Loddington & Derringford (No 2)
[2008] FamCA 925
•31 October 2008
FAMILY COURT OF AUSTRALIA
| LODDINGTON & DERRINGFORD (NO. 2) | [2008] FamCA 925 |
| FAMILY LAW – CHILDREN - Best interests – Inability of parties to communicate – Rebuttal of equal Shared Parental Responsibility – examination of what is parental responsibility –Meaningful Relationship |
| Family Law Act 1975 (Cth) |
| Fork & Thomas (1993) FLC 92-372 Godfrey & Sanders (2007) 208 FLR 287 Goode and Goode (2006) FLC 93-286; (2007) 36 Fam LR 422 H and H (2003) FLC 93-168 M and K [2007] FMCAFam 26 Mazorski & Albright (2008) 37 Fam LR 518 |
| APPLICANT: | Ms Loddington |
| RESPONDENT: | Mr Derringford |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | AYC | 390 | of | 2007 |
| DATE DELIVERED: | 31 October 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 11, 12, 13 & 14 AUGUST 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MS WHEELER |
| SOLICITOR FOR THE APPLICANT: | LORETTA TERRILL FAMILY LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MR ALLEN |
| SOLICITOR FOR THE RESPONDENT: | TOLHURST DRUCE & EMMERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | MR PUCKEY |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | MORRISON & SAWYERS |
Orders
That all existing parenting orders are discharged.
These parenting orders relate to the children M and E both born … June 2004.
That until the children’s birthday in June 2011, the mother have sole responsibility for making decisions concerning:
(a) The education of the children including matters connected with their attendance at pre-school/kindergarten and primary school; and
(b) The health of children,
but that otherwise, the mother and the father have equalled shared parental responsibility for the children.
That notwithstanding that the mother has sole parental responsibility for the matters referred to in paragraph (3), in respect of all such decisions, through the communication book, the mother shall:
(a)advise the father of her proposal and invite his response allowing at least 14 days before a decision has to be made (except in the case of a health emergency);
(b) if the father offers a response, consider it; and
(c) notify the father of her decision.
For the purposes of paragraph (4), if the father receives the advice of the mother referred to in paragraph (4)(a), he shall have 7 days in which to respond through the communication book (or by letter if the communication book is not going to be available within the time required for a response).
That for the avoidance of doubt, decisions concerning health issues shall relate only to those requiring treatment or counselling from a health professional other than day to day medical matters normally treated by a general medical practitioner.
That the father have the right to attend all appointments and functions relating to the health and education of the children regardless of whether or not he has been a participant in the decision for the attendance of the children upon the health practitioner or at the educational facility.
That each party keep the other advised of any illness or injury requiring medical attention and if so, authorise the medical practitioner for the children to provide all such information as a parent would normally be entitled to in respect of the children.
That the mother and the father be at liberty to produce a copy of these orders to any such health practitioners and education authorities.
That the children live with the mother.
That the father spend time with and communicate with the children:
(a)until 1 February 2010 from 12 noon on Friday until 6.00pm on the following Sunday in the first week of a two week cycle and from midday on Wednesday until 6.00pm on Friday in the second week of the two week cycle;
(b)after 1 February 2010, from the conclusion of school on Friday until the commencement of school on Monday morning in the first week of a two week cycle and from the conclusion of school on Wednesday until the commencement of school on the following Friday morning in the second week of the two week cycle;
(c)from 4.00pm on 25 December 2008 until 4.00pm on 26 December 2008 and for a similar period in each alternate year thereafter;
(d)from 4.00pm on 24 December 2009 until 4.00pm on 25 December 2009 and for a similar period in each alternate year thereafter;
(e)from 5.00pm on the Saturday night prior to the commencement of Father’s Day until 5.00pm on the Sunday of Father’s Day weekend.
(f)On the birthday of the children and on the father’s birthday from 3.30pm to 7.00pm or at such other times as the parties may agree;
(g)From 3.30pm on the Thursday prior to Good Friday until 3.30pm on Easter Saturday in the year 2009 and for a similar period in each alternate year thereafter;
(h)From 3.30pm on Easter Saturday until 3.30pm on Easter Monday in the year 2010 and for a similar period in each alternate year thereafter.
That any time to be spent by the father with the children pursuant to paragraph (11) hereof is suspended:
(a)from 5.00pm on the Saturday evening before Mother’s Day until 5.00pm on the Sunday of Mother’s Day; and
(b)on the mother’s birthday from 3.30pm to 7.00pm or at such other times as the parties may agree
For the purposes of all changeovers other than when the children are collected from and returned to school in the future, the father collect the children from the home of the mother at the commencement of the period and the mother or her nominee collect the children from the father’s home at the conclusion of the period.
That each party keep the other advised of any changes to their current residential address or telephone numbers including mobile telephone numbers.
That each parent complete the Parenting Order Program (POPS) upon which they have embarked.
That upon the completion of the POPS program, each party pursue and complete any parenting, counselling or education or mediation as may be recommended by the POPS program facilitator. If there is any cost associated with such ongoing counselling, therapy or mediation, the father shall be responsible for it.
That each party make entries in a communication book to travel with the children setting out details of:
(a) the matters referred to in paragraph (4) and (5) hereof;
(b) any illness or injury of the child;
(c) any medication being taken by the child;
(d)any forthcoming social events of the child that may occur during the period of time with the other parent;
(e)any particular behavioural problems that have occurred since the children last were exchanged of such a nature that the other parent should know about and be conscious of.
That all other applications outstanding between the parties are otherwise dismissed and removed from the list of cases awaiting a hearing.
That the Independent Children’s Lawyer be discharged.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Loddington & Derringford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: AYC 390 of 2007
| MS LODDINGTON |
Applicant
And
| MR DERRINGFORD |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
There are two parenting issues in dispute between the parents of the children in this case. The first is whether they should continue to have equal shared parental responsibility and the second is what time the children should spend with each parent.
The children are E and M. These twins were born in June 2004 and are therefore just four years of age. The whole of their four years has been surrounded by litigious controversy.
There is nothing unusual about the case other than that not only can the parties not agree about their children but they have not spoken or communicated with each other for the entire four years of the lives of the children. Each espouses a desire for change but the prospects of that happening seem remote.
Having regard to that lack of communication along with an ingrained lack of trust, it is not difficult to imagine that the litigation has just embattled the parties more than ever.
Perhaps surprisingly, in respect of the second of the two issues mentioned in the opening paragraph, the parents were not far apart in their desired outcomes. Despite that, they could not bridge the gap.
One of the unusual features of this case is that the mother was the applicant seeking to discharge orders that were made with her consent.
Background
For convenience, I shall refer to Mr Derringford as “the father” and Ms Loddington as “the mother”.
The father is 43 years of age and the mother 32 years.
As I have indicated, the twins are four years old.
The father and mother had a relationship in 2003 and the mother moved to live in the father’s home in an outer south-eastern Melbourne suburb in December 2003. The relationship was extremely short. The parties did not marry.
The mother has a daughter K who will soon be 13 years old. The father has no other children.
The father had a variety of jobs mostly of a labour-intensive type. He lived with his parents until he was 40 years old. His father died and as a consequence, he inherited his estate. The father therefore has just over $1 million in assets which includes a house, car and chattels. He has a large sum of money invested upon which he lives and from which he supports the children.
The mother has been the parent primarily responsible for the care of these twins and K. She is reliant upon Centrelink, child support from the father and financial assistance from her parents. Her parents are retired and use their limited capital for the assistance of their daughter.
Notwithstanding the parties commenced their relationship in the southeast suburbs of Melbourne, they now live just kilometres away from each in country north-eastern Victoria.
Shortly after moving in with the father, the mother became aware that she was pregnant. Before finding that out, the father told her that their relationship was ended. Just weeks later, the pregnancy was confirmed as twins.
The immediate period after Christmas Day 2003 was unpleasant but an indicator of what was to come. Apart from arguments in the father’s house, the parties did not talk to one another.
On 12 February 2004, the father prevented the mother from using the house telephone. That was notwithstanding the father’s knowledge of the mother’s pregnancy. His explanation for that behaviour was that he and the boarder who also lived in the house were paying for the telephone. When I asked him about whether he would repeat that situation in hindsight, he said that he would not. It must be remembered that the mother was not working, had no source of income and was pregnant.
On 19 May 2004, the mother left the father’s home.
In June 2004, the twins were born. They were 11 weeks premature.
The parties’ evidence descended to the precise times and dates of what times the father saw the children in the hospital. It mattered little. Three things were abundantly clear. The first was that the father wanted a significant part in the lives of the children from their birth including at the hospital. The second was that the mother was struggling with two very premature babies and was endeavouring to commence breastfeeding. She informed the father of the birth and did not dissuade his attendance at the hospital. The third was that the children were in neo-natal intensive care with significant health problems. During this period of time, the prematurely born children had been tube-fed and the mother was endeavouring to wean them from the tubes to breast feeding. In July 2004, M had surgery for a bowel hernia. The children also contracted serratia which is a form of infection peculiar to hospitals. In addition, the children were diagnosed with heart murmurs.
In that setting, the father disappeared for over four weeks. He unexpectedly took over the care of his sister’s grandchildren during which time, he became ill. His evidence was that the illness kept him away from the hospital to avoid infecting the children. That would not only have been sensible but also responsible except for the fact that he did not tell anyone. He merely disappeared. That shows the level of communication between the parties.
In the fifth week of the lives of the twins, the father appeared at the hospital to which they had, by then, been moved. The father found out by going to their birth hospital.
The father was insistent upon seeing the children. At this time, the mother obtained legal advice about what she was obliged to do. A variety of arrangements were then put in place. The mother’s view was that her requested arrangements coincided with times when she was not feeding the children but the father ignored her. The father adopted a dogged approach to his participation in the lives of the children whilst at the same time not being communicative. There were issues associated with the spelling of names on the birth certificates and any time that he was to spend with the children prior to leaving the hospital was arranged through the hospital social worker.
To be fair to the father, he had prior to this, generously provided the mother with a car, cash and vouchers to enable the setting up of all things including rental accommodation that she needed for the children. The father clearly not only wanted children, he wanted to participate in their lives.
The Litigation Begins
The time approached in early August 2004 for the children to leave hospital. Rather than sit down and cooperatively work out an ongoing relationship and regime for the parties and the children, the father filed an application in the Federal Magistrates Court at Dandenong. No evidence was led about any pre-action procedures so I have concluded that there was none.
The application, filed by a legal practitioner on behalf of the father but no doubt on his instructions, was breathtaking. It sought orders that the children live with each party on a week about basis. It also sought that the parties have joint responsibility for making decisions regarding the children’s long term care, welfare and development and that otherwise, the parties establish and utilise a communication journal to record and exchange information and any concerns relating to the children’s welfare.
In his affidavit of evidence before me, the father explained his action this way:
I believe it is in the best interests of the children to have a strong relationship with both parents and for the father to be actively involved in their lives. The comments and actions [the mother] prior to and immediately following the birth of the children made it clear to me [the mother] did not want me to be part of the children’s lives.
As I was aware [the mother] was restricting my relationship with the children, apparently on legal advice, I felt I had little choice but to apply to the Federal Magistrates Court to ensure I could spend time with and participate in the children’s lives.
These orders were sought in relation to children who had been seriously ill having been born prematurely and with whom the father had had fleeting moments at the hospital. The father was cross-examined at some length about why he filed the application. The best explanation he could give was that he wanted to be significantly involved in the children’s lives and that he was able to care for them. I asked him whether in hindsight, his application was “silly”. He agreed. Least it be said that this is a blunt criticism of the father, I wish to make it clear that if there was criticism to be levelled at anyone, it was to the lawyer who filed the application. As I indicated during the proceedings, I thought that action was irresponsible.
Having had the opportunity to witness the demeanour and evidence of the father, I am satisfied that he is a person who follows advice, is hardly worldly and has a dogged approach to things that he sees as being right.
Silly or otherwise, the litigious approach got the parties off to a bad start.
Orders 27 September 2004
On 27 September 2004, it was ordered by the Federal Magistrates Court of Australia at Dandenong that the father have contact with the children each Tuesday and Friday from 11.00am to 1.00pm in the presence of the maternal grandfather.
In September 2004, the mother filed a response to the application to which I have just referred. She sought orders that the children live with her and that she be able to relocate them to the town of C. The reason she proposed that town was because that was where her parents were relocating to and she was dependent upon them for assistance. She proposed orders that the father spend time with the children for two hours on each Wednesday and Sunday between 11.00am and 1.00pm. She also sought orders that the father’s time be supervised by her father with the contact taking place at her home but in the absence of her and her mother.
Having regard to the ages of the children, the state and nature of the relationship of the parties and what the children had been through, the proposal of the mother was eminently sensible.
Orders 23 November 2004 - Relocation
When the matter returned to the Federal Magistrates Court on 23 November 2004, the parties were able to reach agreement. The court record shows that consent arrangements were made for the father to have contact for two hours on three days each week but the court imposed a one hour period on the parties on Christmas Day which was then about a month away. Significantly, the orders showed that the mother was permitted to relocate the children to C.
To his credit, the father agreed to the mother relocating the children so that she could go to live with her parents.
The father was to spend time with the children at the mother’s home at C on each Monday, Thursday and Friday from 11.00am to 1.00pm. The orders provided that that contact take place with the mother’s father present but in her absence. At first blush, the father must be given credit for the fact that not only was he permitting the mother to move away from the Melbourne area by a significant distance but also, he was to travel that distance on at least three days per week for a very limited period of time with the children.
The orders went on to provide that four months further on, the contact arrangement was to change so that the father saw the children on Tuesday, Friday and Saturday between 11.00am on 1.00pm away from the mother’s home.
Just days after the orders were made in October 2004, the mother and her parents relocated and she moved into rental premises.
The Role of the Grandfather
Curiously, the parties both described the arrangements that the father spend time with the children in the presence of the maternal grandfather as unsupervised. I could not help but notice the sensitivity with which the father approached the subject. He strongly advocated that he did not need supervision yet the grandfather was to be present at the house. It must be borne in mind, and this was conceded by the father, that the children slept through most of these contact periods. The two men sat in the same room of the house and had “normal man to man conversations”. There was nothing else to do. That situation of calm pleasantry continued according to the grandfather until “the affidavits started” and there was an attack on his family which he did not think was appropriate.
Despite the demise of the “man to man” discussion, the father came bearing gifts such as wine and paint brushes. The grandfather rejected the father’s approaches. When the grandfather gave evidence, he had nothing good to say about the father other than that there was now no conflict between them. When I inquired whether the grandfather thought he could be a broker of peace, to his credit, he thought it possible but said that there were still some deep scars. It is in the interests of these children for their grandfather to take a leading role if the father is prepared to follow and not only bury the hatchet but also open dialogue on a “man to man” basis. There may be some prospect of these children seeing what counsel for the Independent Children’s Lawyer aptly described as the cold war ending. In cross-examination, the father said that he too thought it was possible as a first step. As between the grandfather and the father, I am optimistic about the prospects but with the mother and the father I am much more pessimistic. In fairness to the parties, and with great credit to the Independent Children’s Lawyer’s counsel, at the conclusion of the evidence on the third day, the mother and the father’s new girlfriend sat together in a coffee lounge and exchanged information and pleasantries. On day 4, again at the suggestion of the Independent Children’s Lawyer’s counsel, the father’s sister and the mother and maternal grandmother had a similar meeting. That is a start.
The Father’s Move
Having moved to C, the mother found out that the father had purchased a property close by to where she was renting. Her evidence was that she found this move extremely intimidating. She described the location of the father’s home as backing directly on to her property. She became concerned that he was stalking her. She said that she could see the father in his backyard from her bedroom. The father produced a series of photographs which he took from a helicopter. Whilst I acknowledge that there is a distinct proximity between the two houses, the father’s home hardly backs on to the property where the mother was renting. That is not to say she did not feel intimidated but rather, I find that she has exaggerated that particular point. Having said that, I also acknowledge that in a small country town such as C, it would be hard not to feel uncomfortable with that proximity.
It must also be understood however that the father was not living in this house immediately after it was purchased. He used it but it did not become his home for a period of twelve months. As a result of the acquisition by the father of the house, the mother moved closer to her parents.
The Domestic Violence Order Application
The mother applied for an apprehended violence order in the local magistrates court. Her complaint set out the background and she alleged one incident of violence. She then said that she ended the relationship due to her belief that the father was mentally unstable and had sexual perversions. She then went on to set out the detail about the father’s acquisition of the home and that she had fears for her safety believing that his actions were done to intimidate her and stalk her.
To make matters worse, this apprehended violence order application was sought by the mother whilst the father was at her home spending time with the children under orders of the Federal Magistrates Court. Her application was made ex parte. The order was served by the police. There was some dispute about exactly what the mother told the police to form the basis of the complaint. However, the order was made. It is quite clear that it was not the mother who ended the relationship with the father but the other way around.
I could not find that there was ever any basis for an apprehended violence order and certainly not one that could have been made legitimately on an ex parte basis. The order did nothing to improve the frosty relationship of the parties.
In respect of the allegation in the complaint of mental instability and sexual perversion, there is no evidence that could justify any finding about either of those matters. The mother conceded as much.
It is also to be understood that during the pregnancy and shortly thereafter, the father was undergoing counselling for depression related to the death of his father and I accept, the cessation of this particular relationship.
Whilst the parties were together for the limited period of time, according to the mother, the father drank heavily and was depressed. She said that at times he was aggressive and pushed her in front of the child K. The father had no recollection of any physical contact but certainly conceded there was argument. This has to be seen in the context of what was a very short relationship. It was certainly not a good foundation for cooperative future parenting. In many ways, it explains why there is absolutely no relationship between the parties now let alone any communication.
During the twelve month period subsequent to the purchase of the home, the father travelled regularly around 1500 kilometres per week to spend time with the children under the court orders. Prior to moving into the home, he stayed in a motel. In February 2005 when the father arrived to take the children away for his designated time, the mother refused to allow him to do so. An extraordinary position was adopted by both parties. The mother’s position was that the father could continue to see the children at her home. Her view was that he was not capable of caring for the children notwithstanding the existence of the court orders. The father continued to travel to the mother’s home only to be rebuffed when he sought to remove the children. He declined to spend the time with the children inside the home. This is in the context of the travelling that he was undertaking at the time. For some weeks, he did not see the children. He then issued an application to have the mother dealt with for contravening the orders.
The First Contravention Application
The contravention application was filed on 23 February 2005 alleging breaches of the orders from November 2004.
Bearing in mind that only six months before, the mother had consented to final orders, she sought to discharge provisions of that order, and substitute them with an order that the father see the children on Tuesday and Friday of each week from 10.30am to 12.30pm in her home in the presence of her father. In addition, she proposed that he see the children on each alternate Wednesday from 11.00am to 1.00pm at a children’s contact centre.
The First Family Report
On 13 April 2005, at the Federal Magistrates Court of Australia at Dandenong, an order was made that a family report be prepared. Mr M was appointed to complete the report and he did so on 24 May 2005. I was asked by all parties to read the report.
Mr M concluded that there were no grounds to believe that either parent presented any risk of harm to the children. However, the father’s capacity for the children had not been demonstrated nor could it have been having regard to the age of the children and the limited time that he had spent with them. The reporter noted the expressed willingness of the father to care for the children as an equal parent. The reporter had some sympathies with the mother. He noted however that there was hostility and mistrust between them.
Mr M expressed the view that any formal arrangement for equally sharing parenting would be inappropriate for at least two years. He was talking about equal shared time. Regardless of that, Mr M said that it would not be in the best interests of the children to be exposed to the ongoing tension and poor communication between the parties. He proffered that if the parties were able to understand a cooperative relationship, a shared parenting arrangement would be in the best interests of the children and the parents in the long term.
A fundamental recommendation of Mr M was that the parties engage the help of a counsellor to work towards establishing the relationship for cooperative parenting. It has to be said that little has changed.
Finally, Mr M recommended that the time that the father spent with the children should be at least four days per week and that it be increased gradually.
Orders followed on 12 April 2005 all of which were by consent of the parties. The orders provided for a reaffirmation of the orders made in November 2004 but rather than have the maternal grandfather attending, other people were mentioned to “assist the father during contact”.
Importantly, orders were made for the parties to take up the recommendation of Mr M about counselling. This was a subject of considerable dispute between them. Just exactly what happened was not clear. All communication between the parties took place through the journal that they handed to each other. The father suggested two counsellors and ultimately ended up seeing one himself. The mother said, and I accept, she did not receive any notification from the counsellor about an appointment. The father persisted in attending the counsellor who ultimately told him there was not much more she could do. The communication journal showed entries about the parties endeavouring to organise counselling appointments. I find that with the lack of communication between the parties, it was not at all surprising that joint counselling never occurred.
Whilst I accept that the mother was not provided with arrangements that suited her, there was a court order for the attendance upon a counsellor and she made no effort to implement what should have been done. She conceded that she did nothing about that and her explanation was that that was because the father was taking the steps to organise it. I find it more probable that she was content to have nothing to do with the father.
The Orders of 30 May 2005
On 30 May 2005, the parties were back before the Federal Magistrates Court at Dandenong and again the dispute was over what time was to be spent by the father with the children. These orders were not by consent but were of an interim nature. They provided for the father to spend time with the children on a building up basis. Initially it was for two hours on three days per week and then it moved to three hours and then four hours. The same “assistance” was to be made to the father but this time, “subject to his willingness to assist”, the maternal grandfather was included.
Again, the order of the court was that the parties undertake family therapy or counselling with an agreed person failing which, Mr M was to decide that person. It was only on that day that the father withdrew his contravention application. The proceedings were adjourned to the Shepparton sitting of the court in May 2006.
The calm was short lived. On 24 August 2005, the father filed another contravention application. This was based upon the mother’s refusal to allow the father to take the children away. One month later, that contravention application was withdrawn.
One of the issues in s 60CC(4) that I am obliged to consider when making a parenting order is the way in which each party has facilitated the ongoing relationship with the other parent as well as taken up the opportunity to participate in that relationship. It would be very simple in this case to be critical of the mother for her contraventions. The mother’s counsel in final submissions admitted there could be no argument about the breaches but she suggested that the father appeared more intent on taking the mother to court than continuing to see the children. I reject that. In respect of the mother’s position, whilst the breaches were inexcusable because there were orders, they were probably understandable on the basis that there was no communication, no relationship with the father and two very young children about whom the mother was very protective.
The Parties and Counselling
Subsequently, the parties did attend upon a psychologist who had set aside twelve periods. After four, the mother refused to continue on the basis that she felt that the psychologist was biased against her. It is evident that there will be no child-focussed relationship between the parties in the future without some form of counselling. The parties have both now enrolled in the Parenting Orders Program (‘POPS’). Each party is in the infancy stage of the program but each acknowledged interest in what they had been told and were willing to complete the task. They have also been allocated a person who acts as a facilitator.
Christmas 2005
The father enjoyed time with the children for four hours on Christmas Day 2005. However, at that time, a dispute arose between the parties over what the children were being fed. There was significant cross-examination about this issue and I am left with the overwhelming impression that it was either a subject of considerable miscommunication or that the father simply gave up.
According to the father, he fed the children Heinz baby food and recorded that in the communication book. Just after Christmas, the children became ill and the mother quite appropriately, wanted to know everything that they had been fed. There were questions about the children being taken to a doctor. At the end of December 2005, the mother told the father that if he did not put everything “from the label” on the baby food in the communication book, she would not let him see the children. On his next visit some days later, he was refused the children because he had not detailed the “ingredients in the jars” of Heinz baby food that he had fed the children on the previous visits. My view about what occurred comes from the parties’ own evidence. According to the father, the mother inquired of him whether he was going to write in the communication book the ingredients and he replied:
You know what I feed them, it is Heinz baby food.
I find that because of the poor relationship between the parties, the father had either given up trying to appease the mother or did not realise that she was inquiring as to what exactly was in the jar in terms of ingredients rather than its overall description. Her clear intention was to find out the ingredients causing the problem for the children. The father’s dogged attitude, to which I have already referred, caused his frustration but the mother’s insistence which was not eloquently put, contributed to the problem.
Back at the court in Dandenong, the parties through their lawyers agreed to an updated family report being prepared by Mr M but otherwise, the previous orders remained in existence. The father’s costs were fixed and reserved.
The Hearing on 3 May 2006
On 3 May 2006 at Shepparton, Walters FM made orders by consent that the parties have equal shared parental responsibility, that the children live with the mother and that the father’s time with the children be on three days per week for seven hours. This was anticipated to be a short term measure pending a final hearing in that court.
For my purposes, it is important to set out the order that reads as follows;
The mother is to forthwith procure a communications book to be exchanged at contact changeover in which the mother and father are to record where they feel necessary information concerning these orders or their implementation or other matters relating to the care, welfare and development of the children.
The Hearing of 8 August 2006
The matter returned to the Federal Magistrates Court on 8 August 2006 and for the first time, an Independent Children’s Lawyer participated.
It would seem that in the intervening period, the orders were complied with but it was at that point that the mother began to express concerns about the reaction of the children as well as the poor communication with the father.
The Second Family Report
At that time, Mr M noted in his report that it would not be in the best interests of the children to persevere with arrangements that required cooperation and frequent contact between the parents if those contacts exposed the children to hostile interactions and derogatory remarks being made by one parent about the other. As counsel for the mother noted in her written final submissions, there were not the “usual violent reactions” seen at changeovers but rather a “stone faced silence”.
When the parties attended and prepared for that final hearing, they had the advice of Mr M that the children were of an age when cognitive and language development was occurring and that their developing sense of time could result in an increase in anxiety and resistance to transitions from one parent to the other. The message which was then clear is still the message strongly articulated by family consultant Ms W.
Orders 9 August 2006
Subsequently, on 9 August 2006, the court made final orders by consent as to the parenting arrangements for the children.
The mother said that although the orders were made with her consent, she signed the minutes at approximately 8.30pm at night in a motel after “an extremely trying day of negotiations”. She said she did not understand the full ramifications of what she was signing and had she done so, she would not have signed them.
The orders provided that all parenting arrangements were discharged. In contrast with what the Family Report said, the parents were to have equal shared parental responsibility. The children were otherwise to live with their mother.
The remarkable thing about these orders was that for the first time, the children were to spend overnight with their father. At that stage, they were just over two years of age. The orders provided that the father have time with the children for eight hours on Wednesday followed by the weekend from 10.00am on the Saturday until 6.00pm on the Sunday and then eight hours on the following Tuesday and eight hours on the following Thursday. That cycle was more or less repeated. Provision was made for two occasions in 2007 where the cycle was to be extended by an additional 48 hours and then in 2008 for an additional 72 hours.
A complicated arrangement was set in place for when the children began school. The orders made provision for special occasions and holidays. In addition to that time, the father was to communicate with the children by telephone on Monday and Wednesday of each week once the children turned three years of age.
The changeover provisions of the order provided for the father to collect the children from the mother’s residence until school started at which time, the changeover was to be at school. In turn, the mother was to collect the children at the conclusion of the period.
Various orders were made for the parties to advise each other of various details of addresses and telephone numbers.
The orders also included mutual injunctions in relation to behaviour in or around the children relating to the other parent. Both parties were to attend Dr S to complete the 12 sessions of therapeutic counselling at the expense of the father. Thus, to all intents and purposes, the matter was finished.
It is interesting to note that these orders were consented to, for whatever reason and on whatever basis, knowing that the issue of the children’s behaviour was a problem at least for the mother.
Christmas Day 2006
All was calm until Christmas Day 2006. As a result of what happened that day, the father issued another contravention application. Those proceedings were adjourned back to the Federal Magistrates Court in Shepparton for hearing in May 2007 and in turn, adjourned to July. Ultimately in July 2007, the parties agreed to transfer the proceeding to this Court and hence it comes before me.
On Christmas Day 2006, the mother withheld the children. When the father attended to collect them, there was a note pinned to her front door. The note gave three reasons why the father was not having the children on Christmas Day. Those reasons were that: notwithstanding the father’s acknowledged wealth, he was only paying $26.67 per month by way of child support; he was refusing to communicate information that the mother wanted in the communication book; and he refused to change visits to allow her to attend a multiple births playgroup. She cut and pasted from Mr M’s report but otherwise her statement epitomises her views. She said:
This is aimed at hopefully giving you the pain that raising the twins on $6 a week has given me.
The father did not see the children again until 16 January 2007.
Counsel for the Independent Children’s Lawyer asked the mother what had brought her to the point that on Christmas Day she wrote the note that she did. Her tearful response was that she had not been able to pay the rent, she could not pick up the presents for the children that were on lay-by and that she wanted the father to hurt like she was. She said that she wished she could “take it back”.
The Evidence About the Children’s Behaviour
In her evidence, the mother said that since the orders were made in August 2006, the children’s behaviour had markedly deteriorated. She said this was particularly so after overnight contact. She referred to the regression in their milestones and in their toilet training. She said their sleeping habits were completely disrupted and their behaviour was extremely aggressive following their return from their father. She referred to physical fights between the children and hysterical behaviour.
She referred to the fact that M smashed up his toys when he was put in his room for “time out” and that this time out had little impact on modifying his behaviour. She said they woke during the middle of the night wanting to get into bed with her and that she often returned them to their beds four or five times. She said that when they woke at 8.00am they were tired and irascible. Importantly, she made the observation that it took two to three days after their return from overnight time to settle them down into their usual routine. Once they were obviously settled, the orders provided for a changeover again.
She gave examples of toilet training problems and accidents. In relation to feeding themselves, she said that they were learning, but after returning from their father, they regressed. She said they smeared food on the walls, themselves and through their hair refusing to eat properly. The picture was one of gloom.
The mother said that E was clingy and not wanting to let her out of her sight.
The remarkable thing about this evidence was that when she was asked why it was that only she who observed these things and that the evidence of the father was that it was not happening in his household, she responded by saying that the children told her that there were problems in his household.
The Father’s Evidence about Children’s Behaviour
The father’s evidence in contrast however, was quite the opposite. He said he had no problems with toilet training, feeding or sleeping.
Counsel for the father put to the mother, from documents subpoenaed from the local RSL crèche that between August 2007 and November 2007, there were a significant number of occasions when she kept the children out late whilst she attended the RSL club. There was no suggestion that the children were not cared for save that they were discharged from the crèche late. The times included 9.40pm and 10.20pm. When asked whether this might be an explanation for the rattiness of the children, the mother conceded that it may be but added that she had changed things in the last four months. When asked why she changed the crèche situation in April 2008, she candidly responded that she had realised that she was not doing the right thing.
She certainly accepted that this sort of inconsistent routine was not good for the children and it may very well have been the cause of some of the problems that she had.
In respect of a letter which she annexed to her affidavit dated 23 June 2008 from Dr H, it was noted that the mother had raised concern regarding the children’s “sleep etc”. Dr H is reported as saying that he suggested that if these concerns persisted, she was to consult a child psychologist. Dr H had certainly not been told of the lifestyle that the children were leading at the crèche.
To all intents and purposes otherwise, Dr H found the children healthy and happy.
It is also to be remembered that I commenced this hearing on 13 February 2008 at which time, I noted that one of the issues was the behavioural problems and how it was proposed that those issues be overcome. The mother had certainly not indicated in any way that she accepted that her lifestyle may have accounted for some of the problems of the children. Nor did she say anything to Ms W about the pattern of behaviour that she was following on a regular basis. The significance of this evidence is also the fact that intermingled with the dates at which the mother was attending the RSL club and leaving the children in a crèche in the evening, were days when the children were also spending time with their father. It is also notable that the mother received significant assistance from her mother and father who live nearby. It takes little imagination to understand that up until April 2008, the children had anything but a settled life at that time.
The Communication Book
I turn now to the communication book. Those words are a misnomer. The books were produced during the trial but were not tendered. There are numerous volumes in the short number of years of the lives of these children. If communication books are intended to impart information, the parents in this case failed. If the book was intended to act as a form of dialogue between the parents, about decisions to be made, they failed.
I have already mentioned the baby food problem. Much of that was played out in writing in these books. The sleep patterns of the children were similarly set out usually in the form of the mother providing details about what the father should do and the father in turn responding what he did do. In respect of the lunchtime meal for example, the mother told the father when the children were to eat but the father unilaterally decided that it did not suit him as he said in evidence, predominately because the children were hungry earlier. What the father seemed to not understand was that the mother was grappling with a routine which was difficult. Whether out of his frustration or his doggedness, he chose not to follow all of the directions she was giving him. In fairness, there were many that he did follow.
For his part, I find that the father did see the communication book as the only way that he could deal with the mother having regard to the fact that as he saw it, she would not attend any counselling. I find that for her part however, the mother could not attend a therapeutic type of counselling when she felt threatened and challenged about her role as the predominant parent in the lives of the children. She was short with the father in respect of communications. Examining some of the entries shows that she was endeavouring in her own way to provide information and insisting that the father follow. All of this means in reality that the parents are involved in what I might describe as “parallel parenting”.
The problem with parallel parenting is that there is no consistency of routine, discipline, lifestyle or teaching.
Christmas Day 2007
The level of acrimony and lack of respect for one another of more recent times can best be seen in what happened on Christmas Day 2007. The mother attended at the home of the father at 4.00pm to collect the children. At that time, the maternal grandfather had driven his ride-on mower with trailer to the father’s home to collect the children. The mother had walked to the house. This is in the setting of a country town on Christmas afternoon. The intention of the mother and her father was to return the children by driving them back in the trailer to the ride-on mower. The father telephoned the police. The police made it clear that it would be contrary to the law to drive children in a trailer let alone drive on the road. It was hardly risky or irresponsible behaviour particularly as the mother would have been alongside the children. On the other hand, it was inappropriate if even the most minor of breaches of the law was to occur. What was unfortunate was that the lack of communication and respect as between the parties meant that the forces of the law had to be brought in to determine such a dispute even on Christmas Day. Having heard all of the evidence of the parties, I am not at all convinced that there is any prospect of cooperative parenting.
Evidence of Ms W
Ms W gave evidence. She is a family consultant attached to the Court and has considerable experience.
Ms W referred to the issues about which I had made orders earlier in the year. She then identified the earlier issues in her assessment;
(a)the impact of the ongoing impasse between the parents on the children;
(b)the level of insight each parent has in regard to the children’s needs;
(c)the capacity of each parent to place the needs of the children above their own; and
(d)how an apparent change of surname has been (sic) has arisen in regard to [M] in regard to health-related documents.
In respect of the fourth issue, I am satisfied that there is no evidence that the father did anything to orchestrate the medical practitioner for the children noting the children’s names incorrectly. On the other hand, I am satisfied that the mother raised the subject with the family consultant well-knowing that subsequent to the orders of the court, she had excluded the father’s name despite the orders.
Before turning to the issues and the perceptions of the family consultant about them, it is interesting to note her observations about the interview process. Ms W said that when first seen in the care of their mother and her extended family, the children were happy but slightly anxious in the strange environment. When an attempt was made to bring the children and their father together, they clung steadfastly to the mother refusing to be separated from her. At the same time, both children put one arm across their eyes and averted their heads so they could literally not see their father. They were quite distressed and would not move away from their mother.
The family consultant said that the mother did little to actively encourage the children to go to their father. The mother was clearly unhappy with the attempts of the family consultant to put both parents together in an effort to demonstrate to the children that it was safe to be in his care. Ms W observed that the father attempted to reach out to the children without pressuring them and was genuinely shocked by their presentation.
Once the scene settled, mother and daughter E went to the toilet and M began playing with his father. On E’s return, she commenced happily interacting with the father.
In relation to the issues that Ms W identified, she said that the mother was a warm and nurturing parent and that the children continued to have their most significant attachment to her.
Of equal shared parental responsibility, or equal time, the mother told Ms W that it was not feasible because of the father’s attitude to her.
Ms W’s observations of the father were enlightening. He impressed as a loving parent whose primary focus was on the happiness of his children and, contrary to what the mother said, the father did not see the children as having any difficulty coping with their lives with him. He was adamant that a reduction of time would damage that relationship.
The father told Ms W that the children were normal, easy-to-manage three year olds. He had no difficulty with sleeping, eating or behaviour and the only difficult time was when they were to return to their mother.
According to Ms W, the father said that the children were as attached to him as they were to their mother and he disputed any presumption that the mother was the primary attachment figure for the children despite the limited role that he had played early in their lives. That theme was something that he repeated in evidence. For whatever reason, the father has had a disjointed relationship with the children and it is only of very recent times that there has been a consistency of parenting with him enabling him to have a settled relationship with them. I accept what Ms W says that the primary attachment figure for these children is still their mother.
Ms W noted the father as saying that he thought the mother was damaging of his relationship with the children and that the need of the children for him was equal to hers. He then made a strange statement which was the subject of considerable cross-examination. He told Ms W that he thought the children would be living with him in a couple of years when they were old enough to choose. He referred to the fact that his son had taken his surname whilst his daughter used her mother’s surname. I digress here from Ms W’s evidence back to what occurred when the father was cross-examined. The father said that he had recently taken the children away for his extended time under the orders but conceded that he had not told the mother where he was going. When asked whether he thought that was important, he said he never thought about it. He said that he had spoken to the children about it and saw no reason to tell the mother. When asked whether it might have been easier in her household if she knew what was happening to the children whilst on holidays, he said he understood.
He was asked about whether the children were fighting in his house. He said that they were not although they might scuffle occasionally over a toy. He had never seen his son hit his daughter. He was asked about his son’s possessiveness in relation to toys and he said that the children were not possessive like that.
The observation of the mother about M smashing up his room was put to the father and he said that it never happened in his house and that M sat in a corner reading a book. According to the father the children never slept in his room although they came in to him in the morning and although they had woken during the night it was only on two occasions.
When asked whether the children asked for their mother his answer was “No”. He was asked about the children being naughty and spitting food. He responded that this did not happen.
It was then put to him that he had told Ms W about the children living with him and he had used the expression in a “couple of years”. He said that he meant that this would happen when the children were about 10 years of age.
Whilst the father’s physical care of the children cannot be questioned, he has little insight into their long term needs.
Importantly, I find that his household is a complete contrast to that of the mother.
Ms W was critical of the father in that he was either ignoring or unconcerned about the impact of his lack of involvement in the children’s lives when they were so ill, the lack of support he gave the mother and the timing of his application for equal shared care of the children. It must be said that those criticisms were unfair having regard to the fact that the father had provided significant financial assistance to the mother when she was pregnant, endeavoured to explain his absence when the children were ill as babies and had been advised to file the application for equal time. However, I accept the evidence of Ms W that the father did not understand how his actions in seeking equal time might have destabilised the security of the mother. As I have earlier mentioned in response to my question, he said that the application was “silly” but I am not convinced that he really saw the mother as a significant part in the lives of the children.
Ms W commented that the father saw the mother as endeavouring to exclude him from their lives. Ms W said that the father impressed as a loving, proud parent who had a positive relationship with his children but his insight into their needs was “at times limited”. I agree.
Ms W said that despite the problems between the parties, the children were progressing remarkably well and that reflected on the quality of the parenting that they had had up until now.
Ms W said that the move between the two parents’ very different worlds on a number of occasions in each fortnight exposed them to the parents’ dysfunctional dealings with each other very frequently. She said the complexity of the schedule was confusing. She added that it would be expected that children the ages of the twins, with limited language and understanding of time and who are “still consolidating secure attachments”, could make no sense of these arrangements. This was the explanation for their behaviour with the parent with whom they spent most time and feared losing the most. In the eyes of Ms W, that explained the erratic, insecure and testing behaviour. Importantly, she said:
The security of the attachment between [M] and [E] and their mother appears, as a consequent of the current circumstances, to be under threat.
That statement is very strong and very concerning.
Ms W said that at this point in their lives, it was not ideal for the children to have such frequent moves and lack of a clear home base and in the context of the family conflict, it is even less so.
Her recommendation therefore was a reduction of time.
Ms W was cross-examined. She expanded marginally upon her evidence contained in the family report. She said that her concern was the chopping and changing in the lives of these children. She said in the early years it was critical for the children to have a secure attachment figure to form the foundation for trusting relationships in the future. She said the children needed to feel secure. As for the behavioural issues, she said the children’s insecurity did not necessarily manifest itself in the person with whom they lived. She was referring specifically to the mother.
Ms W pointed to the sense of loss in the children if they adopted the position that their primary attachment was not coming back and that explained why the children misbehaved when they returned to their attachment figure. She pointed to the fact that this behaviour was manifested in not only the destructive nature of what was happening to the children but also in respect of toilet training, bed wetting, sleeping habits and eating patterns.
She also made an important observation that whilst the children may be behaving that particular way in the home of their primary attachment figure, they could become quite compliant in the other parent’s home. That is not surprising.
Ms W said that for the ages of these children, the period from Friday morning to Sunday night was too long for them to hold in their minds just exactly what was happening to their attachment figure. She was concerned about the regularity of the routine. She said her observation was that the twins were young for their age so there were problems with their language and concepts of time. Their premature births made them very much dependent upon one another.
Ms Wheeler on behalf of the mother put to Ms W the various scenarios proposed by the father. She said not only was the Wednesday to Friday too much but so was the Friday to Sunday. She said those times were too long, were damaging and that the lives of the children were very much disrupted. Her view was that the maximum period of time was two nights per week.
Ms Wheeler put to Ms W the mother’s position which was Friday through to Sunday and Thursday through to Saturday as one which was not too long a gap for the children to be away from their father. Interestingly, Ms W said that she thought that anything more than two sleeps in a row was too long. She thought that in a highly cooperative arrangement, three nights was manageable and one night in the middle of the other week but certainly not two.
Ms W was cross-examined by counsel for the father. He took Ms W through a number of the issues in which she was critical of the father. Those matters I have already referred to and otherwise, Mr Allen quite properly filled Ms W in on the father’s situation.
He put to her about the RSL crèche and she conceded that that could have explained the broken sleep pattern. He put to Ms W that if the children were behaving the way they were, would it not be expected that the mother would take the children to the paediatrician and she agreed. Ms W felt that if the mother was given sole parental responsibility then the father would have less importance in the lives of the children and that would be troubling.
Ms W was asked how far ahead decisions should be made with children this age and she said it was hard to anticipate. She said she did not have a crystal ball. She said one of the problems was that starting school was a very big adaptation and that three nights away from the primary attachment figure was too long. Again and again she stressed the fact that it was much better if there was cooperation between parties. Conflict in a relationship just added to further unhappiness.
She said that two nights in the alternate week might be okay at the moment and it be extended to the Monday morning after school started but she used the words that the children “might cope”. She said that that was particularly so “if there was goodwill”.
Ms W felt the major need for these children was consistency. A block period of time as sought by the father was too far away and that the children needed to stabilise emotionally.
The evidence of the single expert in this case is really not surprising. It is well-known in this Court that children have difficulties at a very young age where there is a primary attachment. That is not in any way to criticise the efforts of the father who wants to have a very significant role in the lives of these children. It is a fact of life that children need an attachment figure and if they have one as they do here, tampering with that can be developmentally dangerous. It is much worse where there is a conflictual relationship and no communication which ultimately means that the parents bring up the children as they see fit rather than in consultation and consequently, the children do not have a consistent routine in both houses.
Evidence From Other Witnesses
Each party otherwise called evidence. The witnesses really addressed matters that are not of consequence. The mother relied upon the evidence of the maternal grandmother. There is no love lost between the grandmother and the father. She conceded that she had been verbally aggressive towards the father and when asked why, she indicated that it was because her retirement money had been used for the support of the children when in reality, that was an obligation of the father. Of her observations of the children, she indicted that they were happy children whom she saw every day and whom she had cared for overnight on two occasions. She agreed that in respect of the Christmas Day incident in 2006, her daughter should not have done what she did. Nonetheless, she did not counsel her daughter to behave otherwise. She said that she felt she had no choice in the matter because her daughter was at the end of her “tether” and that she knew she was desperate.
The observations of the maternal grandmother by Ms W would indicate that she is a very loving person who has a good relationship with the children and they with her. She is, however, significantly aligned with her daughter so to that extent, the communication between the mother and the father extends to the maternal grandmother. In terms of her encouraging the children in relation to their father or even mentioning him, it was made very clear to me that the father is not a person who is accepted in the lives of the grandparents nor one who would be seen favourably or discussed favourably by the grandparents with the children if the children ever raised his name.
The maternal grandfather gave evidence. He was much more conciliatory than his wife. That was interesting having regard to the fact that he had been significantly involved with the father in relation to the early stages after the orders were made. He too felt uncomfortable about the father and when asked whether he would concede that he did not like the father, he said he did not like his parenting when he had the children. That was an evasive answer but probably an honest one. The grandfather was cross-examined by the Independent Children’s Lawyer and he indicated that the children each were different in their own peculiar way. He said M was a child who was not someone you could push to talk but E was not as dramatic. He said that M followed him around while E was most likely to follow her grandmother. He was concerned that in recent times, M was withdrawn and refused to talk to him at all. The inference was that the father was responsible in some way for that.
I have already referred to the fact that he would be prepared to broker a peace deal with the father although that may take time. I saw that as a very positive sign.
Ms N also gave evidence. She had added little to the situation but commented that the children rarely raised the subject of their father. She said if she raised the subject, the children did not answer.
The father’s sister gave evidence on behalf of the father. She was very supportive of the father and complimentary of the efforts that he had made with the children. The children had stayed at her house overnight with the father and she had seen them on a regular basis. She said he rang her for advice. She said that she believed that he had found his destiny in the children and that he would be dedicated to their care. She thought that his hope was to have shared “custody” so that he could be a more significant part of their life and be more involved. She said she had observed the children in his care and she had not seen them throw food although, they might from time to time have had accidents. She saw no difficulties with toilet training and they had never wet the bed at her house.
She was asked what her brother said about the mother and her response was that if E wanted to ring her mother whilst in the father’s care, E could but that was not raised a lot. She was asked how that might arise and she said that if they were preparing a meal and doing something unusual, the father would suggest to one of the children that they could ring their mother but otherwise, that had not happened and the mother was not a subject of discussion.
In an important part of the case, counsel for the Independent Children’s Lawyer asked the father’s sister whether she would be prepared to be involved in trying to assist in the communication and she said she was frightened of what reaction she might get having a fear of the unknown but she would accept the mother’s invitation. She was confident that they would get along. That is exactly what happened according to the Independent Children’s Lawyer’s counsel after the evidence was completed and the mother and the father’s sister actually spoke to one another.
The last major witness in the case was the father’s new girlfriend Ms F. She lives in Melbourne. She described their relationship as “going out together”. She said she had known the father for about five months and they saw each other on two occasions a week and some days she had come up to live with him in C. She had met the children and that had occurred in both Melbourne and C. She described the children as well-behaved and well-mannered and saw much the same sort of things that the father described as did his sister.
She was critical of one issue and that related to the observation of E wandering the main street of C outside the hotel unattended but I take into account that this was C and there may have been other supervisory forces at work. Importantly, she was willing to participate in thawing the ice.
Findings About the Evidence
I have little doubt therefore that what each party says about the behaviour of the children in their household is right. More importantly, the explanation for that behaviour and the problems, in particular that the mother endures, is best explained by the expert evidence of Ms W.
I reject the suggestion that the evidence of Ms W might be tainted by the fact that the mother had not told her the full story about the crèche or the untrue evidence about the father concerning the name change. Whilst that may have affected Ms W’s view about the respective parents and their capacity to deal with one another as parents, there is no reason for me to doubt the evidence of Ms W in relation to the capacity of the children having regard to their developmental ages. That evidence is very significant and I rely upon it.
Proposals of the parties
The mother proposed that all parenting orders be discharged and that she have sole parental responsibility for the children. In relation to the father’s time with the children, she said that until they commenced their primary schooling in 2010 it should be from Friday at 6.00pm until Sunday at 6.00pm in the first of two weeks and from Thursday at 6.00pm until Friday at 6.00pm in the second of the two weeks. She proposed that once the children commenced school in 2010, the weekend in the first part of the cycle be extended until the Monday morning and in the second week, it should commence on the Thursday after school rather than 6.00pm and conclude on the following Friday morning at the commencement of school.
The mother proposed the usual special days. In relation to other matters, the mother proposed that each party keep the other advised of serious illness or injury of the children and authorise any medical practitioner to give full information about the children to the other parent.
The mother proposed that the parties each be restrained from denigrating the other or discussing the proceedings.
Finally, the mother proposed that a communication book be maintained and exchanged at handover.
The father’s proposal was that the parties have equal shared parental responsibility and that the children live with the mother.
The father suggested that the children should spend time with him from 10.00am on Wednesday to 6.00pm on Thursday every fortnight and from 10.00am on Friday until 6.00pm on Sunday every fortnight and from 10.00am on Monday to 6.00pm on Tuesday every alternate week and then a variety of extended times during 2008 and 2009 along the lines of previous orders.
The father proposed that once the children commenced school in 2010, their time with him be on a two week cycle commencing with alternate weekends from after school Thursday through to the commencement of school on the following Monday morning and each alternate Wednesday from after school until the commencement of school on the following Friday morning.
He too sought the usual special days.
The father proposed that the parties complete the Parenting Orders Program (‘POP’) and file a certificate of completion with the Court and that each party be restrained from a variety of activities.
The father proposed that he purchase a communications book to utilise for communications with each other in respect of “issues concerning the children” and that it travel with the children.
The Independent Children’s Lawyer’s position at the conclusion of the case was that the parents have equal shared parental responsibility and that the children live with the mother. It was proposed that the children spend time with their father from Friday to Sunday in week one and from Wednesday to Friday in week two until the children commence school. Once the children commence school in 2010, it should be from after school on Friday until the commencement of school on Monday morning in the first of two weeks and in the second week, from after school on Wednesday until the commencement of school on Friday morning.
As with the other parties, the Independent Children’s Lawyer proposed a variety of POP type orders and a communication book.
The Law
Part VII of the Act provides the structure for the determination of any parenting dispute.
S 60B(1) of the Act provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount but not the only consideration.
Section 60CC(1), provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Sections 60CC(2)(a) and (b), provide as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Meaningful Relationship
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Mazorski & Albright (2008) 37 Fam LR 518 at paragraph 26 Brown J said about a meaningful relationship:
“meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In Godfrey & Sanders (2007) 208 FLR 287 at paragraph 36 Kay J said:
what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
It is important to consider, from the respective proposals of the parties, how the children will benefit from having a meaningful relationship with both parents. In very young children such as these, it is not just a case of looking at what sort of time with their father will somehow satisfy the test of a meaningful relationship. The consideration must be in relation to both parents. I agree with what Kay J said which is that the legislature desires me to endeavour to find something meaningful not necessarily optimal.
Every case is different and thus this assessment as to how a child will benefit must be done on the peculiar facts of what the parents are offering.
The father’s very strong argument here is that the mother is trying to cut him out of not only having a meaningful relationship with the children but out of their lives completely. I reject that. I find that his dogged attitude of doing and achieving what he sees as right for the children ignores the fact that the children also have to benefit from a relationship with their mother. His views of the children coming to live with him when they are ten and his acceptance of the children’s wishes and desires as what is appropriate for them now at their very immature ages, impinges on the benefits of the children’s relationship with their mother because he does not see her as important in the lives of the children. He uses expressions such as the children need him equally as they do their mother. If he meant equally from a time point of view, that ignores the very strong attachment to their mother. His continued pursuit of what he sees as appropriate for the children rather than finding a balance that provides for them the benefits from both a relationship with him and the mother has created an environment in which he and the mother are embroiled in a battle. The effects of the battle are being seen in the aftermath of the time with him. I have set those out above. Whilst he did not say so explicitly, his view was that he could manage all of the needs of the children and the mother could not. That ignores all of her endeavours to maintain the strong attachment that the children need. The evidence is that she was constantly tired and harassed which is a situation that has subsisted since the birth of the children. Whilst I have dealt with the mother’s acknowledgments of her failings by keeping the children out late at the crèche, I do not accept that those matters alone were the cause of the aberrant behaviour of the children that was so disruptive in her household.
The creation of a meaningful relationship in very young children must be seen from two perspectives. In the case of a parent to whom there is a major attachment, the benefit that the children receive from the meaningful relationship is the continuation of all of the things that will protect that attachment. For the children, it is knowing that they are returning to their mother and that she is available for them as their major form of security. Other benefits such as toilet training, discipline, eating habits, learning to play, read and so forth presumably follow more easily if the secure attachment is not disturbed.
The position of a parent who may be a very good and loving parent but who is not the major attachment figure, is no less important. In the case of very young children, it is not so much the time spent with the children but the gap between visits and the quality of time spent that is important.
Critical to the success of both of those relationships is whether the children receive the same sorts of messages from both parents about the tasks that the parents are endeavouring to complete. The expert evidence of the impact of conflict upon young children supports that view.
In this case, the children are primarily attached to their mother and their development at this age optimally requires that that security be protected. In addition, it is important that the non-primary attachment figure fulfil the needs of the children as part of their development. In this case, neither of these things has been happening.
The disastrous litigation pathway the parties have followed and the variety of consent orders made along the way for these very young children, have not been in their best interests. Those things may have met the needs of the parties at the time and perhaps even the court system by concluding a difficult case but that is not what the court is required by Part VII of the Act to do. Perhaps the days of the “standard” orders are over.
The expert evidence makes it clear that it is difficult to discern when young children will be in a position to extend their time with a non-attachment figure. Ms W would not be drawn precisely on when that would be. She returned to a recurring theme in this court and that is that with very young children, the success of any shared parenting very much depends upon the co-operation of the parents. This case is a very good example of where it has not worked.
The issue of equal shared parental responsibility is integrally bound up in the consideration of what is in the best interests of the children. The presumption as the starting point cannot be realistically examined until a determination is made of what is in the best interests of the children.
Section 60CC
I have already dealt with the question of the benefit to the children of having a meaningful relationship with both parents. I shall not repeat that.
Section 60CC(2)(b) requires me as a primary consideration to look at the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. In this case, that is problematic. Abuse of a child is defined in s 4 of the Act. The abuse referred to in s 60CC relates to any form of abuse of any person and that is not defined. Abuse means anything from disparagement to oppressive behaviour. It is conceivable therefore that it could include rudeness and the sort of conduct that has been so evident in this case at the time of handover of the children. I am not satisfied that the behaviour here by either party amounts to abuse.
I have considered the additional considerations in s 60CC(3). There are no views of the children that could be relevant in this case having regard to their ages.
I have set out as best I can the nature of the relationship of the children with each of the parents. Each is a loving and concerned parent and the children are devoted to them in the same way. The unusual behaviour observed by Ms W at the family report setting is no indication of what normally happens and has clearly shocked both parents. I have set out in some detail the importance of the attachment of the children to their mother and the need to protect that. That is not in any way saying that the father’s relationship is not important. Because of the ages of the children, routine and stability is extremely important and the nature of the mother’s relationship with the children is fundamental.
Much was said in the evidence about the willingness and ability of each of the parents to facilitate and encourage the relationship between the children and the other parent. The father criticises the mother for constant breaches of the orders which were all made by consent. For the reasons I have earlier outlined, I do not consider that the mother’s conduct was in any sense wilful. I use the word “wilful” in the sense of deliberately going out to destroy the relationship of the other parent by breaching the orders. I have already indicated that I reject that position. Part of the responsibility of both parents is to ensure that regardless of what views each might hold about the other, they endeavour to ensure that the children accept that the other parent has a very significant part in their lives. One way of doing that is by having consistency of discipline and routine but another is to have some recognition of the other parent in the household. The father’s evidence was that there was a picture of the mother in his household but it was an old picture. There was no reciprocation in the mother’s household. If these children are to learn that they have two parents who have their interests at heart, it is important for the children to be able to talk about the other parent in each household. On the evidence, that is clearly not happening. To some extent, each parent shrugged and indicated to me that it was not a high priority but s 60CC(3)(c) gives a clear mandate to the Court to look at a whole range of practical things as yardsticks for competent parenting. In this case therefore both parents could be criticised for failing to encourage and promote the relationship between the children and the other parent. If the current situation continues, it does not auger well for the future of these two children.
I have dealt with the likely effect of any change in the children’s circumstances particularly in relation to the likely effect on their separation from either of the parents. The children should not be away from their mother for very long periods of time. Similarly however, they need to know that their father is not far away.
Because of the focussed efforts of the father to move to C, there are no practical difficulties associated with the children continuing their relationship with him.
Section 60CC requires that I consider the capacity of each parent to provide for the needs of the children including emotional and intellectual needs. I have a serious concern about what each parent has been doing in relation to the emotional needs of the children. Perhaps now the POPS program which I intend to order will enable them to focus more seriously upon that. I have no concerns about the capacity of either parent to provide for the intellectual needs of the children. Each has contemplated kindergarten, schooling, social interaction with other children and importantly the daily needs such as reading and playing. There was no suggestion of any criticism by either party in respect of those matters.
There are no issues of lifestyle or culture that affect this case.
A significant problem, however, was the attitude to the children and the responsibilities of parenthood demonstrated by both parents. The mother’s pedantic attitude in relation to the communication book about food and sleep could have been ameliorated by a less confrontational approach. The father for his part adopted an unreasonable position in saying that what he thought was good for the children was appropriate.
In this case, there have been family violence orders. I am not convinced that any of the conduct that gave rise to those orders would warrant me making an adverse finding against the father.
Much has been said not only about previous orders but also the need to make orders into the future. Section 60CC requires a court to consider whether it would be preferable to make an order that would be least likely to lead to further proceedings in relation to the children. Having regard to the expert evidence in this case, I could not find that making an order much beyond the next three years could have any certainty of being effective. Whilst it is clearly the intention of the legislature to avoid parties coming back to court by requiring them to attend alternative dispute resolution systems, the parties in this case have shown little ability to work things out other than in the shadow of the law and even that has failed as is evident by the fact that the parties are back before the court now. The overarching principle however, is that a court ought not make an order unless it is in the best interests of the children not only now but certainly for the period that the Court foresees the order operating. Having regard to the evidence in this case, I cannot see what is best for these children beyond the very first period of time in their primary schooling. I do not propose to make interim orders. I propose to make final orders on the basis that if the parties cannot agree beyond a period of time that I am foreshadowing, they will no doubt litigate and at that particular time, much will depend upon how the children cope being away from either parent as well as the particular developmental needs of the children at that time. Accordingly therefore, I will make final orders but with a very clear understanding that the parties should revisit them as the children approach their 7th birthdays.
Section 60CC(4) requires me to consider how each party has fulfilled or failed to fulfil their responsibilities in relation to not only spending the time but also facilitating the time of the other parent. I have dealt with that in my reasons above.
In relation to long-term decisions, notwithstanding on each occasion that the parties were before the Court and agreed on equal shared parental responsibility, there has been no such sharing. Fortunately for these children, there had been very few major long-term issues requiring consultation and facilitation. That problem can only increase from now on.
I have taken into account the provisions of s 60CC(4A) in the sense that all of the factors that I have set out indicate that much of the litigation embarked upon from the very birth of these children was not in their best interests. I propose therefore to give the children an opportunity to have some settled time and develop a meaningful relationship with both parents while at the same time giving the parents an opportunity to undertake the POPS program with a view in the long run to focusing on the developmental issues of the children rather than on the needs of the parents.
The parental responsibility issue
The father sought equal shared parental responsibility. The mother sought sole parental responsibility. The ICL submitted that neither party should be granted sole parental responsibility.
Section 61DA sets out that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The flow-on effect of that order is in Division 6 of Part VII.
I have little doubt in this case that on all of the matters that I have considered, it would not be in the best interests of these children to spend equal time with the parents. It would be positively harmful for the children to do so.
In his final submissions, counsel for the father said that the Court should make an order for equal shared parental responsibility “supported” by an order requiring the parties to continue the POPS program and follow any lawful directions of the program coordinator as to courses and counselling and if there was a dispute in the future which they could not resolve, that they attend upon counselling with Relationships Australia.
Counsel for the father Mr Allen, readily conceded that communication between the parties was very poor. Historically, the psychologist Mr M had recommended counselling and mediation to improve the parenting of the twins. Counsel pointed out that the father accepted that and had taken steps to carry out his obligations. He said the mother was aware that the father was trying to organise the counselling and that the mother was not minded to take any positive steps.
Mr Allen described the mother’s position about counselling as “troubling” because apart from anything else, the mother had breached court orders.
Mr Allen pointed to the communication books and readily conceded that the father had difficulty using them as a way of maintaining communication between the parties. He explained that was due in part to the father’s lack of education but that ultimately, it was the mother’s failure to undertake counselling that created the communication problem which could not be solved by such a book.
The father’s position was that there are major issues to be determined over the next two years which include pre-school and primary school but that those had been resolved. Notwithstanding that there was no immediate issue to be determined, Mr Allen pointed to the father’s desire to be completely involved in the lives of the children and that without some formal order, the Court could have no confidence that the mother would seek the father’s involvement in any major decision if she had sole responsibility. It was asserted that the Court could conclude that the mother would use a sole parental responsibility order to exclude the father from the lives of the children.
Counsel for the father relied upon a decision of Altobelli FM in M and K (2007) FMCA Fam 26 in which his Honour pointed to the legislative intent in s 61DA(4) requiring that there be substantial involvement by parents in children’s lives and that therefore the rebuttal of the presumption should not be taken lightly and the evidence had to be strong and clear. I certainly agree with what his Honour said but ultimately, the question is a matter of what is in the best interests of the children. If it is not in the best interests of the children that their parents have equal shared parental responsibility then the Court is obliged to exercise its discretion in s 61DA(4) to rebut the presumption.
Counsel for the mother Ms Wheeler, concluded her written submissions with a summary setting out what the mother had said she wanted to achieve for the children, commenting that some of these may not be achievable by a court order. She then urged me to make orders that were clear and unambiguous.
Ms Wheeler dealt with the previous orders including those that were of a final nature and questioned how anyone could have made final orders in the first place in relation to children as young as five months. A pertinent observation was that no-one had given any thought to the consequences for the children of so many changes. The mother’s evidence was that she was tired, emotive and crying when she signed the final orders at Shepparton and that was hardly a basis upon which orders in relation to children of this age should have been made.
Ms Wheeler submitted that in relation to the evidence, I should find that at least in respect of the arguments between the parties about the sleeping arrangements of the children that the father went through a stage where he simply ignored the mother’s wishes. There is an inclination for me to agree with that but in part, I find that it was more as a result of the dogged attitude of the father about his entitlements as a parent.
It was argued by Ms Wheeler that the communication book was one aspect of the communication problem. She pointed to the fact that the father was not good at opening up the dialogue.
In relation to the question of equal shared parental responsibility, Ms Wheeler said, and I quote:
How shared parental responsibility can work in such a case for these children beggars belief despite the ICL’s submissions.
Ms Wheeler went on to argue to various mechanisms that could be used to sort out parental responsibility matters but the future in relation to important decision-making was not encouraging because the father has adopted a position of unilateral action thus far. I reject that.
Ms Wheeler argued that the description of the father as a “simpleton or innocent who left school at 15” was not enough to explain his behaviour. It certainly explains, in part, his attitude but it is troubling that after four years, his attitude has not changed radically.
Counsel for the Independent Children’s Lawyer filed a written submission. In that, he said that the parents should have equal shared parental responsibility.
The Independent Children’s Lawyer took the view that duties imposed by an order for equal shared parental responsibility should be imposed upon the parties and that there should not be sole parental responsibility at all. He pointed to the fact that appropriate mechanisms should be put in place to guide the parents through the process of communication and cooperative decision-making. To some extent that was consistent with what counsel for the father said in relation to the participation of the parties in the POPS program.
Counsel for the Independent Children’s Lawyer said that these programs would “hopefully assist in improving their decision-making capacity”. At the moment, I am very pessimistic about that but with the offers of involvement by the father’s new partner and sister endeavouring to open up dialogue with the mother, my pessimism may change to optimism. However, having given the parties an opportunity at the conclusion of the case to revisit that situation, each party indicated that they thought there was a long way to go.
Counsel for the Independent Children’s Lawyer said that there should be a requirement for each party to communicate all proposals with respect to the children’s care, welfare and development in writing initially via the communication book followed by a requirement to meet and discuss any decision about which there is not agreement, followed in turn by a requirement to mediate before issuing proceedings. There is merit in this submission but its reality seems unlikely.
Counsel for the Independent Children’s Lawyer pointed to s 61DA(4) and said that at the present time, the obligation to consult and endeavour to reach joint decisions was unlikely to be successful. Indeed he said that decisions may not be reached at all and therefore, the children may not have their needs met. I agree. The dilemma is that I am being tantalised by the parties saying that they will attend the POPS program which each has already started and about which each was quite optimistic. I am looking at the long term position in relation to responsibilities rather than just the interim position. There is much in what the Independent Children’s Lawyer says about the methodology by which equal shared parental responsibility can be carried out.
The problem of equal shared parental responsibility
Here, the relationship involves no communication between the parties but the parents are capable of caring for their children in every other sense and want to have a significant role in the guiding and formation of the development of their children.
Prior to the 2006 amendments to the Act, anecdotally at least, little focus occurred on the decision-making role that parents had to fulfil. The main interest was in the sharing of time. It was not often that the Court had to determine sole guardianship.
Notwithstanding the focus of the 2006 amendments, the issue that troubles parents most is time rather than responsibility for decision-making.
The decisions of this Court prior to the 2006 amendments supported the concept that parents could not have shared time if they could not work out things in a cooperative way.
In Fork & Thomas (1993) FLC 92-372 Nicholson CJ said in relation to shared custody generally at 79,868 -79,869:
At first glance, it might be assumed that spending roughly equal time with each parent is confusing for the child and leads to conflicts of loyalty. This is how the issue has been considered in the well known book, ``Beyond the Best Interests of the Child'', by Goldstein, Freud and Solnit, (1973) Free Press, New York. It has also been suggested that in such situations, children can become a go-between in their parents' battles.
Empirical studies find that such concerns are valid in some cases and not in others. The reaction of children is highly individualised:
``The most crucial and beneficial components of joint custody lie in the attitudes, values and behaviour of their parents. The co-operative and respectful relationship between the parents for the purpose of child rearing and each parent's support of the child's relationship with the other parent seem to be more significant in helping the children to adjust than making sure that time the children spent with each parent was precisely equal.'' (Steinman, ``The Experience of Children in Joint Custody Arrangements'', (1981) American Journal of Orthopsychiatry Vol 51, No. 3, at p. 414.)
Encouraging research findings on this topic, such as that by Luepniz, find that joint custody arrangements seem to be associated with less inter-parent conflict and reduced parent burn-out. On a small scale, Australian research, has similarly found benefits to both parents and children.
“Parents studied were adamant that they had avoided much child distress by consistently avoiding criticism of the other parent in front of the children. The presence of a dependable co-parenting structure was seen by parents as vital and one mother summarised most other co-parents when she said that ‘they’, (the children), `see us co-operate and know that we are united as parents and this makes them feel secure.”
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The advantage to both parents of having time to themselves when children were at the alternate home was listed as very important in gathering their own self-esteem after separation... all emphasised that the freedom to nurture their children as real parents (rather than the `Father Christmas' parent of access weekends) helped them to regain stability and reform their lives... All were certain that co-parenting success depended upon a personal commitment to being a parent rather than blaming the other partner for the marital dissolution and accepted that this arrangement would not be possible for many people because of these reasons.'' (Sharpley and Webber ``Co-parenting: An Alternative to consider in Separation Counselling'' (1989) Australian Journal of Sex, Marriage and Family, Vol. 10 No. 3, at p. 115.)
Against this background it also must be appreciated that there is little in the way of longitudinal research and there are factors which seem to militate against the success of co-parenting. Geographical proximity of the parents is an obvious practical consideration and interestingly enough, the re-partnering of one or both of the parents can de-stabilise joint arrangements by giving rise to powerful emotions and new obligations: see Folberg (Ed.) Joint Custody and Shared Parenting (1984).
In the present case, both parents have re-partnered and it is no criticism of either partner to say that this may have had some effects, such as has been observed in the literature, on this shared parenting arrangement.
Perhaps more subtle and difficult, are matters such as the communication skills of the estranged parents, their ability to co-operate and the compatibility of their parenting values and styles. It has been said in an article in the Australian Family Lawyer (Vol 6), (No. 2) by Schepis and Formica at p. 13:
“If parenting values are not compatible it may result in mounting tension and mistrust to the point where the arrangement becomes detrimental and unworkable. Views with a respect to medical preference, the emphasis on homework, selection of television programs, treats and discipline need to be reasonably compatible.”
In H and H (2003) FLC 93-168 Ryan FM (as her Honour then was) set out at page 78,702 a checklist of factors that are useful to examine where a shared regime is pursued. They included:
·The parties’ capacity to communicate on matters relevant to the child’s welfare;
·The physical proximity of the two households;
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?;
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?;
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern;
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise;
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities;
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?;
·Whether or not the parties respect the other as a parent.
Subsequent to the 2006 amendments, the Court’s focus has been directed by parliament to the question of responsibility in a very significant way as set out in Goode and Goode (2006) FLC 93-286; (2007) 36 Fam LR 422. The Full Court said that there was a difference between parental responsibility which exists as a result of s 61C and an order which has the effect set out in s 65DAC.
What does parental responsibility involve?
Section 61B says:
In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61C says:
(1) Each of the parents of a child who is not 18 has parental responsibility for the child.
Note 1: This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order made by the court. See subsection (3) of this section and subsection 61D(2) for the effect of a parenting order.
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Note 3: Under section 63C, the parents of a child may make a parenting plan that deals with the allocation of parental responsibility for the child.
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(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Parental responsibility involves many of the things in the checklist in H and H. Many of them are not long-term decisions but rather day to day management.
It is the “duties, powers, responsibilities and authority” given by law that I am being asked by the mother to remove from the father. What does that mean?
The Act goes some way towards clarifying the meaning by the definition of “major long-term issues” in s 4. That provides:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
That definition covers most categories of developmental problems faced by parents but does not necessarily help a court when trying to decide whether to remove from a parent all of that which is given by the law. An example of this dilemma is under the child’s health category. The s 4 definition talks of “long-term nature”. The explanatory memorandum for the Family Law (Shared Responsibility) Bill 2005 suggests that in relation to paragraph (c) “the child’s health”, a short term illness, such as a cold, is not a major long-term issue, but specifying that a decision such as immunisation “which may affect the child’s long term health” is a major long-term issue.
The treatment of a common cold, however, by two non-communicating parents who focus on what each thinks is right whilst ignoring the other, is very much a significant issue of parental responsibility and cannot therefore be easily ignored.
Section 65DAC and S 65 DAE provide that if parents both have parental responsibility, whilst they have to make their decisions jointly, they are not required to do so about issues not defined as major long-term issues. Those issues arise during their time of caring for the children.
If parallel parenting or a simple refusal to communicate means each parent can “do their own thing” in relation to the sorts of issues mentioned in H and H, the Court must look carefully and cautiously at the whole parental responsibility question and not just major long-term issues if the impact is detrimental for the children and not in their best interests.
Can the parties here be left to their own devices about all parental responsibility issues? I find that it is the issues about which the parents not only do not communicate but would argue about if they did, that are troubling. The father otherwise acts compliantly in most cases to the mother’s suggestions and if he does not, it seems not much of a problem occurs.
I am comfortable therefore in saying that education and health are the areas in which argument will arise even if communication could occur. There comes a point in time where the Court cannot govern the daily lives of parents. In relation to significant issues however such as health and education. These children need an opportunity to have those issues determined quickly and decisively. In excluding the father from the final say in relation to those issues, I propose that he at least be consulted and that the mother consider his views. I consider for the next three years, the health and education issues should be organised by the mother after consideration of the father’s view. I expect her to treat that consideration seriously and I have put in place time restraints to enable decisions to be made. If the father does not participate in the consultation process within the timeframes permitted, the mother will be entitled to presume that he does not demur from her views and she should make the decisions accordingly.
During the proceedings, there was some cross-examination of Ms W about making an order under s 65L of the Act to have the Court supervise the orders in some way for the purposes of assisting the parties. In my view, these parties need to stay away from the litigation system for some time and not only participate in the POPS program but also each have a form of counselling which is non-threatening to either parties’ position knowing that it will not be relating to the amount of time each parent spends with the children but rather endeavouring to improve their interpersonal skills. I intend these orders to reflect the role that each party is to play in the lives of their children into the foreseeable future.
I certify that the preceding Two Hundred and Thirty Six (236) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 31 October 2008
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