LUKIS & HANLON
[2013] FCCA 1020
•5 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUKIS & HANLON | [2013] FCCA 1020 |
| Catchwords: FAMILY LAW – Parenting – significant geographical distance between parents – family violence – order for sole parental responsibility. |
| Legislation: Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61B, 61DA, 65DAA, 65DAC |
| Sayer & Radcliffe and Anor [2012] FamCAFC 209 AMS and AIF (1999) 24 Fam LR 756 Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 MRR v GR [2010] HCA 4 B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755 Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343 Taylor v Barker (2008) 37 Fam LR 461 Rice v Asplund (1978) 6 Fam LR 570 Mazorski v Albright (2008) 37 Fam LR 518 |
| Applicant: | MS LUKIS |
| Respondent: | MR HANLON |
| File Number: | BRC 9329 of 2010 |
| Judgment of: | Judge Lapthorn |
| Hearing dates: | 29 and 30 January 2013 and 28 March 2013 |
| Date of Last Submission: | 28 March 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 5 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Selfridge |
| Solicitors for the Applicant: | Best Wilson Family Law |
| Counsel for the Respondent: | Mr Creamer |
| Solicitors for the Respondent: | M Russoniello Solicitor |
| Counsel for the Applicant: | Mr McGregor |
| Solicitors for the Applicant: | Forest Glen Lawyers |
ORDERS
That all previous parenting orders be discharged;
That the mother have sole parental responsibility for the children [X] born [in] 2009 and [Y] born [in] 2009 and keep the father informed of decisions regarding the long term care welfare and development of the children as soon as reasonably practicable after making such decisions;
Notwithstanding order (2) herein the mother must inform the father at least 30 days prior to finalising any decision that would involve a change in the children’s living arrangements that would make it significantly more difficult for the children to spend time with the father.
That notwithstanding the provisions of order (2) herein:
(a)The mother shall be responsible for the daily care, welfare and development of the children when they are living with her;
(b)The father shall be responsible for the daily care, welfare and development of the children when they are spending time with him;
That the children live with the mother;
That the children spend time with the father as agreed between the parties but failing agreement as set out in these orders;
Weekend Time with the Father
That upon the father giving the mother 6 weeks prior notice if his intention to spend time with the children in accordance with this order the father spend time with the children as follows:
(a)Until the children commence their Prep Year at school, for blocks of up to three days on seven occasions each year from 9.00am Friday to 5.00pm Sunday provided it is not within a three week period of any school holiday time or on the Mother’s Day weekend with changeovers to take place at the [omitted] Children’s Contact Centre; or
(b)Upon the children attending their Prep Year at school, from after school Friday (with the father to collect the children from school) to before school Monday (with the father to take the children to school) for one weekend being the middle weekend of any school term and if there is an even number of weeks in the school term on the fourth weekend and is not to be taken on the Mother’s Day weekend;
(c)That when the father is spending time with the children in accordance with this order, the children are to spend time with the father in the Southeast Queensland Region with the father providing to the mother the address at where he will be staying not less than seven (7) days prior to the weekend;
Holiday periods until the children attend Prep Year
That until the children commence their Prep year they spend time with the parents during the school holiday periods as follows:
(a)With the father for blocks of 5 days during the Autumn (March/April), Winter (June/July) and Spring (September/October) School holidays each year with the father’s time to fit in with the father’s roster that he has leave from work;
(b)With the mother for the balance of the Autumn, Winter and Spring School holidays each year;
(c)That the father for two non-consecutive blocks of five (5) days of the Christmas school holidays with the five (5) days to be taken in December and five (5) days to be taken in January to fit in with the father’s roster that he has leave from work with such time to include part or all of the Christmas period (23 December to 27 December) in even numbered years only;
(d)With the mother for all other times during the Christmas school holidays and during the Christmas period (23 December to 27 December) in odd numbered years;
Holiday periods once the children attend Prep Year
That upon the children commencing their Prep year at school the children spend time with the parents during the school holiday periods as follows:
(a)With the father for half of the Autumn, Winter and Spring School holidays each year with the father to have the first half in even numbered years and the second half in odd numbered years;
(b)With the mother for the balance of the Autumn, Winter and Spring School holidays each year;
(c)With the father for two non-consecutive blocks of ten (10) days of the Christmas School holidays with one block to be taken in December and one block to be taken in January to fit in with the father’s roster that he has leave from work with such time to include part or all of the Christmas period (23 December to 27 December) in even numbered years only;
(d)With the mother for all other times during the Christmas school holidays and during the Christmas period (23 December to 27 December) in odd numbered years;
School Holiday time once the children commence Grade 3 at school
That upon the children commencing Grade 3 at school the children spend time with their parents during the school holiday periods as follows:
(a)With the father for half of the Autumn, Winter and Spring School holidays each year with the father to have the first half in even numbered years and the second half in odd numbered years;
(b)With the mother for the balance of the Autumn, Winter and Spring School holidays each year;
(c)With the father for one half of the Christmas school holidays with the father to have the first half of the holidays that commence in even numbered years and the second half of the holidays that commence in odd numbered years;
(d)With the mother for the second half of the Christmas school holidays in even numbered years and the first half in odd numbered years;
School Holiday and Weekend Deeming Provisions
That for the purpose of determining the commencement, conclusion and half way point of the school holidays in these orders, school holidays shall be deemed to be the Queensland Gazetted School holidays and shall commence at 10.00am on the first day after the conclusion of the school term and shall conclude at 10.00am on the day immediately prior to the commencement of the next school term with the exception of the Christmas School Holidays where the father has the second half of those holidays. In order to calculate the length of half of the school holiday period, then the number of nights in the school holiday shall be used and divided by two and in the event that there is an uneven number of nights the mother shall have the extra night in even numbered years and the father shall have the extra night in odd numbered years;
That for the purpose of determining the commencement, conclusion and half way point of the Christmas school holidays in these orders when the father is due to spend time with the children during the second half of the school holidays, the school holidays shall be deemed to be the Queensland Gazetted School Holidays and shall commence at 10.00am on the first day after the conclusion of the school term and shall conclude at 10.00am on the Thursday immediately prior to the commencement of the new school year. In order to calculate the length of half of the school holiday period the number of nights in the deemed period shall be calculated and divided by two and in the event that there is an uneven number of nights the mother shall have the extra night in even numbered years and the father shall have the extra night in odd numbered years;
Communication with the children
The parents may communicate with the children when they are not in their care each Wednesday and Sunday evening with the call to be placed between 5.30pm and 6.30pm, being the time at the locality where the children are. The parents are to ensure that they maintain a telephone connection (landline or mobile) to facilitate this and keep the other parent informed of the phone number;
Changeover
That except as otherwise provided for in these orders or as agreed in writing between the parents if the children are to spend time with the father in the Wollongong area:
(a)until the children are able to fly unaccompanied:
(i)the mother and/or her nominee shall facilitate the children’s travel by air (accompanied) at the commencement of the children’s time with the father, and changeover shall be in front of the arrivals desk at the Brisbane Domestic Airport Terminal for the departing flight;
(ii)the father and/or his nominee shall facilitate the children’s travel by air (accompanied) at the conclusion of the children’s time with the father, and changeover shall be in front of the arrivals desk at the Sydney Domestic Airport Terminal for the departing flight;
(b)from when the children are able to fly unaccompanied:
(i)the mother and/or her nominee shall facilitate the children’s travel by air (unaccompanied) at the commencement of the children’s time with the father, from the Brisbane Domestic Airport;
(ii)the father and/or his nominee shall facilitate the children’s travel by air (unaccompanied) at the conclusion of the children’s time with the father, from the Sydney Domestic Airport Terminal;
(c)in terms of the costs of the children’s travel by air:
(i)the father is to organise and pay for the children’s flights (as well, if necessary, his or his nominee’s flight) from Brisbane to Sydney, and in relation to same, he shall provide the mother with fourteen (14) days written notice in advance of the flight times and tickets for the children;
(ii)the mother is to organise and pay for the children’s flights (as well, if necessary, her or her nominee’s flight) from Sydney to Brisbane, and in relation to same, she shall provide the father with fourteen (14) days written notice in advance of the flight times and tickets for the children;
Information and Authorisations
That the mother and father shall:
(a)Keep the other parent informed at all times of their residential and email address and home and mobile contact telephone numbers;
(b)Use email to communicate any non-urgent parenting matters or information and to this end each parent will maintain an operational email account to communicate with each other;
(c)Communicate with each other via text message to communicate any urgent parenting matters or information and to this end each parent will maintain an operational mobile telephone to communicate with the other parent via text message;
That each parent will as soon as reasonably practicable advise the other parent of all illness, injuries, events (including school, recreational and sporting) and arrangements concerning the children that come into the first parent’s knowledge;
That both parents authorise any treating medical practitioner or allied health professional to discuss the children’s health or medical information with the other parent and to release any written form of the children’s medical information to the other parent;
That mother authorise any school the children attend to discuss the children’s progress with the father and to release any written form of the children’s educational information to the father including matters such as school newsletters and school reports;
That the mother is to provide information to the father regarding the packages and costs for school photographs and the order deadline date and in the event that the father wishes to obtain school photographs he is to notify the mother and provide sufficient moneys to the mother to cover the costs of the package he requires and the mother is to provide the father with the package of photographs at the earliest opportunity after they are received;
That both parents are at liberty to attend parent-teacher interviews, extra-curricular and school events to which parents are invited;
Dispute Resolution
That the process to be used for resolving future disputes about the children or the terms or operation of these orders shall be as follows:
(a)The parties shall consult with the Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;
(b)They shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that they are unable to, or any reason, to have an appointment with the Family Dispute Resolution Practitioner and cannot agree on an alternate Family Dispute Resolution Practitioner, the parent seeking to mediate (requesting parent) shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(d)The other parent shall choose one of the listed practitioners within seven (7) days of receipt of the list;
(e)If the other parent fails to choose then the requesting parent may choose;
Discharge of Independent Children’s Lawyer
That the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Lukis & Hanlon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 9329 of 2010
| MS LUKIS |
Applicant
And
| MR HANLON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of four year old twins [X] and [Y] have not been able to reach agreement as to the ongoing parenting arrangements for their children after the parties separated in September 2010. Following separation the mother and the children moved from Wollongong to [T].
On 15 February 2011 I made final orders by consent that provided for the parties to have equal shared parental responsibility, for the children to live with the mother in Queensland and spend time with the father for block periods of 6 days per month gradually increasing to 10 days per month in New South Wales until the children commenced school and for each alternate weekend as agreed between the parties thereafter. I expressed concern at the time as to the viability of such orders but was persuaded by the parties that they would be able to make them work for the benefit of the children. This optimism was misplaced. On 5 April 2012 the mother brought these proceedings to vary the orders. On 24 December 2012 the mother filed an Amended Initiating Application wherein she also sought property orders that would provide in effect a 60% distribution of the net matrimonial asset pool in her favour. The property application has not been heard as part of this trial but will be heard at a later date.
The parenting orders sought by the mother were quite detailed but in effect provided for the parents to equally share parental responsibility; the children to live primarily with the mother and spend time with the father for various block periods in [T] and Wollongong until the children commence school and thereafter for one weekend a school term and block periods during school holidays.
The father sought orders that would provide for the parents to have equal shared parental responsibility; the children to live with him and spend three nights a month with the mother in the Wollongong area until the children commence school. The father proposed to move out of his home to allow the mother to spend time with the children there. Once the children were at school he proposed similar spend time with orders to that sought by the mother.
The Independent Children’s Lawyer (ICL) submitted that I should order the mother to have sole parental responsibility and for the children to live with her. She argued that there should be block periods of time for the children with the father increasing over time as the children get older. She also proposed orders for the children to spend more regular weekend time with the father in the event he lived within 130km of the mother.
Background
The applicant mother who is not in paid employment is 33 years of age. She has a 7 year old daughter, [Z] from a prior relationship who lives with her and the twins in [T]. [Z] does not spend time with her father. At the hearing the mother was not in a relationship although she had been in a relationship with Mr B for about a year up until just prior to the hearing.
The respondent father is 46 years of age and lives and works in the Wollongong area where he is employed as a [omitted]. He was born in [omitted] but migrated to Australia with his family when he was 8 years old. He is not currently in a relationship nor does he have any other children.
The parties commenced a long distance relationship in early 2008 after finding each other through the internet. In December 2008 the mother moved from [T] to Wollongong and the parties commenced to live together. Although they became engaged they never married. The twins [X] and [Y] were born [in] 2009. They separated on a final basis on 24 September 2010 and the mother moved with the children to [T].
The Evidence
In support of her case the mother relied on:
i)Her Amended Initiating Application filed 15 January 2013;
ii)Her Affidavit filed 11 January 2013; and
iii)Affidavit of Ms C filed 11 January 2013;
The father relied on:
i)His Amended Response filed 13 September 2012;
ii)His Affidavit filed 7 January 2013 (excluding annexures JMH1 to 4 inclusive); and
iii)Joint Affidavit of Mr H and Ms H filed 7 January 2013.
The ICL relied on the affidavits of:
i)Ms W filed 12 August 2012; and
ii)Dr H filed 21 December 2012.
Throughout these reasons I will refer to a number of facts. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context.
Although I will consider the evidence when I address the ‘best interests’ considerations, in light of submissions made on behalf of the father I will address the level of weight to be given to the family report. The father argued that I should not give weight to the evidence of
Ms W who prepared the family report. He complained that Ms W failed to spend sufficient time with him to enable her to make a proper assessment and that she had regard to speculation and second-hand views from Dr U, a clinical psychologist who has been working with the mother and the children.
In relation to the father’s first complaint, while I accept he may have felt insufficient time was afforded him I am satisfied the report writer completed her remit professionally and spent the time necessary for her to make the assessment she did.
The second complaint is an important one. Counsel for the father referred the court to the decision of the Full Court[1] in Sayer & Radcliffe and Anor[2] and in particular to the following consideration by that court on the weight to be given to expert opinion.
[56] The treatment of expert opinion evidence was considered at length in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (as approved by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at page 604), where Heydon JA as he then was said at pages 743-745:
[85] In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise".
[1] Faulks DCJ, May and Ainslie-Wallace JJ
[2] [2012] FamCAFC 209
Ms W set out in her report at Part I what information she obtained from Dr U. It is clear that Dr U had made a number of recommendations to Ms W about the children’s time with their father even though she had not spoken to him. In cross-examination Ms W was clear to say that although she set out the information she obtained from Dr U she did not give weight to it when she came to making her own recommendations. She relied on her own assessment of the children and the parents. I accept her evidence. If it was otherwise there would have been some merit in the father’s complaint particularly given Dr U was not called in the case. It was important for Ms W to disclose in her report her conversation with Dr U but any doubts about the influence of the conversation on the report were dispelled in my mind by her oral evidence. For that reason I propose to give weight to the report but I do not propose to give any weight to Ms W’s reporting of Dr U’s opinions.
Legal Principles
All parenting proceedings are governed by the provisions of Pt VII of the Family Law Act 1975. In determining their outcome the Court is required to have regard to the objects and principles that underlie that part[3] and must consider the best interests of the child as the paramount consideration.[4]
[3] S 60B
[4] S 60CA
Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held: [5]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[5] (1999) 24 Fam LR 756 at page 792
The objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[6] Section 60B(2) sets out the principles underlying those objects. Unless it would be contrary to a child’s best interests the principles are:
i)Children have a right to know and be cared for by both their parents;
ii)Children have a right to regularly spend time and communicate with both their parents and other persons significant to their care, welfare and development;
iii)Parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
iv)Parents should agree about the future parenting of their children; and
v)Children have a right to enjoy their culture.
[6] S.60B lists the objects and principles for Pt VII.
The legislative framework which must be followed in all parenting cases,[7] mandates that when making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[8] This presumption may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[9]
[7] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[8] S.61DA
[9] S.61DA(2) & (4)
In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable.[10] If the court finds that equal time is not in the child’s best interests or that it is not reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must again be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.[11]
[10] S.65DAA(1)(a) & (b), MRR v GR [2010] HCA 4
[11] S.65DAA(2)(c) & (d)
This legislative approach must be followed in all parenting cases.[12] Counsel for the father argued that his particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework.[13] In Taylor v Barker[14] their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
[12] Goode v Goode (2007) 36 Fam LR 422, (2006) FLC 93-286
[13] B and B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, (1997) FLC 92-755; Morgan v Miles (2008) Fam LR 275, (2007) FLC 93-343
[14] (2008) 37 Fam LR 461 at page 475
Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.[15]
[15] ibid at page 480
Given the father consented in 2011 to orders providing for the children to live with the mother in [T], this case is somewhat different to the usual type of case where a parent seeks to move with the children. However under his proposal the children would relocate back to Wollongong to live with him and as such it is necessary to consider the advantages and disadvantages of his proposal and weigh them against the advantages and disadvantages of the mother’s proposal for the children to remain living with her in [T]. These proposals would also need to be weighed against those proffered by the ICL.
Before doing so however the court should consider whether it is appropriate to entertain this parenting application. Where there has already been final parenting orders made a court is usually reluctant to entertain a fresh application for new orders because it is rarely in a child’s best interest to have ongoing litigation about his or her care and wellbeing. The Full Court of the Family Court in Rice v Asplund[16] held:
“The court should not lightly entertain an application to reverse an earlier custody order. It would need to be satisfied by the Applicant that there was some changed circumstance which would justify such a serious step, some new factor arising, or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for preliminary submission, but they are matters that the judge should consider in his reasons for decisions.”
[16] (1978) 6 Fam LR 570
In this case I am satisfied that it is appropriate and in the best interests of the children to make fresh orders given both parties consider the current orders are not sustainable. A view I share. In doing so it is appropriate to consider not only the spend time with orders but also the orders providing for where the children should live.
Determining the best interests of the children – the s.60CC considerations
The court is required to determine these children’s best interests by considering a number of factors set out in s.60CC. In order to limit duplication I propose to group together a number of these factors. The Initiating Application was filed before 7 June 2012 therefore I am required to have regard to the s.60CC factors that were in place prior to the most recent amendments.
The children’s relationships
The benefit to the child of having a meaningful relationship with both of the child’s parents;[17]
[17] S.60CC(2)(a)
The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);[18]
The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;[19]
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
[18] S.60CC(3)(b)
[19] S.60CC(3)(c)
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living[20]
[20] S.60CC(3)(d)
There was no dispute that the children would benefit from having a meaningful relationship with each parent. As to what is meant by a meaningful relationship I respectfully adopt the view of Brown J in Mazorski v Albright[21] where her Honour said:
[26] ………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 one. Quantitive 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 in their best interests, substantial and significant.
[21] (2008) 37 Fam LR 518 at 526 [26]
The children have lived the majority of their lives in the mother’s care since separation. I am satisfied she is their primary carer. Prior to separation the father attended to the children and their care when he was not working but overall I am satisfied the mother was also the primary carer when the parties were together. Although the current arrangements have been problematic I am satisfied the extended periods of time with the father have assisted the children to develop their relationship with him. The report writer observed [Y] to be very keen to see his father on the day of the interviews greeting him with excitement. [X] however was initially reluctant taking about 10 to 15 minutes to settle. Once settled however she was quite happy and relaxed with her father. The overall assessment of the observation of the children with the father was that they were affectionate towards him and responded well to him. The children appeared to relax more with their mother and seek her out for affection. [Y] was said to be much more outgoing and exuberant with his mother and [X] was strongly focused on her. The family report writer assessed the children to be attached to both parents but that their primary attachment was with their mother. In light of her primary care of the children this is not surprising. I accept the opinion evidence of the family report writer in this regard.
The report writer also observed the children’s older sister, [Z] with them and concluded that they have a close and loving relationship with her. The father and his parents gave evidence of the children having a good and close relationship with their paternal grandparents and extended paternal family. I accept this evidence. I am also satisfied the children have a good relationship with the maternal family.
I am concerned that the father will find it difficult to promote a positive relationship between the children and their mother. Although the father in his affidavit and evidence said that he accepted it was important for the children to have a positive relationship with both parents and said he would seek professional help to assist him in his part to achieve that I remain less than confident he will be able to follow through on that. The report writer noted that the father did not hesitate to make negative comments about the mother in front of the children. She did not have confidence that he would be able to support the children’s relationship with the mother in a positive way. She records him as having spoken about the mother in an extremely disparaging way and that he had no respect for her as a person or as a parent. In his interview with her he had used the following words to describe the mother: lazy; dishonest; untrustworthy; spiteful; of disreputable character; and had mental health problems.
Dr H in his report concluded the father did not meet the diagnostic criteria for a psychiatric disorder at the time of the interview he conducted with him in December 2012 but that he had obsessive-compulsive personality features. The doctor opined that such individuals when placed under pressure or in situations where they are less comfortable can become rigid, controlling and inflexible in their approach. I accept the father has found the separation and the mother’s move to Queensland very distressing compounded by the ongoing litigation. In his opinion, Dr H said:
It is not clear whether he [the father] might pose an emotional risk to the children if he were to express his views in front of them. It is not clear to me whether this does or does not occur.
He is denigrating of the mother and her family and has difficulty in seeing that different families might have different but equally valid value systems and ways of doing things particularly when it comes to his children. This interferes with his ability to support the mother’s relationship with the children. His strong desire to be with the children most likely also interferes with his ability to separate his needs and wishes from that which might be most beneficial to the children and their development in his difficult situation.
Unlike Ms W, Dr H did not observe the children with the father. The father having had the benefit of the two reports, said in his oral evidence that he took responsibility for what he had done and said in the past and had learned from his mistakes. I was not persuaded by his evidence. The level of his dislike for the mother is strong and has not abated despite being separated from her for over 2 years. He was not even able to be guarded in his views in front of the children whilst being interviewed by Ms W. I find he will not be able to put aside his negative views of the mother if he was to care primarily for the children and those views will compromise his ability to promote a positive relationship between the children and their mother. Further given the negative views the paternal grandparents have of the mother they will not be able to assist the father in the task of promoting the mother/child relationships.
To her credit, despite the ongoing conflict the mother has continued to promote the children’s relationship with the father. I do not accept the father’s submissions to the contrary. Although there is evidence of the children not always spending time with the father in accordance with the orders I am not satisfied this is as a result of the unilateral decision of the mother or without reason. I am satisfied the mother will continue to promote a positive relationship between the children and their father and the father’s family.
When cross-examined the father agreed that the children had lived the majority of their lives in [T] and in the primary care of the mother but when asked about how the children would cope being separated from their mother he replied: In the same way they cope with the father not being there. This in my view shows a lack of insight on his part as to the nature of the children’s attachments with their mother.
I find that father’s proposal that the children live primarily with him in Wollongong would not be in their best interests because that would see the children move away from their primary attachment figure and their sister. They would also be at risk of having their positive relationships with their mother compromised by the father’s negativity towards her. If the children remain living with the mother in [T] the geographical distance between the two homes will see the children spend less time with the father as the current arrangement is not sustainable. However I am satisfied that as the children have developed a close relationship with their father and paternal grandparents they will be able to sustain those relationships during the holidays and other times the father and/or his parents can travel to Queensland to see the children.
Overall when I weigh up these considerations I am satisfied that the mother’s proposal is to be preferred to the father’s.
Risk of harm
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[22]
Any family violence involving the child or a member of the child’s family[23]
Any family violence order that applies to the child or a member of the child’s family, if:
[22] S.60CC(2)(b)
[23] S.60CC(3)(j)
(i) The order is a final order; or
(ii) The making of the order was contested by a person[24]
[24] S.60CC(3)(k)
Although the parties were at odds as to the history of violence in their relationship I am satisfied that the relationship has been marred by violence to which both parents must bear some responsibility. Family Violence Orders have been made. The father’s evidence was that he consented to an order as he was not able to take time off work to attend court nor was he able to financially fund a challenge. I accept his evidence.
The mother conceded she has slapped the father across the face on one occasion. Despite the father’s denials I preferred the mother’s evidence that he was denigrating, emotionally abusive and controlling of her and [Z] during the relationship. The father has continued to denigrate the mother since separation including consistently calling her a ‘cow’ when communicating with her by text message.
I accept the evidence of Ms C as to the father’s abusive and aggressive behaviour at handovers in front of the children.
Given the father was unable to restrain himself from expressing negative comments of the mother in front of the children whilst being interviewed for the family report I am satisfied the children are at risk of psychological harm by being exposed to comments of a verbally derogatory nature perpetrated by the father to the mother and others associated with her.
Given the history of verbal abuse and the ongoing hostility witnessed by the children I find it is necessary for the children to transition between the two homes without the parents coming into contact. Regrettably there has been hostility at handovers even when the mother has sent nominees to conduct them.
The child’s views
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views[25]
[25] S.60CC(3)(a)
The children are too young to express a wish as to where and with whom they would prefer to live.
Practical difficulties
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis[26]
[26] S.60CC(3)(e)
The geographical distance between the two homes makes it difficult for the children to move frequently and regularly between the parents. The current arrangements have been onerous for the parents but also for the children. It is not in their best interests for it to continue.
Although the father earns a good income I accept his submission that it is difficult for him to travel to Queensland to spend time with the children as he would not only have the expense of travel but the added expense of accommodation whilst in that State. Both parties have struggled with the cost of travel under the current orders which provide for the children to travel every month.
Whilst these financial difficulties will remain whilst the parents continue to live in different States, I am satisfied that they would be able to share equally the costs of travelling between the two homes on four or five occasions a year rather than 12. This would enable the children to spend school holidays periods with their non-primary carer.
It is hard to predict the future financial circumstances of the parties however provision should be made in the orders to provide for the children to have other times with their non-primary carer if finances allow. However in doing so I do not propose the children travel away to far from their home area so as to minimise the burden of travel on them.
Parental capacity and responsibility
The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs [27]
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents[28]
The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent[29]
[27] S.60CC(3)(f)
[28] S.60CC(3)(i)
[29] S.60CC(4).
I am satisfied the mother has the capacity to meet the children’s day to day needs including their emotional and intellectual needs. She has, despite limited financial means, provided for them with assistance from her family. Although Dr H concluded the mother had symptoms of significant anxiety he also considered that she had reasonable insight into being able to separate her anxieties from the needs of the children.
The father would also be able to provide for the children not only financially but physically and intellectually. In doing so he would receive appropriate support from his parents and other family members. He would certainly be in a better financial position to the mother. I remain concerned however, for reasons I have already addressed, that he might not be able to meet the children’s emotional needs as he has not been able, and is unlikely to be able, to resolve his negative views of the mother or at the very least shield the children from them. By allowing his dispute with the mother to compromise his ability to keep the children free from the risk of emotional harm shows he has not always been child focused. Dr H opined that the father: appeared to have an intellectual understanding of the children’s needs but strong emotional reactions which at times might interfere with his insight.
To his credit the father has paid child support for the children in accordance with the child support assessment.
Overall I am satisfied the mother is better placed to meet the children’s needs.
Background issues
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant[30]
[30] S.60CC(3)(g)
If the child is an Aboriginal child or Torres Strait Islander child:
a)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
b)the likely impact any proposed parenting order under this Part will have on that right[31]
[31] S60CC(3)(h). S60CC(6) provides that for the purposes of paragraph (3)(h), that an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right: (a) to maintain a connection with that culture; and (b) to have the support, opportunity and encouragement necessary: (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and (ii) to develop a positive appreciation of that culture
Neither party nor the ICL considered these background issues to be relevant to this decision. I note the children are not of Aboriginal or Torres Strait Island background. The father although born in [omitted] has lived in Australia since he was a child. The mother was born in [omitted] but like the father came to Australia as a child.
Limiting further proceedings
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child[32]
[32] S.60CC(3)(l)
Counsel for the father submitted that if the parties continued to live in different States there was the potential for this matter to require further litigation. That may be so but in my view unless there is a change in attitude on the part of the parties and the father in particular, these children will continue to be exposed to conflict. For reasons I will express when I consider the presumption of equal shared parental responsibility I find that an order for the parties to share parental responsibility will be fraught with ongoing conflict that has the potential to see them return to court. This would not be in the children’s best interests.
Presumption of Equal Shared Parental Responsibility
I am satisfied that the history of family violence rebuts the presumption of equal shared parental responsibility.
Both the mother and father sought orders for them to equally share the parental responsibility of the children whereas the ICL argued for the mother to have sole parental responsibility.
For the purposes of Pt VII, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[33] Unless there is a court order to the contrary each of a child’s parents has parental responsibility for that child until they reach the age of 18 years.[34] When a court has made an order for two (or more) people to share parental responsibility for a child any decision involving a major long-term issue must be made jointly by those people after consulting each other.[35] A major long-term issue in relation to a child means an issue:
[33] S.61B
[34] S.61C
[35] S.65DAC
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.[36]
[36] S.4
I have no confidence that the parents will be able to communicate effectively to discharge that responsibility jointly. The history of abusive and derogatory comments by the father to the mother and his lack of respect for her as a parent gives me some indication as to the likely future way in which he will communicate with her. There will be no benefit to the children if the mother is placed into a situation where she will be subjected to abuse and ridicule whilst trying to discuss important long term issues for the children with the father. Sharing parental responsibility is likely to break down and may see the matter back before the courts which would not be in the children’s best interests. For this reason I accept the ICL’s submissions that a sole parental responsibility order should be made. The orders I propose to make will provide for the children to live with the mother. It is therefore appropriate that she be the one to have that responsibility.
The ICL made provision in her proposed orders for the mother to consult with the father and allow him an opportunity to have input in decisions. Whilst that would be desirable, I remain concerned that by doing that she will still be exposed to abusive messages or comments by the father. For that reason I do not intend to make that part of the order sought although I will not preclude the mother from consulting the father if she so chooses. However it is important that the mother keep the father informed of her decisions and I will make an order accordingly.
There is one exception that warrants a different approach. Although both parties will be obliged to comply with the orders I propose to make unless they reach an agreement to the contrary or further orders are made, if in the future the mother considers moving with the children to a place that will make it even more difficult for them to spend time with the father she should put him on notice prior to making a decision to do so. Any further unilateral move by the mother would only fuel the conflict.
Consideration of Equal Time or Substantial and Significant Time
Having considered the presumption to have been rebutted and having indicated I will make an order for sole parental responsibility I am not required to consider the provisions of s.65DAA. Having said that the geographical distance between the two homes would make the arrangements for either equal time or substantial and significant time reasonably impracticable.
Discussion
The father’s proposal of having the children move back to Wollongong and live primarily with him is in my view not in the children’s best interests. The advantages to such an order would be that the children would be able to maintain and further develop their relationships with their father and paternal grandparents and extended paternal family. The disadvantages however are significant. The children would be removed from their primary attachment figure, their mother. They would also be separated from their sister with whom they have a close relationship. Although the mother gave evidence that she would follow the children and live close to the father if the children were to live with him I do not consider that that would be in the children’s best interests as there would be greater risk of the children being exposed to the significant conflict between the parties to an even greater extent than they have already. Further the risk of the children being exposed to the father’s negative views of the mother should they live with him full time is real and has the potential to cause them emotional harm.
The advantages of the children continuing to live with their mother are that they will continue to be cared for by their primary attachment figure and live with their sister thereby maintaining those relationships. The exposure to conflict will also be minimised. The significant disadvantage is that given the unsustainability of the current orders the time the children spend with their father will need to decrease. Fortunately they have developed a close relationship with their father which is likely to be maintained by regular time during the holidays. If the father was able to move closer to the mother the children would be able to spend more time with him but care would need to be taken to ensure the children are not exposed to the ongoing conflict. In any event the father has indicated he would not be in a position to move.
When I weigh up the competing proposals I find that it is in the best interests for these children to continue to live with the mother. The time the children spend with their father will by necessity and unfortunately need to be reduced from the current orders. The mother proposed that the children spend time with the father every 6 weeks for block periods of 5 days with two out of every three periods taking place in [T]. I do not consider that this proposal is feasible given the evidence of the financial difficulties associated with the father travelling to [T] and having to incur the additional accommodation costs. The ICL’s proposed orders are more realistic and the staged increase in time appropriate. Having found the parties will be able to afford to share the cost of travel four or five times a year I will make the orders the ICL sought. I am also satisfied it is appropriate to include orders for weekend time in the event the father is able to travel to [T]. The orders proposed by the ICL are appropriate in that regard. The ICL also proposed orders for the children to spend time with the father in the event the father moved to live within 130km of the mother’s residence. I do not intend to make those orders given the father’s evidence of his inability to relocate.
Until the children are able to travel by plane unaccompanied it will be necessary for the mother’s nominee to accompany the children and effect handovers. In the event the father is able to travel to [T] to see the children handovers should occur at the contact centre to ensure the parties do not come into contact.
For these reasons I make the orders set out at the commencement of this judgment.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Lapthorn
Associate:
Date: 5 August 2013
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Costs
0
9
2