Leckner & Tomey
[2021] FCCA 814
•27 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Leckner & Tomey [2021] FCCA 814
File number(s): ADC 2107 of 2020 Judgment of: JUDGE BROWN Date of judgment: 27 April 2021 Catchwords: FAMILY LAW – competing applications in respect of children aged 16 & 14 – parties have obtained privately funded short form report regarding the wishes of the children – controversy at interim hearing stage as to the implementation of the report particularly vis-à-vis views of older child – should time be subject to wishes of the child concerned – high conflict – factors possibly impacting on views of children – allegations of exposure to family violence – matters to be considered – best interests Legislation: Family Law Act 1975 (Cth) ss 4AB(1), 60B, 60CA, 60CC, 61DA & 67Z
Surveillance Devices Act 20016 (SA)
Cases cited: B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Bright v Bright (1995) LFC 92-570
Deiter & Deiter [2011] Fam CAFC 82
H v W (1995) FLC 92-598
Mazorski v Albright (2007) 37 FamLR 518
R & R; Children’s Wishes (1999) 25 Fam LR 712
Russell & Russell & Anor [2009] Fam CA 28
Slater & Light [2013] Fam CAFC 4
Other:
Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006
Number of paragraphs: 139 Date of hearing: 13 April 2021 Place: Adelaide Counsel for the Applicant: Mr Boehm Solicitor for the Applicant: Douglas Hoskins Legal Counsel for the Respondent: Ms Lewis Solicitor for the Respondent: Johnston Withers ORDERS
ADC 2107 of 2020 BETWEEN: MR LECKNER
Applicant
AND: MS TOMEY
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
27 APRIL 2021
THE COURT ORDERS THAT:
UNTIL FURTHER OR OTHER ORDER:1.The parties have equal shared parental responsibility for the children X born in 2004 (“X”) and Y born in 2006 (“Y”), (“collectively, “the children”).
2.That during school terms, Y live with the mother and spend time with the father for five (5) nights per fortnight as follows:
(a)Each alternate weekend, from the conclusion of school (or 3.00pm if a non- school day) Friday until the commencement of school Monday (or the commencement of school or 9.00am Tuesday in the event that Monday is a non-school day) commencing Friday, 30 April 2021;
(b)Each intervening week, from the conclusion of school (or 3.00pm if a non- school day) Wednesday until the commencement of school (or 9.00am if a non-school day) Friday commencing Wednesday, 21 April 2021.
3.During the April 2021 school holiday period, Y (and X subject to her wishes) spend time with each of the parties as follows:
(a)With the father from the conclusion of school on Thursday, 1 April 2021 until 10.00am on Saturday, 3 April 2021 UPON NOTING that the mother is to collect the children from the father’s holiday home at Suburb H at the conclusion of such time;
(b)With the mother from 10.00am on Saturday, 3 April 2021 until 5.00pm on Thursday, 8 April 2021;
(c)With the father from 5.00pm on Thursday, 8 April 2021 until 5.00pm on Saturday, 10 April 2021;
(d)With the mother from 5.00pm on Saturday, 10 April 2021 until 5.00pm on Wednesday, 14 April 2021;
(e)With the father from 5.00pm on Wednesday, 14 April 2021 until 5.00pm on Sunday, 18 April 2021; and
(f)With the mother for the remainder of the school holiday period until the commencement of the new school term.
School terms
4.During school terms, X live with the mother and spend time with the father for five (5) nights per fortnight on the same rotation as Y as follows:-
(a)Each alternate weekend, from the conclusion of school (or 3.00pm if a non- school day) Friday until the commencement of school Monday (or the commencement of school or 9.00am Tuesday in the event that Monday is a non-school day); and
(b)Each intervening week, from the conclusion of school (or 3.00pm if a non- school day) Wednesday until the commencement of school (or 9.00am if a non-school day) Friday;
UPON NOTING that the attendance of X at the time specified at paragraph 4(b) herein is to be subject to X’s wishes.
5.At such further and other times as are in accordance with X’s wishes.
School holidays
6.Commencing in the July 2021 school holiday period and during all school holiday periods thereafter, the children live with each of the parties equally as follows:
(a)During all short school holiday periods, the children spend time with the father from the conclusion of school on the last day of the school term until 5.00pm on the middle Saturday and with the mother from 5.00pm on the middle Saturday until the commencement of school on the first day of the new school term SAVE THAT:
(b)In the event of any school holiday period being a three (3) week period then the children are to spend time with the parties as follows:-
(i)With the father from the conclusion of school on the last day of the school term until 5.00pm on the Friday of Week 1 of the school holidays;
(ii)With the mother from 5.00pm on the Friday of Week 1 of the school holidays until 5.00pm on the Friday of Week 2 of the school holidays;
(iii)With the father from 5.00pm on the Friday of Week 2 of the school holidays until 5.00pm on Wednesday of Week 3 of the school holidays; and
(iv)With the mother until the commencement of the new school term.
(c)That during all Christmas school holiday periods, the children shall spend time with each of the parents on a week about basis with all handovers to occur on Fridays at 5.00pm and with the father to have the first week of the holidays and each alternate week thereafter and the mother the second week of the holidays and each alternate week thereafter.
Special occasions
7.The children spend time for Christmas each year as follows:-
(a)With the mother from 12 noon on 24 December until 11.00am on 25 December;
(b)With the father from 11.00am until 5.00pm on 25 December; and
(c)With the mother from 5.00pm on 25 December until 10.00am on 26 December.
8.The children spend time for Easter each year with the father from the conclusion of school or 5.00pm on Maundy Thursday until 5.00pm on Easter Saturday and with the mother from 5.00pm on Easter Saturday until the commencement of school or 9.00am on the Tuesday after Easter.
9.The children spend time with the mother for Mother’s Day from 5.00pm on the Saturday preceding Mother’s Day until 5.00pm on Mother’s Day.
10.The children spend time with the father for Father’s Day from 5.00pm on the Saturday preceding Father’s Day until 5.00pm on Father’s Day.
11.The children spend time with the party who is celebrating their birthday on each of the parties’ birthdays from the conclusion of school until 8.00pm or otherwise from 12.00pm until 8.00pm.
12.The children spend time with the parent who does not ordinarily have the care of them on each of the children’s birthdays from the conclusion of school until 6.00pm or from 2.00pm until 6.00pm in the event of a non-school day.
Handovers
13.All handovers which cannot occur at the children’s school(s) occur by way of the father collecting the children from the mother’s home at the commencement of the father’s time and the mother collecting the children from the father’s home at the conclusion of the father’s time unless otherwise agreed in writing.
Other issues
14.The reasons for judgment herein be provided to Ms B concurrently with their release to each of the parties’ concerned.
15.Within seven days of the date of these orders the parties contact Ms B in order to appoint a time for her to explain the import of these orders to each of the children concerned with any expense relating to such an appointment to be borne equally by the parties.
16.The further hearing of the matter be adjourned to 28 July 2021 at 9.30am for further directions.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Leckner & Tomey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN
INTRODUCTION
These reasons for judgment are directed towards the resolution of an emotionally laden parenting controversy, which arises in the context of a fraught and dysfunctional relationship between the parties concerned.
The parties to the case are Mr Leckner and Ms Tomey. The children concerned are X born in 2004 and Y born in 2006.
Unusually, the major focus of the case, at this stage, has been on X. X is currently sixteen years and five months old. She attends a private school, C School, where she is in year 11. It is a girl’s only school. X is said to be a bright but reserved young person, with an interest in the arts.
In general terms, I would expect a child of sixteen years of age, who was attending this type of school, which supported its students to be independent, articulate and self-motivated, to have a clear view about what she wanted in terms for the arrangements for her care, particularly in respect of the balance required between study, personal commitments and family life.
The controversy in this case is easily stated. It is the mother’s position that X should spend time with her father at the times and on the terms which she (X) thinks fit. Ms Tomey has deposed that she will not stand in the way of X’s wishes and will not attempt to influence the child against her father.
On the other hand, the father seeks that at least a basic core of X’s time with him arise as a consequence of the court’s direct mandate and so not be subject to the expression of X’s own volition. Essentially that there be a mix of time which X must spend with him and time which she can elect to take or not.
It is his position that if there is not such a direction, from the court, given the mother’s domineering personality and longstanding antipathy for him, it is inevitable that X will buckle to her mother’s will and cease to spend time with him, to her long term detriment, regardless of whether this is what she wants or not.
These issues have a long gestation and reflect the very different personalities and aspirations of the parties themselves. Entwined with these issues are powerful emotional threads, which reflect longstanding financial controversies between the parties.
In short, each party feels hard done by as a consequence of their perception that the other’s conduct, towards him or her, over very many years has been cavalier, disrespectful and contrary to the best interests of the children concerned. These attitudes are unlikely to change and seem firmly held.
It is my impression that the parties different, but ever simmering resentments towards the other, have come to the boil in the current proceedings, which have been extremely hard fought, notwithstanding my attempts to deflect the parties to resolve their issues through less adversarial means.
BACKGROUND
Mr Leckner is a fifty-five year old, who works as a sales representative, earning approximately $70,000.00 per annum. He re-partnered in 2018 and lives in his current partner’s home in Suburb D. Following separation, he lived in rented accommodation.
Ms Tomey is a fifty-one year old professional in her own practice in Adelaide. Her salary is said to be around $145,000.00 by the father. Y also attends a private single sex school. The mother pays all the school fees arising. It is her case that she is in strained financial circumstances.
The mother has not re-partnered. She lives in the parties’ former shared home in Suburb E, which is within walking distance of X’s school. Mr Leckner currently pays child support, as assessed by the Agency.
In this context, Ms Tomey deposes as follows:
The father did not pay any Child Support until 2020, when he began paying $50 per month. I agree that the father has purchased school shoes and clothing for the children from time to time but generally his contribution financially is nominal. I have been primarily responsible, domestically and financially, for the children’s care since their birth.[1]
[1] See mother’s affidavit filed 31 July 2020 at [45].
It is the father’s position that he pays child support, as assessed, from time to time and makes contributions to the other significant expenses of the children concerned, particularly in regards to the purchase of sporting equipment and clothing. He further complains that the mother denigrates him because of her perception that he is not pulling his weight financially, so far as the children are concerned.
In this context, Mr Leckner deposes as follows:
Sadly, from various discussions with the children it appears to me that the mother focuses more on the financial contributions that we make towards the children whereas my focus has always been on providing the children with a happy home and meaningful one on one time when they are in my care.[2]
[2] See father’s affidavit filed 21 May 2020 at [33.4].
The parties married in 2002 and finally separated on 1 February 2016, when the father moved out of the Suburb E home. They are now divorced. Significantly, they have never previously sought court orders in respect of X and Y.
It is the father’s view that he has hitherto attempted to be patient and conciliatory towards the mother and has only commenced proceedings as a last resort. On the other hand, it is the mother’s view that the arrangements, which have hitherto taken place in respect of X and Y spending time with their father have been appropriate and worked relatively well.
It is common ground that the mother has provided the vast majority of the care for the children, who have spent limited time with their father. As with many other things arising from their parenting relationship, the parties fundamentally disagree as to why this has been so.
It is the father’s position that the mother has unreasonably restricted his time with the children – only allowing overnight weekend time in 2018. He asserts that the mother is dismissive of his capabilities as a parent and has only begrudgingly allowed him to have a relationship with the children in exceptionally difficult circumstances, which has been subject, at times, to her capricious demands or late notice of alterations in respect of arrangements.
For her part, the mother characterises Mr Leckner as a compromised parent, who has difficulties following routines and attending to the children’s needs in respect of homework responsibilities, bedtimes and the like.
Underpinning her criticisms is the assertion that, in the past, the father has put his own convenience ahead of his responsibilities for the children, whilst it is she who has done the hard yards and provided the nuts and bolts of the children’s care, including providing their financial support.
In addition it is also apparent to me that the parties have quite different views in respect of the discipline of the children, particularly so far as Y is concerned. I suspect that these differences are reflective of their different dispositions. The father describes Y as a gregarious and enthusiastic child, who is progressing well at school.
The mother describes Y as a child, who requires strong boundaries to reign in his, at times, disruptive and challenging behaviour. She complains that the father fails to limit Y’s exposure to computer games and impose the disciplinary limits, which he requires.
In short, the mother’s view is that the father is a laissez faire parent, who has left the financial burden of the children’s education, health care, including significant orthodontic expenses, on her shoulders, whilst failing to be an effective disciplinarian and provider of the routine needed for the children.
On the other hand, the father perceives that Ms Tomey has a jaundiced and inaccurate view of his parental ability and, as a consequence, often attempts to undermine his relationship with the children by categorising him, to them, as a ne’er-do-well incompetent. It is his case that he has always had a close and loving relationship with both X and Y.
Significantly, it is also the father’s position that the mother is emotionally abusive towards the children, not only because of her unfounded negative view of him, but more significantly because she is incapable of controlling her temper, which has resulted in her behaving inappropriately towards both children, particularly when she is feeling emotionally stressed.
In these circumstances, in his view, it becomes all the more important to ensure that both children, but at this stage particularly X, continue to spend guaranteed and fixed periods of time with him. Underpinning his case, is that he can provide the children, in conjunction with his partner Ms G, a calm and emotionally conducive household for the children.
THE HISTORY OF THE PROCEEDINGS
The father commenced the proceedings on 21 May 2020. On both an interim and final basis, he sought that the parties be conferred with equal shared parental responsibility for X and Y and, during school terms, the children live with him in a graduated arrangement of three nights per fortnight, until 2021, when it would increase to five nights per fortnight.
At this stage, the children would spend from the conclusion of school Friday until 5:00pm the following Saturday, in the first week of each fortnight and from the conclusion of school Friday, until the commencement of school the following Tuesday, in the other week of each fortnight.
So far as school holidays are concerned, he sought that the short school holidays be apportioned equally between the parents and the long end of year holiday be divided on a week about basis.
In addition, Mr Leckner sought fixed arrangements in respect of special occasions and that the parties be able to take the children on interstate holidays, without the permission of the other parent concerned. This had been a bone of contention, from his perspective, in the past.
Section 67Z of the Family Law Act requires parties to proceedings concerning children to file a prescribed document in which any allegations of child abuse are to be stipulated. In this case, Mr Leckner has made no such allegation. Ms Tomey’s notice of risk is in similar terms.
The mother responded to this application on 31 July 2020. On both a final and interim basis, she seeks orders that would see X spending time with her father in accordance with her wishes, both so far as holidays and the school year is concerned.
So far as Y is concerned, she proposes he spends time with his father, during the school term, on each Monday from the conclusion of school until 8:00pm and on alternate weekends from the conclusion of school Friday until Sunday at 5:00pm.
In respect of school holidays, she proposes that the father have a longer weekend, with Y, concluding at 5:00pm each Tuesday, in each school holiday and have a week, with the child, in the end of year school holiday.
The case came into court, for the first time, in early August of 2020. At that stage, it was readily apparent to me that each of the parties was an intelligent person, who aspired to achieve the best outcome for X and Y, albeit that they fundamentally disagreed about what would be the nature of that outcome.
In these circumstances, it seemed that the parties be referred to a process of mediation to see if this would assist them to work through their differing views in respect of the parenting of X and Y. Such an order was made.
However, in conjunction with this intervention and on the proviso it was not successful, the parties agreed to seek the advice of a family consultant, who would interview each of them and the children, pursuant to the provisions of section 11F of the Family Law Act. It was implicit in the agreement between the parties that the advice to be so provided would also be given to the court.
At the time of this order, the parties were not in a position to agree on the identity of the family consultant concerned. Rather, it was agreed that the mother would submit to the father a list of three possible consultants, from which the father would choose the one of his preference.
Given the timeframe anticipated for these various interventions and in order to give them the best possible prospects of success, the case was adjourned for a comparatively lengthy period of time, until mid-December of 2020.
Regrettably, things did not progress as was hoped and the private mediation, between the parties, was unsuccessful. Accordingly, it became necessary to engage a family consultant to interview the parties and the children concerned. This process provoked fresh controversy between the parties.
On 30 November 2020, Mr Leckner deposed that he had received a text message and video from Y, which he had covertly made of a conversation between X and her mother, in which he alleges the mother was screaming and swearing at X.
Thereafter, the father’s solicitor received a letter from the mother’s solicitor restraining Mr Leckner from utilising the recording in either further mediation or otherwise, as in the view of Ms Tomey’s solicitor, the recording in question had been illegally obtained in contravention of the provisions of the Surveillance Devices Act 2016 (SA).
On 11 December 2020, Ms Tomey filed a responding affidavit, in which she objected to the previously agreed family consultant, Ms F, proceeding with the agreed intervention, with the family, on the basis that her objectivity had been contaminated by provision of a transcript of the controversial interaction between X and her mother, recorded by Y.
Ultimately, I was not required to resolve this dispute between the parties because they wisely agreed to enlist another family consultant, Ms B, to engage with them and the children. However, this delayed the case to some degree.
Ms B undertook, what she described as a private child inclusive meeting, with X, Y and the parties on 5 March 2021. Prior to that date, each party filed a further affidavit, in the Court, which indicated a worsening of the relationship between them. In this context, the parties fundamentally disagree as to the implications of Ms B’s report.
On the one hand, it is the mother’s view that Ms B has demonstrated a lack of objectivity, in her report, and has displayed an obvious level of bias against her. On the other hand, it is the father’s position that Ms B has accurately gauged the nature of the parties’ relationship with one another and the children concerned.
Ms B’s report
Ms B described Mr Leckner as being pleasant, positive and conciliatory and a person, who appeared to be child-focused. Ms Tomey was described as presenting as determined and intense.
Ms B described X as being very withdrawn and reserved. However, she indicated to Ms B that she welcomed the opportunity to have her say. Interestingly, Ms B considered that she made conflicting statements, from time to time and appeared to be cautious in what she said to her (Ms B).
In respect of X’s view of her father, Ms B reported as follows:
“X spoke positively of her relationship and time with her father. She described individual activities with him such as shopping, playing board games, watching television and cooking together. She described him as being humorous and affectionate and that he frequently smiles, gives her hugs, and tells her that he loves her. Her father does not get angry but he often becomes overwhelmed or anxious and manages this by doing one thing at a time. She has never been afraid of her father. She similarly enjoyed spending time with his partner Ms G, cooking and chatting and sewing together. On a Saturday morning X slept in while her father took Y to sports training.”[3]
[3] See Ms B’s report dated 5 March 2021 at [42].
X indicated to Ms B that her study habits and bedtime routines were similar at each of her parent’s homes, with Ms G helping with homework, from time to time. X also described a positive relationship with Y.
In respect of her relationship, with her mother, X indicated as follows to Ms B:
“X described her mother as being a busy professional who works long days, who is very open minded. She explained that on occasion her mother can become very angry and yell at her. On these occasions, X remains calm and does not react or yell back as she has learnt that this makes her mother angrier. The Consultant asked if she was afraid of her mother. X took some time to respond and appeared to be considering her wording. She stated that perhaps on one or two occasions she had been.”[4]
[4] Ibid at [45].
It is common ground between the parties that Ms Tomey does not currently have a happy relationship with her own mother, whilst Mr Leckner regularly interacts with the children’s maternal grandmother and takes the children to see her regularly. This appears to be a further fissure in terms of the children’s familial relationships.
In this context, X herself spoke positively of her relationship with her maternal grandmother but further indicated that she was only comfortable to spend time with her, with her father, because she did not wish to appear disrespectful of her mother’s feelings.
At this stage, I am unable to unpack definitely what this means, so far as X is concerned. However, I am concerned at the potential for X to make decisions, regarding her ongoing relationships with important family members, on the basis of her mother’s perceptions and feelings.
Ms B summarised her interview with X in the following terms:
“X wanted to be able to spend time with her father subject to her wishes. She was happy with the current arrangement. She enjoyed the one-to-one time with her father and time that involved Y. Being in Year 11 and having considerable demands upon her she would like to be able to choose when to spend more or less time with Mr Leckner depending on what else was happening that week. She felt both parents supported her in this.”[5]
[5] Ibid at [50].
Although the focus of these proceedings is not on Y, it is necessary to indicate some of what he said to Ms B. He alleged that his mother attempted to coerce his responses to Ms B by threatening to remove him from his school if he indicated that he wished to spend more time with his father.
However, Y indicated to Ms B that he enjoyed spending time with his father, felt sad that he did not spend enough time with him, and indicated a clear view that he wished to spend more time with him, describing Mr Leckner as a loving caring father, who was rarely angry but rather easy to get along with.
In contrast, Y described a complex and volatile relationship with his mother, asserting that she had tantrums, in which she yelled and screamed at him and his sister.
Ms B summarised Y’s view of his mother’s disposition in the following terms:
“Y stated that his mother’s volatility was not isolated to himself. He expressed concern for X when in their mother’s care. He reflected that X was frequently highly distressed after an argument with Ms Tomey. Allegedly Ms Tomey was frequently enraged with X. She yelled at her and called her a “fucking bitch…. A fucking cow…. A witch”. Although X largely and successfully did not react, she was also often brought to tears. Over the last 3 months Y has had to console X in her bedroom after an argument with their mother on an estimated 3 occasions. He described X as being highly distressed, “sobbing” and what he described as “squeal crying”. He provided a demonstration of crying that had him gasping for air and making a squealing sound of pain. He reflected “mum’s behaviour towards X is mind blowing… it’s insane”. He provided a recent example where their mother allegedly accused X of not being sufficiently grateful and thanking her for everything she had done for her in preparation of the Year 11 C School formal. On this occasion he found X sobbing in her bedroom.
Y stated that his mother frequently spoke in a highly denigrating manner about their father. She never referred to him by his name but that rather she referred to him as “that fucking dick head”. In comparison his father’s reactions were minor. He often refers to their mother as “that lovely woman” in a sarcastic way.”[6]
[6] Ibid at [61]-[62].
It is clear that Ms B was concerned by what was reported to her, by the children, in respect of the mother’s behaviour. In this context, it is the submission of Ms Tomey’s counsel, Ms Lewis that Ms B has inappropriately opined that her client has some sort of personality disorder, which is both beyond her expertise to diagnose and the remit of her professional obligations. This is the underpinning of the submission that Ms B’s report is biased and therefore its conclusions should be approached with some degree of caution.
Nonetheless, Ms Lewis points to the fact that X has clearly indicated that she wants to decide when she spends time with her father rather than be subject to any specific direction. In her submission this should be the determinative factor in resolving the current dispute, particularly when regard is had to X’s age
In her evaluation of the family, Ms B indicated a view that the mother was struggling to support the children’s relationship with their father. In this context, Ms B did not think that Ms Tomey had identified any particular factors, which would indicate that the children were at risk of suffering harm, if they spent more time with their father than occurred at present.
Ms B did however note, as I have done, that the parties appear to have quite disparate parenting styles and personalities. In this context, Ms B considered that the greater risk to the children was having a reduced relationship with their father, rather than not achieving their full academic potential.
In respect of the allegations regarding the exposure of X to family violence, Ms B wrote as follows:
“Of concern to the Consultant was X’s reported degree of distress and her efforts to contain her emotions to remain safe in her mother’s care. She clearly loves her mother while also possibly being the subject of her alleged abuse. In light of the statements made by Y and in conjunction with X’s presentation during her interview, the Consultant is left concerned for X’s emotional wellbeing. X impressed as being a closed, cautious, and guarded adolescent. She appeared to choose her words, not wanting to indicate a preference either way. If the Court were to accept Y’s statements regarding the emotional and verbal abuse she receives from Ms Tomey and the impact this has on X it would seem that she would benefit from the protection of Court Orders. Without Court Orders the Consultant questions whether X has the capacity to go against her mother and increase the number of overnights she spends with her father and brother if that is what she wanted.
…
In summary, it is assessed that it may be the case that Mr Leckner’s parenting is likely less focused on academic achievement but in this limited assessment this does not equate to a risk. The Court may wish to give consideration to Mr Leckner having 5 nights a fortnight at a minimum. The children’s interests are best met with time spending being clearly specified in Court Orders, including handovers, a week about in school holidays and joint attendance at school events. With the Court Orders being the same for both children. It is noteworthy that within a short period of time these children will be adults and will have adult relationships with their parents based on their experiences of them.”[7]
[7] Ibid at [68] & [71].
To the parties’ great credit, they have agreed to adopt Ms B’s recommendations, so far as Y is concerned, at least in the short term. However, they are not able to agree, as yet, on the division of school holidays, beyond the current April one.
How the court determines a child’s best interests
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which 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.”
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright,[8] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[8] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26].
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the 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.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3).
There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (a); (b); (f); (i); & (j) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The views of any child concerned and any factors impacting on that view, particularly the maturity or level of understanding of the child;
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The capacity of the parents concerned to provide for the emotional and intellectual needs of the child concerned;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned; and
·Any family violence involving the child or a member of the child’s family.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[9]
[9] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755.
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general…”[10] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[11]
[10] Ibid, at 84, 220.
[11] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J .
The primary considerations are generally to be given more emphasis, arising as they do directly from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
In this case the parties agree that the presumption should apply to their care of the children and is not rebutted by any of the considerations contained in section 61DA(2) – (4), which include exposure of a child to family violence. However, issues relating to family violence have been raised in the case and are clearly germane to its outcome at this stage.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”
It is the father’s case that the mother has subjected both children to family violence by yelling, abusing and screaming at the children, from time to time. This is a sensitive issue. No parent or person is perfect. We are all subject to moments when we lose our composure and act in ways which are out of character and which are not reflective of our true nature.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown or a response to a wilful adolescence. An explosive outburst may be instantly regretted resulting in an attempt to make the situation good.
Other incidents of violent behaviour can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned, with the clear import of intimidating and humiliating a family member. Obviously, the latter type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child.
The import of the legislation is not necessarily to censure the normal incidents and failings of human nature, which must always arise. Rather it is to protect any relevant persons from the conduct of other family members, which are designed to intimidate, control and coerce such an individual.
At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made. As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case.
In the present case, it is clearly the case that X loves her mother very much indeed. It is also self-apparent that Ms Tomey has made many sacrifices, including financial ones, to ensure that X, and indeed Y, secure the best possible educations. Ms Tomey is a busy professional person, who has many demands on her time.
Without wishing to appear patronising to her, it is likely that she is subject to many stresses, in her life, from time to time. As such, I must be careful, in private proceedings such as these, to set unrealistically utopian standards of behaviour for those concerned with the case. That would be unduly judgmental and essentially unrealistic.
However, at the same time, X has reported to Ms B being frightened of her mother on occasions. To some extent, children should be frightened of a parent, in certain contexts, particularly if these involve some form of disciplinary transgression.
The concern, in this case, which is extremely difficult to resolve at this stage of proceedings, is whether the mother’s conduct has gone beyond what is acceptable. If there is a risk that X’s will or wishes in respect of her desire to maintain a relationship with her father will be overborne by her mother’s conduct, in my view, this is a significant issue indeed.
It is the main thrust of the father’s case, at this stage, that there is a significant risk that X will feel obligated to placate her mother’s feelings or will be otherwise intimidated as a consequence of exposure to her mother’s explosive personality, to such a degree that she will feel obligated to forego a proper level of relationship with her much loved father.
In my view, this is the risk which I must examine at this stage of proceedings. In Deiter & Deiter,[12] 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.
[12] See Deiter & Deiter [2011] FamCAFC 82.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. Risk can range from the risk of a child being exposed to neglect or abuse or to some other form of less serious compromised parenting. The Full Court, in Slater & Light,[13] 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.” [14]
[13] Slater & Light [2013] FamCAFC 4.
[14] Ibid, at [37].
The parties fundamentally disagree about what is the real nature of X’s views in respect of what time she wishes to spend with her father, at this stage of her development, whilst she embarks on the last two crucial years of her secondary education, which may be central in the determination of what path her adult life will take.
In this context, it seems likely that X, a studious and serious adolescent, is herself subject to all manner of stresses and strains. I have no desire to make her life more difficult or to place more pressure upon her. At the end of the day, it is not X’s fault that her parents are barely able to tolerate each other.
The applicable legislation requires me to consider any views expressed by the children concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[15]
[15]See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at [56].
Clearly, X is a mature and intelligent child. Given her situation, she is also an extremely guarded one. The import of Ms B’s report is that she feels torn in her loyalty and love for both of her parents, each of whom she cherishes and with each of whom she wishes to have a happy and normal relationship.
Given these types of pressures, which invariably arise in highly contested proceedings such as these, a child is not required to make a decision about what is the appropriate outcome for him or her in any particular case. Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[16]
[16] See H v W (1995) FLC 92-598 at 81,944.
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[17]
[17] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724.
The nature of an interim hearing
Although the legal principles to be applied at the interim and final hearing stage are the same, the format of the two types of hearing are fundamentally different. Interim hearings take place in a truncated form, without cross-examination.
Often, at an interim hearing stage, the evidence, particularly of an expert nature, is limited. As such, the court is not able to make conclusive findings of fact or make an accurate appraisal of the credit or parenting aptitude of the parties concerned.
At the final hearing stage, the evidence is much more extensive and more thoroughly canvassed. The parents concerned are subject to scrutiny through cross-examination and perhaps asked questions, about their past conduct or future motivation, which they may find difficult or uncomfortable to answer. Necessarily, it is a more emotionally bruising experience.
The sole object of any parenting case is on the pursuit and safeguard of the best interests of the children affected, not on the perceived rights of the parents concerned. Because of this focus, it is invariably the case that the court obtains some form of expert appraisal of the family involved, which includes an observation of the child or children concerned, which, depending on the age of those children, will include some form of interview with them by the relevant expert concerned.
In such reports, it is frequently the case that the expert commissioned will provide a series of recommendations for the consideration of not only the court, but also the parents involved in the case. For reasons of practicality, it is preferable that such reports be released to the parties well in advance of the final hearing, so that any recommendations and the basis on which such recommendations have been made, can be closely considered and, if appropriate, alternative means of resolving the dispute, other than litigation, be applied.
It is frequently the case, as in the current matter, that recommendations made by an expert are highly controversial between the parents concerned, particularly if the recommendations made favour a significant change to existing provisional parenting regimes, implemented at an earlier stage.
In this context, one parent may seek to re-agitate parenting arrangements in advance of the scheduled final hearing, for which the report was ordered in the first place, on the basis of recommendations made. This scenario has the potential to create its own dilemmas, which include the following:
·It is the court, not the expert, no matter how well qualified, who is charged with the determination of the case concerned;
·This is because it is the court which is best placed to make findings of fact, regarding issues of credit, based on how witnesses, including expert ones, perform under cross-examination;
·However, any such expert has a significant advantage over the court because he/she has had the opportunity to have a face to face interaction with the child or children concerned, which the court will never have;
·On the other hand, the expert does not have the advantage of seeing witnesses, particularly parents, subjected to the forensic scrutiny which cross-examination provides;
·In addition, as with any interim hearing, at this stage, the methodology of the expert concerned, including whether his/her recommendations are based on some misconception or misunderstanding of the evidence, cannot be subject to scrutiny.
For these reasons, at the interim hearing stage, the court must be careful in how it approaches the recommendations provided by a family report. On the one hand, the court should avoid an excessive number of interim hearings.
On the other, such reports are highly influential in shaping the court’s view as to the outcome best suited to serve the interests of any child affected by the proceedings before it. In addition, it is invariably the case that a child’s best interests will be served if a final hearing can be avoided.
For obvious and sensible reasons, Mr Leckner and Ms Tomey decided to obtain an assessment of their family from Ms B. Ms B’s report is some seventy one closely written paragraphs in length. She read all the documents on the court file. It seems clear that she spend a reasonable period of time with each of the individuals concerned.
As I have indicated already, her views are controversial. In this context, I have not seen her subject to any cross-examination and so faults in her methodology and approach to the case, including any potential biases, subject to scrutiny. Accordingly, her report and its recommendations may prove to be flawed.
However, at the same time, she has a significant advantage over me in this case. She has actually met X and Y and spoken to each of them. Accordingly, Ms B’s views in the case are informed by an actual visceral exposure to the children, whom I will never meet. In these circumstances, in my view, unless there is some obvious defect in the report, it is necessary for me to give it close consideration.
The other irony of the case is that, given X’s age and the pressures on the court’s business, it may well be the case that the final hearing, if needed, of the parties’ competing applications so far as X is concerned, may not occur until well into 2022, when X will be fast reaching her eighteenth birthday and so fall beyond the remit of the court.
CONCLUSIONS
I accept that both X and Y have a close and loving relationship with each of their parents. In my view, both Mr Leckner and Ms Tomey bring different but complimentary attributes to the parenting of the children. In addition, in general terms, I accept that it is likely to be beneficial for the children to have exposure to both male and female role models and the best role models, in this regard, are their parents.
Accordingly, in my view, it is clearly the case that the children will benefit from having a meaningful level of relationship with each of their parents. As such, the children need to spend sufficient time, with each of their parents, to sustain these relationships. In my view, as the parties have to some extent acknowledged, it is important that Y’s time with his father be extended.
Ms Tomey complains that Mr Leckner is not sufficiently motivated or organised to ensure that the children perform their homework and does not himself abide to the routine, which they need. Mr Leckner disagrees. It is not possible to resolve this issue in the context of the current proceedings. However, in this context, it is noteworthy that X herself did not complain to Ms B of any particular deficits in her father’s household.
In general terms, involvement with extended family is important for the development of children. In particular, grandparents can provide children with important family history and give them a sense of where they fit in a broader or extended family. They may provide a different perspective on life to children.[18]
[18] See Bright v Bright (1995) FLC 92-570.
The evidence is clear that Mr Leckner is better placed in this regard. It is also clear that X cherishes her relationship with her maternal grandmother and this may prove to be a bone of contention between X and her mother. In my view, this is a factor which supports there being a fixed regime for time spending, which take some pressure off X herself.
The case, at this delicate interim stage, raises inchoate issues regarding X’s potential exposure to family violence, in the form of the allegations her mother has subjected her to angry tirades of abuse. The mother denies the gravamen of these allegations. I also accept that I must not apply artificially high standards to individuals in respect of their parenting. No one can be perfect and all are subject to the vicissitudes of stress.
In this context, I do not consider the mother would consciously want to hurt X in any way but in a volatile situation there may be a risk of her (Ms Tomey) losing her composure and reacting in an extreme manner. Given her strong and perennial antipathy to Mr Leckner, such a situation may arise if X and her mother disagree about some aspect of her (X’s) potential desire to do something with her father, of which Ms Tomey disapproves.
Such a disagreement, in my view, has the potential to lead to an unhappy outcome for X. More importantly, in my view, it is the context of the expression of X’s views, that these factors loom large. Given the necessary power imbalance, incumbent and necessary in all parent/child relationships, it may be difficult for X to express her preference, particularly in the face of her mother’s vociferous opposition and particularly if it leads to damaging verbal conflict between mother and child.
Accordingly, in my assessment, although X is clearly a highly intelligent and mature child, she is still beholden to the strong influence of her mother, who is not likely to take a dispassionate view of X expressing a view, which does not meet with Ms Tomey’s. This situation is likely to represent an impediment to X being able to express her views candidly and openly without fear of retribution.
In these circumstances, given the obvious strength and importance of her relationship with her father, these factors militate in favour of the mix and match approach proposed by Mr Leckner, which allows X some personal degree of flexibility but also fixes a significant component of time which is not subject to negotiation and frees the child of any obligation to placate one or other of her parents. I consider that this is the preferable outcome, for X, at this stage, given the endemic conflict between her parents, which is unlikely to moderate in the foreseeable future.
One of the additional considerations (section 60CC(3)(l)) enjoins the court to consider whether it is preferable to make the order which is least likely to lead to more proceedings. This is in keeping with other aspirations contained in Division 12A of the Act, which contains a number of principles to be applied in the conduct of child-related proceedings.
Y’s unequivocal view is that he wants to spend more time with his father. The mother concedes this so far as the recently concluded April school holiday. In all these circumstances, it seem preferable that this issue should be determined in respect of forthcoming school holiday periods and, in the short term, I do not consider that such an arrangement should not include X.
For all these reasons, at this stage, I propose to make the orders as proposed by the father. Given the high level of disputation between the parties, and one of the central factors leading to it being the high level of disputation between them, my desire is to spare the children from potential exposure to this conflict. It is my view that it would be helpful for X and Y if an independent person explains the import of the orders to them in a calm and professional manner, with a view to absolve them of any feelings of responsibility for the making of the orders.
The obvious person to undertake this task is Ms B, who has some rapport with the children and is professionally qualified to do so. I will direct that the parties make an appointment with her, as soon as is reasonably practicable, to undertake this task and I will direct that these reasons for judgment be provided to her concurrently with their release to the parties concerned.
It would seem to me to be premature to fix the matter for final hearing. I am not clear what issue are likely to remain outstanding between the parties or what other interventions, of a professional or therapeutic nature, they may wish to undertake prior to any such final hearing. I am hopeful, perhaps naively so, that there may be a return to the previous level of equilibrium, uneasy though that may have been, prior to the institution of these proceedings.
In these circumstances, I propose to adjourn the further hearing of the matter until a date after the mid-year school holidays, for directions, to ascertain what the position of the parties is at that stage and whether there is any further need for the court’s involvement.
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 and thirty-nine (139) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 27 April 2021
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