, Ms S. The interviews and observations for that report took place on 12 January 2017. Both parties were interviewed. X was observed with both of his parents.
In the Family Report the mother confirmed that she would like a graduated increase of time between X and his father so as to allow a bond and attachment to mature. At [14] of the report Ms Lamont says that she would prefer overnight time not commence until X is three years of age being (omitted) 2017 and then only one night per fortnight. She expressed concerns as to Mr Lamont’s skills, experience and facilities for X. At [41] she is reported as having residual concerns as to the father’s 'sexually inappropriate conduct'.
Mr Lamont reports that he is willing to move to Tasmania in order to establish and maximise his relationship with X. At [29] of her report Ms S opines:
Mr Lamont did not express a high level of insight into parenting expectations and children's behavioural needs. He stated desire to have X live primarily with him and for overnight time to commence immediately is seen as an example of that, as is Mr Lamont's original plan to live with X in a backpackers hostel.
Ms S observed X to be familiar with and comfortable with both his parents. X was observed to respond positively to his father’s presence and play. At [51] Ms S says:
Mr Lamont demonstrated sound parenting skills and a loving somewhat doting parenting style. He was affirming and positive in his manners towards X, was child focused in his receptivity to X's needs and attempting to incidentally teach him about his environment. He appeared at times to expect more of X than X developmentally is capable of and showed at times his lack of parenting experience.
At [53] and in respect of the mother, Ms S says:
Ms Lamont was observed to relate appropriately and responsively to X. She responded to Mr Lamont’s suggestion that X may have soiled himself. She allowed X to choose activities to play. X was observed to be more verbally responsive to his mother than to his father and appeared more familiar and relaxed when observed with her. This was seen by X chatting more freely with his mother, smiling more frequently and laughing out loud, which is not observed when he was with his father.
Ms Lamont was observed to be warm and interactive with X and X appeared attached and emotionally connected to her. She demonstrated a confident, relaxed parenting style that X responded well too (sic).
And at [55] Ms S observes:
X's ability to apply for some time away from his mother and to not fret for her even when expecting her indicates that X most likely has a secure attachment with his mother. It may also indicated that X and his father have established a stable connection as it is unlikely X would have been so content with someone he was not familiar and secure with.
Ms S concludes [56] as follows:
The parenting history indicates that his mother is his primary carer. At this stage of his development the more confident and secure X is the more independent and well-adjusted he is likely to be. He needs to have certainty in his environment so that he can grow by testing his limits in a secure and safe place. It is therefore important that parenting orders continue to provide certainty and predictability for X.
Ms S opines that X will benefit from maintaining what is an established and secure relationship with his mother but also from building on and developing an equally strong and safe relationship with his father.
Ms S notes the “poor and distrustful co-parenting relationship”.
At [61] Ms S shares some of the mother's concerns as to the father’s yet to be developed skills and insight. She says:
Ms Lamont's concerns regarding Mr Lamont’s limited knowledge of X's physical and emotional needs is considered valid. Mr Lamont whilst zealous regarding his connection with X espoused a somewhat limited understanding around X's developmental needs and was observed at times to parent X as one would a more mature child.
And at [64] Ms S gives her opinion in respect of the major issue between these parties as follows:
It is difficult to see how X would not be confused and conflicted if he were to live in a week about parenting arrangement with two parents with such opposing value systems. Whilst X will eventually come to understand that his mother and father do not agree on some fundamental life choices, the continuous exposure to the opposing views, would possibly place X in constant turmoil and uncertainty, if he were not to live primarily under one value system. Further, Mr Lamont's position of strong opposition and disapproval of the mother’s chosen life views will need to be modified if he is to place X’s interests above his own and if a respectful co-parenting relationship is to be developed. It is considered X's well-being and healthy development is best met if he is offered the opportunity to understand and respect both his parent’s belief systems and given an opportunity to eventually decide what he accepts or rejects. Presently it is considered that this is more likely to occur.
Ms S makes recommendations at [69] and following thus:
i)That X live with the mother;
ii)That X spend time with the father on a weekly basis for day time only initially and perhaps twice a week and for longer periods on one of those days;
iii)That overnight time for X with the father not commence until X has had a substantial period of time (one year or more) of regular daytime routine and no problems have emerged and then there be a combination of weekly daytime and fortnightly overnight weekend time;
iv)That overnight time between X and his father increase by one night per fortnight each year until X is spending no more than five nights per fortnight with his father;
v)That X not spend extended school holiday time with his father until overnight time is commenced for more than two nights per fortnight and that initially time each school holiday period be no more than two consecutive days and nights per fortnight and that this increase gradually each calendar year.
Ms S recommends that both Mr and Ms Lamont individually undertake a counselling or a post-orders parenting course with Relationships Australia.
Ms S was cross-examined by counsel for each of the parties. She generally emphasised, explained and adhered to her observations and recommendations.
Ms S did, however, confirm that she was taking a 'cautious' approach to her recommendations and that her view that overnight time for X with the father not commence until X is three years of age is based, at least to some extent, on particular 'research’.
When challenged as to her recommendations by counsel for the mother, Ms S confirmed that her recommendation at [72] 'that overnight time between X and his father increase by one night per fortnight each year until X is spending no more than five nights per fortnight with his father.' represented five nights as a maximum on her range of recommendations rather than a specific recommendation of five nights each fortnight.
Relevant Law
The fundamental guiding principle is set out at section 60CA of the Family Law Act 1975 ('the Act') which states that the paramount consideration for the Court in making parenting orders is the best interests of the child.
The child's best interests are determined by firstly having regard to the objects and principles of the Act set out in s60B as follows:
s60B(1) - the objects of this part are to ensure that the best interests of children are met by:
(a)ensuring the children have the benefit of both their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(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.
s60B(2) - the principles underlying these objects are that (except when it is or would be contrary to a child's best interest):
(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 been married or have never lived together;
(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);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including a right to enjoy that culture with other people who share that culture).
A particular child's best interests are determined by the Court referencing the probative evidence and the parties’ proposals to the many mandatory considerations set out in s60CC(2) and (3) of the Act.
A long line of authority now confirms that the Court determines the child's best interests on a qualitative rather than quantitative basis. That is the quality of a child’s relationship with a parent is the focus of consideration rather than simply allocating time on the basis of what many parents understand as being 'fair’. Secondly, the task for the Court is a prospective one where orders are made with regard to child's best interests into the future although, of course, past behaviour is often the best indicator of future behaviour and the Court must examine the current circumstances of the parents and children when making such orders[1].
[1] McCall v Clark [2009] FLC 93-405
S61DA of the Act provides a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for that child. Parental responsibility is usually seen as the obligation of parents in making long-term, important decisions for children in matters such as religion, education, medical procedure and the like and distinct from the more mundane day-to-day decisions which parents normally make in respect of their children.
Nevertheless, that presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that the parent of a child (or a person who lives with the parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family or in family violence. Alternatively, the presumption may be rebutted by evidence satisfying the Court that it would not be in the child's best interests for the parents to exercise equal shared parental responsibility.
Significantly, in the matter before me the parents each seek an order for equal shared parental responsibility. This is despite both filing affidavits critical of the other and each conceding in Court that their communication is virtually non-existent save and except by a communication book with the inference that they are not at a level where they might easily cooperatively parent X.
Should the presumption of equal shared parental responsibility apply and not be rebutted or should the Court, in any event, make an order in such terms then the Court is mandated to enter upon a statutory and intellectual course of consideration pursuant to s65DAA of the Act. Firstly, the Court must consider whether X spending equal time between his parents is both in his best interests and reasonably practicable. If the answer to either of those questions is in the negative, then the Court turns to consider whether X spending 'substantial and significant time' between his parents is both in his best interests and reasonably practicable. 'Substantial and significant time’ is defined at s65DAA(3) of the Act as follows:
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.
b)the time the child spends with the parent allows the parent to be involved in:
i)the child's daily routine;
ii)occasions and events that are of particular significance 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.
In this matter the father seeks an order which eventually would have X spending equal time between his parents whereas the mother's proposal does not strictly fit within the definition of either 'equal time' or 'substantial and significant’. The substance of her proposal is that X ultimately spend time with the father each second weekend between Friday after school and the commencement of school on Monday with time in the off-week on Wednesdays from after school until 6:30 p.m.
s60CC factors
s60CC(2) - the benefit to the child of having a meaningful relationship with both of the child's parents
The evidence is clear that X’s primary attachment is to his mother. This is as a result of X always being in her physical care since birth. The major issue, however, is the relationship between X and his father. By reason of the parties’ separation, matters of geography, and the limited time that X has spent with the father, this is a relationship which is still developing. The indications from the Family Report, however, are that X is familiar and comfortable in the company of his father.
Research in this field is virtually unanimous that very young children best develop bonds and attachment to a non-primary parent by reason of high-frequency but not necessarily lengthy periods of direct contact. The emphasis, of course, is in the child’s comfort and minimising any anxieties associated with removal from the primary parent. The same argument applies to the assimilation of a child into overnight time with the non-primary parent.
In this matter, Mr Lamont is in the process of moving and settling into Launceston. He proposes to obtain two-bedroom accommodation properly set up for X. Both parties recognise the need for X to become accustomed to his father's environment and more regular contact. The difference between the parents is as to the pace of moving forward towards final orders. At the same time, the child’s meaningful relationship with the father will be enhanced by Mr Lamont developing his skills and insight as a parent.
s60CC(2)(b) - the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This consideration did not feature heavily in the evidence before me. The mother, however, is reported by Ms S at [41] as follows:
Ms Lamont stated she was also concerned about Mr Lamont’s 'sexually inappropriate conduct' towards X. Examples of these behaviours included Mr Lamont videoing X urinating into a cup, Mr Lamont 'playing' with X's penis when changing his nappy, Mr Lamont wanting to get into the bath with X during visiting him in her home.
Mr Lamont was cross-examined as to these matters. He gave plausible explanations but, in my view, those explanations themselves demonstrated a certain naivety in him as a parent and also lack of understanding in respect of the mother’s proper vigilance of her son’s care.
Mr Lamont has a conviction on his own plea of guilty of a serious charge of sexual assault. This charge involved a female adult and there is no suggestion in the evidence of any propensity in Mr Lamont towards behaviour that would endanger X.
s60CC(3)(a) - any views expressed by the child
X is just two years of age and is not capable of expressing views or preferences as to his living and parenting arrangements such that could be given any weight.
s60CC(3)(b) - the nature of the relationship of the child with each of the parents
X is the only child of each of these parents. His primary attachment is to his mother. She has been his primary carer since birth. The father’s direct contact with X has been limited since the parties’ separation.
My observations of the mother, together with the material from her own affidavit and the Family Report suggest she is from a conservative religious background. X is her only child. She is understandably, therefore, a vigilant and cautious parent. I also had the opportunity to observe and listen to Mr Lamont in the witness box. He did not always impress as mature or objective in his understanding of the obligations of parenting. I agree with the family reporter that he is a passionate and keen parent who, however, is yet to understand that the quality of a parent-child relationship is based on much more than simple allocation of weeks, days and hours. To his credit, however, and despite the limitations set out above, the family reporter's observations are suggestive of a rapidly developing secure and successful relationship between X and his father.
s60CC(3)(c) - the extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about long-term issues in respect of the child and to spend time and communicate with the child and extent to which each of the child's parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child
Counsel for the father was, at least impliedly, critical of the mother in removing X to Tasmania at the time of the parent’s separation and thereby putting distance in the relationship between X and the father. Whilst undoubtedly the geographical limitations have impacted their relationship, I do not accept criticism of the mother where the separation occurred at the time of the father being convicted of a serious sexual assault on another woman and where the mother was living in New South Wales isolated from her family support in Tasmania and against her traditionalist and religious upbringing and background.
The father's commitment in relocating himself from New South Wales to Tasmania in order to pursue a relationship with his son is admirable.
The mother is at this time the primary financial provider for X. The father is effectively unemployed and contributes only the statutory minimum child support.
s60CC(3)(d) - the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents
The mother’s case is based partly on X's young age and of any potential separation anxiety in X spending lengthy periods of time away from her. The Court has the benefit of the Family Report which itself is based on considerable academic research in these matters.
The mother is circumspect in her proposal in assimilating X into a more frequent and lengthy relationship with the father. She is generally supported in her caution by the family reporter. The issue, of course, for the Court is to formulate orders which have X being comfortable not only in developing his relationship with his father but also in being absent from his primary attachment being his mother. Social theory is of some assistance here but often can be understood as attempting to provide a 'formula' which offers a timeline and date for matters such as children commencing overnight time with a parent. In my view, however, such research may well offer a set of ‘theories' and a wide reading in the field suggests that there is a broad range of 'theories' where many of the commonly accepted theories are subject to critique and criticism. Whilst social theory and the behavioural sciences generally are of significant assistance to judges, I am of the view that experience offers a wide range of children's empirical responses together with diversity in adaptability and robustness in respect to the establishment and developing of their relationships. Similarly, there is wide melange in parental personality, agenda, insight, capacity and response to the forming and prospering of relationships with children of any age and, as such, I am wary of simply accepting any social theorem as anything more than a useful guideline as to where, when and how children might comfortably assimilate into rewarding relationships.
s60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a parent
Not relevant.
s60CC(3)(f) - the capacity of each of the child's parents to provide for the needs of the child, including emotional and intellectual needs
This consideration is at the crux of the orders sought by the mother. She says that the father's capacity is limited at this stage in that he has not had sufficient experience to develop the skill-set to care for X for lengthy periods of time or for overnight. The mother is reported at [40] of the Family Report as follows:
Ms Lamont stated that whilst she is in support of X having a meaningful relationship with his father, she is concerned about Mr Lamont's ability to care adequately for him. She stated that 'is good with playing with X… X loves playing with him.' She however outlined a number of concerns she has about Mr Lamont (sic) parenting abilities. These include: not adequately feeding and hydrating X; not dressing him appropriately for weather; overstimulating X; not listening to information and advice she offers and not taking a transfer bag with him containing cherished items of X's. She considers Mr Lamont as basically not child focused and considers his own enjoyment of events and activities, rather than whether X can cope with these activities.
Mr Lamont acknowledges by reason of the orders he seeks that both he and X must graduate into a more long-term relationship. Mr Lamont in the witness box acknowledged that he has been 'naive' in some respects in his understanding of the requirements of parenting X. He has, albeit only at the court door, retreated from a position whereby he sought immediate overnight to time with X. Having had the advantage of seeing and hearing Mr Lamont give his evidence in Court, I remain unconvinced as to whether this move in his position is wholly as a result of obtaining a greater insight and understanding as to the needs of a child as young as X. Nevertheless, Mr Lamont impressed as an ambitious and committed parent and undoubtedly practical experience is the best teacher.
The family reporter is also hesitant in respect of Mr Lamont's capacity and insight. At [29] Ms S observes:
Mr Lamont did not express a high level of insight into parenting expectations and children's behavioural needs .His stated desire to have X lived primarily with him and for overnight time to commence immediately sends an example of that, as is Mr Lamont's original plan to live with X in the backpackers hostel.
Nevertheless, at [48] and [51] Ms S observes:
Mr Lamont exhibited appropriate and caring parental behaviours…
Mr Lamont demonstrated sound parenting skills and a loving if a somewhat doting parenting style.
In her evaluation at [61] Ms S says:
Ms Lamont's concerns regarding Mr Lamont’s limited knowledge of X's physical and emotional needs is considered valid. Mr Lamont whilst zealous regarding his connection with X espoused a somewhat limited understanding around X's developmental needs and was observed at times to parent X as one would a more mature child.
Ms Lamont’s capacity to attend to X’s physical needs is not impeached. Counsel for the father criticises Ms Lamont only in respect of her willingness to facilitate and encourage X's relationship with the father.
s60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child's parents, and any other characteristics of the child that the court thinks are relevant
X is just two years of age. This is a relevant consideration in respect of further the orders to be made which benefit an ultimately successful relationship between X and the father. As mentioned above, the experts in this field generally agree that a high frequency of short visits assists the establishment of a successful and bonded relationship. Many such experts, including Ms S, are wary and conservative in moving to a child spending overnight time with the non-primary parent presumably on the basis that the success of that transition will be to the child’s ultimate benefit.
Matters of religion have assumed some importance in this matter. The father is apparently agnostic as to religious philosophy. The mother continues to attend a (religion omitted) Church which is relatively conservative in its beliefs and practices. The father is critical of the mother's religion in so far as it has influenced the mother’s family to be unaccepting of him. My observations of Mr Lamont in Court are that he remains embittered and extremely critical of the of the mother’s family and therefore vicariously of their religious influences. I anticipate that the spectre of religious differences will remain as a point of conflict between these parents personally into the future although the father was candid in volunteering that he did not consider it a factor relevant to X living in two homes.
s60CC(3)(h) - if the child is aboriginal or Torres Strait Islander
Not relevant.
s60CC(3)(i) - the attitude to the child and the responsibilities of parenthood demonstrated by each of the child's parents
Each parent, despite their diverse personalities and milieu, is devoted to X. I detected no malafides in the applications and orders sought by either parent. The simple fact is, however, that they come from different backgrounds and the Court is confronted with a situation where the mother is cautious and vigilant in her care of X whereas the father is confident and adventurous in his own abilities and keen in the extreme to contribute to his son’s upbringing.
s60CC(3)(j) - any family violence involving the child or a member of the child's family
This matter is dealt with above.
s60CC(3)(k) - family violence orders
Not relevant.
s60CC(3)(l) - whether it would be preferable to make the orders that would be least likely to lead to the institution of further proceedings in respect of the child
The orders that the Court make are prospective. It is inevitable that the vagaries of life will bring changes in the circumstances of the parents and X into the future. Nevertheless, and whilst it is not the ambition of courts to make ideal or optimum orders in respect of children, the courts should be confident that parents, duly armed with the fruits of litigation, will then move forward to parent their children cooperatively and resolve inexorable disputes without turning again to litigation.
Findings and Considerations
X is still a very young child. I find that his primary and comfortable attachment is to his mother. I am of the view that X’s attachment and relationship with his father is a developing one by reason of the relative lack of direct quality time yet between X and the father. I place weight on Ms S’s evidence in this respect.
These parents are of different backgrounds and personalities. The mother by nature is conventional and subdued and comes from a deeply religious background. Her parenting of X is vigilant and by nature she is guarded in being confident that any other person, including the father, can attend to X's needs.
The father is a more self-assured individual than the mother. He is eager and dedicated in his quest to share his son's upbringing. He is confident but in some senses over-confident in his own capacity. I have doubts as to his understanding and insight into the needs of a young child where at times his evidence tended towards obtaining 'fairness' between himself and the mother rather than a focus on the child's best interests.
The father remains bitter and angry at what he perceives to be the mother’s family and religious influence on the parties relationship. I did not have the benefit of affidavit material or evidence from members of the mother’s family and therefore am unable to make findings in respect of the father’s assertions. Suffice to say that the mother continues to practice her conservative religion whereas the father is agnostic. I am satisfied that this philosophical difference between these parents has permeated their dispute in respect of X with impact on matters of mutual trust, communication and collaboration.
The father has committed to relocating himself from New South Wales to Launceston in order to establish a more frequent and better relationship with his son. This is an admirable effort by him and demonstrates his willingness to participate in X’s upbringing.
The evidence is unchallenged that the mother is an excellent and devoted parent of X. The father’s capacity is developing but not developed to the same extent as the mother. This is not a criticism of the father but, rather, a factor of his lack of practical experience.
The evidence supports the assertion of both the parties that they do not, at this stage, communicate well and do not enjoy a trusting and synergy in their parenting relationship. Both, however, express a willingness to address and improve this situation. I expect that the circumstances of the parent’s separation and including the father’s criminal conviction underpin their lack of trust.
Whilst the father’s parenting skills and insight are perhaps best described as a 'work in progress', there are a number of positive observations from the family reporter in respect of his parenting and also as to X's relationship with him. For example, at [46] of the Family Report Ms S observes:
X was initially observed to be playing happily with his father and the waiting area whilst his mother sat in a seat some distance away.… X readily accompanied his father to the observation room, passing his mother with no difficulty, casually looking at her as he walked away. Ms Lamont was heard to verbally encourage X to leave with his father.
Ms S at [48] says that Mr Lamont exhibits ‘appropriate and caring parental behaviours'.
I am satisfied that X is comfortable in his father's care and the evidence set out above suggests that he transits easily from his mother to his father best evidenced in the Family Report at [52] as follows:
When Mr Lamont was invited into the observation room, X happily and clearly said 'hi mum' …he left his father’s side and moved towards his mother, not appearing to need a cuddle or any physical assurance from his mother.
I have regard generally to social science research referred to by Ms S as to preferred methods of young children assimilating into the care of non-primary parents. Nevertheless, I place significantly more store on the particulars of each family and my observations of their attitudes and understanding of the needs of children and the responsibilities of parenting. I do not therefore accept that there is any 'rule' as to a timeline for children moving between parents and moving towards overnight time based on social theorem.
Each of the parties seeks an order for equal shared parental responsibility. Prima facie on the mothers case there are matters that argue against such an order and concerns as to the ability of these parents to jointly or equally contribute to important decisions for X. Their communication is currently extremely poor. The father is untrusting of the mother’s motives for the orders that she seeks in respect of his time with X. The mother is critical of the father’s skills and comprehension. There is an underlying difference in religious belief that compounds their mutual lack of trust. Nevertheless, the discharge of parental responsibility duties is, for practical purposes, not a daily event. Both these parents profess a desire to improve their communication and hence their cooperation. The flux of time will inevitably assist them in compartmentalising X’s issues from their own. Save and except a potential for religious practice and perhaps educational institutions, the genesis of the dispute which currently exists between these parents might not manifest in the types of decisions anticipated by parental responsibility orders. Further, the father’s anger and bitterness is aimed primarily at the mother’s parents and what he perceives as their strict religious influences upon the relationship between he and the mother. From the witness box the father candidly expressed an understanding and respect for the mother’s practice of her religion and did not seek any injunctive orders to prevent X's exposure to that religion. As such, I am satisfied that these parents have the potential to discharge the obligations of equal shared parental responsibility. It will be in X's interests to grow up understanding his parents to be ‘equal' in decision-making in respect of matters important for him. In all those circumstances I am satisfied that is in X's best interests for the parties to have equal shared parental responsibility for X.
A primary issue for my determination is the regime of final orders that are in X's best interests. The mother proposes a ‘traditional' arrangement whereby X live with her and spend each second weekend with the father and time on the off-week, together with block time in school holidays extending for no more than four consecutive nights and five consecutive days. The father proposes an order for equal time on a week about basis from X's fifth birthday in (omitted) 2019.
Prima facie, it might be argued that a parent needs the same skills, commitment, insight and facilities to care for a child on two, three or four consecutive nights as he or she does for a seven night period. Similarly, it could be argued that the degrees of communication, cooperation, trust and respect required to discharge an order for equal shared parental responsibility are those also applicable to parents having equal time for a child. Nevertheless, on consideration, and whilst these arguments have merit, there are additional considerations that come to the fore in respect of it being in a child's best interests to live effectively in two households for equal time. Firstly, any differences in parenting styles, philosophies and models will impact of the child and probably more so for a younger child. Further, issues of communication, trust, respect and cooperation whilst desirable in discharging an equal parental responsibility order, have a more day to day pragmatic impact as a necessary requirement for equal shared time. Matters of communication and cooperation will be at play on a daily basis. Whilst parenting styles will inevitably vary, to a degree, some consistency is necessary for children in moving between homes and particularly where it is anticipated they will have two 'primary' home bases. This is particularly so with younger children who still have a high degree of dependency. At [64] of her report Ms S considers this issue and says:
It is difficult to see how X would not be confused and conflicted if he were to live in a week about parenting arrangement with two parents with such opposing value systems. Whilst X will eventually come to understand that his mother and father do not agree on some fundamental life choices, the continuous exposure to the opposing views, would possibly place X in constant turmoil and uncertainty, if he were not to live primarily under one value system. Further, Mr Lamont's position of strong opposition and disapproval of the mother's chosen life views will need to be modified if he is to place X’s interests above his own and if a respectful co-parenting relationship is to be developed. It is considered X’s wellbeing and healthy development is best met if he is offered the opportunity to understand and respect both his parents belief systems and given an opportunity to eventually decide what he accepts or rejects. Presently it is considered this is more likely to occur in the home of his mother.
After having the advantage of seeing the parents give evidence and considering their affidavit material, I am not persuaded that they have levels of dialogue, co-ordination and respect necessary to allow X to live successfully in two households. I am of the view that X's best interests are served by continuing to live primarily with his mother with whom he has already established a primary attachment.
Nevertheless, and turning to the second statutory consideration of whether it be in X's best interests to live between his parents on a regime of 'substantial and significant time', I find the mother’s proposal to be unnecessarily limited and constrained. I am of the view that X will benefit by his father having an opportunity to be involved in his schooling and extracurricular activities. My observations accord with those of the family reporter that Mr Lamont is an extremely keen and committed parent. He will want to be involved in X’s life and the indications thus far are that X will be happy for him to be so involved. In any event, the relationship between X and his father will benefit by there eventually being longer blocks of time so as to allow X to settle into his father's home and adjust to his father's particular parenting style. Balancing these considerations, together with the need for X to a primary home base, I am of the view that a final order should have X spending each second weekend with his father from Thursday at the conclusion of school until Monday at the commencement of school. This will allow the father ample opportunity to be involved in X's schooling and other interests. Whilst the block period of time is longer than anticipated by the mother, I am comfortable in there being a visit on the 'off week', but not overnight, and so as to minimise the gap for X in seeing his father. In the context of these proposed orders, I suggest the Thursday night would be appropriate but subject to agreement otherwise by the parents.
Finally, I am to determine the rate and stages of X’s spending gradually increased periods of time with the father leading to the orders above. The mother urges discretion and a slow approach whereas the father is more bold in his plan but not so audacious as was his position until the commencement of the evidence.
X will be five years of age in (omitted) 2019. By that time it is hoped that the father’s skills and understanding of parenting will have fully evolved. That two and a half year period should also be sufficient for the mother to develop confidence that X can be cared for by persons other than herself. Such a time span should also coincide with X’s socialisation generally through pre-school and school attendance. As such I prefer the father’s option of final orders coming into place on X’s fifth birthday in (omitted) 2019 as appropriate and in X’s best interests.
There should be some graduation of X’s time with the father leading to final orders. I am satisfied that the following regime is appropriate:
a)Until X’s 3rd birthday on (omitted) 2017 on each Tuesday, Thursday and Saturday from 9.00 a.m. until 3.00 p.m.;
b)As from (omitted) 2017 until (omitted) 2018 each Tuesday between 9.00 a.m. until 3.00 p.m. and from 5.00 p.m. Saturday until 5.00 p.m. Sunday in the first week of each fortnightly cycle and between 5.00 p.m. Friday until 5.00 p.m. Saturday in the second week of the fortnightly cycle;
c)As from (omitted) 2018 until (omitted) 2019 each Tuesday between 9.00 a.m. and 3.00 p.m. (or such other day as agreed between the parties if X is at school or kindergarten on that day) and each second weekend from Friday at 3.00 p.m. until Sunday at 5.00 p.m.; and
d)As from (omitted) 2019 each alternate Thursday from 3.00 p.m. (or the conclusion of school) until 7.00 p.m. and each second weekend from Thursday at the conclusion of school until Monday at the start of school or 5.00 p.m. if a student free day or public holiday.
I will also make orders for time between the parents on special days.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 15 March 2017
Key Legal Topics
Areas of Law
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Family Law
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