M and K
[2007] FMCAfam 918
•13 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & K | [2007] FMCAfam 918 |
| FAMILY LAW – Parenting orders – time – high conflict – schooling. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZX |
| Hall (1979) FLC 90-713 Re G: Children’s Schooling (2000) FLC 93-025 Rice v Asplund (1979) FLC 90-725 |
| Applicant: | M |
| Respondent: | K |
| File Number: | SYC 721 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 26 September 2007 |
| Date of Last Submission: | 26 September 2007 |
| Delivered at: | Sydney |
| Delivered on: | 13 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Barringer Leather Lawyers |
| Counsel for the Respondent: | Mr Thistleton |
ORDERS
The parents have equal shared parental responsibility for the Child J born 10 February 1999.
The Child live with the Mother.
The Child spend time with the Father as follows:
(a)From 12:30pm on Sundays until 9.00am on Wednesdays, with the Child to be delivered by the Mother to C on Sundays, and the Father delivering the Child to school on Wednesdays; and
(b)From 9.00am on Christmas Eve until 12.00 noon on Christmas Day in even-numbered years, and 12.00 noon Christmas Day until 6.00pm on Boxing Day in odd-numbered years; and
(c)For one week of each two-week school holiday break, as agreed between the parents, but failing agreement, to be the first week of each school holiday period, commencing after school on the final day of term, with the Child to be delivered to the Mother at C, at 5.00pm on the following Saturday; and
(d)For one two-week and one one-week period during the Christmas school holiday period, with such periods to be separated by a period of not less than two weeks, as agreed between the parents, but failing agreement, with the two-week period to commence at 3.00pm on the first Friday after the end of the school term. The Mother is to deliver the Child to the Father’s residence, with the Father to deliver the Child at C the following Friday.
That the Father use his best endeavours to ensure that the Paternal Grandmother, T M, conducts the changeovers on his behalf, with the Father to absent himself.
That the Child is to remain enrolled at G Park Public School. Both parties are restrained from enrolling him at any other school prior to the commencement of high school, without the agreement of both parties or an order of the Court.
The parent with whom the Child is not living is to contact the Child by phone once per week only, unless the phone call is initiated at the Child’s request.
That the Father is to notify the Mother be text message or in writing within 24 hours if the Child does not attend school while spending time with the Father. The Father is also required to provide an explanation as to why the Child did not attend school.
Both parties are hereby restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Child’s hearing.
(b)Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
(c)Recording changeovers by any electronic or photographic means.
That in the event the parents cannot reach a joint decisions about:-
(a)a major long-term issue involving the Children; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders; which involve the children,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
(a)the Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
(b)the Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 721 of 2007
| M |
Applicant
And
| K |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about J born February 1999, who is eight years old. He is the much loved son of M who is the Applicant, and K who is the Respondent. J’s parents are in dispute about how his time is divided between them, and where he will go to school. There is, regrettably, a very high level of conflict between his parents. There is hardly any meaningful communication between them. At the end of this case I was left wondering how it could be that two seemingly good parents, who love their son so much, could be in such entrenched conflict. They are in the trenches, and J is caught in the cross-fire. The time and school issues seemed to be merely the tip of the metaphorical iceberg in terms of the unresolved issues between J’s parents.
Background
J’s parents were married for only a year when they separated. In fact J was only seven months old at this time. The only parenting orders relating to J were made in October 2001 when he was about two and a half years old. They provided for J to live with his mother and spend time with his father from 12.30pm Sunday to 7.30pm Tuesday each week. This case was partly about changing those orders. The father wants his time with J to start at 9.00am on Sunday, and finish at 9.00am on Wednesday. There are also issues about where changeover is to occur. The mother wants J’s time with his father to start from 2.00pm Sunday and finish when the father takes him to school on Tuesdays. There are other minor issues about school holidays and Christmas.
The father wants J to go back to SGC Community School where he was in attendance for 2004, 2005 and 2006. The mother prefers that he remain at G Park Public School where he has been in attendance in 2007. Neither parent wants a change to schooling in 2007 – if there is to be a change, it should be in 2008. The father lives at C, and the mother at CH. SGC is not geographically proximate for either parent. G Park is quite close to the mother’s home.
Issues
These relatively discrete issues, schooling and time, gave rise to many other issues that I need to decide. The issues may be conveniently expressed as a number of questions I need to answer:
a)Will changes to time and schooling have an impact on J’s meaningful relationship with each of his parents, and if so, how? (s.60CC(2)(a) and (3)(b)).
b)Will these changes impact on the need to protect J from harm? (s.60CC(2)(b)).
c)What weight, if any, should I give to the views expressed by J as recorded in the Family Report? (s.60CC(3)(a)).
d)How will the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between J and the other parent, and their respective attitudes to parenting, impact on my decision about schooling and time? (s.60CC(3)(c)(i) and (4)).
e)What impact will these changes have on J? (s.60CC(3)(d)).
f)Are there practical difficulties associated with the parents’ proposals that affect J’s right to maintain a relationship with his parents? (s.60CC(3)(e)).
g)How should any concerns I have about the capacity of each parent to provide for J’s needs be taken into account in the context of these changes? (s.60CC(3)(f)).
Some further background
This case is typical of many cases in this jurisdiction in that it had evolved considerably from how it had originated at filing. This evolution related not to the schooling issue, but to the time issue. The order sought by the father in his application filed 2 February 2007 proposed J spending time with him from 9.00am Sunday to 9.00am Thursday, each week. The mother’s response was initially to propose that J spend each alternate weekend from after school on Friday to before school on Monday. Both of these relatively extreme positions had moderated by the time of the hearing in September. Whilst the difference in each parent’s current proposal was qualitatively important to them, it was not a significant difference in a quantitative sense.
The mother had significant concerns about family violence. As the issues had narrowed so significantly by the hearing I would not allow cross-examination on this topic as it would not assist me to determine the time and schooling issue and I assessed the potential harm of this evidence would exceed its benefit. It was sufficiently clear from the evidence that the mother feels unsafe when in the presence of the father. That is her subjective reality. I do not know whether it has an objective basis. Nonetheless the fear is clearly real for her, and I will take it into account, particularly in dealing with changeover issues.
The existing arrangements for J to spend time with his father have, for the most part, been adhered to. He clearly has a good, strong relationship with his father. His mother acknowledges this and does not wish to detract from it.
The evidence
Affidavits were read, and oral evidence given, by each parent as well as by the mother’s new husband, H. I also had the benefit of a Family Report prepared by Ms Greenfield dated 3 May 2007. She is a Regulation 8 Family Consultant and is a qualified social worker. Her CV indicated that she was a Family and Child Counsellor with the Family Court of Australia between 1990 and 2005. I propose to deal with her evidence first mainly because there was a strong submission made by counsel for the father that I ought to give the report little weight.
The applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(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.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or 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.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) 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 for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) 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;
(b) 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);
(c) 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;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(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;
(e) 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;
(f) 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;
(g) 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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) 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
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) 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;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Schooling
The question of a child's schooling was considered by the Full Court of the Family Court of Australia in Re G: Children's Schooling (2000) FLC 93-025. It is quite apparent that a decision about where a child is to go to school is one that is made by reference to what is in the child's best interests. However, the Full Court made the following observations at paragraph 92 of its reasons:
92. In addition, we think there is considerable substance to arguments on her behalf that weight should be given to the travel commitments associated with the school that the children attend. Where a decision must be made by a Court in circumstances where parents are unable to agree as between two schools which are prima facie very satisfactory, we see advantages to the children attending a school which is closer to the children’s residence. In terms of the practical fulfilment of parenting obligations, it is desirable to enhance the ease with which a parent who assumes the bulk of day to responsibility can meet the multiple associated demands of children’s dependence on a caregiver for transport, participation and security. We do not consider that the fact of a prior agreement between the parties as to [School A] carries much weight in the changed circumstances of the family.
Applicable law regarding Family Reports
The Full Court of the Family Court’s decision of Hall (1979) FLC 90-713 contains an authoritative statement about how reports such as Ms C’s should be treated in proceedings such as this one. The relevant passage is found at pp 78,819-20:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. Wood (1976) FLC ¶90-098 at p. 75,447; Harris and Harris (1977) FLC ¶90-276; (1977) 29 FLR 285.
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation…
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied…
The Family Report
By way of overview, the Family Report presents a picture of J as an ‘overburdened’ child who needs to be removed from the conflict between his parents as much as possible. The first sentence of paragraph 30 of the Report captures the essence of the Family Consultant’s concerns:
J’s parents would be genuinely shocked to realise the impact that the conflict between the parents is having on their son.
J has a close relationship with his father. Even the mother acknowledges this. The Family Report notes that during projective play at both households, J nominated his father as his favourite person. Because of this very strong attachment the Report does not recommend lessening the time J spends with his father.
The Family Consultant’s evaluation is quite disturbing in parts. I set out paragraphs 29-31 as the best examples of this:
29. There are extremely complex dynamics in this family situation. J expends much energy negotiating his way through this 'minefield', monitoring his own behaviour and comments so as not to show disloyalty to either parent. His apparent lack of relationship with his step-father may also be an artefact of a need to show loyalty towards his father, whom he knows adores him. When children have a need to be so hypervigilant, it takes energy away from concentrating on their own developmental tasks. In this way children are sometimes described as 'overburdened' (Wallerstein, 1985). At this time J is an overburdened child. In order to address this, firstly J needs to be removed from the conflict between his parents. The conclusion of court proceedings, and the determination of the issues in dispute, will assist here. It would also help for the parents not to come into face-to-face contact with each other at handovers.
30. J's parents would be genuinely shocked to realise the impact that the conflict between the parents is having on their son. It would appear that J is the centre of his father's universe. Mr M has sustained a number of serious losses in his life, currently suffers from chronic pain, and his son gives him considerable joy and hope for the future. In the absence of work or significant social obligations, Mr M' world is quite circumscribed. J basks in his father's attention and lavish praise. They enjoy playing games together and J enjoys his father helping him with homework. In his father's household J is the centre of attention, the only child. In that household the grandmother also is a nurturing figure, particularly when it comes to cooking meals for J.
31. However, it would help J for Mr M to lessen the intensity of his relationship with his son. Constant reminders of his love for his son, and the importance of his son in his life are not always helpful to children whose parents have separated. J's notes to his father, while charming, and demonstrating his love for his father, also indicate that J is feeling somewhat responsible for his father's emotional well-being. Mr M will undoubtedly be puzzled by these comments and may need some counselling to assist him to understand these dynamics. It may also be helpful for J to sleep in a separate room from his father (as he does in his mother's household) now that he is eight years old.
The Family Consultant also explains that in his mother’s household J is less the centre of attention because of the mother’s responsibilities to care for her two other children Tiffany (three) and Christopher (one). J is the eldest child in his mother’s family.
In relation to schooling, the Report notes as follows:
33. Ms K is doing her best to parent her growing family. She perceives J as happier since he has transferred to a local school. She says he now 'skips' to and from school. He is now able to greet an increasing number of children from the neighbourhood. This has also come about since he joined the local football team. Mr K, who is a primary school teacher in the local area, believes G Public School to be a progressive school with a high educational standard. He reported that J had been very impressed on his first day at that school that his new school had a library and a canteen, in contrast to the small school he attended previously which had few facilities.
34. At J's age and stage of development peer relations are an extremely important part of his social and emotional development. In fact when J was asked about the relative merits of his old and new schools, he answered in terms of the friendships he was able to pursue at those schools. It is assessed that J's welfare would be optimally fostered by attending a school in his local area. In this way J can feel more connected to his local community and he can have friends his own age over to play after school. While his young siblings and his father may be willing playmates, they are not an adequate substitute for friends his own age. J belonging to team or group activities in his own area should also be encouraged, whether that be cubs, church groups or sporting teams. Pursuing some activities outside the home may also be helpful in that it will also lessen the intense focus on his relationship with his parents, allowing him to broaden his horizons and develop his relationships with others.
The Family Consultant then makes the following recommendations:
RECOMMENDATIONS
· That J continues to spend substantial time with each of his parents.
· That the time J spends with his father is not diminished from the time he currently spends.
· That J attends a local school, rather than a school which is at some distance from where he is living.
· That the handovers are organised in such a way as to eliminate face-to -face contact between the parents.
· That the time J spends with his parents accommodates his continuing in a team sport and church activities.
· That school holidays are shared equally between the parents in two block periods, except for the Christmas vacation which should be split into 2 x two weeks and 1 x one week blocks.
· That J spends Christmas Eve and half of Christmas Day with one parent, and the other half of Christmas Day and Boxing Day with the other parent, such periods to alternate between the parents.
In addition,
· J continues to attend G Park Public School.
· That J lives with his father from 2pm Sunday (so that J can attend the after church function with his family) until Wednesday 9am every week.
· That the mother be responsible for delivering J to his father's home on Sunday afternoons.
· That the father absent himself from those handovers, and that the paternal grandmother be responsible for receiving J.
· That J is delivered back to school by his father on Wednesday mornings, obviating the necessity for face-to-face handovers between the parents.
· If the father does not feel his health status will permit the travel associated with five return trips to the school, then he is at liberty to opt to conclude contact at 9am on Tuesday mornings, instead of Wednesday mornings, thus eliminating two return journeys.
For all practical purposes, the mother’s position at the hearing was to adopt these recommendations.
The Family Consultant gave oral evidence. In cross-examination by Mr Jackson, counsel for the father, the basis of her report was strongly attacked, partly as to her recommendations to change the Sunday time from the existing 12:30pm to 2.00pm, but principally as regards J remaining at G Park Public School, rather than returning to his old school. The thrust of Mr Jackson’s cross-examination for the Family Consultant and his later submissions to me, was that her recommendations were based on erroneous factual assumptions. Perhaps as a corollary to this, but perhaps also independently, the Family Consultant had concentrated too much on J in his mother’s world as compared to in his father’s world.
There is some substance to these submissions, but at the end of the day it does not make a difference. As I explain below, I do not accept the recommendation about changing the Sunday time to 2.00pm. The reasons advanced by the mother, and the asserted benefit to J of these changes, do not outweigh the benefit to J of continuing the existing arrangements. Even if I accept that the Family Consultant did make some erroneous factual assumptions that led to a recommendation about J remaining at his present school, I have concluded that when one has regard to the overall evidence, this is in J’s best interests anyway. Moreover I cannot accept a submission that the Report focuses too much on J ‘in his mother’s world’. Indeed I found that the Family Consultant was quite balanced in her approach, but clearly had deeper concerns about J ‘in his father’s world’ thus perhaps creating the impression that his mother’s world was preferred.
Save as indicated below, therefore, I accept that the evidence of the Family Consultant and the Family Report is persuasive evidence provided by an independent expert who has had the benefit of meeting this family and observing their interactions with one another.
Will changes to time and schooling have an impact on J’s meaningful relationship with his parents?
I accept that J has a meaningful relationship with both his parents. The differences in the time proposals advanced by both his parents are not such as to change this meaningful relationship.
The schooling issue is more complex and the father’s position at the hearing linked the time he spends with J to which school he attends. Thus, eg, if J goes back to SGC Community School, the differences between the time proposals are relatively minor. However, if J remains at his present school, G Park Public School, the father proposes three out of four weekends each month, plus every fourth Monday through to Wednesday at 9.00am. The difference here is more qualitative than quantitative. Ultimately, however, not even the school issue will affect the meaningful relationship J enjoys with both parents.
Will the changes referred to above impact on the need to protect J from harm of the risk of harm?
The Family Consultant was clearly worried about J as an ‘overburdened’ child who was clearly caught in the conflict between his parents. The conflict is obvious. One can only share the Family Consultant’s hope that the end of this litigation will lead to a reduction in the conflict. The Family Consultant was keen to remove as much face-to-face contact between the parents as possible. I agree that is an essential part of protecting J from the potential for parental conflict at changeover.
Achieving this at the conclusion of J’s time with his father is relatively easy. He will deliver J to school on the last day that J spends time with him.
Achieving this at the commencement is more problematic and is linked to the time issue on Sundays. The father proposes 9.00am, the mother proposes 2.00pm, and the current arrangement is 12.30pm. The changes advanced by each parent seem to advantage the parents more than they benefit J. There is no compelling reason to change the existing arrangement. The time of 12.30pm on a Sunday afternoon means that J gets to go to church with his mother’s family, and yet also spend Sunday lunch with his father and his family. It is the arrangement he is accustomed to, and the risk of changing it in a high-conflict situation like this case is that one parent views it as a ‘win’ and the other as a ‘loss’, thus fuelling the conflict between them.
The existing changeover point is at MB Road, C. The father agreed in cross-examination that there have been no difficulties with this venue to date. He had proposed another venue, but the mother was uncomfortable with this, and I am not prepared to change it. Changeover is a flashpoint for parental conflict. The changeover proposed does not lessen this risk. Nonetheless it is what the mother herself proposes. The Family Report recommends that the paternal grandmother, Mrs T M, facilitate the changeover. She comes across as quite an impressive woman at paragraph 16 of the Family Report. I did not have the benefit of evidence from her, or from the father, about the practicality of implementing this idea, but I will make orders that will require the father to use his best endeavours to bring his mother to facilitate changeovers.
There is another disturbing issue that relates to risk of harm to J which arose very late in the hearing. By the father’s own admissions, J has missed school on Mondays and Tuesdays this year nine and eleven times respectively due to health issues. Of course it is on these days that the father is responsible for getting J to school. This important evidence is not contained in the affidavits of either parent. The father’s evidence is that he does not take J to school when he is sick, and he believes the mother does send J to school even when he is sick. The father doubts whether J’s teachers would notice if he was sick if the father sent him to school anyway, and does not believe that his teachers would put him in sick bay if he became sick. He categorically rejected the proposition put to him on cross-examination that he was over-protective of J, and insisted that he could produce medical evidence to establish that J was unwell. However when the father was indeed given the opportunity to produce documents to support this, all he could produce was a bundle of certificates and invoices from a physiotherapist which did not cover all of the relevant dates anyway.
The mother also gave evidence about J’s absences from school. She said that whilst in her care, J had been absent from school between three and five days this year. She found out about J’s absences from school from J and from teachers at his school. She could think of no reasons why J should be having so much time off school based on his health. In cross-examination it became quite apparent that she was aware of the issue but, because of the communication difficulties with the father, did not even try to discuss it with him. If J’s absences from school whilst in his father’s care are of concern to the mother, this concern certainly did not figure prominently in her case.
The mother might not have conducted her case on the basis of this concern, but it certainly concerns the court. In all likelihood, J is being kept away from school unnecessarily whilst in the father’s care. He is probably being over-protective of him. This is quite consistent with the Family Consultant’s description of the father being “highly emotionally invested” in his son. The risk to J’s wellbeing of an over-protective father and unnecessary absences from school are obvious. I will order the father is to notify the mother by text message or written communication within 24 hours of any day that J does not go to school, and to provide to her an explanation for the same. I record here that, from my perspective, future unnecessary absences from school while in the father’s care is a ground for re-visiting these parenting orders. From my perspective I record that I do not regard this issue, or my findings in this regard, to create the need to establish changed circumstances for the purposes of the so-called rule in Rice v Asplund (1979) FLC 90-725. I make these observations specifically in the context of s.69ZX(3)(b) of the Act.
Apart from the matters referred to above, therefore, there are no other issues relating to protecting J from harm or the risk of harm.
Weight to be given to the expression of J’s views
The only relevant expression of a view in this regard is recorded at paragraphs 22 and 23 of the Family Report:
22. In relation to schools, J reported that it was 'easier to make friends at my last school, because it's smaller.' He explained that he had one friend at his new school, but that this boy was in a different class and it is difficult to find him in the playground. When I asked J which school he prefers, he replied, 'If you asked me a bit before I'd say G Park, but since it's hard to find my friend now, I'd say my old school.'
23. However, two days later, when I again interviewed J, he told me that he had had a good day at his new school and had rediscovered seven friends, who he named. He said that he now prefers G Park School, because it has a bigger playground and he has seven new friends.
In order to put the father’s concerns about J’s expression of views about his school in context, it is necessary to also set out paragraph 25 of the Report:
25. During the interview at his mother's home, J told me that he wanted to correct something he had told me previously. He said that when he had said that he rarely saw his step-father, he meant during the weekends and during the week, but that he sometimes saw him during holidays. As I had previously given Ms K feedback about what J had said about his step-father, I asked J why he felt it necessary to tell me this. He replied that his mother had discussed it with him (in the break between my interviewing her and then seeing J).
The Family Report records that on 27 March 2007 J was seen with his father and paternal grandmother. Paragraph 25 records that before the next interview on 29 March 2007 (with his mother and step-father) the Family Consultant had “previously given Mrs K feedback about what J had said about his stepfather”. There is a clear inference that the mother had received feedback about what J had said during the first interview but before the second interview. If this is the case, further consideration needs to be given by the Family Consultant to this practice. Counsel for the father put it to the Family Consultant in cross-examination that it must have crossed her mind that J had been “coached” in between interviews, particularly as he was living with his mother at the time. The Family Consultant agreed it had crossed her mind, but she relied on the thought processes behind what J was saying in relation to his preference for his current school.
I place no weight on the views expressed by J. There is a high likelihood that his views were influenced by his mother between interviews.
Willingness and ability to facilitate and encourage a close and continuing relationship, and attitudes to parenting
The focal point of the intense conflict between J’s parents is where he goes to school. The time issues are subsidiary. Despite intense conflict, the issues between the parents are discrete. I actually have very few concerns about their respective willingness and ability to abide by orders that I make and, thereby, to create a situation where J can continue to build a healthy and positive relationship with both of them. No order I make will ever change the parents so that they give J the freedom to love the other parent whilst he is with them, Only time will take care of this. Perhaps the finalisation of this case will assist.
There are aspects of the attitudes to parenting manifested by both parents that are disturbing. Both of them demonstrated a disconcerting lack of insight about how their actions and inactions had an adverse or potentially adverse impact on J. The mother’s unilateral act in changing J’s school was appalling. Her attempts at consultation with the father, and her ex post facto rationalisation of her actions, are simply inadequate. The motivations were as much personal as they were for J’s sake. The father lacks insight about aspects of his relationship with J, especially its intensity. The evidence he gave about keeping J away from school, and his lack of confidence in the school to meet J’s needs if her were sick, was all quite disconcerting. Their inability to communicate with each other about J is disappointing. They both seem to have simply given up in this regard.
It is not as if there is nothing impressive about both of J’s parents – indeed there clearly is. They both love their son and will be able to provide for him. But they need to move on as soon as possible and stop what I have described as the trench warfare that is going on between them because the son they so dearly love is caught in the blind crossfire created by both parents.
The clearest manifestation of this particular issue arises in the context of where J should go to school. In 2004, 2005 and 2006 he attended SGC Community School and in 2007 his mother unilaterally changed this to G Park Public School which is much closer to where she lives. He has been there all this year, and both parents agreed that I should not change it this year.
I have great difficulty in allowing the mother’s unilateral act, of which I have already been critical, to have any significant influence on the decision about what school J should attend. If I allowed myself to be so influenced I would be doing precisely what the Family Consultant warned about in cross-examination – to make J the sacrificial lamb on the principle of how the choice of his current school came about. I will not allow myself to be so influenced. While I have concerns about the attitude to parenting of both parents, these are not factors that have any significant weight on the decision I make.
Impact of change on J
This is one of the most significant factors in this case, and is a strong reason why I will not change J’s school. By the end of this year he will have spent an entire year at G Park Public School. As I cannot rely on the highly partisan evidence advanced by both parents on the schooling issue, I rely on my own experience, and the objective evidence of the Family Consultant in the Family Report. I exclude from my mind anything J is reported to have said on this issue. I also place minimal weight on the circumstances by which he came to be at his present school. I find persuasive the Family Consultant’s comments at paragraph 34 of her report. The benefits to J of attending a local school in the community in which he will live most of his time is far greater than the benefit of attending his previous school which is geographically isolated from both of his homes. It would be unnecessarily disruptive to change schools again. Moreover there was no clear evidence before me to establish the superiority of one school over another.
Practical difficulties of spending time
These practical difficulties relate more to the school issue than the time issue. If J goes to SGC Community School there is less travel for him and his father when he lives with his father, but more travel for him and his mother when he lives with her. Each parent would be responsible for up to five trips weekly. If he goes to G Park Public School, there is more travel when he is with his father compared to his mother. SG is not geographically proximate to either home.
I accept the father’s evidence that a back injury makes driving more difficult for him. I also accept that it could take him between 45 and 50 minutes to drive J to school. These are both significant factors for both J and his father, but they need to be weighed against all the other factors in this case that, in my opinion, clearly favour J remaining at his current school. I am required by s.60CC(3)(e) to consider issues of practical difficulty which will “substantially affect” the child’s right to maintain personal relationship and direct contact with both parents. The practical difficulty that arises in this case does not reach the statutory threshold. I will accept, however, the Family Consultant’s recommendation that if the father’s health status will not allow him to undertake the travel, he has the liberty to take J to school at 9.00am on Tuesday and conclude his weekly time then. He will, of course, need to notify the mother about this.
Are there any issues relating to capacity to provide for J’s needs?
There is some overlap here between this statutory consideration, and the discussion about attitudes to parenting above. I have already expressed concern about the intense nature of the relationship between J and his father, particularly in the context of his absences from school whilst in the father’s care. In the mother’s closing submissions, Mr Thistleton, her counsel, submitted I should end the father’s time on a Tuesday morning as a risk minimisation strategy. To this extent, of course, the mother was moving away from a total adoption of the recommendations made in the Family Report. I do not accept this submission. As I have indicated above, I find that the mother was well aware of J’s absences from school before the hearing. Her inaction is inconsistent with the submission made. If this problem continues she will be able to bring this matter back before the courts. I agree with the Family Consultant that the father should seek professional assistance by way of counselling in relation to what seems to be an intense, enmeshed relationship.
Father’s alternative proposal
It should now be clear that I do not intend to make changes to J’s schooling, or the commencement of time with his father, and I will give the father the opportunity to extend it to 9.00am on Wednesdays. But this, of course, is not what the father sought. His alternative order in the event that J remains at G Park Public School is that J lives three out of four weekends with him, and every fourth Monday after school to Wednesday before school.
That alternative proposal is not in J’s best interests. It seems to meet the father’s needs far more than J’s. The weight of the evidence, particularly that of the Family Consultant points to the need for J to be involved in his community, including his school friends, on weekends. J has already established arrangements each weekend eg church on Sunday mornings. It is not in his best interests to change these arrangements. J is an ‘overburdened’ child who needs to be removed from the intense conflict of his parents. One can only hope that giving J “free time” away from his parents to do his own thing eg weekend sport, playing with his mates, going to Sunday school etc takes some of this burden off him. I understand the father feels that he can provide J the opportunity to do these things on the weekends too, but the very nature of his relationship with J leads to the concern that J won’t get the space he needs.
Other issues
I accept the recommendations contained in the Family Report about school holidays and will make orders that reflect this. J should also have the opportunity to communicate with the parent with whom he is not living, but under the circumstances I will limit that to once weekly unless J himself initiates this.
During final submissions Mr Jackson for the father sought orders excluding the mother’s husband, H, from being present at changeovers. There is no evidence to justify this and having regard to the mother’s perception that she is unsafe in the father’s presence, it is important that she feel free to have him there if she wants. I decline to make this order. Based on evidence that the mother had been recording the changeovers on camera, he also sought orders that would preclude this. I agree that this was necessary under the circumstances. One can only imagine what goes through J’s mind when he observes his mother or step-father filming or recording changeovers.
The mother sought orders that J be placed on the airport watchlist. There was, in my opinion, no evidence to justify the making of such an order.
Conclusion
The high level of conflict between J’s parents must end before it causes him further harm. He needs to be allowed to settle into a regular and predictable routine that allows him to remain at his present school, spend quality time with his parents, broader family, and friends. Once hopes that the making of these final orders will help to achieve that.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate:
Date: 6 November 2007
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