LARKIN & RUBIO
[2019] FCCA 904
•8 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LARKIN & RUBIO | [2019] FCCA 904 |
| Catchwords: FAMILY LAW – Child aged 4 years old – interim hearing – parties separated before the child was born – poor level of communication between the parties – parties agreed on final orders – mother has suspended overnight time envisaged in final orders – mother asserts child not coping with overnight time – assessment of risk – proportionate response to degree of risk involved – meaningful level of relationship – has there been significant change in circumstances – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.67Z; 60CA; 60B; 60CC. |
| Cases cited: Zahawi & Rayne [2016] FAM CAFC 90 |
| Applicant: | MR LARKIN |
| Respondent: | MS RUBIO |
| File Number: | ADC 1568 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 26 March 2019 |
| Date of Last Submission: | 26 March 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 8 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dillon |
| Solicitors for the Applicant: | Douglas Hoskins Legal |
| Counsel for the Respondent: | Ms Hume |
| Solicitors for the Respondent: | Tessa Hume |
ORDERS
DURING THE PERIOD OF THE ADJOURNMENT:
The father spend time with the child [X] born … 2014 during each short school holiday of 2019 for three blocks each of 2 nights in duration Adelaide with the time to commence on 10:00am on the nominated day and to conclude at 4:00pm 2 days later.
The practical arrangements regarding handover times and location in the orders dated 26 March 2018 do continue.
The father remain present at all times when [X] is in his care.
The father not consume alcohol to excess when [X] is in his care.
The father is to immediately call an ambulance if [X] stops breathing or has a seizure.
The father is to immediately call the mother if [X] stops breathing or has a seizure or if there are any medical concerns.
The father is not to let [X] come into contact with any dog or dog hair.
Prior to the commencement of this time, if time permits and Ms A is available, the parties participate in a joint session with Ms A to discuss bedtime routines and options around co-sleeping and [X] and the father sharing a room and in order to assistance with this intervention that Ms A be provided with a copy of the Family Report dated 20 November 2017 and these reasons for judgment but regardless of whether Ms A is available prior to the Easter holiday the parties consult with her prior to the mid-year school holiday.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Federal Circuit Court of Australia with a family consultant after the September 2019 school holidays on 16 October 2019 at 9:30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto.
Further consideration of this matter be adjourned to 12 November 2019 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Larkin & Rubio is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1568 of 2016
| MR LARKIN |
Applicant
And
| MS RUBIO |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Rubio “the mother” and Mr Larkin “the father” are the parents of [X], born … 2014. These proceedings are concerned with what are the appropriate arrangements for [X] to spend time with his father, in difficult circumstances.
The difficult circumstances can be summarised as follows:
·The parties have never lived together and, as a consequence, have scant common experience of sharing [X]’s care;
·The circumstances surrounding the nature of their relationship and what was their respective level of commitment to it are muddled. Whatever is the nature of their relationship, it unravelled when Ms Rubio was pregnant with [X];
·The pregnancy coincided with the father commencing a relationship with another person. Thereafter, the parties’ interactions with one another have been emotionally fraught;
·Currently, the mother lives in Town B, where she is employed as a public servant. The father lives in suburban Adelaide, where he is employed as a health care worker.
·Accordingly, arrangements for [X] to spend time with his father have superimposed upon them logistical issues arising from the not insignificant distance between Town B and Adelaide, which are complicated by [X]’s tender years and the parties’ communication difficulties;
·[X] was born with a congenital kidney problem and has been diagnosed with central apnoea. This has led him to wake up at night, on some occasions in the past, in distress;
·The parties do not current communicate effectively. In fact they currently dislike one another. The mother regards the father as domineering, demanding and dismissive of [X]’s medical issues;
·The father regards the mother as being hyper-vigilant and unduly protective of [X], particularly in regards to his medical issues, which he regards as being largely resolved and relating to [X]’s early infancy;
·Essentially, the father believes that the mother is either actively or passively intent on removing him as an active participant in [X]’s life and development. On the other hand, the mother asserts that she is only responsive to [X]’s needs and sensibilities.
In this difficult parental dynamic, the issue of how and when [X] should spend overnight time with his father has been highly controversial. At an earlier stage of proceedings, in fact in March of 2018, this issue was resolved by way of a final consent order.
The current proceedings have been necessitated by the fact that, from the mother’s perspective, these orders were unduly optimistic and beyond [X]’s coping capacity. The father does not agree. From his perspective, the March 2018 orders are appropriate and should be enforced.
The various controversies arising between the parties have been heightened by the fact that, at an earlier stage, Mr Larkin agreed to Ms Rubio and [X] relocating to Town B, so she could pursue a career opportunity there. It was Mr Larkin’s hope that this concession, on his part, would lead to some reciprocation, on Ms Rubio’s part, regarding her support of his relationship with [X].
He is bitter, at his perception, that this has not occurred and the mother is utilising the distance between Town B and Adelaide to retard the development of his relationship with [X]. Given this dynamic, it has proven difficult for the parties to focus on what is the optimal arrangement for [X]. Necessarily, each party is likely to focus on their subjective response to the situation.
The parties have been in dispute with one another, over arrangements for [X]’s care, including the relocation issue, since April of 2016. As a consequence of this dispute, a family report was prepared, in November of 2017, by an experienced child psychologist, Ms C. This report was largely directed toward the vexed issue of when [X] should begin to spend overnight time with his father, given Mr Larkin had earlier conceded the issue of relocation.
Ms C’s report assisted the parties to reach an agreed plan for [X] to spend time with his father on a graduated basis, including increasing periods of overnight time during each school holiday period. It being logistically challenging for the father to spend time, with [X], during school terms. The court made final orders to ratify this agreement on 26 March 2018.
The relevant aspects of these orders can be summarised as follows:
·In each of the 2018 school term holidays, [X] was to spend three blocks of two nights with his father, in Adelaide;
·In the 2018, long end of year holiday, there were to be five blocks of time each of three nights in duration, four of which were to take place in Adelaide, with the final block to take place in Town B, so that [X] could enjoy an easy transition to primary school.
Prior to these orders, the father had regularly travelled to Town B to interact with [X], during school terms. In addition, the mother had travelled to Adelaide, with [X], during school holidays. Prior to the March 2018 orders, time had been confined to daylight hours.
In addition, at an earlier stage of proceedings, the father had agreed to the following raft of orders:
“The father remain present at all times when [X] is in his care.
On a no admission basis that the father is not to consume alcohol to excess when [X] is in his care.
The father is to immediately call an ambulance if [X] stops breathing or has a seizure.
The father is to immediately call the mother if [X] stops breathing or has a seizure or if there are any medical concerns.
The father is not to let [X] come into contact with any dog or dog hair.”
No doubt these orders were directed towards easing the mother’s anxiety about [X] spending time away from her immediate care. From Mr Larkin’s perspective, he has made frequent concessions to the mother’s sensitivity but the process initiated by him, to secure a viable level of relationship with [X], has nonetheless been glacially slow.
Section 67Z of the Family Law Act 1975 mandates any person involved in family law proceedings to formally notify the court, and in turn any relevant authorities, if the case concerned raises child protection issues. In this case, neither the father nor the mother have asserted that the other’s care of [X] raises issues of risk relating to the possibility of him being neglected, abused or exposed to family violence.
In these circumstances, it seems apparent that each parent is a professional person, who would not willingly or negligently expose [X] to any risk of coming to harm. They are each competent parents, who love [X] devotedly.
However, by dint of their different personalities and backgrounds, including their differences in gender and the manner in which they have each hitherto interacted with [X], they are likely to have significantly divergent views regarding how his needs, both physical and emotional, are likely to be best met.
Given their lack of shared experience in parenting [X], when combined with their compromised facility to communicate with one another effectively, they are likely to experience an extreme level of difficulty in reaching agreement in respect of how [X] is to be cared for, particularly whilst he is of tender years. These difficulties are compounded by distance and their shared sense of recrimination for past events.
In all these circumstances, each party is likely to view manifestations of [X]’s behaviour as if through the opposite ends of a telescope. They will each see the same behaviour but one will see it magnified and the other much reduced. As a consequence, there is a risk that each parent will lack objectivity and detachment in respect of what is the best outcome for [X], at this stage.
As previously indicated, the parties were able to compromise their earlier proceedings by way of a consent order, which was made on 26 March 2018. The parties now have widely divergent views as to the success or otherwise of the implementation of these orders during 2018. This divergence of views is the context for the current proceedings.
It is common ground that the father did not have any overnight time, with [X], in the 2018/2019 end of year holiday. Rather, the mother restricted his time to fourteen periods of time, during the day, between 8.00 am and 6.00 pm, other than on Christmas Day, when he had the morning with [X]. Mr Larkin also travelled to Town B, in the latter part of January, when he again spent daytime blocks with [X].
The mother’s position is that [X] experienced difficulty spending overnight blocks with his father. She also alleges that Mr Larkin did not abide by his undertaking to keep her informed of his living arrangements and remain present, whilst [X] was in his care. In this context, she alleges that [X] has told her that “he had stayed overnight in at a lady’s house” and been cared for by his paternal grandfather. The father denies the gravamen of these allegations.
It is the mother’s case, as yet untested through cross examination or supported by external expert evidence, that [X] has not become comfortable with the routine of having tea and then a bath, at his father’s home and then getting into bed there. She asserts that he was not his happy self after having spent time overnight at his father’s home. She also alleges that he has begun to grind his teeth and has been disruptive at his child care.
The father’s position, also untested by cross examination and any objective expert analysis, is that [X] was initially clingy when he came into his care, a behaviour he attributes to his exposure to the mother’s anxiety but quickly settled down after handover. Thereafter, it is his evidence that his time with [X] proceeded well, with the two greatly enjoying their time together.
Mr Larkin has re-partnered. His partner has a five year old child, [D], a boy. [X] and [D] have had a bath together on a few occasions, which Mr Larkin regards as an unexceptional occurrence. He denies that [X] has co-slept in a bed with him and his partner. He is frustrated at his perception that the mother’s unilateral actions, over the long school holiday period of 2018/2019, have disrupted his relationship with [X] and were not based on any realistic concern.
He summarises his position, as follows, in his affidavit filed in support of his application to the court:
“Over the Christmas break, it was extremely difficult to have quality time with [X].
I want to be involved in [X]’s schooling and life in general but the mother has not allowed me to be part of it.
There is no reason as to why [X] cannot be spending time with me in accordance with the orders and I am seeking that this occur immediately.
Finally, I do not agree that [X] needs to attend upon a counsellor or psychologist. It is not necessary. [X] is a happy well adjusted young boy who experiences no distress in my care.”[1]
[1] See father’s affidavit filed 27 February 2019 at [70] – [73]
During the remainder of 2019, the March 2018 orders envisaged a marked increase in the amount of time [X] is due to spend with his father. The increases are as follows:
·During the term 1 and 2 school holiday, the overnight periods be increased to a block of six nights, in each case;
·During the term 3 school holiday, the block of overnights be extended to a seven night block;
·During the end of year school holiday, there be two week blocks of holidays and an additional block of four nights, leading up to Christmas Eve.
It is the mother’s position that as [X] has struggled with the regime during 2018 and therefore the extension of the orders should be put on hold until [X] is older. In these circumstances, she proposes that [X] spend only daytime periods, with his father, between 15 April and 19 April 2019. She also wishes the child to be referred to an appropriate child psychologist for counselling.
Underpinning her position is her perception that she, by virtue of her role as [X]’s primary carer, is the person most sensitive to how he has coped with the regime to date and, as a consequence, her views should be respected.
Needless to say, the father does not agree. It is his case that [X] has adapted well to spending overnight periods of time with him. In these circumstances, he seeks that the court should exercise its authority and enforce the orders made earlier in respect of his time with [X]. In addition, he opposes any therapeutic intervention, for [X], at this stage.
The legal principles applicable
As is well known, the service of [X]’s best interests is the paramount or most important concern, for the court, in whatever order it makes in respect of [X]’s parenting [see Family Law Act 1975 at section 60CA].
However, as the Full Court of the Family Court has recently remarked,[2] the simple fact that a judge must determine what is in a child’s best interests is axiomatically not in that child’s best interests, particularly if the decision must be made against a background of incomplete evidence, largely centring on allegations of parental failure or other recriminations.
[2] See Zahawi & Rayne [2016] FAM CAFC 90
The theoretical underpinning of the Act, provided by its principles and objects, contained in section 60B, emphasise the need for parents to agree about the future parenting of their children and share parenting responsibilities jointly. These principles also recognise the rights of children to know and be cared for by both their parents, regardless of whether those parents are married, separated or have never in fact lived together.
These principles are picked up in section 60CC(2) of the Act, which is the section which sets out the two primary considerations, to which the court must have regard, in deciding what idiosyncratic outcome is in the best interests of the child concerned. These primary considerations are as follows:
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.
Although, it would seem to be Ms Rubio’s case that [X] is not travelling well psychologically, at present, she does not allege that this is as a result of him being abused or neglected in some way by his father. Accordingly, the focus, in this case, as it was in the earlier proceedings, turns on the benefits, both short and in the longer term, likely to be derived of [X] having a meaningful level of relationship with his father.
As is clear from the extract, which I have taken from Mr Larkin’s affidavit and quoted above, the emphasis in his case is on the benefits which, from his perspective, will accrue to [X] from having a meaningful level of relationship with him. Meaningful is an ordinary English word. It is not specifically defined in the Family Law Act. Benefits is also a common English word. It means a favourable or helpful factor or circumstance; advantage, profit.[3]
[3] See the Australian Oxford Dictionary
In Mazorski v Albright[4] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned. Accordingly, the emphasis in this case must be on the benefits, which [X] is likely to derive, from having a meaningful level of relationship with both his father and mother.
[4] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
In my view, the rationale of Part VII of the Family Law Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Within the family law context, the word meaningful, therefore takes its definition from the context in which it appears, within the Act, particularly the Act’s overall objective and principles, which emphasis the duality of the roles of parents in their children’s lives and care. In this setting, in my view, it is significant that section 60B(1)(a) speaks of the Act ensuring, consistent with the best interests of the child concerned, the involvement of parents to the maximum extent in the lives of their children.
The aspects of a child’s life, in which a parent can be meaningfully involved, are therefore multifarious. They include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations.
In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents. It is these types of interactions, which add significance and value to parent/child relationships and so add meaning to them.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced. I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better, if a parent spends more time with a child but, for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
It also seems to me that parental relationships will become more meaningful, for the children concerned, if they entail a greater degree of involvement of the parent concerned, in a variety of aspects of the life of the child concerned. In my view, it is significant that the legislature has elected, in section 60B(1)(a), to speak, in unconfined terms, of parental involvement in children’s lives.
From the father’s perspective, he needs to spend time with [X], in a variety of contexts and settings to ensure the relationship between the two is sufficiently meaningful so that [X] derives all the benefit of parental interaction, which are his (rather than his parents’) entitlement. In order to derive these benefits, [X] needs to spend sufficient time with his father to imbue the relationship between the two with a sufficient level of meaning.
In this context, I appreciate that the opportunity to put [X] to bed, after having fed and bathed and read him a story and the opportunity to tend to his needs in the night time and then fix his breakfast and so on and so forth, although in themselves, are mundane activities, are nonetheless the everyday bedrock on which meaning and intimacy, in parental relationships, is based. These are the activities which parents fundamentally do, for their children, as opposed to other individuals interested in the care of those children.
When I made the orders, which envisaged [X] spending gradually increasing periods of time with his father, I was confident that it was appropriate to make those orders because I considered them to be in [X]’s best interests. This is significant. What is in a child’s best interests is not to be subject to an endless process of revision as such a process, in itself, may not be congruent with that child’s best interests.
The orders envisaged [X] spending reasonably significant periods of time, in his father’s care, given the difficult logistical circumstances prevailing. At the time, I was satisfied that he was a competent and loving parent, who wished to be as fully involved as possible in [X]’s life, which I considered to be in the child’s best interests.
I reached the conclusion that the orders would be in [X]’s best interests, not only because the parents themselves had proposed and agreed to them, which is the role of parents, but also because they were largely, but not entirely, in line with the recommendations made by the court appointed expert, Ms C and, as indicated above, seemed to be congruent with the statutory criteria applicable to the determination of his best interests.
I appreciate that, given the compromise of the earlier proceedings, Ms C’s report and its underlying methodology was not subject to any scrutiny through cross-examination. However, she had a significant advantage, over me, in these proceedings, in the sense that she was able to meet [X], and observe him interacted with each of his parents. This is significant. In my view, it is also significant that Ms C, in her report, identified no child safety and wellbeing issues, so far as [X] was concerned.
In the preamble to her report, Ms C identified as the issues in dispute between the parties, as being [X]’s time spending arrangements with his father, particularly in the context of overnight time. Her impression of Mr Larkin was that he was a calm and non-vindictive person. Her impression of the mother was of an anxious person, who was particularly sensitive to issues surrounding [X]’s health.
In this context, Ms C did not dismiss Ms Rubio’s anxiety regarding [X] spending time with his father, in an overnight setting, particularly given her (Ms Rubio’s) lack of trust in Mr Larkin. However, Ms C considered Ms Rubio’s rationale for opposing overnight time to be tenuous, particularly given there was then no current diagnosis, in respect of [X], indicative of current health concerns.
In these circumstances, Ms C opined as follows:
“…. it is difficult to ascertain how the passage of time will reduce risk to [X], or rather, the mother’s perception of risk. Further to this, it is likely that introducing a significant delay before the commencement of overnight time may increase, rather than diminish, the mother’s anxiety. Moreover, as [X]’s cognitive abilities develop, so too will his awareness of his mother’s emotional state.
Although the mother viewed the father as less competent to recognise and respond to [X]’s medical emergencies than herself, childcare workers and the maternal grandmother, there was a lack of evidence to support this position. Like the mother, the father presented as a diligent, responsive and committed parent who had undertaken first aid training. There was nothing in his presentation to suggest that he would actively or passively overlook [X]’s needs.”[5]
[5] See Family Report dated 20 November 2017 at [55] & [56]
As indicated above, Ms C had the opportunity to observe [X] interact with both of his parents. She described him as being “happy, relaxed and affectionate in the company of both of his parents.” Under the heading “evaluation”, Ms C wrote as follows:
“[[X]] is now of an age where he is likely to be able to manage short periods of overnight time away from the mother, particularly given his long-term familiarity with childcare. Whilst [X]’s primary attachment relationship is with the mother, he also deserves to share a meaningful relationship with the father, and to view both his parents as people he can rely upon to meet his emotional and physical needs. The upcoming 2017/2018 summer school holidays represent an opportunity for graduated introduction of overnight visits without vast tracts of time in between – and this is the preferred approach not only to meet [X]’s emotional and developmental needs, but to minimise the mother’s significant anxiety about this issue.”[6]
[6] Ibid at [57]
In this context, in my view, it is noteworthy that Ms C was of the view that [X], in late 2017, was of an age to be able to spend short period of overnight time away from his mother’s care, particularly given the fact that, up to this stage, Ms Rubio had utilised child care for him. Influencing Ms C’s recommendation was her sensitivity to the mother’s anxiety.
It seems clear that Ms Rubio is anxious about [X], particularly in the context of his allergies and his past sleeping irregularities. Fear and anxiety are not human responses, which can be subjected to an objective quantification alone. Necessarily, they are significantly dependent upon the individual response of the person subjected to them.
As such, I am not in a position to ignore Ms Rubio’s anxiety. After all, Mr Larkin would want her to be fiercely protective of [X] – that is part of the job description of being a parent. The Full Court has recognised that a primary carer’s anxiety may adversely impact on that parent’s capacity to care for a child. [7]
[7]See B & B (1993) FLC 92-357 at 79,780
However, there comes a point at which a parent’s anxiety becomes disproportionate to how that parent perceives the applicable level of risk, when that risk is objectively considered. In such circumstances, a parent’s anxiety may, in itself, be detrimental to the child because it has the potential to disrupt an otherwise meaningful relationship for the child concerned.
As with all things, a balance must be struck, which is reflective of the best interests of the child concerned. In this balance, the sensibilities of Ms Rubio are one amongst many other considerations, including the fact that she earlier agreed to the orders concerned, which were ratified by the court as being in [X]’s best interests.
The evidence indicates that Mr Larkin is an insightful parent with an appropriate level of capacity to parent [X], including in the event of some form of medical emergency befalling him. In my assessment, the magnitude of risk of this occurring is not one which would be unacceptable for the court to take.[8]
[8] See Slater & Light [2013] FamCAFC 4
There is no specific evidence that Ms Rubio is suffering from a degree of psychological dysregulation to such a degree that her parenting of [X] is likely to be seriously compromised. The central issue for the court, at this stage, is whether there is a risk, for [X], that the psychological upset, characterised by Ms Rubio and absent in Mr Larkin’s view, militates against a continuation of overnight time at this juncture, because it would not be in [X]’s best interests.
This is a difficult issue to resolve at an interim stage of proceedings. In the course of this truncated hearing, there has been no time to allow for any cross examination of the parties and for me to make an assessment of their respective level of insight, including the validity of their subjective impressions of how [X] has coped with the overnight regime to date.
It would be both unsafe and unfair to assume that one of the parties is reliable in respect of the issue and the other is not. The mother because she is [X]’s primary carer; or the father because I accept that the mother has a propensity to be over-reactive.
In addition, I do not have any contemporary assessment of how [X] is coping in the form of a further family report. It is not beyond the bounds of possibility that Ms C might modify her recommendations in the light of further evidence coming to her notice. As John Maynard Keynes is reported to have said:
“When my information changes, I alter my conclusions. What do you do, sir?”
The essential legal underpinning of Mr Larkin’s position is that it is incumbent on the court to enforce the order which it earlier made on the basis that the order was reflective of [X]’s best interests and remains so. On the other hand, Ms Rubio asks the court to accept her assessment that to maintain the regime has the potential to be emotionally detrimental, for [X], to a very significant degree and the risk of this occurring is not one which the court should countenance.
In this context, it should be noted that the orders on which the parties agreed in March of 2018 are not completely in accord with Ms C recommended, but are more ambitious. Ms C recommended that for each short 2019 school holidays, [X] should spend three periods, each consisting of three overnight visits, with his father. In the 2019/2020 end of year school holiday period, she recommended that [X] should spend time with the parties by way of a three:four; four:three schedule each fortnight.
Accordingly, the regime on which the parties have agreed envisages a longer period of time, rather than more frequent, but shorter periods of time. It seems probable that this compromise was based on logistical concerns relating to the expense of travel between Town B and Adelaide.
In Deiter & Deiter[9], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
[9] See Deiter & Deiter [2011] FamCAFC 82
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [10]
[10] Slater & Light [2013] FamCAFC 4 at [37]
Risk can cut two ways. It may be detrimental, for [X], to curtail a relationship with the potential to be meaningful for him, by some unnecessary or artificial level of restriction on it, arising from some imprecise or uncertain allegations of risk. Again, a balance must be struck.
In this context, Ms C’s evidence is relevant, as is my assessment of the respective competency of each of the parents concerned. Thankfully, this is not a case concerned with significant mental illness; or substance abuse; or any other significant societal ill, such as sexual abuse. The parties are each high functioning professional individuals.
In this context, it is a significant thing that the court has previously assessed the regime proposed by the parties, in March of 2018, as being in [X]’s best interests. It is not in his best interests that his parenting arrangements be subject to constant revision, as such a process has the potential to exacerbate, rather than diminish the tensions and animosity between this parents, which is not likely to be helpful to his on-going emotional equilibrium.
Although Mr Larkin’s barrister has not specifically invoked it, in his application to have Ms Rubio’s application dismissed and the March 2018 orders effectively reinstated or re-engaged (although they have never been actually discharged), he relies on what lawyers refer to as the rule in Rice & Asplund.[11]
[11] Rice & Asplund (1979) FLC 90-725
The rule in Rice & Asplund is an expression of the paramountcy principle. Children benefit from finality in arrangements for their care and it is not helpful to their welfare that such arrangements are subject to the prospect of some revision by the court, particularly if such a revision has the potential to involve emotionally wrenching litigation, which pits parent against parent.
However, the best interest of children must dictate that necessary revision of arrangements for their care can take place if there has been a change in their circumstance of sufficient moment to justify it. Parental conflict or controversy between parents about parenting arrangements, of itself, may not be sufficient to justify the revisitation of an otherwise finalised case.
It will frequently be the case that there is much controversy between the parties concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Family Law Act 1975.
The question essentially being whether it is likely to be in the children’s best interests to allow further litigation. In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation.
In arriving at its decision, the court must look to the following matters:
·the importance or seriousness of the issues raised, both individually and where necessary collectively;
·the impact that the issues are likely to have on the best interests of the children concerned;
·whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.[12]
[12] See Marsden v Winch (2009) 42 Fam LR 1
The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties.
Discussion
With these considerations in mind, I now turn to the relevant criteria, arising under section 60CC, relating to [X]’s best interests, bearing in mind the strictures, arising from the abbreviated nature of the hearing before me and the fact that Ms C’s report is now over a year old.
I accept without qualification that [X] is likely to derive significant and manifold benefits from having a meaningful level of relationship with his father and the maintenance of this relationship is central to any consideration of [X]’s best interests both now and into the future.
The essential building blocks of [X]’s relationship with his father and the level of meaning which will reside in it, perhaps for the rest of his life, are being laid down now in the years of [X]’s infancy. As previously indicated, it is desirable that [X] derives a sense of warmth, intimacy and comfort from his interactions with his father. For this to occur, he needs to spend time with his father in circumstances which are conducive to the development of these qualities.
As such, in my view, the thrust of Ms C’s report remains current – [X] is of an age and a level of development at which it is appropriate for him to be spending overnight time with his father with a view to him becoming more comfortable in his father’s care.
If the two are to have the required level of comfort and intimacy with one another – essentially the capacity to just hang out together – they need to be able to spend time with one another in the father’s home environment, including overnight. In my view, such an overnight setting is likely to be instrumental in creating ease and familiarity in the relationship between the two.
The essential evidentiary issue, which arises at this interim stage, can be summarised as follows:
·Is [X] suffering some level of emotional disequilibrium as a result of the overnight time;
·If so, what is the intensity of that emotional disequilibrium, in particular what is its duration;
·Subsidiary to this question, is how long this condition is likely to last. Essentially, is this a transitory stage through which [X] will soon pass;
·What is causing the behaviour? Is it a form of reaction to his mother’s anxiety;
·In this context, is it the case that [X] quickly settles, when he comes into his father’s care, as Mr Larkin contends or are the emotional sequellae more long lasting as Ms Rubio contends.
None of these issues is capable of being definitively resolved, at this stage of proceedings. The ultimate resolution of these matters depends on findings of fact regarding the credibility of the parties themselves. If the matter proceeds further, the issues are likely to be influenced by the views of any independent expert appointed to assess the family dynamic, particularly [X]’s place in it.
In this context, I am gravely concerned at the prospect of there being further protracted proceedings in respect of [X]’s care. It had been anticipated that the proceedings would be finalised in March of 2018. It is not in [X]’s best interest that either these proceedings are reinstated or that the court must make necessary care decision, in respect of him, against a background of parental disharmony.
In my view, the task set by the court, by each of the parties’ respective interim applications, is to assess the level of risk, arising for [X] of either directing an adherence to its earlier determination or potentially reducing the level of his relationship with his father, by retarding the overnight time.
In this context, I have some concerns, given the contents of Ms C’s report, regarding the overall objectivity of the mother’s views regarding how well (or otherwise) [X] has coped with overnight time with his father.
It seems more likely than not, if she was the sole gate-keeper in respect of when overnight time could commence it would have been deferred for a longer period than recommended by Ms C. She is not likely to be the most accurate arbiter of how well the time has gone.
However, I am not in a position to unequivocally reject the mother’s account that [X] has been unsettled, to some degree, by the overnights. This is because of the child’s tender years and the fact that hitherto he had not enjoyed an optimal level of relationship with his father, chiefly because of the parties’ poor relationship and other logistical issues.
The question is whether that risk of [X] being upset or unsettled is of such moment to curtail overnight time indefinitely, in the context of still more litigation. I do not consider the risk is so extreme to justify such a step, given Ms C’s assessment of the father and the strength of his relationship with [X]. In my view, it would not be in [X]’s best interests to delay overnight time with his father.
However, at the same time, it was, with benefit of hindsight, imprudent of the parties to have fast tracked the process of overnight time, which was not in keeping with Ms C’s recommendations. On her recommendations, the forthcoming short school holiday period would have seen [X] spending three periods of overnight time, each of three nights in duration.
Given the mother’s unilateral actions in curtailing time of the long holiday of 2018/19 the precursor to this time did not occur. A balance must be struck between all the competing considerations, with the aim, if at all possible of supporting [X]’s relationship with his father and short-circuiting the possibility of further protracted and bitter litigation.
In my view, the balance will be struck by the father spending three blocks of two nights during each of the short school holidays in 2019. This is a concession to [X]’s age; the mother’s vulnerability; whilst at the same time progressing [X]’s relationship with his father.
In my view, it will also be a proportionate response to the issues raised by the mother to reinvoke the earlier orders regarding the overnight time taking place solely at the father’s home and he be present at all times. I will also reinstate the no-alcohol injunction as an act of reassurance for Ms Rubio, along with the ancillary orders relating to dog hair and emergency measures relating to the possibility that [X] suffers a seizure.
Ms C also recommended as follows:
“Prior to the commencement of overnight visits, the parties participate in a joint session with Ms A (by telephone if in person not possible) to discuss bedtime routines and options around co-sleeping/[X] and the father sharing a room. This would be an opportunity for information sharing, such that the mother can give information to the father to determine what is in [X]’s best interests whilst [X] is in his chare. Ms A may benefit from being provided with a copy of this report prior to the session.”
It is unclear whether this mooted session took place. An impaired facility to share information, about [X], appears to be at the root of the major parenting problems thrown up by this case. I appreciate that time is getting short but propose to make an order to give effect to this recommendation. I will also authorise the provision of Ms C’s report and these reasons to Ms A or some equivalent expert.
After the next three short school holidays, with the regime of overnight time envisaged, I will direct that the parties attend a child dispute resolution conference, pursuant to section 11F of the Act. The case can then return to court for directions prior to the end of year school holiday.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 8 April 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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