Maddock and Barkin
[2016] FCCA 41
•29 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MADDOCK & BARKIN | [2016] FCCA 41 |
| Catchwords: FAMILY LAW – Parenting – with whom the child should live – close relationships with both parents and extended family - determination as to the appropriateness of the presumption of equal shared parental responsibility – considerations arising from such a determination including whether equal time or significant and substantial time were reasonably practicable and in the best interests of the child – not practicable in the current geographic circumstances of the parties – consideration of those matters arising pursuant to sections 60B and 60CC – determination in a finely-balanced case of the significance of each party’s capacity to foster a relationship with the other party – consequential orders for the child to live with one parent and spend time with the other parent with alternatives depending upon the proximity of the parents’ residences in the future. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CA, 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 MRR v GR (2010) 240 CLR 461 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 |
| Applicant: | MR MADDOCK |
| Respondent: | MS BARKIN |
| File Number: | CSC 806 of 2011 |
| Judgment of: | Judge Coker |
| Hearing date: | 7 & 8 September 2015 |
| Date of Last Submission: | 8 September 2015 |
| Delivered at: | Townsville |
| Delivered on: | 29 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jacobs |
| Solicitors for the Applicant: | Roberts Family Law |
| Counsel for the Respondent: | Mr Middleton |
| Solicitors for the Respondent: | Bassano Law |
ORDERS
That the Father and the Mother have equal shared parental responsibility for the major long term issues of the child, X born (omitted) 2009, including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a 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 each parent.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree;
(c)They shall make a genuine effort to come to a joint decision
That notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst she is living with or spending time with him.
IN THE EVENT THAT THE MOTHER DOES NOT LIVE WITHIN THE (OMITTED) AREA
That the child live with the Father and spend time with the Mother at all reasonable times as may be agreed and failing agreement as follows:
(a)During the first two weekends of each three week cycle from 3.00pm Friday until 5.00pm Sunday or Monday should the Monday be a public holiday or pupil free day;
(b)For one half of each of the gazetted school holidays as may be agreed between the parties and failing agreement as follows:
(i)For the first half of all school holidays in even numbered years;
(ii)For the second half of all school holidays in odd numbered years.
IN THE EVENT THAT THE MOTHER LIVES WITHIN THE (OMITTED) AREA
That the child live with the Father and spend time with the Mother at all reasonable times as may be agreed and in particular as follows:
(a)On a week-about basis with changeover occurring after school on Fridays;
(b)For one half of each of the gazetted school holidays as may be agreed between the parties and failing agreement as follows:
(i)For the first half of all school holidays in even numbered years;
(ii)For the second half of all school holidays in odd numbered years.
That for the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:
(a)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;
(b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS CONCLUDE WITH THE EASTER LONG WEEKEND THEN:
(c)The first half of the gazetted end of Term 1 school holiday period shall be from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday which falls 8 days later;
(d)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday falling 8 days after the commencement of the holidays until 6.00pm on the Monday preceding the recommencement of school;
IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:
(e)The first half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 5.00pm on the Friday which follows or is the last day of school until 6.00pm on the Saturday of the middle weekend of such holiday period;
(f)The second half of the gazetted end of Terms 1, 2 and 3 school holiday period commences from 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(g)The first half of the gazetted Christmas school holiday period commences from 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(h)The second half of the gazetted Christmas school holiday period commences from 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
That the child have telephone communication with the parent with whom she is not living or spending time at all reasonable times and in particular, unless otherwise agreed in writing between the parents, at 6.00pm on Tuesdays and Thursdays, with the parent not having the child in their care to be responsible for making the calls and the parent having the child in their care to ensure she is available to take the calls in a quiet and private environment.
That notwithstanding the provisions of Orders 1 through 3 herein, should the parties be unable to agree as to a school to be attended by the child, then the child is to attend the (omitted) State School for her primary education and a high school selected by the Father for her secondary education.
That should the parties not otherwise be in agreement, changeover is to occur at the child’s school and, if not a school day, then during the school term the Mother is to return the child to the Father’s residence and during gazetted school holidays, the parent who is to have the child come into their care shall be responsible for the collection of the child from the residence of the other parent.
Each party have liberty to apply within 28 days of the date of this order in relation to any point of clarification in relation to the orders and in respect of costs.
IT IS NOTED that publication of this judgment under the pseudonym Maddock & Barkin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 806 of 2011
| MR MADDOCK |
Applicant
And
| MS BARKIN |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION AND APPLICATIONS
These proceedings relate to orders sought with regard to the parenting of the child X. X, born (omitted) 2009, and therefore six years of age, is the child of Mr Maddock, whom I shall refer to as “the father” and Ms Barkin, whom I shall refer to as “the mother”.
The father initiated these proceedings on 23 July 2014. There, he sought orders which can basically be summarised on a final basis as follows:
·that the parents have equal shared parental responsibility;
·that the child live with the father;
·that the child spend particularised time with the mother;
·that each party exchange relevant and appropriate information with regard to address, telephone number and details with regard to the child.
The father, in fact, amended his initiating application on 11 November 2014, only a matter of some four months or so after filing the original. The orders proposed did not greatly change what was sought by him in relation to the child, though it noted that there were alternative scenarios proposed, in relation to the care arrangements with X.
The first of those was upon the basis that the child lives with the father in the (omitted) area and spends time with the mother as agreed and, failing agreement, for two out of three weekends in each three-week cycle during the gazetted school term, as well as for one-half of school holiday periods.
The second scenario was couched in terms of the mother being in the same locality as the father, probably residing and working in (omitted) in Far North Queensland, in which case it was proposed that the arrangements would be for an equal shared care arrangement during the gazetted school terms on a week-about basis and for one-half of school holidays.
The third scenario was, obviously, the alternate possibility to the first, which was that the child live with the mother, attend school in the (omitted) area and spend time for the first two of each three weekends with the father during the gazetted school term and for there still to be equal sharing of the school holidays.
The orders also included, specifically, a proposal for the mother’s application, as it then was, to relocate to South Australia to be reviewed 12 months after orders had been in place. That particular aspect of the matter doesn’t remain live, however, as the wife has withdrawn any suggestion of there being a change in the arrangements with regard to where she might be living.
The mother responded initially on 18 August 2014. Her proposals, again on a final basis, were, initially, in these terms:
·that she have sole parental responsibility for the care of the child;
·that the child live with her;
·that, until the conclusion of term 4 in 2015, the mother continue to live at (omitted) or such other address in or around (omitted) as shall be convenient to the mother but that, thereafter, the mother be able to relocate to South Australia with the child;
·that the child spend time with the father on alternate weekends as well as for the entirety of the school holiday periods in the first and third terms of each year, as well as for one-half of the Christmas school holiday period;
·that, upon the mother relocating to South Australia, the child spend time with the father for the entirety of the school holiday periods in first and third terms as well as for one-half of the Christmas school holiday periods and other times as may be agreed between the parties;
·that the mother arrange, at her expense, for the travel of the child from her place of residence to the father’s residence at the commencement of time to be spent with the father and that the father make all necessary travel arrangements and be responsible for the costs associated with the return of the child to the mother’s residence;
·that, in the event that the father resides in the same town as the mother or within a reasonable distance of the mother’s residence, then the father also have the opportunity to spend alternate weekend time with the child from Friday after school until 5 pm on Sunday.
The mother amended her response on 12 January 2015, obviously following the father’s amendment of his initiating application in November of 2014. In the amended response, the mother made a number of proposed changes in relation to arrangements, including the following:
(1)that the parents have equal shared parental responsibility for the long-term decisions to be made in relation to the child X;
(2)that the child live with the mother;
(3)that telephone communication be particularised, such that the child speak with the father on Tuesdays and Thursdays, when not spending time with the father, at 5 pm;
(4)that, whilst the mother remains living in the (omitted) area, the father spend each alternate weekend with the child from after school Friday until 5 pm Sunday and for one-half of the Queensland gazetted school holiday periods;
(5)that there be in place specific arrangements with regard to collection and return of the child involving either collection and return to the child’s school or, alternatively, collection and/or return to or from the residence of one or other of the parents.
The most significant change proposed was that the mother no longer suggested that there would be any possibility or prospect of a relocation to South Australia.
The parties were able, in fact, for some significant time to have arrangements in place for equal time to be spent by X with each of them. It is noteworthy, in that regard, that the parents separated early in July of 2011, at which time X had not yet reached two years of age and, therefore, was not required to attend organised education. Up until she was to commence preparatory school in 2015, a week-about arrangement was in place; however, when the parents, at least initially, were not able to reach an agreement with regard to the arrangements in relation to the child’s educational arrangements, proceedings were contemplated with regard to with whom the child should live.
However, the parties were, by consent, able to reach, at least, a short-term agreement with regard to the child’s living arrangements, so as to ensure that there was some continuity and settled arrangements in relation to her commencement of school. Those orders, made by consent on 10 February 2015, provided for equal shared parental responsibility and for X to live with her mother and then went on to provide that, during a four-week cycle, the child would spend time with the father from after school Friday until 4 pm Sunday in the first, second and third week of each rotation and that, during the fourth week of the cycle, whilst there would not be a weekend spent with the father, there would be the opportunity for the father to spend time with X from after school Wednesday until the commencement of school on Thursday.
It was also agreed that X would spend the entirety of the Easter school holidays 2015 as well as one week of the gazetted end-of-term school holiday period with the father. Arrangements were also made with regard to responsibility for collection and return of the child and the orders were so comprehensive as to include a specific notation to the effect that the father was to be responsible for providing the mother with (omitted) tickets each way to coincide with the times that she would collect X from the father.
The father’s position in relation to the matter remained unchanged, however. He still sought orders, basically, in terms of the amended application which was filed by him on 11 April 2014. Those proposed orders were detailed again with the three alternative scenarios in the father’s outline of case, which was filed on 20 March 2015.
The mother’s position, however, varied a little from what was contained within the amended response, though it was more, if you like, in response or reaction to the orders that had been agreed between the parties on an interim basis in February of 2015. The mother’s trial affidavit, if I can describe it that way, filed by leave at the commencement of the hearing but affirmed on 6 September 2015, under the heading, “Current Arrangement”, detailed some of the concerns that the mother had with regard to X’s time with her father pursuant to the four-week rotation detailed in the orders of 10 February 2015.
The mother noted that she did not believe that X was coping with the fourth week midweek period spent with the father, it being the case that she was collected from school on a Wednesday afternoon after school, travelled with her father for some two to two and a half hours to (omitted), and then returned to school by about 8.45 am the next day. This meant that, in an 18-hour period, the child spent somewhere in the vicinity of four to five hours travelling, for a period of only some 13 or 14 hours at the father’s residence.
The mother indicated that, when she collected X from school on those afternoons following that excursion, she was, as she described it, “particularly tired and grumpy”. The mother proposed that, if the father were to continue to spend that time with the child, that it should occur in (omitted) and suggested that it might be able to be facilitated by X and the father staying at X’s godparents’ home in (omitted), a suburb of (omitted).
Additionally, the mother proposed that she spend more weekends than was currently the case with X, though it would seem that she still suggested a two out of each three weekend scenario rather than a three out of four weekend scenario. She notes in that regard, at paragraph 18 of her trial affidavit, that:
X and my time is precious and so, when we spend that weekend together, we plan to do something special. This does sometimes include having “mother and daughter” time. X and I do talk about what we are to do and we try to do something fun and interesting together because we do not have the opportunity other than our one weekend a month.
The mother also proposed that, so that there was some particularity or certainty with regard to the time to be spent by the father with X, that the cycle should be suspended on the last weekend before school concludes for the school holiday period and then should recommence, I would assume anew, with the first three weekend cycle from the first weekend after the resumption of school. The mother says, in paragraph 21 of her affidavit, that that proposal would provide, as she suggests, “less issues and negotiation between Mr Maddock and I, which I believe will allow for a better relationship”.
The mother’s proposals with regard to the arrangements in relation to parenting are finally, it would seem, quite close to those that are detailed by the father in his amended application, though they simply provide a little more structure, the mother says, for the benefit of X.
THE ISSUE:
The real issue here, therefore, is with whom this child should live. It was commented upon by the legal representatives and also by me, at the commencement of the hearing, that this was a finely balanced case. The parents were both caring, loving and nurturing of their daughter. X was close to both of her parents and, noteworthy, was also close to her grandparents, to the father’s partner, Dr R, and also to her little brother, Y. Such matters were commented upon in the family report which was prepared in relation to this matter and it is noteworthy that, in the end, neither parent sought the opportunity to cross-examine the family report writer. It is perhaps understandable that that was the case when the final determination by the family report writer in relation to the matter was not to make what I might call strict recommendations with regard to parenting but, as she noted in paragraph 171:
The writer offers two recommendations for X’s immediate living arrangements.
When considering the report more comprehensively, I will of course turn to those issues and others noted by the family report writer.
THE EVIDENCE:
It was also noteworthy that the parents had a number of witnesses that had filed affidavits in support of their positions. From the mother’s perspective, there was her mother, Ms S. Ms S was required for cross-examination. Additionally, however, she had sought initially to rely upon the evidence of Mr P, who at that time was her partner. Mr P’s affidavit was not relied upon but I would note that Mr P’s affidavit was filed on 4 March 2015 and the mother’s amended response was filed on 12 January 2015. It was at that time that the mother deleted any suggestion of a relocation to South Australia.
I must be frank and say that it is not exactly clear to me, therefore, what Mr P’s affidavit filed 4 March 2015 was filed for, other than, of course, to note the positive nature of his observations of the interaction between the mother and X, but in any event, as I say, that particular issue was not pressed and the evidence of Mr P was not relied upon.
From the father’s perspective, evidence was contained within the affidavits of his mother, Ms W, and also from his partner, Dr R. Neither Ms Maddock nor Dr R were required for cross-examination but their evidence was relied upon in relation to this matter and, at least insofar as it assists me in respect of the determination of this matter, I shall make some reference to it.
Of course, the primary witnesses were the mother and the father themselves, and I shall comment upon their evidence following my consideration of the family report of Ms L.
THE SUPPORTING EVIDENCE:
Turning first, then, to the evidence of the support witnesses, I would note in relation to Ms W that she obviously has had and continues to have the opportunity to both observe the father’s interaction with the child, to comment upon that interaction and also, of course, to comment upon her own relationship with X. She notes that X lived on the property owned by her until she was about 18 months of age, and that accords with the information provided by the parties. She also notes that, when the mother left the property with X, there was a period that passed where neither she, nor the father, knew where X was, other than that it was somewhere in (omitted) and that there was no communication from the mother regarding her location.
Ms Maddock noted that she only hears from the mother now on occasions when the mother contacts the father but notes that:
By comparison, Mr Maddock has maintained contact with his mother-in-law, Ms S, and has enjoyed good relations. She has even stayed with him and X here at (omitted) since the separation.
It is an interesting comment, particularly in light of the oral evidence given by Ms S, and I will come to that a little later.
Ms Maddock, however, noted that, from October 2011 until X’s commencement of school in late January/early February 2015, a period of a little over three years, the parents shared care of X on a week-about basis and, because of her closeness to her son, she developed a close relationship with X. She comments about activities that they did together, including drawing, reading, assisting with cooking and other small tasks, including collecting rainfall observations, and that they, obviously, enjoyed the time together and, as she comments in paragraph 17:
X and I are very fond of each other.
She also noted the importance that she and, it would seem, the father place on the child’s education and the need to ensure that the child’s educational needs were met and then comments upon the (omitted) State School and its “long history of producing high achievers”. Of course, as was emphasised by counsel for the mother, there is little independent evidence at all in that regard, only statements of opinion and belief.
Ms Maddock comments, finally, in paragraph 23 of her affidavit, that she observes that, “X is fond of her mother” and goes on to note that the father has always tried to shield X from any form of conflict and is firm that no one should speak badly of the mother, in X’s presence.
As I said, Ms Maddock was not required for cross-examination and I accept her evidence in that regard.
Similarly, the evidence of Dr R was unchallenged. She notes that she met X in January of 2013 and, at that time, rather appropriately, she also met the mother following arrangements made by the father because, “he felt it was important for X’s mother to know someone who would have contact with his daughter”. It was, clearly, an appropriate step and it does all of the parties’ credit that there appears to have been cordial and courteous interaction between them since Dr R’s relationship with the father has developed. Dr R notes at paragraphs 12 and 13 the following:
X and I enjoy our time together and she likes me to encourage her to learn about the natural world and do physical activities. We enjoy swimming, exploring, playing and walking together.
Mr Maddock is a devoted father and I observe that he parents his daughter very well and is very considerate in making sure her emotional and developmental needs are met. He clearly has an extremely good and close relationship with her.
Dr R also comments, similar to Ms Maddock, upon the fact that the father is careful to not speak badly of her mother in front of X and takes appropriate steps to encourage the child’s relationship with her mother and maternal grandmother. Again, Dr R, like Ms Maddock, notes that the maternal grandmother spent a period of time at Easter 2013 with the father and X and, it would appear, with Dr R also at Easter, and that facilitated an opportunity for the maternal grandmother to spend some time with X during a period when the mother and Ms S were not on the best of terms with each other.
I accept Dr R’s evidence in relation to this matter as an accurate and unchallenged indication of those matters upon which she is able to comment.
The maternal grandmother, Ms S, filed an affidavit on 5 March 2015. She noted that her relationship with the mother has had, as she put it, “a lot of ups and downs, disagreements and agreements, but bit by bit it has untangled itself, as neither of us knew where to start”. She goes on to note that it was the mother who instigated the process of the two of them working on their relationships so that they could get along and to ensure that X and as well, now, Y, have the maternal grandmother in their lives. Ms S says at paragraph 10:
Bit by bit, Ms Barkin’s, X’s and Y’s life has revolved around me and I have revolved around them. I believe that Ms Barkin and my relationship has strengthened and it has provided a lovely journey for us all.
She then goes on to note that she sees the mother and the children many times during the week and that she is obviously involved in the life of the children when with their mother and has significant involvement in their care, assisting the mother when she was required, through employment, to be away from the children.
Ms S notes in her affidavit that she did not have an especially close relationship with the father and says that, even after Ms Barkin and he separated, they were not close. It is noteworthy, as I indicated, that the evidence of both Ms Maddock and Dr R, as well as the father’s own evidence, was to the effect that he instigated various interactions between he and the maternal grandmother, particularly to facilitate opportunities for the maternal grandmother to spend time with X when that was not occurring, because of some of the “ups and downs” in the maternal grandmother and mother’s relationship, though the maternal grandmother in her oral evidence seemed to contradict those observations.
Ms S commented in her affidavit about some concerns she had with regard to the father, particularly with regard to him speaking with her about the court proceedings when X was in the same room, and her rebuffing any such approach and indicating that she would not talk about the proceedings, especially when X was present.
Additionally, Ms S expressed some concerns about the father’s appreciation of the relationship between X and her brother, Y. She says at paragraph 19:
With regard to what Mr Maddock thinks of Y, I do not think he believes that Y is important to X. This is because I recall one time, when I collected X from (hobby omitted) and Mr Maddock was there, I mentioned to the (hobby omitted) instructor that X had a brother. The (hobby omitted) instructor said words to the effect that she did not know that X had a brother. At which point, Mr Maddock interjected and said words to the effect, “Not really. He is her half-brother,” and after I heard that response from Mr Maddock I quickly replied, “Brother.” I thought the comment made by Mr Maddock was an attempt to downplay that X and Y are brother and sister.
Ms S also commented upon her observations of the relationship between X and her younger brother and noted that they love each other dearly and that, from her observations, when X is not around he is a “little lost sole [sic]”.
Ms S’s evidence given before the Court, however, raised some different issues and concerns in relation to Ms S’s complete veracity or, perhaps more specifically, her enmeshment with the mother to the extent that it clearly affected her evidence given in these proceedings. Ms S had spoken about the relationship between she and her daughter having some ups and downs in her affidavit but, when cross-examined about that, seemed to significantly downplay what had occurred. She said that the relationship between she and the mother on occasions had “its moments” and, whilst she acknowledged that there was a period when she and the mother were not speaking to each other, she was not able or, perhaps, I think, willing, to acknowledge that there were lengthy difficult periods.
There appears clearly to be evidence of email exchanges between the mother and the father, with regard to the mother’s limitations placed upon the maternal grandmother’s time to be spent with X, and, later on, also with Y. Ms S indicated that she couldn’t recall exactly when that might have been. When asked whether there was a period where she was stopped or perhaps restricted from seeing X, she was emphatic that she was not stopped from seeing her and was also emphatic that there were not conditions put on her time with X.
She, in fact, specifically noted that her interaction and time, in particular with X but also her interaction with the mother, had been good for the last two years and emphasised that the mother had never restricted her time with X or the opportunities to spend time with X.
More particularly, however, she was adamant that the father had not taken steps to facilitate opportunities for her to spend time with X. That was simply not true, and it was troubling that the maternal grandmother would be so adamant that it was not the case. It was perhaps able to be explained, however, when the maternal grandmother was questioned about assistance that the father might have provided to her with regard to seeing X, but also assistance otherwise provided to her personally.
When asked about that, her initial response was to say words to the effect, “What do you mean?” She was then taken specifically to an instance where her car was broken into or stolen and that a baby seat and booster seat were removed from the car. She was asked whether she acknowledged that the father had arranged for new keys to be cut for her and she, rather ungraciously I thought, suggested that she had given the keys to him and, therefore, it apparently was not of any great consequence. She was also asked whether he had purchased her a steering lock for the car and she was adamant that that was not the case.
But most troubling of all was when she was asked whether the father had given her a baby seat and booster seat. Her answer was non-responsive to the question but was certainly indicative of the woman herself and of her attitude to the father. She responded that the father “didn’t buy them, he had them”. She was asked whether, whatever might have been the case, she appreciated that gesture and, rather surprisingly, responded with words to the effect, “At the time I did.” When asked whether she now appreciated or whether she still appreciated that gesture, she said that she did not and, when asked, responded, “Why should I appreciate him doing anything for me now?”
Ms S did not like the father. It would appear that that, to a very significant degree, arises from the fact that she has significant involvement with the children and, obviously, a close relationship now with the mother, but to have turned, as she clearly has done, against the father is troubling, particularly in light of the fact that the father was not in any way denigrating or unresponsive to her and also where there appears to have been no real basis upon which such unpleasant reactions should have been considered.
Understandably, therefore, Ms S was asked what might be the circumstances if, for example, she had significant involvement in the care of X and she was to facilitate a handover to the father or if X asked to contact, I presume by telephone, the father. She responded in relation to each of those scenarios that there would only be contact necessary of a physical nature if the orders provided for it and that, if X sought the opportunity to speak with her father, for example if there had been some incident or activity at school that she wished to tell him about, she would need to check with the mother or would have to “think about it”. She then went on to note that she would, “go by what was happening at the time”.
The fact is that the maternal grandmother would, on occasions, have significant involvement with the children, particularly X, and there would certainly be times where she would be called upon, because of the circumstances that would exist, particularly if the mother was working, to make a child-focused decision with regard to X and her father. I, unfortunately, gained the distinct impression that the maternal grandmother would not be at all inclined to put the child’s needs or wants ahead of her own obvious distaste for the father.
It gave rise, I must say, to concerns with regard to the opportunity for the relationship between the father and X to be fostered, when it was clear that Ms S would have such significant involvement in X’s life, at least insofar as any times that involved X being with her mother.
Finally, when asked about correspondence that she had sent to the father, she acknowledged that it was uncomplimentary but was unable to indicate why she may have sent the correspondence. She did indicate that she presently had a low opinion of the father and, when asked whether he was a good or a bad father in her opinion, she said that she would, “not call him ‘good’”. When asked why that was, she said that she considered it improper that there were occasions where X slept in the same bed with him or showered with him, as well as made comments with regard to concerns she had, in relation to the child’s diet with the father.
It was interesting in that respect, in particular, that, when asked whether she actually had any idea what the father fed her, that she responded that she did not but she knew what X told her, what she saw in X’s lunchbox when she came into her care after having spent a night with the father and also her views were tempered by what the father had said about the mother’s food.
I was troubled by Ms S’s attitude in relation to this matter, not so much as a result of any change of view that she might or might not hold in relation to the father but, rather, as a result of what, in my assessment, were clearly untruthful statements by her, in relation to the support provided previously, including post-separation, by the father to her, as well as the fostering of her opportunity for a continued relationship with X. However, I was much more concerned as to what the grandmother’s attitude to the father might be, and the effect of that attitude upon the child.
THE FAMILY REPORT:
I turn now to the family report of Ms L, a psychologist in private practice in (omitted). Ms L was requested to prepare a report pursuant to orders made by Judge Willis on 1 September 2014. The report is extensive and, in light of the fact that Ms L was not required and was not cross-examined in relation to her interviews and opinions, I would simply comment in relation to some of what she says and relate it, in due course, to my own observations and assessments of the parties.
At paragraphs 144 through 146, Ms L speaks of her observations of X with the father and Dr R as well as with the mother, Mr P and Y. It appears clear that there was little that gave rise to any concerns in relation to those observations and, under the heading Comment, at paragraphs 147 and 148, Ms L says the following:
The writer has no doubt X enjoys an exceptionally strong bond with both Mr Maddock and Ms Barkin. Both parents show a deep love for X; they are openly demonstrative towards X. X reciprocates with love and affection; she delights in their attention. The writer gained the impression X has a deep affection for Dr R and enjoys her company.
As mentioned by Mr Maddock, X is openly affectionate towards others. At the conclusion of interviews at Ms Barkin’s home and some days later at Mr Maddock’s home, X was affectionate towards the writer; the child initiated the hug. From this basis, the writer formed the impression X is relaxed and affectionate towards Mr P; nonetheless, such affection could be offered to others who visit Ms Barkin’s home.
Under the heading Evaluation, Ms L then sought to bring together a number of the issues which remained live at the hearing. At paragraph 150, Ms L says:
The writer has no doubt both Mr Maddock and Ms Barkin love and deeply care for X. To their credit, each parent spoke of X’s love for the other parent.
Ms L also noted that each of the parents have different strengths to offer X and that they offer different lifestyles. She commented upon the fact that the father has the flexibility of self-employment and lives in the (omitted), though there is a drawback, obviously, of a geographic nature, insofar as the remoteness and scarceness of community resources and activities for children, that might otherwise be offered within suburbia. She notes that Ms Barkin is employed on a part-time basis, residing in suburbia, and wishes to promote activities which complement school-based learning.
She went on to note that both of the parents promote similar home-based activities, though there are obvious differences that arise with regard to geographic considerations again, including the size of the properties that each live in as well as the limitations that arise with regard to residing in a suburban rental property with regard to limitations on pets and other activities.
Troubling was the assessment by Ms L that the parents were unable to negotiate contentious issues and that there may be, as she put it, “a lack of understanding regarding which issues are day-to-day parental responsibility and which issues are considered parental responsibility”.
In that regard, I assume that she was referring to those more significant long-term decisions that parents have to make, though, as I will comment upon later in these reasons, it was certainly pleasing that the parents were able, albeit with some difficulty, to reach an agreement with regard to the child living in the interim with the mother so that there was not continued dispute in relation to X’s education and, of course, the possibility that she would not commence prep at the time when she was able to do so. It reflects well upon both parents, but I must say it reflects more positively upon the father, who conceded that the needs of the child have to be put before his obvious desire and wish for more time with the child.
It was troubling, that the mother’s attitude in that regard was that, if the child could not live with her and attend the (omitted) State School, then there wasn’t the similar concession or consideration on her part as to alternatives. It may, of course, be that the father was simply first in time to provide the concession in relation to the matter, but there does not appear to have been any later appreciation by the mother, of the importance and significance of that concession being made by the father. Rather it would seem, there was a willingness to emphasise the established arrangement that is now in place as a result of that concession, and no acknowledgement that it was simply an appropriate concession until a full consideration of issues could be met.
Ms L notes that the report, as filed on 10 November 2014, covered two crucial issues. The first of those related to X’s immediate living arrangements and what should be put in place to enable her to attend school with minimal travel, and the second related to the mother’s desire to relocate to Adelaide, though, as I note, that is no longer pressed. Ms L noted that the father’s first preference was to continue with the shared care arrangement though, of course, he sought that in circumstances where he would not have to move.
Ms L also commented upon the father’s desire for the child to attend a school in close proximity to him, and whilst reference appears to have been made to (omitted) State School and the (omitted) State School, it appears now that the real preference from the father’s perspective, is for the child to attend the (omitted) State School, which is closest in proximity to his residence though it would involve some 20 to 30 minutes travel by bus each way, for the child to attend.
Ms L goes on to note that the mother’s reasons for not relocating to (omitted) included her employment, which is in the (omitted) industry, and that there are obviously therefore requirements for early morning, afternoon and/or evening work, and that the mother expressed some concerns about what disruption there would be to Y’s routine, if she were to relocate to the (omitted) area. Such a concern is a legitimate one though, as was emphasised by Ms L, it appeared to be somewhat inconsistent with the mother’s personal preference at the time of interview, that she relocate to South Australia, which would have been, it would seem, a far more significant effector upon the child, and upon issues of routine and stability.
That is, of course, particularly the case when the close relationship that the mother sought to rely upon with her mother would be significantly affected, with thousands of kilometres put between where the maternal grandmother lived and the mother proposed to live, especially in circumstances where the mother was want to emphasise on a number of occasions, that her mother could not financially afford another move, be it from (omitted) to (omitted) or, it would seem, (omitted) to South Australia.
Ms L goes on at paragraph 160 of the report to comment upon issues with regard to parenting and, if you like, suggests that the father needs to establish and maintain stronger parent-child boundaries. She suggests, understandably, that with a child of this age it was appropriate that the father should cease the practice of X sharing his bed though it is noteworthy that there is no suggestion that that continues and certainly there is no suggestion of anything of an improper or sexualised nature, in relation to any time that the father might have spent with the child. Interestingly however, Ms L goes on at paragraph 161 to note as follows:
Assessment data suggests Ms Barkin and her family may not communicate following conflict. The writer notes there has been time when Ms Barkin has distanced herself from her mother (Ms S). Whilst Mr Maddock reports during such time Ms Barkin does not facilitate X’s relationship with the maternal grandmother, Ms Barkin asserts, regardless of her own stance towards her mother, the children’s relationship was not impeded. If Mr Maddock’s narrative is accurate, he may have a basis to be concerned about the likelihood of Ms Barkin not facilitating X’s relationship with him.
Certainly that was an ongoing concern of the father and whilst the indicators certainly to the present time are that the mother has facilitated the father’s time with the child, there is, if you like, an undercurrent of concern that the mother is doing so, not because of any full appreciation of the importance to X of significant involvement in the life of the father but because the mother’s position is to say that it is something that she is required to do.
I must say that it did give rise to some concern, particularly when that particular aspect of the matter was looked at in conjunction with the clear attitude of the maternal grandmother of disregarding any real significance at all in the father’s involvement in the life of the child or any importance of fostering that relationship.
In her recommendations at the conclusion of the report Ms L suggests that there should be equal shared parental responsibility and, of course, it is noteworthy that both parents now propose that that should be the case.
As I noted earlier, it is also the case that Ms L offered alternate recommendations in relation to X which generally reflect the three scenarios proposed by the father. Firstly, that X attends school at either (omitted) or (omitted) and that if the mother was to relocate to the (omitted) area, then such an arrangement would allow for a continuation of equal shared living, probably upon a week-about basis.
Alternatively she notes that if X were to live with the mother in (omitted) or the (omitted) area generally, that she should spend two out of every three weekends with the father from after school Friday to before school Monday, with an extension by a day if there were a public holiday or pupil free day that fell on either the Monday or the Friday, as well as the Wednesday night time being spent. It should be noted however that the proposal in relation to Wednesday night time, as discussed by Ms L was couched in terms of there being far less travel than is presently the case and that is of concern to the mother.
Otherwise, Ms L recommended that the child spend half of the school holidays with each of the parents and certainly did not suggest that the child was so fragile as to need there to be a reduction in the Christmas long school holiday period and, whilst the mother touched upon that in some of her communications with the father, it does not appear generally to be pressed at the final hearing.
Noteworthy also is the fact that Ms L recommends that the mother’s proposal for relocation be reviewed in a year’s time, but, of course, that is no longer pressed in relation to the determination of this matter.
THE PARENTS:
I turn now to the evidence of the mother and the father. As is perhaps obvious from what has already been said in relation to this matter, it is one of those cases where there is much that is agreed between the parties, but each of the parents, for very valid and appropriate reasons, seeks orders that they genuinely consider to be in the best interests of the child or children, the subject of proceedings.
Here the fundamental difference between the parties is geographic. The father is established in his business and his residence. As he indicated in his evidence, it is a third generation business and one that, whilst providing him with flexibility in respect of the times that he works and therefore provides him with opportunities to spend time with X, also means that he is restricted to work in the home locality.
From the mother’s perspective she sees the (omitted) as a small and perhaps even isolated community. One in which she does not believe that there are as great a set of opportunities as might be available to the child in the wider community that is available in (omitted). The mother’s views are also no doubt coloured by the fact that there is an opportunity for her, she says, to have greater employment options available to her and also to have direct input and assistance from her mother.
Each of the parties have a close relationship with this child. Every indicator is to the effect that X has a close and abiding love with both of her parents and with those with whom she comes into contact, as a result of her relationship with each of her parents.
The parents themselves acknowledge the importance and significance of the relationship of the other parent with the child and of course the other evidence, perhaps with the exception of the stance taken by the maternal grandmother, is that X enjoys her opportunities for a relationship with her parents and those others significant in her life.
Ms L specifically noted that in her report, speaking of the exceptionally strong bond that the child has with both the mother and the father and of the deep love that each parent shows for the child. If nothing else that simply emphasises the difficulties that arise in relation to the determination of this matter when there are clearly such different hopes or expectations that each parent has in relation to the child.
Insofar as the father was concerned he impressed me as an intelligent, caring and involved father. He acknowledged at the very commencement of cross-examination by counsel for the mother that X loves both of her parents and both parents love her. He was, however, very particular in his choice of words and I gained the distinct impression that he would be a very precise person, both in the parenting of the child and perhaps more widely in his general and day to day life. That was obvious on a number of occasions.
For example, when asked whether X’s interests would be served well by each of her parents, noting the close attachments that the child had with each parent, he immediately replied, no, her interests would be best provided for in my care. When asked whether that was because of lifestyle considerations arising from the place in which he lived, he indicated that that was correct. But he also emphasised what he saw as differences in the approach that he and the mother took in respect of the care for the child and promotion of her educational opportunities, and it was upon these various bases as well as lifestyle issues, that he said gave rise to his view that the child’s best interests would be met by him.
The father was cross-examined at some length about the different scenarios that he had detailed in his amended application. He acknowledged that the third of those scenarios, which related to his least preferred position that X live with the mother, was one that accepted that in many respects he and the mother were both able to provide for the child. His response was interesting in relation to questions in that regard, in that he acknowledged the fact that both he and the mother were good parents, and used a term which is normally one that is only used by lawyers or social scientists. He referred to the case being, “a finely balanced case”, and went on specifically to correct what he interpreted at least was a misunderstanding of the positions taken by the mother and the father, as put to him by counsel for the mother.
He was asked whether, in a finely balanced case, it would be necessary to focus on whether X was to live in an isolated area as opposed to a city. His response, like many, was precise, in that he indicated that he did not consider that to be the case but rather a distinction to be drawn between the benefits that arose from living in a smaller community, as opposed to a city or suburban situation. The father emphasised, as he saw, the very great benefits that arose from the child living with him in the (omitted) and having the opportunity to live in, what he suggested, was a beautiful part of the world with opportunities that would not be available in a city or suburbia.
Of course determinations such as that come from each person’s own personal experiences and appreciations, but it is clear that one of the significant issues here is the distinctions that might be drawn between, as the father put it, a smaller community and a city or suburbia.
The father acknowledged that since he and the mother separated they had been able, for a considerable time, to affect an arrangement which provided for basically equal time being spent between X and each of her parents. The father acknowledged that both parents had good qualities, both as parents and perhaps in a wider consideration, as members of our society.
The father impressed me very much as a deep thinker. The father had thought long and hard about the arrangements in relation to the parenting of this child and what he considered to be in her best interests. I must say that I was particularly impressed, and I noted it earlier when speaking about the evidence of Ms L, relating to the concession with regard to arrangements to be made in the interim, with regard to the parenting of the child.
The father very clearly opposed what was proposed by the mother as an interim arrangement, in relation to parenting. But he put that to one side and indicated that the greater concern was not with whom the child should live and therefore spend time during the interim period, but far more significant was the opportunity for this little girl to commence her appropriate education at the time that the parties considered it was proper and in her best interests. It was to the father’s very great credit that he was able to put the child’s interests and needs to the fore and to, at least in the short term, forego what he considered would be the better arrangement with regard to her long-term care.
It reflected not only the father’s love for the child and his absolute desire to ensure that what was provided for X was in her best interests, but also recognised his appreciation of the very real need to ensure that the child’s educational requirements were met.
The issue of education was one that loomed large in relation to this matter. Whilst it is not my intention to draw distinctions between the schools that each parent proposes might be the school attended by X, should she live with them, it is clear that the father had made enquiries with regard to the positions of each of the schools with regard to being able to provide for and to meet the educational needs of any child, but of course particularly X. He was also particularly mindful of what he considered to be the need for support and encouragement for X, noting that he had concerns with regard to her English results and had taken steps to address that by reading with her and encouraging the child with her English.
It was obvious later in cross-examination, that the father very clearly understood what the child’s school report had spoken of. In that regard for example, that he had a specific understanding of the educational progression or educational institutions that would be attended by the child in the event of living with one parent or the other, and on a number of occasions corrected the statements made by counsel for the mother, in relation to issues with regard to education.
For example, he noted that (omitted) State School, which was the school proposed by the mother, did not go through to year 12, but rather there was a transition to the (omitted) High School that was required and the (omitted) State School was not an institution that provided continuous education, through until year 12. It was also clear that the father considered, as he put it, determination of arrangements with regard to the child’s education to be an essential element of what was required to meet the child’s needs and had appropriately interacted and dealt with the child’s teachers and had obtained information with regard to the child’s progress.
The father was, I thought, as the mother expressed it, somewhat superior in his attitudes to the mother. Whilst the father was adamant that he did not seek to impose his will or attitudes upon the mother, I gained the distinct impression that simply the differences that I observed in the personalities of the mother and the father, would lead, certainly from the mother’s perspective, to there being a view that the father was, at least to some extent, disregarding of her views or attitudes, in relation to not only parenting and educational decisions but perhaps a vast multitude of decisions or stances that were necessarily required to be taken, in relation to the parenting of this little girl.
I am not so certain that that is necessarily a reasonable assessment to make, in relation to the matter, but certainly it is one that could understandably be made, in relation to the parenting dynamics between the mother and the father. I am inclined more, however, to the view that the father is very considered in any stance that he takes, whether it relates to X or other issues that might arise, and that perhaps he is something of a deep thinker and therefore has given very great consideration to what arrangements might be put in place with regard to the child or other decisions that need to be made, and therefore was not easily swayed, once he had formed a view.
I do not think, however, that he was in any way bullying or overbearing, but rather the position taken by him was simply a reflection of his personality. I thought the father was an honest man. In that respect I particularly note the late filing of the affidavit by the father in relation to what he says were the disclosures or comments made by X, on the weekend of 29 and 30 August 2015. He was prepared, quite properly, to acknowledge that the comments that are referred to in that affidavit were, at least to some extent, probably attributable simply to the fact that X was enjoying her time with her father, in a beautiful part of the world.
In particular where the father noted in paragraph 6 of that affidavit, that X made a comment to the effect:
Mummy and Nanna said I have to tell you now that I want to go to (omitted), because she told me that it is never going to happen, so that’s what I told you, OK Dad? They said it will never happen that I go to school here.
I accept that such a statement was made. I am certainly of the view that the father is a meticulous person in many respects and that it would be the case that his recitation of what was suggested to have been said by X would be accurate.
He confirmed that in cross-examination and when it was suggested to him that he was lying he was almost, I thought, affronted by such a suggestion. He replied that it was absolutely not the case. And then, I think rather insightfully, indicated when it was put to him that it was “fortuitous” that the statement was made. He responded in words to the effect, “I’m not suggesting X is unhappy. I’m just indicating that this is what she would prefer.”
I do not think that the father set out to draw this evidence from the child or to mislead the court. I am certainly minded to accept that the statement was made, and more particularly accept, that the father’s assessment of why the statement was made is an accurate one. This little girl, like her parents, is caught in a bind. She loves both her parents.
She no doubt loves many of the opportunities that are available to her in both of the households that her parents are in, and she is trying to satisfy both. However, I am troubled if, as suggested by the father, the mother would have been at the very least encouraging of the child making statements to the effect that she wanted to go to the (omitted) State School and live in (omitted). But, I do not consider that the evidence in that regard is anything other than an accurate recitation of what had been said, whatever the motivation.
The father was concerned as to what he believed was the real intent of the mother, specifically in respect of the possibility of relocation. The father relied, he said, upon his own observations of the mother and her behaviours with other family members if she became unhappy in her relationship with them. It was noteworthy that the father made the comments and the mother did not deny that there were certainly instances in the past where she has seen her relationship with other family members, including particularly her mother, deteriorate and there have been, at least to some extent, reductions in time spent.
It is also obvious that the father has little faith in the mother’s stability, noting that her previous intention to relocate was related much more, it would seem, to her relationship with her previous partner than to any consideration of what might have been in the best interests of the child. I also was concerned with that particular aspect of the matter, and do not disregard the legitimacy of the father’s ongoing concerns.
I was also impressed with the father’s appreciation of the wider aspects of X’s relationships, not only with her parents but with others significant in her life. It was noteworthy that the father made reference to attending the (omitted) State School fete and when asked why he hadn’t mentioned that X’s little brother, Y was present, he indicated that he can’t recall why it might not have been the case that the child’s presence was not mentioned in the affidavit, but seemed generally surprised and in fact affronted when it was put to him that it was because Y was not important. His answer was immediate and impressive. He said it was not the case at all. That he bought him gifts. That he included him in the family relationships, and to suggest that he was disregarded by the father was not only untrue but unfair.
I was genuinely impressed with the father’s real appreciation of the significance of all those important in X’s life to X and I would not at all consider that he would disregard the very real significance and importance of Y in this little girl’s life.
The father was concerned about maintaining contact with X whether X was in his care or in the mother’s care. The father was adamant that the mother had been less than determined in ensuring that telephone communication and Skype communication occurred. The father also expressed concerns that when he was to have the opportunity to communicate with X, particularly by way of Skype or otherwise, that there were distractions in the mother’s household, that Y was not controlled and that consequently there was background noise, and on occasions instances where Y was free to pinch his sister and consequently distract her from the exchanges and discussions with her father.
The father was asked whether this was just a consequence of family life and his response was, I thought, a reflection of his personality, as I have indicated previously. He indicated that it would not be the case at his home, that he would make arrangements for discussions between X and her mother, and would assist her, as he said he would “prime her to talk with her mother”, such that there would be reminders to talk about activities and events that had occurred, since the last time they had spoken.
The father was asked whether he was just nit-picking and, again perhaps reflective of the type of man he is, he indicated that that was not the case and that he would extend the same courtesy to the mother and ensure that there was the opportunity to speak, but he expected that he would be extended the same opportunity to speak with the child. I gained the impression that the father was determined in every way to be involved in the child’s life, but more particularly recognised the absolutely essential nature of ensuring that not only was he involved in X’s life, but, no matter what might be the circumstances ahead with regard to her parenting, that the mother was similarly given the opportunities to be involved in X’s life.
I was generally and genuinely impressed with the father. He was a devoted parent and one who very much was of the view that both parents should be involved as significantly as possible in the life of this child and perhaps more importantly, was genuinely of the view that the best interests of the child were to be met by her living either in his care or preferably in a shared care arrangement. He certainly emphasised on a number of occasions that if the mother were in the (omitted) or (omitted) area, that in his view the most appropriate arrangement would be a shared care arrangement.
Insofar as the mother was concerned, like the father, I had no doubt as to her love for the child and, just as importantly, X’s love for her, as well as her genuine belief that what she proposed in relation to the parenting of X, was in the child’s best interests. The mother was challenged, however, in relation to a number of issues that have arisen, particularly since January of 2015 when X, by consent, came into the mother’s primary care.
She was asked about the father’s concerns in respect of the child’s education and indicated that she or her mother work with X every day in relation to her homework and educational progress, as well as ensuring that the child’s attendance at school was appropriate. The mother indicated that she interacted with X’s teachers almost every day and commented that the indications given to her, was that X’s reading level had progressed from level 4 to level 6 over recent times.
Additionally, she was asked about the father’s concerns with regard to telephone and Skype communication between X and the father, when X was in her mother’s care. Interestingly, the mother commented in relation to those concerns that it had, “been difficult”, in that the father had wanted to call at dinnertime and that was not appropriate. It was the case, however, that those times were structured as a result of consent agreements, and the father’s position was to say that when other times were suggested, he had sought to utilise them as requested by the mother, but that the calls had not been made.
I gained, unfortunately, the impression that the mother did not place anywhere near the importance or priority upon the telephone calls and other communications that was considered appropriate by the father, and that was certainly noteworthy, in light of the fact that the mother had indicated that she was a busy mother and that there were certainly occasions, where she forgot to make the calls or to make the arrangements. Of course, it failed to recognise that, from the father’s perspective, it was certainly the case that these communications were of great significance and she knew obviously of the close bond and attachment that the father had with X, but also that X had for the father.
The mother was questioned about her perceptions of the effects of Wednesdays being spent with the father and the significant travel associated with that. The mother indicated that on those days where there was a lot of travel, that X can be tired for school and that this affects her emotionally. The mother made reference, she said, to this in emails that had been forwarded to the father, though the father, as I understand the evidence, said that that was not the case. It is noteworthy that the emails were not produced.
The mother was questioned by counsel for the father about issues in relation to the child’s diet, provision of lunches and the like, and whilst I would not think that they carry very great weight or significance, in relation to this matter, it is clear that the parents are not on the same page when it comes to meeting the child’s dietary requirements. I should indicate, however, that I have no doubt that each parent is able to recognise and to provide for the child’s dietary needs.
The issue of the school that X is to attend is closely aligned to with whom X is to live, certainly from the commencement of 2016. It is noteworthy, as I commented earlier, that the father had conducted significant inquiries in relation to the (omitted) State School as opposed to the (omitted) State School and had his views as to (omitted) being more appropriate to meet the needs of the child. The mother had similar views in relation to the (omitted) State School, and I do not intend to be drawn into assessments of which school better meets the needs of the child.
I am satisfied, however, that both schools would be appropriate for this little girl, that each would, in different ways, meet the child’s needs and would be able to ensure a progression for this child into her more senior classes. It was noteworthy in one respect, however, that whilst the father appeared to have made significant inquiry with regard to the schools and to what they offered in varying respects, the mother was asked whether she had made inquiries in relation to the schools or perhaps what each was able to offer, recognising the difference in size of the school, size of classes, number of teachers, and the like.
The mother indicated that she had not taken such steps as she did not consider that it was necessary to investigate. The mother was cross-examined then, in relation to whether her preference for the (omitted) State School was one based more on convenience for her than benefits for the child. She disagreed with that and emphasised that, at least from her perspective, attendance at a larger school and a recognition of the opportunities that might flow from that was appropriate.
The mother was cross-examined at some length about whether her decisions and relationships reflected a stable personality. She was adamant that she was a stable person in the most general of ways, and when challenged in relation to her disagreements and lack of interaction with her mother, as well as having formed some relationships post-separation, including that which led to the birth of Y, the mother interestingly indicated that she did not see that they were in any way reflections of instability.
But when asked whether those changes, both in respect of relationships and interactions with family, might not be good for X, she responded with words to the effect, “She’s not affected by my personal relationships.” I was a little troubled by that, because there certainly appeared clearly to be indications in the material filed by the mother, as well as what was contained within the family report, that the mother placed great sway on the importance of her relationships with respect to the children, and it was clear that both Mr F and subsequently Mr P, with whom the mother had relationships, were given positions of some prominence for X, and, of course, if that were the case, then the end of a relationship that the mother might have established would have consequences for the child, if close relationships were no longer able to be fostered or developed.
The mother was also asked about her proposal, at least initially in these proceedings, to relocate to Adelaide. The mother was asked whether she acknowledged that the issue of relocation was one that was not necessarily considered in light of the best interests of the child but rather arose from what she considered to be in her best interests. The mother, I think quite truthfully, indicated that that was at least part of it, but as it was no longer on the agenda it was not an issue.
However, the mother was asked whether it was actually the case, as put by her counsel, that the relocation was not pursued, not because of relationships issues or a relationships breakdown but because she had the best interests of the child at heart. The mother indicated that that was the position that was originally taken but, when pressed, acknowledged that the real reason for her not seeking to press with a relocation was because the relationship with Mr P had broken down.
It is a little troubling in that respect, that the mother’s position, originally taken with regard to the importance and benefits that would flow from a relocation were finally acknowledged to not be based on the interests of the child, but much more based on whether or not the mother was in a relationship with a person who intended to reside in Adelaide.
The mother acknowledged that she had put her relationship with Mr P ahead of X’s relationship with the father and the possible consequences of that upon the child. It was to the mother’s credit that the acknowledgment could be made, but by the same token it was concerning that the mother would be minded to put her own self-interest ahead of what might or might not be the position, with regard to the child’s best interests.
The mother was also cross-examined about prospects for employment, other than in the (omitted) area. The mother spoke of the better opportunities available to her working in (omitted), but when the question about whether she had also looked at opportunities in (omitted), which might then provide for the greater opportunity for both parents to be involved in the day-to-day or week-about care of the child, she indicated that she had made some inquiries, but the jobs which were available were not child friendly in the (omitted) industry. It was clear, however, that there were similar difficulties that arose in relation to the mother’s employment in (omitted), but simply that the distinction was that her mother was able to provide assistance in (omitted), including overnight stays if the mother’s hours involved early starts or late finishes, such that she could take on such work.
The mother was challenged, however, in relation to that continued support. She indicated particularly that her mother would not be able to make a move to (omitted) if she were to move to that locality and indicated that the primary reason for that was that the maternal grandmother was not financially able to make a move. The mother did, however, acknowledge that the father had offered some financial assistance if a move were to be effected and that that might have included assistance for her mother to move if she were willing to do so.
More particularly, however, the mother was challenged as to the long-term viability of arrangements which would include her mother providing assistance in that respect. She was asked about the fact that she had had issues with her mother in the past, and, whilst acknowledging that this was the case, would not accept that they were so serious as to preclude the opportunity for her mother to provide assistance, with regard to the parenting of her children.
Only when further pressed and when asked to consider emails that had been sent, for example, emails in February of 2013, in which the mother specifically sought to preclude her mother from having contact of any real significance with X, was it acknowledged that they had had, as the mother put it, “troubles in their past”, but that they have now put them behind them. The real concern that arose in that regard was that the troubles in the past, as referred to by the mother, had not only arisen on one occasion but had been a regular occurrence, and that, if that was the case, the circumstances that existed for her at the present time in (omitted) would be unworkable.
The mother was somewhat defensive, I thought, in the position taken by her with regard to a move. Whilst it is, of course, the case that the mother is entitled to live and work where she chooses, it is certainly necessary to consider how arrangements might best be met to ensure that this little girl has the opportunity for a relationship with both of those parents most significant in her life.
It is also noteworthy that the mother, only when pressed in cross-examination, was willing to acknowledge that there were occasions in the past where she had concerns as to her mother’s capacity to provide for and to meet the needs of the children and that she saw fit on occasion to restrict the maternal grandmother’s contact and interaction with X. The mother, only when pressed, acknowledged that they were matters that did need to be addressed, in relation to arrangements with regard to the parenting of this child.
Understandably, the mother was also challenged about her appreciation of the importance of the father in the life of the child. At the time of separation in July of 2011, the mother left and provided no information as to where she or, more particularly, X were. The mother indicated that in hindsight she accepted that the father had a right to know where X was and a right to interaction with the child, and that she, as she put it, “regretted the decision”, to not provide information as to where X might be. It was interesting, however, that she was asked whether she acknowledged then that the decision was an inappropriate one, and only after some time acknowledged that that was the case.
She was asked whether she felt any regret in relation to the decision and she indicated that she did and had felt that regret for the decision made by her to exclude the father from interaction with the child or even knowledge as to the whereabouts of the child for some considerable time, in the “last few years”. The mother was asked whether she had acknowledged that regret in any place in her affidavit, and she indicated that it was not there.
When challenged as to whether that then raises a question as to her ability to recognise the importance of facilitating time when she had a falling out, for example, with the father or with her mother or others significant in the child’s life, she disagreed that she would act in a manner which would preclude contact. The fact is that the mother did, on occasions, certainly at separation and on other occasions with her mother or other family members, act in a restrictive or controlling manner, and, unfortunately used X in that way.
The mother loves her daughter and wishes to provide for her daughter what she considers is in her best interests. There is, however, a concern identified in the evidence that has fallen, but also, I might add, identified in the family report, that the mother does not as fully as one would hope, appreciate the importance of the relationship with the father and the importance of fostering that relationship.
The distinct impression that I gained was that the mother was far more focused on her actions and behaviours, than on the child’s needs. The mother’s suggestion, for example, that the proposed move to Adelaide not being pursued was because of a recognition of the importance of putting X’s needs to the fore was not able to be justified, and rather that it was clearly a situation of the mother not pursuing the move because her relationship with Mr P had come to an end.
The mother, only when pressed strongly, acknowledged that the father’s concession at the beginning of the school year 2015 was a child focused concession, was only given when the mother was pressed into finally recognising that it was a standoff between parents and one had to take an appropriate step, and it was the father who did so.
There are concerns that the mother has not facilitated the phone calls and electronic communication that the father saw as significant. When asked specifically whether she was aware of the fact that the father complains of her not initiating telephone calls, she replied emphatically that she had. However, when pushed to give an indication of what phone calls she had made in the last six months she indicated that only two calls had been made by her.
She was asked whether this showed that she would facilitate contact with the father in the future. She indicated that she would, but it is clear that the mother was not able to prioritise such arrangements in relation to even the most basic of considerations, such as ensuring that there were phone calls made or that if phone calls were to be received, that they would be conducted in an appropriate and proper environment. The best that the mother could suggest in evidence with regard to ensuring that the phone calls might occur was to suggest that she would put a note on the fridge to remind her about the phone calls.
I was troubled with a number of issues that arose in relation to the mother’s evidence, not the least of which being that the mother seemed unwilling or unable to prioritise the child’s needs and close relationship with the father over her own needs, at any particular time.
THE LAW
I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, relating to the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010, his Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136]The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137]Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138]But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139]The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140]No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141]The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142]Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143]“Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144]Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145]Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146]Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147]A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148]The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149]If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150]The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151]An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152]Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75. In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76. We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
Obviously the issue of parental responsibility is one of great significance. Section 61DA provides that the presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(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 interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Clearly, consideration does need to be given to those matters set out in section 61DA. The parties here suggest that there should be equal shared parental responsibility. The court is not bound by proposals that might be put forward by the parties but rather is guided by the ultimate consideration, the welfare and best interests of the child. The court therefore does not blindly follow what the parents might agree upon if it is not considered that equal shared parental responsibility would benefit the child or children. In this instance however, I have no doubt that these parents, despite the occasional difficulties that have arisen are able to put the child’s best interests to the fore and would work determinately to ensure that X was given every opportunity to achieve all that she possibly could.
I intend as the parties seek to make an order in relation to the parents having equal shared parental responsibility. However, there is then the obvious need to determine what arrangements should appropriately be made in order to allow this child the opportunity of achieving all that she can.
In Heath & Hemming (No 2) [2011] FamCA 749, decision of Justice Kent, his Honour when discussing a parenting case, went on to comment about the decided law in respect of parenting decisions. His Honour said, at paragraph 87, the following:
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
In paragraph 87, his Honour detailed a checklist of those matters that need to be considered and, of course, they are reflective of the guidance also provided in Lansa & Clovelly (supra). I have already outlined at some particular length the various matters that have arisen as a result of the evidence that has fallen in relation to this matter and obviously now need to apply those findings to the considerations to be looked at in relation to this matter.
DISCUSSION
The proposals of the parties are reflected in the applications that are before the court. As can be seen and as was identified by me under the heading “The Issues”, the real divergence in what each parent considers to be in the best interests of this child relates to with whom the child should live. Both parents are clearly ready, willing and able to meet the physical needs of the child. Both have demonstrated their capacity to ensure that there is a roof over her head, food on the table and her educational and emotional needs are being met.
The long term considerations of what is in the best interests of this little girl, recognising that there are many years ahead where the parents will be required to ensure that these appropriate arrangements are in place need to be reflective of an assessment of each parents capacity to continue to meet those responsibilities and of course to have regard to what each parent has been able to facilitate in the past. It may be trite to say but it is true, the past is the best reflection of what to expect in the future. Justice Kent obviously was reflecting upon such considerations when noting at paragraphs 99 & 100 of Heath & Hemming No. 2 (supra), that there needs to be consideration given to the “relevant factual history relating to the parenting of the child” and that “the process is not undertaken in an abstract or theoretical context”.
Having then identified the alternatives that are available, live with the mother and spend time with the father or live with the father and spend time with the mother, unless the mother were in the same locality in which case equal time arrangements would be considered, it is then necessary to consider the best interests of the child guided by the objects and principles as expressed in section 60B(1) & (2) and the application of the evidence to the considerations set out in section 60CC.
Obviously, where section 60CC(2) & (3) are to all intents and purposes a reflection of the objects and principles, some take greater precedence in relation to any determination than might be the case in other matters. Clearly for example here, issues with regard to Aboriginal and Torres Strait Islander cultural considerations do not arise and pleasingly, issues with regard to domestic and family violence are not of particular significance. Those matters that are particularly relevant in relation to the determination of this matter however include, section 60CC(2)(a), (3)(a), (b), (c), (ca), (d), (e), (f), (i) and (l).
There are clearly benefits to this child in having a meaningful relationship with each of her parents. It is clearly already in existence and the observations of the parties themselves and their witnesses excluding perhaps the observations of the maternal grandmother all reflect a child who is thriving in the care of both of her parents and has already an established, meaningful and beneficial relationship with both of her parents. Such opportunities need to be continued and fostered and both parents have indicated a proper appreciation of the need to foster that relationship.
It would be remiss of me however not to acknowledge the concerns that the father has expressed as well as the concerns I have identified in relation to future promotion by the mother of the relationship between the father and the child. The past behaviours of the mother, if in conflict with family members, has resulted in her failure to facilitate opportunities for time being spent by X with those family members and such behaviours fail to in any way appreciate the obvious effect upon the child particularly if as is the case here, there is a well-established and significant relationship. It is an issue which in a closely balanced case takes some real importance.
That is not to say that if the child were in the mothers primary care there would not be compliance with the orders but it is important to recognise that there need be more than actual compliance but an observable recognition of the importance of the relationship being fostered. Far too often children find themselves in a situation where a parent physically complies with the obligations arising pursuant to orders but there are many times where there is even unknowingly a failure to emotionally promote the relationship with the other parent or others significant in the child’s life.
There is certainly a concern that in times of stress, the mother may not be able to distance her own feelings from the parenting of the child and that that situation, coupled with the fact that the maternal grandmother will have significant involvement and is clearly unable or unwilling to separate her feelings for the father from her dealings with X will affect the future prospects of the relationship with the father.
In so far as the additional considerations are concerned, as noted there are a number of considerations which need be looked at in relation to the determination of this matter. The first of those arises pursuant to section 60CC(3a) any views expressed by the child. As is obvious from the matters already noted by me, but also observed and commented upon by Ms L, the child enjoys an exceptionally strong bond with both parents. X as noted reciprocates with love and affection, delights in their attention and has a deep affection for others including Dr R.
More particularly, it appears clear that whilst the child is too young to express any specific view in relation to her wishes, she has a meaningful relationship with both of her parents and others significant in her life and if a view was to be extrapolated from what has been observed, then the child’s wishes would be for every opportunity for that meaningful relationship with all others to be fostered in every respect. It would certainly appear that the parents generally recognise the importance of that occurring there is still the concern to which I have previously alluded, the mother’s capacity to separate her own feelings from the obvious obligations with respect to fostering a relationship with the other parent.
Similarly, section 60CC(3b) recognises the importance of considering the relationship of the child with each of the child’s parents as well as with others significant in her life. In this instance there are many additional significant attachments over and above those that are clearly in place with the parents. That includes both the maternal and paternal grandmother’s as well as Dr R and X’s brother, Y. They are all of importance and as commented upon previously were observed and recognised by the parents as well as obviously observed by Ms L. Ms L interpreted from the child’s behaviour that she was relaxed and affectionate and she formed the impression that that would have extended to the mother’s former partner, Mr P.
Unfortunately, that assessment by Ms L again reflects back upon the concerns that were held with regard to the mother’s appreciation of the importance of those attachments to X. As noted earlier, the mother was almost dismissive of the importance of any such attachments to X, noting as I have that the mother’s view was that she, X, “was not affected by my personal relationships”. As is obvious there is an ongoing concern that arises with respect to the mother’s lack of appreciation of the consequences of her decisions upon this little girl and if it were to arise in the future relationships that X might have with all those otherwise significant in her life.
Each of these parents has taken the opportunity to participate in all aspects of X’s life. Whilst it is clear that both parents have sought to work together to ensure that there is as smooth as possible a transition between each household, each has at different times and to differing degrees failed to recognise the importance of them working together to achieve what is best for this child. Obviously, the issue as to whether X started school or remained in kindergarten in 2015 was significant and clearly as I have previously noted, the father made the far more child focused decision and the mother remained determined to achieve her own objects.
By the same token, the concerns that the mother raised in relation to current mid-week time spent by X with the Father and the effects upon X simply arising from the significant travel is an example of where the father I would assess has not fully considered the child’s best interest in relation to travel and the effects upon X of that significant travel within a short period of time.
Notwithstanding those matters however, the parent shave appropriately and fully participated in all of the aspects of their parenting of this child including decision making, spending time with and communicating with X. As noted both parents seek the opportunity to continue to be as involved as possible and also to be involved in the decision making process. There are obviously positives in relation to both parents in that regard.
Especially significant in a closely balanced case such as this are those considerations that arise pursuant to section 60CC(3d). Until early 2015, X was spending virtually equal time with each of her parents. Each parent recognised the importance of their involvement in X’s life as well as the importance of the other parent and those others of significance to the child. One significant change occurred however when a decision had to be made relating to school or kindergarten and of course, flowing from that, with whom the child should live. The concession made by the father was a significant one and lead to changes in the child’s circumstances which no doubt had effects up[on her. That simply meant that she was spending less time with her father, Dr R and her paternal grandmother and more significant time with the mother and Y, as well as, because of the maternal grandmother’s assistance to the mother, significant time with her maternal grandmother.
There is obviously an established routine in place and however it may have come about X is settled in that routine. The father’s proposal either with regard to X living primarily with him or, should the mother be in the same locality, a return to equal time, perhaps on a week about basis will mean that there are obvious effects upon the child. If it were to be the case that the mother was not in the same locality then it would be a more radical change for X as she would be living primarily with her father and that has not occurred before. Should the mother be in the same locality, then both parents agree and it is recommended by Ms L that there should be equal time and of course, whilst being a change, would be a return to what was known and appreciated by X as a sensible arrangement.
The real consideration here then, is whether , if the father’s proposal for X to live primarily with him were to occur whether there would be a detrimental or perhaps long term effect upon the child. The evidence that is available suggest that would not be the case and Ms L’s indications would certainly seem to be that X was a bright and resilient child and that any change, though obviously having some consequences, would be of little if any long term concern. Of course, if it were the case that all other aspects were equal then not risking any change would be preferable to there being some consequences of change but as is apparent from what I have mentioned previously, there is an overriding concern that exists with regard to the mother’s facilitation of the relationship of the father in the longer term.
The parents have to date facilitated X spending time with and communicating with the other parent and I have no doubt that they would continue to do so, particularly if it were so ordered. But it is not simply a consideration of the effects upon the parents that needs to be looked at but also the effects upon the child. At the present time there are some indicators of concerns with regard to the travel that is required to be undertaken so as to ensure that X spends time with both her parents. Those concerns identified by the mother clearly relate to mid-week travel and the issues that arise from X being tired and consequently how it affects her attendance at school and her ability to get all that she can out of her day at school.
It is a relevant consideration and in my assessment would become more significant as time progresses and X becomes involved in school and extra-circular activities including sporting and cultural activities as well as the very important peer group and socialisation benefits that flow from friendships which lead to birthday parties, sleepovers and the like. One can easily imagine the angst that one parent or the other would experience if in time to come, as would be expected, X suggested she would rather attend a friends birthday party in the locality that she resides, rather than attend with a much loved parent but miss out on that activity.
It is a recurring theme that arises when parents are not in the same locality and whilst the parents might be ready, willing and able to facilitate the child spending time with the other parent there are considerations that arise of that nature whether X lives with her mother or with her father. I would be inclined to the view that each parent would recognise the importance of such considerations though noting that the father made a significant concession in relation to the child’s attendance at school, and the mother would not countenance even consideration of the alternatives that the father would be more receptive to variations being put in place.
That is not to say however, that it is factor which weighs in favour of the mother. My assessment is that the father would be more flexible not only in respect of activities that might arise if X were in his care but also that the father would be more receptive to change for the benefit of the child in circumstances where the mother’s household had activities of importance or significance. The father’s conciliatory and child focused approach to issues in relation to education and the mother’s absolute refusal to consider alternatives at that time lead me to the view that the father would be more amenable to and concerned with ensuring that time was spent with X by each parent to the maximum extent possible rather than what might be the case with the mother.
The considerations that arise pursuant to the provisions of section 60CC(f) & (i) have very significantly already been commented upon. Each parent can provide for the physical needs of the child. Both have done so in the past and no doubt will continue to do so in to the future. The maternal and paternal grandmothers have been able to assist in that regard and as noted earlier Dr R has also been involved and has met those physical needs as they arise. Each parent obviously therefore has demonstrated an appropriate and responsible approach to the responsibilities of parenthood at least insofar as the physical requirements are concerned. There is however, a distinction, and in a finely balanced case such as this, it needs to be commented upon. That distinction relates to the appreciation of the emotional and intellectual needs of the child and the responsibilities that each parent has in relation to those issues.
The father has demonstrated a capacity to put the child’s intellectual needs to the fore. He made the concession with regard to school notwithstanding that he genuinely believed that the best interests of the child would be met by living with him. The mother was determined that she would not consider such issues even suggesting that the child be held back rather than consider her intellectual needs. It was a telling factor in respect of the determination of this matter because it clearly reflected the differing attitudes and positions taken by the mother and the father when considering the best interest of the child.
Similar to those matters referred to in the previous paragraph there is a real distinction to be drawn between the others appreciation to the child’s emotional needs and the apparent inability or unwillingness of the mother and the maternal grandmother to recognise the child’s needs. I have already commented upon the mother’s failure to even appreciate that decisions made by her in regard to her relationships have real consequences for the child. Establishing a relationship with Mr P and also Mr F are perfectly natural but when they are brought into close interaction with the child and then suddenly are no longer significant to the mother and therefore excluded from interaction with the child gives rise to concern as to the mother’s inability to recognise the effects upon the child. Ms L opined that X would have a relaxed and affectionate relationship with Mr P and there must be a consequence when that simply ceased to exist.
As observed previously, the mother has with her own family acted in a manner which encouraged X’s relationships with others who then took significance in X’s life and then, dependent upon the mother’s relationship with those persons, ceased regular or significant interaction. There is nothing to suggest that the mother would not do so in the future and the mother’s own communications including emails exchanged with the father show that she would not only do so but would seek to have others co-operate with her unilateral decisions, notwithstanding concerns that might arise with respect to the effects upon the child.
It is a real distinction between the attitude and responsibilities shown by each parent when it comes to X’s needs and significantly it also flows in to a further consideration which relates to the obviously significant involvement of the maternal grandmother and her inability to put the child’s interest ahead of her own relationship with the father. It is noteworthy in that respect that it was the father who offered support to the maternal grandmother on an occasion when she was excluded from interaction with the child but the grandmother now had little appreciation of the responsible approach of the father at that time or more significantly now the importance of putting the child and her relationships ahead of any other considerations.
Obviously, consideration needs also to be given to X’s relationship with Y, recognising the importance of sibling attachments and the fact that the father’s proposals would see a reduction in time spent by X with her brother no matter what was to occur with regard to where she lives. However, I have no doubt that the attachments are already well established, that the mother would properly be able to foster them on occasions when X was in her care and most significantly that the father properly recognises the importance of that relationship and would foster and develop it.
As I noted earlier in these reasons, the father was challenged about not mentioning Y being present at the school fete that was attended by both the mother and the father. I have already indicated that the father was genuinely affronted at any suggestion that he sought to exclude Y and I accept absolutely that the father recognises the importance of the relationship between X and Y and would properly seek to facilitate and foster that relationship.
In the circumstances, where this is a finely balanced and difficult determination, the capacity of each parent to foster and develop the relationship with the other parent and to recognise the need to put the child’s attachments and the interest that flow from that ahead of all else weighs strongly in favour of the father and if not living in the same locality and therefore able to share the time with the child which would be the optimum, then living with the father and spending as significant time as possible with the mother is in my assessment more appropriate and in the best interest of the child than would be the case of living with the mother and there being the ongoing concerns with regard to the child’s relationship being fostered with the father.
I have already noted that the parents propose that there should be equal shared parental responsibility and am of the view that that is in the best interests of the child and that it is clearly not rebutted, though as is almost invariably the case, there will be the occasional difficulties that arise in relation to decisions being made regarding the long term care, welfare and development of X. However, the parties have generally been able to put the child’s interests to the fore in the past and recognising the importance of continuing to do so in the future will be able to meet those obligations.
Flowing from that determination as to it being in the best interests of the child for there to be equal shared parental responsibility is the requirement that the court consider, pursuant to the provisions of section 65DAA equal time or substantial and significant time. As noted by Justice Kent in Heath v Hemming (No. 2) (supra) the operation of section 65DAA is triggered when determining that equal shared parental responsibility is appropriate. It is then necessary to consider, in light of the provisions of section 65DAA, whether equal time is in the child’s best interest and is reasonably practicable and if not if, whether substantial and significant time is in the child’s best interests and reasonably practicable.
As is evident from these reasons, equal time should it be able to be facilitated would be best for the child. Geography at the moment is a significant consideration and as I have already noted, the travel already undertaken is not necessarily in the best interests of the child. However, if the parties were in the same locality it would be appropriate other than the geographic considerations, particularly those that have arisen since the beginning of 2015, the parents have otherwise been able to implement an arrangement for equal time, have been able to communicate and generally resolve difficulties in implementing that arrangement and have recognised the benefits to X of such an arrangement.
Obviously, it would not be appropriate to even consider a coercive order in relation to where the mother might live it being a decision a decision entirely open to the mother, but it is clear that if she were in the same location as the father, noting the obvious ties that bind the father to the (omitted) area, then equal time would be appropriate. But the geography at least at this time works against any such a proposal being feasible and as indicated it would then only be proper in my assessment in this matter to order that the child live with the father and spend as much time as can properly be facilitated with the mother.
In the circumstances I have made orders in the alternative noting that the child is to live with the father but should the mother be in the same locality then that there be equal time spent in each parents household. Accordingly the orders of the court will be in terms of those orders detailed at the commencement of those reasons.
I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 29 January 2016
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