Mahoney and Barrow
[2013] FCCA 1793
•22 November 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MAHONEY & BARROW | [2013] FCCA 1793 |
| Catchwords: FAMILY LAW – Primacy of care. |
| Legislation: Family Law Act 1975, ss.69ZN, 60CA, 69ZT, 4AB, 65DAA, 60B, 60CA, 61DA, 60CC, 65Y Solicitors Advocacy Rules (NSW) |
| U & U [2002] FLC 93-112 Stevenson & Hughes (1993) FLC 92-363 Stavros (1984) FLC 91-562 |
| Applicant: | MS MAHONEY |
| Respondent: | MR BARROW |
| File Number: | PAC 5052 of 2011 |
| Judgment of: | Judge Harman |
| Hearing dates: | 24 – 25 October 2013 |
| Date of Last Submission: | 25 October 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 22 November 2013 |
REPRESENTATION
| Solicitors for the Applicant: | MacDiarmid Family Lawyers |
| Solicitors for the Respondent: | Marsdens Law Group |
ORDERS
The parties shall have equal shared parental responsibility for the child X born (omitted) 2009.
X shall live with his father as follows:
(a)Until the commencement of Term 4 2015:
(i)Each alternate weekend from the conclusion of school/day care Thursday until the commencement of school/day care the following Monday, first such period to commence the weekend immediately following the making of these orders;
(ii)Each intervening week from the conclusion of school/day care Thursday until the commencement of school/day care the following day (Friday), first such period to commence the second Thursday after the making of these orders; and
(iii)Further periods as are agreed between the parents from time to time including during school holidays or for special events or occasions not otherwise addressed by these orders.
(b)From the commencement of Term 4 2015:
(i)Each alternate weekend during school terms from the conclusion of school Wednesday until the commencement of school the following Monday to commence the first weekend of each school term;
(ii)In each intervening week from the conclusion of school Wednesday until the commencement of school the following Friday first such period to commence the second week of each school term;
(iii)For half of each New South Wales school holiday period as agreed between the parents and in the absence of agreement for the first half in years ending in an even number and the second half in the years ending in an odd number;
(iv)From 9am until 6pm on Father’s Day;
(v)From 9am until 6pm on the Father’s Birthday;
(vi)For a period of two hours on X’s birthday in each year as agreed between the parties, and failing agreement from 5pm until 7pm on week days in each year that the child is not ordinarily with the Father pursuant to these orders, or if on a weekend for four hours as agreed, and failing agreement from 3pm until 7pm; and
(vii)Such other times as may be agreed between the parties.
X shall at all other times other than when living with his Father, live with his Mother.
For the purpose of Order 2 above and in the event that the child’s time with the Father commences and/or concludes at a time the child is not attending day care or school, changeover shall occur at the home of the Mother or as otherwise agreed between the parents.
The Father’s time with the child shall be suspended as follows:
(a)From 9am until 6pm on Mother’s Day;
(b)From 9am until 6pm on the Mother’s Birthday;
(c)For a period of two hours on the child’s birthday in each year as agreed between the parties, and failing agreement from 5pm until 7pm on weekdays in each year that the child is not ordinarily with the Mother pursuant to these Orders, or if on a weekend for four hours as agreed, and failing agreement from 3pm to 7pm; and
(d)At such other times as may be agreed between the parents.
Each party be permitted to liaise directly with the child’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the child’s progress and each party shall provide and continue to provide the necessary authorities to facilitate this Order.
Both parties shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other party to visit the child if hospitalised.
For the purpose of the school holidays Orders at 2b above, the following will apply:
(a)Each school holiday period shall commence at 3.00pm on the last day of required school attendance of the child and shall conclude at 5.00pm on the day immediately preceding the first day of the next school term for the child;
(b)Changeover is to occur at 12.00 noon on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days;
(c)That in the event that there are two consecutive mid-point days, then changeover is to occur at 12.00 noon on the first of those two mid-point days.
The child communicate with both parties by telephone at any reasonable time when she is in the other party’s care and each party shall do all things necessary to facilitate the child communicating with the other parent by telephone on a regular basis.
Neither party shall denigrate the other party or any member of the other party’s family to the child or in the presence or hearing of the child.
Until 11 September 2027 the applicant and the respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the child X born (omitted) 2009 (male) from the Commonwealth of Australia save with the written consent of the other first had and obtained or as may be authorised by an order pursuant to the Family Law Act 1975.
The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the Police Forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until 11 September 2027 the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s name on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
The Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.
The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Mahoney & Barrow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5052 of 2011
| MS MAHONEY |
Applicant
And
| MR BARROW |
Respondent
REASONS FOR JUDGMENT
It is rare, in the jurisprudence of this Court, for a case to contain substantial and significant elements of positivity. Indeed this case exudes positivity.
The proceedings relate to the future care arrangements for a very lucky young boy X born (omitted) 2009.
The parties to the proceedings are X’s parents being X's Mother, Ms Mahoney (who is the Applicant) and his Father, Mr Barrow (the Respondent).
When the proceedings were first commenced they had also involved issues of property adjustment. Those issues were resolved by consent and orders made on 23 August 2012.
Conduct of the proceedings
Before turning to the merits of the matter and a discussion of the evidence, I feel it incumbent upon me to expand upon the positivity which has exuded from this case and which has been as a consequence not only of the parties but also their legal representatives.
It is rare for positive comment of the legal profession to be forthcoming. The media is routinely filled with reportage of perceived misdeeds such as negligence and overcharging by the legal profession.
Much of that reportage lacks accuracy. However, regrettably reportage is sometimes accurate or even understated. Indeed this might be reflected in the words of US Federal Judge Erving Kaufman:
"No other profession is subject to the public contempt and derision that sometimes befalls lawyers, the bitter fruit of public incomprehension of the law itself and its dynamics."
Since the 2007 amendments of the Family Law Act1975, parenting proceedings are guided and conducted in accordance with certain principles as set out in s.69ZN namely:
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b) in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Regrettably, the ability to conduct proceedings in a meaningful fashion in accordance with those principles is often impeded by either the facts and circumstances of the case or the conduct of legal practitioners.
Significantly, principle four (4) provides that proceedings are “…as far as possible, to be conducted in a way that would promote cooperative and child-focused parenting by the parties”.
Routinely proceedings before the Court involve one or more of:
a)Affidavit material resplendent with a catalogue of complaints and criticisms (generally of the other party, their new partner or members of their extended family);
b)Suggested concerns and fears for the child’s safety (physical, emotional and otherwise) in the care of the other parent or as a consequence of the child’s exposure to them;
c)A catalogue of behaviours which clearly demonstrate the inability of the parents (or new partners or extended family) to be child focused, communicate appropriately, politely or effectively with each other or differentiate their own needs from that of the child.
The material filed by the parties in these proceedings and prepared expertly by their legal representatives is devoid of the above. That is not to suggest there are not matters of significance and concern raised by each parent. However, the material filed by the parties, whilst lengthy, is entirely confined to issues in dispute and of significance and relevance to the determination of the proceedings.
Each party has made warm and appropriate concessions with respect to the other and particularly the role and importance of the other in this child’s life (both from the parent’s perspective and the child’s).
All too often parents are unable to make any concession of warmth or affection as regards the other parent for fear, as was submitted by the Respondent’s Counsel, that such concession would be adverse to their interests or suggested to obviate concerns that they may have raised. As a consequence or function of such attitudes, or perhaps the general attitude of parents towards each other, even an admission that the other parent loves the child is sometimes difficult to extract or, at times, the highest concession that a party can offer.
The conduct of this case has reflected not only the highest standard of advocacy but also an active demonstration and embodiment of the fourth principle as set out above.
Counsel for each of the parties has led by example (in how they have dealt with each other, the Court and the other party’s client).
Counsel for each parent has conducted their client’s affairs and the presentation of their case before the Court with dignity, decorum and courtesy in a fashion that represents the highest standard that could be hoped for or obtained.
Regrettably much time is spent by the Court, during hearings, in “refereeing” the advocates for each party and dealing with disputes, unconnected to the child’s best interests, which arise between them.
Whilst the judicial determination of disputes remains the business of the Court and thus the truth must be gotten at it would be hoped that advocates could engage in such a process without the need to approach proceedings as a theatrical, gladiatorial event. Indeed as was observed (perhaps moreso of litigants than their advocates but equally applicable to both) by Justice Fogarty (now sadly passed) in Stevenson & Hughes (1993) FLC 92-363;
It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who ought to be thwarted wherever possible either by active steps or by passive resistance. That matter was emphasised as early as 1984 in Stavros (1984) FLC 91-562 but I am afraid that the contrary attitude still appears to permeate the jurisdiction and the sooner that that misunderstanding is removed the better for everyone”.
His Honour’s sage and learned comments, some twenty years ago (1 March 1993), still resonate.
The manner in which the advocates in this case (both solicitor advocates) have conducted their clients affairs is reflective of a clear understanding, appreciation and embodiment of the obligations imposed by the Solicitors Advocacy Rules (NSW) and the New South Wales Barristers Rules[1] and importantly including:
[1] 8 August 2011
Duty to the Client
Rule 37
A Barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of their barrister’s skill and diligence and do so without regard to his or her own interest or any consequences to the barrister or to any other persons.
Rule 39
A Barrister must seek to assist the client to understand the issues in the case and the client’s possible rights and obligations sufficient to permit the client to get proper instructions including instructions in connection to any compromise of the case.
Irrespective of the obligations created by such rules each of the advocates involved in these proceedings has conducted themselves in a most decent, human and gentlemanly fashion.
The consequence of the above is that:
a)The principles for the conduct of parenting proceedings (s.69ZN) have been able to be given full meaning and effect;
b)Each of the parties has felt that they have been heard fairly and fully whilst treated with decency;
c)Neither of the parties has felt injured, insulted or unfairly or unnecessarily criticised (although each of the advocates has zealously presented their client’s case and fully and appropriately cross examined the other party); and
d)The matter has been able to be readily contained within the allocated hearing time (and even with interruptions from other business of the Court, time permitted for settlement negotiations and the like).
All too often the conduct of proceedings in a more adversarial and unfocused fashion causes the best interests of the child (the Court’s paramount consideration pursuant to s.60CA) to be obscured, rendered difficult to ascertain or completely lost as the Court is left to wade through a significant volume of largely extraneous material and material which, if not relevant, is not directly focused upon issues in dispute and which require determination by the Court.
It is also important to note that in addition to the manner and decorum of preparation and presentation of each party’s case clear and specific attention has been paid to the Rules of Evidence.
All too often s.69ZT is treated as the basis for a “free for all” in placing material before the Court including material which is potentially prejudicial, inadmissible (but for the operation of s.69ZT) poorly drafted, problematic as to form and ultimately lacking in probative value.
All evidence presented in this case has been adduced appropriately, in appropriate form and speaking only to issues of relevance and importance to the child’s best interests. The parties have even filed their material by the date fixed for filing – an experience regrettably all too unfamiliar to the Court.
I apologise to the parties for the time that has been taken in drawing attention to the worthwhile praise of their Counsel. However, they are matters which warrant remark and but a few words of praise and which reflect well not only upon the individual practitioners involved but the entire process of justice to which these parties have submitted.
In short the legal representatives for each party have reflected that opined by such eminent as Abraham Lincoln and Mahatma Gandhi being, respectively:
Never stir up litigation. A worst man can scarcely be found than one who does.
Abraham Lincoln.
As peace maker the lawyer has superior opportunity of being a good man there will still be business enough.
Abraham Lincoln.
We win justice quickest by rendering justice to the other party.
Mahatma Gandhi.
It is noteworthy however to conclude with the observation that each of the attorneys would appear, further, to have adopted the words of Gandhi “Be the change you want to see in the world”.
Material considered
In dealing with these proceedings I have read and considered the following material:
In the case of Ms Mahoney
a)Her further amended Initiating Application filed 6 August 2012;
b)Her Affidavit of evidence in chief sworn or affirmed 23 August 2013 filed 23 August 2013;
c)Her Affidavit in reply sworn or affirmed 14 October 2013 filed 15 October 2013.
In the case of Mr Barrow
a)His further amended Response filed 28 June 2012; and
b)His Affidavit of evidence in chief sworn or affirmed 26 September 2013 filed 26 September 2013.
In addition to the above material Counsel for each of the parties have provided, prior to the trial, a Case Outline document which I have considered.
A number of documents have also been tendered into evidence comprising:
Exhibit A1: Page 1 – 14 Sleeve 4: Just for Kids Day Care
Exhibit X: Family Report of Mr G released 10 December 2012
Exhibit A2: (omitted) Employment Letter to Mother
Exhibit A3: Property condition report and photos
Exhibit R1: Hand drawn map
Exhibit R2: Email between parties dated 8 October 2013 Re: X’s school
Exhibit R3: Email between parties dated 26 September 2013 Re: Vaccination
Exhibit R4: Sleeve 4: (omitted) Attendance Record
Exhibit R5: Child’s movement memo
Exhibit R6: Minute of alternate orders
Each of the parties were required for cross examination as was the Family Report writer Mr G.
At the conclusion of evidence brief submissions were made by Counsel for each of the parties which supplemented the written submissions within their respective Case Outline documents and which I have also considered and which have been of considerable assistance in clarifying and understanding the position of each party and the orders as proposed by them.
The parties proposals
The orders sought by the parties in their respective application and response reflect the relief that is sought by them at the conclusion of evidence. The orders that each party seeks and as reflected in the Case Outline documents prepared by their Counsel are also entirely consistent with the relief sought in the respective Application and Response.
In the case of Ms Mahoney orders are proposed as follows:
1. That the parties have equal shared parental responsibility for the child X born (omitted) 2009 (“the child”).
2. That the child live with the Mother other than when he spends time with the Father in accordance with these Orders.
3. That the child shall spend time with the Father as follows:
a) From the date of these Orders until the child commences school:
i. Each week on Wednesday from the time the Father is available to collect the child from day care until 7.30pm; and
ii. Each week from 8.00am Saturday until 8.00am Sunday;
b) Upon the child commencing school as follows:
i. During school term, each alternate week from the conclusion of school or 3.00pm if not a school day on Friday until the commencement of school or 9.00am if not a school day on the next following Monday;
ii. During school term, on each alternate week immediately following the time spent according to the preceding paragraph from the conclusion of school or 3.00pm if not a school day on Wednesday until the commencement of school or 9.00am if not a school day on Thursday;
iii. For half of each of New South Wales school holiday period as agreed between the parties and in the absence of agreement for the first half in years ending in an even number and the second half in years ending in an odd number;
c) From 9.00am until 6.00pm on Father’s Day;
d) From 9.00am until 6.00pm on the Father’s Birthday;
e) For a period of two (2) hours on the child’s birthday in each year as agreed between the parties, and failing agreement from 5.00pm until 7.00pm on week days in each year that the child is not ordinarily with the Father pursuant to these Orders, or if on a weekend for four (4) hours as agreed, and failing agreement from 3.00pm until 7.00pm.
f) At such other times as may be agreed between the parties.
4. That for the purpose of Order 3 hereof and in the event that the child’s time with the Father commences and/or concludes at a time the child is not attending day care or school, changeover shall occur at the McDonalds at (omitted).
5. That the Father’s time with the child shall be suspended as follows:
a) From 9.00am until 6.00pm on Mother’s Day;
b) From 9.00am until 6.00pm on the Mother’s Birthday;
c) For a period of two (2) hours on the child’s birthday in each year as agreed between the parties, and failing agreement from 5.00pm until 7.00pm on week days in each year that the child is not ordinarily with the Mother pursuant to these Orders, or if on a weekend for four (4) hours as agreed, and failing agreement from 3.00pm until 7.00pm;
d) At such other times as may be agreed between the parties.
6. That each party be permitted to liaise directly with the child’s school/s, sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the child’s progress and each party shall provide and continue to provide the necessary authorities to facilitate this Order.
7. That both parties shall keep the other advised of the health of the child including any serious illness, medication or hospitalisation of the child as soon as reasonably practicable and to allow the other party to visit the child if hospitalised.
8. That for the purpose of the School Holidays Orders at 3b above, the following will apply:
a. Each school holiday period shall commence at 3.00pm on the last day of required school attendance of the child and shall conclude at 5.00pm on the day immediately preceding the first day of the next school term for the child;
b. Changeover is to occur at 12.00 noon on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days;
c. That in the event that there are two consecutive mid-point days, then changeover is to occur at 12.00 noon on the first of those two mid-point days.
9. That the child communicate with both parties by telephone at any reasonable time when she is in the other party’s care and each party shall do all things necessary to facilitate the child communicating with the other parent by telephone on a regular basis.
10. That neither party shall denigrate the other party or any member of the other party’s family to the child or in the presence or hearing of the child.
Mr Barrow similarly seeks orders set out in his Case Outline document as follows:
1. That all previous Orders be discharged.
2. That the parties have equal shared parental responsibility for the child, X (dob: (omitted) 2009).
3. That the child live with the parties in a shared care arrangement as follows:
3.1 Week 1: From 9.00am Monday to 9.00am the following Monday with the Respondent Father
3.2 Week 1: From 9.00am Monday to 9.00am the following Monday with the Applicant Mother
4. That the child spend special occasions with each parent including but not limited to Birthdays Christmas and (country omitted) New Year as agreed to between the parties and failing agreement as follows:
4.1 4 hours on the child’s birthday with the parent the child is not living with
4.2From 9.00am Christmas Eve until 1.00pm Christmas Day in even numbered years with the Applicant Mother;
4.3From 1.00pm Christmas Day until 9.00am Boxing Day in odd numbered years with the Applicant Mother.
4.4 From 1.00pm Christmas Day until 9.00am Boxing Day in even numbered years with the Respondent Father.
4.5From 9.00am Christmas Eve until 1.00pm Christmas Day in odd numbered years with the Respondent Father.
4.6 During the (country omitted) New Year from 9.00am until 1.00pm with the Applicant Mother in even numbered years and 1.00pm until 9.00am the next day in odd numbered years.
4.7During the (country omitted) New Year from 1.00pm until 9.00am the next day with the Respondent Father in even numbered years and from 9.00am until 1.00pm in odd numbered years.
5. That:
5.1until further Order the Applicant and Respondent, by themselves, their servants or their agents are restrained from removing or attempting to remove the children, X (dob: (omitted) 2009, Male) from the Commonwealth of Australia.
5.2the Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of all the states and territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
5.3Until further Order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s name on the airport watch list, also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia.
5.4the Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
5.5the Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these Orders.
In the event that shared care is not considered appropriate the Respondent Father seeks the following:
1. That the child live with the Respondent Father.
2. That the child spend time with the Applicant Mother as follows:
2.15 nights per fortnight
2.2the balance of the orders as above
Present arrangements
Interim Orders were made by the Court on 23 August 2012, which provide for X’s care arrangements as follows:
1. The parents shall have equal shared parental responsibility for their son, X born (omitted) 2009.
2. X shall live with his father;
a. Each alternate weekend from the conclusion of day-care on Friday to the commencement of day-care Monday, the first such period to commence on Friday 24 August 2012;
b. Each intervening (alternate) week from the conclusion of day-care on Monday the commencement of day-care the following day (Tuesday), the first such period to commence on 3 September 2012;
c. For a period from the conclusion of day-care until 7.30pm each Wednesday;
d. Such further and/or other periods of time as agreed between the parents.
3. X shall live with his mother at all other times.
4. In addition to the above orders, X shall additionally spend time with and be in his father’s care:
a. For a period on Christmas day (noting time would be spent on 24 to 25 December in any event) to conclude 3.00pm Christmas Day;
b. For a period on (country omitted) New Year ((omitted) 2013) as agreed between the parents.
5. For the purpose of X passing to his father’s care, X shall be collected by his father from day-care or, if X is not attending day-care, from the mother’s home.
6. For the purpose of X passing into his mother’s care, X shall be collected by the mother from day-care or, if X is not attending day-care, the father shall return X to the mother’s home.
7. Each parent, to the extent they have not already done so, shall forthwith do all things, sign all documents and give all consents and authorities necessary to allow, enable and permit:
a. Each parents’ details to be recorded with X’s day-care as both a parent and emergency contact person; and
b. Each parent to obtain from X’s day-care such information, documents or other materials as they may desire from that day-care and attend such events at the day-care to which parents are invited and encouraged to attend and irrespective of whose care X is in at the time of the event.
8. Each parent shall keep the other advised at all times of their residential address, email address and telephone number/s (being mobile and, if connected to their residence, landline).
9. Each parent shall advise the other immediately of any significant illness or hospitalisation relating to X such notice to be given contemporaneous with the event and to include sufficient information and authority to enable both parents to be fully consulted, advised and involved in any treatment decisions and to visit and stay with X if hospitalised.
The parties agree that those Orders have, by and large, operated and that whilst some variations have occurred that these have been by consent.
Ms Mahoney’s evidence is that “it is my experience that the current orders are working well” (paragraph 25). Further, Mr Barrow’s evidence is that:
“[the current orders] are not working well from X’s point of view… he continues to show signs of distress when he leaves my care…he has now had his fourth birthday and is less anxious then he was” (paragraphs 164 – 166 inclusive).
Changeovers
However, the above difficulties would appear, having regard to the totality of the evidence, to be largely confined to face to face changeovers between the parties on a Wednesday evening.
Mr G when questioned with respect to these difficulties, if they continue, had opined that a number of matters may give rise to such observed behaviours by X including:
a)The distinction between face to face changeovers between the parents when X has witnessed anger and hostility between his parents when they have both been present particularly between a significant period of separation under the one roof from 29 September 2011 until 4 July 2012;
b)Changeovers involving a short period of some hours for the father before being returned to the mother and thus being inherently unsettling for the child; and
c)The changeover occurring in relative proximity to X’s bedtime and thus the potential for this to also impact on his behaviours on those occasions only (Wednesdays).
The evidence of both parties, as regards changeovers which occur following overnight periods that X has spent with each parent and when changeovers are largely from and to day care, would suggest an absence of difficulty.
It is to be observed that difficulties with X’s separation from his father also occurred when the parties attended Family Report interviews. These occurred on a Monday when X had spent the preceding weekend in his father’s care and was due to return to his mother (and did in fact return to his mother’s care at the conclusion of the appointments with Mr G).
Ms Mahoney also gives evidence that X had injured his finger by having it trapped in a door before interviews commenced and that this had created some difficulties in X’s presentation throughout the day (and ultimately required a trip to the doctor and an x-ray that evening).
At the conclusion of the evidence Counsel for Mr Barrow clarified that a number of the Orders sought by Ms Mahoney were agreed to subject to variation and namely Orders 1, 2, 3 (b), (c), (d), (e) and (f), 4, 5, 6, 7, 8, 9 and 10.
Use of McDonalds for changeovers
Order 4 as proposed by Ms Mahoney (regarding changeovers) had proposed that in the event that the parties were not able to collect X from his day care or school that changeovers should occur at McDonalds (omitted).
I had raised with each of the parties my dislike in making such an Order on a number of bases:
a)Firstly, I was concerned that the evidence of the parties, as regards their ability to deal with each other in a polite, civil and appropriate fashion, would obviate against the need for changeovers to occur other than at the child’s respective homes. The parties presently live within view of each other’s home;
b)Secondly, I was concerned that in the absence of some practical or real impediment to each party attending at the home of the other such as a history of conflict or violence, the existence of domestic violence orders which precluded same etc, that “door to door” changeovers would be preferable particularly as this would allow X to pass comfortably with items he may need whilst in the care of each parent. Further, and perhaps more importantly, it would afford an opportunity for X to see each of his parents interacting with the other in a cordial fashion and thus aide and enhance his experience of his parents and their co-parenting of him.
c)Thirdly, and as a matter of some moment I was not and am not prepared to make orders that require parties to attend at a third party establishment (such as franchised McDonalds Restaurant) without due process being afforded to the owners of such establishment and their consent (or at least proof of their knowledge of the proposal) being forthcoming.
It has become a routine practice for parties to propose the use of third party premises such as fast food establishments for the purpose of changeovers. On some occasions this is a matter of convenience as representing a mid-way point between the homes of the parties and where there is shelter, toilets and sustenance. However, more frequently such arrangements are proposed on the basis that either:
a)A changeover occurring in a “public place” will promote and encourage the parties to behave and dissuade them from engaging in behaviours that would otherwise attract negative attention (such as the Police being called) and;
b)In the event of difficulty some independent evidence might be available whether through witnesses, CCTV footage or otherwise.
It is not the role of this Court to impose conflict and dispute upon members of the community. Further, it is not the role of this Court to bring trouble to establishments such as McDonalds which are, by and large, staffed by young people and occupied by parents, children and young people.
The parties clearly identified that the sole purpose of seeking to utilise a McDonalds restaurant for changeover was as a convenient mid-way point. However, the evidence establishes (without controversy) that the parties presently live within two blocks of each other and will, when each of them moves in the immediate future (and as identified by them in their evidence as their intention) that they will live 10 or possibly 15 minutes apart.
I do not consider it an onerous burden for a parent to travel 10 or 15 minutes to collect, deliver, or return a child. Accordingly, this having been raised with the parties and the above difficulties identified each of the parents, to their great credit, indicated that neither had any difficulty in changeovers occurring at their respective homes and that each would join in an application for this alternate changeover arrangement.
The parties’ motivations
As will become apparent from a discussion of the evidence, I have been left with the clear impression and so find that each of X’s parents are attractive, intelligent, delightful people.
In the above circumstances it is curious to reflect upon the motivations for these parents, each acknowledging that the other is an abundantly appropriate and capable parent, to be involved in litigation up to and including a judicial determination of their dispute. Indeed, this was remarked upon by the Family Report writer, Mr G during his cross examination as most unusual and perhaps regrettable.
I had raised with the parties, during the course of these proceedings, my suspicions as to the motivation of each of these excellent parents in prosecuting their application. I am, at the conclusion of the evidence, satisfied that those suspicions are valid and accurate.
It would appear that each of these parents is greatly motivated by a fear of loss of X in their life. Indeed, the evidence of Mr Barrow alludes to this directly. In addressing the day of physical separation of the parties, Mr Barrow indicates “this was a low point for me. I felt like I had lost my son” (paragraph 65).
Whilst I am satisfied that each parent is, to some extent, motivated by a fear of loss by X as their child and/or in their life, I am not critical of them for pursuing this litigation based upon that motivation. It is indeed a perfectly normal, natural and explicable fear albeit misguided.
Neither of these excellent parents will lose their role in X’s life nor should they. X is a lucky and gifted child. He will continue, throughout his life, to have the benefit of entirely capable, committed and loving parents.
Whilst the termination of the parental relationship inevitably means that neither parent can have X in their care full time and they must, on whatever basis, share his care, the love which each parent holds and demonstrates for X will be with him at all times and irrespective of which parent is present or absent.
These are parents to whom the indissolubility of parenthood is not and will not be problematic. Each fully recognises and appreciates the importance to X and for X of the other parent playing an ongoing role and being an ongoing presence.
Each of these parents also fears the loss of primacy of care of X. This is particularly so as regards Ms Mahoney and explicably so.
Both parents are fearful of losing or missing out on milestones and significant events in the ever changing and developing life of this young boy. It is clear from any examination of the evidence that the daily activities in which X is engaged lead to delightful opportunities to share in his life, experience his unique personality and character and to experience and welcome many happy (and at times sad) moments. I will touch upon a number of these shortly in discussing X in more detail.
I have referred to Ms Mahoney perhaps fearing more greatly a loss of primacy of care than Mr Barrow. Ms Mahoney seeks to maintain a primacy of care through the orders that she seeks whereas Mr Barrow seeks to move towards a shared care arrangement and building to (or immediately commencing) an equal shared care arrangement.
Ms Mahoney’s evidence makes clear that for the first two years and two months of X’s life that she was a fulltime stay at home parent having initially taken a period of maternity leave and then, when that period had expired, resigning from her employment so that she could remain a fulltime parent to X.
For the first 13 months of X’s life Ms Mahoney breastfed X and, whilst Mr Barrow was present and Ms Mahoney also had assistance from visiting family members, X was in her fulltime care (with one exception being a period of approximately 4 weeks when Ms Mahoney travelled overseas and was unable to take X due to disagreement between the parents).
I have no doubt whatsoever that Ms Mahoney genuinely and, perhaps, appropriately perceives that any change of parenting arrangements for X which sees a move away from her retaining primacy of care is difficult. Further, I have no doubt that Ms Mahoney would perceive that this would not give sufficient weight, credit or recognition to the significant role that she played particularly in the first two years of X’s life (as described above).
Each of the parents has spent some time in asserting their past primacy of care and their primacy of attachment to X. As regards the first two years of X’s life there is and can be no significant dispute at least as to the physical, day to day care provided by Ms Mahoney. However, such assertions as to primacy of care or attachment must be seen:
a)In context;
b)As part of the continuum of X’s life;
c)As part of and reflective of X’s changing developmental needs; and
d)As part of X’s ongoing personality development and, ultimately, individualisation.
It is to be remembered that parents have but a brief and fleeting opportunity to play the type of role in the life of their child as has been played by each of these parents to date (on whatever basis as to division of time and responsibility). The ultimate role of a parent is to prepare their child to take their place in civil society and with an appropriate detachment from them and thus individualisation.
I do not suggest that X is yet of an age where he is other than dependent upon his parents (and many others) for his day to day care, nurture and development. However, it is an inevitable move for X from such dependency to a mature individual.
Each of these parents, I wholeheartedly accept, would concur of the wisdom of the Cree “children are the purpose of life. We were once children and someone took care of us. Now it’s our turn to care”.
Each parent has clearly embraced their role as a parent. It is, again, regrettable that they have, at such an early time in X’s life, separated from each other and with the consequence that they cannot jointly and together enjoy the experience of X growing up. It is regrettable for X that he will not have that lived experience. However, they will each continue to have an important role to play and an important and significant input into X’s life and development.
For each of these parents X is their first child. No doubt this factor has heightened their anxiety and fear of thus losing involvement in his life (which fears, from my assessment, are misplaced both from the perspective of their own efforts and the support and encouragement of the other).
Each of these parents has tailored their work arrangements to be able to care for X both now and in the future.
Ms Mahoney has tendered in evidence an offer of employment that she has received that will enable her to work for no more than three days per week and thus maximise the time that she is available to X.
Similarly Mr Barrow has obtained sufficient flexibility in his employment and work arrangements (unusual in the Court’s experience when so many parents present with the most “parent unfriendly” work arrangements and rosters) so that he is substantially available to X during the periods of time that X is presently in his care and, if his application is successful, will be in his care in the future.
Further, Mr Barrow has refused an offer of employment, which would have represented a significant advancement in his chosen field and a significant promotion (with consequent salary increase) and on the basis that it would require him to move overseas and thus impede his ability (or that of Ms Mahoney) to be regularly, frequently and substantially involved in X.
Both parents also make clear through their words, deeds and actions the importance that they place in the other parent being kept abreast of developments and milestones in X’s life on a daily basis. Each gave evidence that they regularly forward to each other photographs by email or MMS message of activities X is engaged in whilst with them and the joy that this brings both of them both in sending and receipt.
Ms Mahoney’s fears are further founded in her concern that Mr Barrow does not acknowledge, appreciate or support her relationship with X. I am not satisfied on the evidence available that this is a fair criticism of Mr Barrow. However, I will expand upon this in a discussion of the evidence.
The child X
Before discussing the evidence of the parties and each of them I wish, perhaps unusually, to paint a word portrait of X.
Throughout the evidence of the parties, both written and oral, it has been clear to me the love, joy and delight that each parent feels for X. In those circumstances it is entirely explicable why each parent so desperately desires to maximise their contribution to his development and wellbeing as well as to maximise their time and involvement with him.
X is described by Mr G (paragraph 23) as “… a happy healthy child”. That, at first blush, might be taken as somewhat pejorative although that would be to ignore the two great gifts granted to X by his parents – health and happiness.
The evidence of the parties as well as material produced on Subpoena reveals a far more complete picture of X.
The material from “Just for (omitted) Day Care Centre” is resplendent with references to X as:
· Creative
· Having a strong sense of wellbeing
· Confident
· Loving both his parents
· Being a popular and engaging child amongst his peers
· Demonstrating initiative
· Being kind and considerate to others
· Playing co-operatively
The notes from the preschool provide a small window into X’s life and the delightful child he is. The day care records are, in fact, quite a poignant and beautiful description of X’s childhood and including, by way of illustration, one observation recorded 3 July 2013 when X is playing with a number of his friends.
The record begins by describing that X and the other children:
“…were sitting around the table. On the table, spread out was a variety of leaves. There were some dry leaves, fresh leave, yellow leaves, long leaves and short leaves. …X also examined the table closely he picked up a shorter leaf and yelled “look! This is a small leaf”. (omitted) watched him closely and then focused his attention back on the table. He picked up a long leaf and started waving it around “look! Mine is long”. (omitted) smiled at (omitted) “oh yeah (omitted) it’s a long one”. (omitted) confirmed with confidence. Once again (omitted) highlighted that whilst the leaves look different on the outside their structure remains the same. She followed up this comment by adding on that whilst we all may look different on the outside appearances do not matter as we are all human and therefore the same”.
The record then concludes with an interpretation being:
“the children recognise that exterior appearance is irrelevant and that it is not the significant factor. What is significant, however, are our personalities and mannerisms which are all internal and that’s what we need to focus on first and foremost… ongoing exposure to experiences such as these are necessary to ensure children develop positive behaviours such as tolerance, acceptance, respect and appreciation of difference and diversity”.
In light of issues occupying media column space each day regarding race, immigration and intolerance the simple humanity and decency of these children brings to mind, in this the 50th anniversary of his “I have a dream speech”, the joyous and profound words of Dr Martin Luther King Junior:
I have a dream that my four little children will one day live in a nation where they will not be judged by the colour of their skin but by the content of their character. I have a dream that one day in Alabama with its vicious racists, with its governor having his lips dripping with the wards of interposition and nullification, one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers
It is difficult to read such a passage without being moved by the innocence and decency of these children (including X). If one them attempts to read the passage with the eyes of these parents, one is again left with no doubt as to both the pride and love that would swell within them for X and the reality that he would not be such a remarkable, delightful and innocent child without the decency and compassion of his parents to guide him and educate him.
Ms Mahoney’s evidence also paints a delightful picture of her interactions with X and the manner in which she has set up her home to accommodate him and her play with him. That is not, for one moment, to suggest that Mr Barrow’s evidence is not equally resplendent with detail as to his involvement and engagement with X and the efforts he has gone to to ensure that it is so. However it is clear from Ms Mahoney’s evidence (and to a similar extent Mr Barrow’s) the love that is committed to X and which rises from the page upon reading passages such as:
There is a play area set up aside for X which contains an indoor trampoline and a white board (paragraph 17)
I have set up X’s bedroom in red and blue which are the colours of his favourite cartoon character (omitted): Bedframe, sheets, covers, soft teddies, toy boxes and drawers are all from (omitted) the set in matching colours (paragraph 18)
… By the age of three years X was able to count to number 20 as well as sing in the abc song. X has learnt (omitted) at home since he was born and he has learnt English from social life and day care (paragraph 34)
X is a well-known child at day care he is always invited to birthday parties… (paragraph 38)
X is an active, social child. He is shy with adults and the beginning but makes friend quickly…by the end he was colouring in one of my friends newspapers and writing “X” as his initial on everyone’s hand. Later that night one of the party guests an elderly Australian lady approached me and said words to the affect “you are blessed having such a child I was surprised by him” (paragraph 40)
Those quotes are illustrative and as already indicated, are replicated to a large extent in Mr Barrow’s material.
Chronology of events
There are many non-contentious elements of the evidence which allow a chronology to be compiled without significant difficulty or controversy and as follows:
(omitted) 1968
Mr Barrow is born. Mr Barrow is presently 45 years of age
(omitted) 1979
Ms Mahoney is born. Ms Mahoney is presently 34 years of age
(omitted) 2006
The parties marry in (country omitted). At that time Mr Barrow is living permanently in Australia and Ms Mahoney is living in (country omitted).
(omitted) 2006
Ms Mahoney arrives in Australia and the parties commence to cohabit
(omitted) 2009
X is born. X is presently 4 years of age.
Sept 2009
Ms Mahoney arrives and stays with the family until approximately February 2010. During this stay Ms Mahoney’s mother is unwell for periods of time and requires some nursing or assistance from Ms Mahoney
July 2010
Mother travels with X to (country omitted) for a holiday to visit her family (a period of some weeks).
July 2011
Mother travels to (country omitted) to visit her family (including her father who is ill). X remains in Australia as the father’s consent to his travel is withheld.
Aug 2011
Mother returns from (country omitted).
29.09.2011
Parties separate under the one roof. There is controversy as to X’s sleeping arrangements whilst the parties remain so separated.
Nov 2011
Ms Mahoney returns to paid employment for the first time since X’s birth. X commences attending day-care 5 days per week.
3.7.2012
The police are called to the party’s home. Relatives of each party also attends at the home.
6.7.2012
Ms Mahoney moves out of the former matrimonial home and commences to live with X in a unit. For a period of approximately 3 weeks Mr Barrow does not see or spend time with X.
July 2012
Ms Mahoney’s mother visits from (country omitted) and stays with Ms Mahoney.
17.9.2012
Ms Mahoney moves to rental accommodation at (omitted) (proximate to Mr Barrow’s home).
3.12.2012
Family attends Family Report interviews
Dec 2012
Ms Mahoney’s father visits from (country omitted) and stays with Ms Mahoney and X.
Mid-March 2013
Mr Barrow travels overseas for a two week period for work.
June 2013
Ms Mahoney’s father returns to (country omitted).
July 2013
Ms Mahoney’s mother returns to (country omitted).
Current circumstances of the parties
Mr Barrow continues to reside in the same accommodation that the parties had occupied at separation being a unit at (omitted). Mr Barrow lives alone.
Mr Barrow’s parents reside in the (omitted) area (being approximately 30-40 minutes from Mr Barrow).
Mr Barrow is proposing to move to a property at (omitted) (a nearby suburb) later this year or early 2014.
Ms Mahoney continues to reside in rental accommodation in (omitted) and in close proximity to Mr Barrow. That accommodation is presently occupied by Ms Mahoney, X, Ms Mahoney’s nephew Mr S, who is 17 years of age. Mr S is an international student at (omitted) High School.
Ms Mahoney’s parents have returned to (country omitted) and will continue to visit Australia from time to time and will, on those occasions, stay with Ms Mahoney. When Ms Mahoney’s parents are not residing with her they remain in contact with her and with X by telephone and Skype.
Issues in dispute as raised by the parties
Notwithstanding the positivity of the case presented by each party, a number of factual controversies are presented which require determination including:
a)To whom is X presently more attached and is it important?
b)Is Mr Barrow an active or passive parent?
c)Does Mr Barrow have a problem with alcohol?
d)Is Mr Barrow a safe driver?
e)Does either parent suffer from a mental illness or disorder (including but not limited to depression) that would be relevant to the proceedings?
f)Does Ms Mahoney have a volatile temper and, if so, is it relevant to the issues to be determined?
I propose to deal with each of the above issues and allegations briefly and by reference to the parties’ evidence and that of Mr G.
Is X more attached to one parent or the other?
In summary I am not satisfied that X is more attached to either parent.
Each parent has asserted a primacy of past care as well as a primacy of parenting by them and a primacy of attachment between them and X.
During cross examination it was put to Mr G that when he referred to the term “attachment” within his report that he has not done so as a scientific term or by strict assessment of each parent’s attachment. Indeed, I am impressed and comforted by Mr G’s response to that proposition being to the effect that he had not and would not presume to assess such matters based on the limited interviews which occurred.
Mr G opines at paragraph 45 of his report, with respect to the issue of attachment “… Mr Barrow, who is possibly his main attachment figure”. During cross examination Mr G again made clear his position that:
a)This was not a formal assessment of attachment (to the extent that it would be useful or relevant in any event)
b)The comment was not intended to suggest anything other than the possibility and was most assuredly not intended to suggest his concluded view; and
c)Any issue of attachment would be difficult for Mr G to comment upon as his report interviews had occurred some ten months previous and developmentally X would have changed and developed a great deal during that period (having passed from three to four years of age).
Mr G’s cross examination, which was extraordinarily helpful in clarifying a number of issues, not only relating to his own evidence but relating to X’s development generally, left me with the following evidence and which evidence I accept and make findings in accordance with:
a)It is not possible to determine whether X’s attachment with one parent is greater than that with the other;
b)X is, in all probability, well attached to both parents; and
c)Difficulties described by the parents (and to some extent observed by Mr G) as “separation insecurity” from Mr Barrow is not necessarily suggestive and certainly not determinative of either a primacy of attachment with either parent, insecure attachment with either parent or anything other than that which is directly observed – including X having become upset on separating from the father at the report interviews.
It is to be noted that the evidence of the parties is largely in agreement each with the other although not entirely so as to a resolution or substantial abatement of difficulties which had occurred with X’s separation from Mr Barrow at the conclusion of X’s periods with him. Further, it is to be noted that the evidence, to the extent that it is suggested that difficulties have occurred at changeovers between the parents, has been limited to:
a)Changeovers on Wednesday evenings (when a period of time has occurred from mid afternoon to 7.30pm); and
b)Having occurred on occasions when the parties are in face to face contact with each other rather than when X is collected from or dropped to day care.
Otherwise with respect to issues of attachment Mr G was not able to and did not feel it appropriate to seek to differentiate between the parents and their relationship or attachment with X. I am satisfied that Mr G’s evidence on this topic (and indeed on all others) is reliable, competent and expert and should be accepted by me and is so accepted.
Accordingly I am not in a position to find that X’s attachment with either parent (whether used as a specific term of social science or otherwise) is greater than with the other.
Is Mr Barrow an active or passive parent?
Ms Mahoney raises criticism in both her Affidavit material and as reported by Mr G that Mr Barrow was, during the relationship, a “passive” parent. This is explained by Ms Mahoney as meaning that Mr Barrow would not actively engage with X and tended to place him in front of the TV as means of entertainment or distraction rather than playing with and engaging with him.
Mr Barrow, for his part, asserts that X would watch cartoons whilst sitting at a small table which was set up as a table at which he took his meals. Mr Barrow also suggests that he has watched cartoons with X as a form of entertainment (rather than leaving him in front of the TV as a “child minding device” – that described by Michael Franti’s lyric as “the only wet nurse that would create a cripple”).
Mr Barrow also gives significant detail of the events and activities that he has participated in with X particularly since separation and I accept that evidence as truthful (indeed Mr Barrow was not challenged with respect to it).
Mr G reported that Ms Mahoney “believed she was the better parent and the more active with X accusing the father of being “passive” and placing the child in front of the television for most of the time they spent together” (paragraph 12). Further to this Ms Mahoney is reported by Mr G as describing Mr Barrow as:
…devoted to X yet unable to meet many of his needs due to his alleged passive approach. Ms Mahoney claimed he sits the child down in front of the television for most of the time and feeds him too many sweets. She did acknowledge that her information was largely based on his previous (alleged) behaviour and might not reflect the current situation. Despite these negative opinions of Mr Barrow, Ms Mahoney thought he genuinely loved the child but added “X is very close to me””.
Mr G at paragraph 33 of his report opines:
When asked to discuss a typical weekend spent with his son Mr Barrow provided a most detailed and methodical account of their activities which included visits to family members and friends with young children as well as quiet times reading and painting. There was no indication of “passive” parenting. On the contrary the father appeared to be a strongly involved and highly motivated carer. His description of X was similar to that provided by the Mother”.
It is possible that there is a distinction between the level of involvement and the type of parenting involvement of Mr Barrow observed by Ms Mahoney prior to separation and that undertaken and demonstrated by Mr Barrow since separation. This would not be extraordinary.
At the time that the parties separated under the one roof X was two years of age. This corresponded approximately, to Ms Mahoney’s return to paid employment. Prior to this Ms Mahoney had been a fulltime homemaker and parent and Mr Barrow a fulltime waged employee.
It is likely that Mr Barrow’s level of involvement and style of parenting interaction with X has changed since separation. Whilst the parties were together and particularly whilst Ms Mahoney was a fulltime homemaker and parent, it is possible that Mr Barrow was content to leave a greater level of parenting to Ms Mahoney and to defer to her in that regard as the fulltime, physically available parent. It may also be that Mr Barrow was somewhat excluded (or felt so) during this period (particularly with Ms Mahoney’s mother a visitor in the home for a significant period).
In any event and based on present facts and circumstances (and those which have applied now for 18 months to two years) I accept Mr Barrow as an active, engaged, motivated and involved parent (and indeed I accept Ms Mahoney on the same basis).
Whether Mr Barrow has an alcohol problem
Ms Mahoney has asserted that she holds concerns with respect to Mr Barrow’s use of alcohol during the relationship. To this end she has raised concerns in her evidence (such as suggesting Mr Barrow would drink three bottles of wine of a weekend) and has also raised those concerns with Mr G.
Mr G, whilst not seized with forensic responsibility for determining factual issues, has opined that he sees no basis, from his direct observation, for concerns with respect to Mr Barrow’s use of alcohol. Such allegations are certainly denied by Mr Barrow.
At paragraph 37 of his Report, Mr G observes:
Mr Barrow observes as earnest and concerned in regards to X. He did not seem as critical of the Mother as she was of him. He denied her main allegation regarding alcohol consumption and presented in a sober and articulate fashion.
Appropriately Mr G opined, under the heading “Evaluation/ Recommendations” (paragraph 51)
…The mother’s allegation about the father’s alcohol consumption will require Court scrutiny should the matter continue to hearing. Although there is no evidence to support this from Mr Barrow’s presentation at interview presumably be an important factor in determining long term future living arrangement for X.
Mr Barrow has denied the allegations Ms Mahoney puts forward regarding alcohol use and to that end has provided clear and detailed description of his past and present use of alcohol. I have no reason to doubt Mr Barrow’s evidence in this regard and do not do so.
Mr Barrow was not cross examined with respect to these issues and no concessions have been made by him with respect to it.
There is no objective evidence (in the nature of Police attendances, medical records or alcohol related convictions) that would support the allegation.
A record is attached to Ms Mahoney's Affidavit in reply comprising a note from a Hospital at a time that Ms Mahoney had attended thereupon and in which she referred to a concern with respect to Mr Barrow’s alcohol use. However, there is a clear distinction to be drawn between a concern held by a person and the objective substantiation of a valid complaint of misuse or abuse of alcohol.
I am not satisfied that I can or should thus find that Mr Barrow presently has or at any time in the past has had a difficulty with alcohol.
Mr Barrow’s driving
The evidence with respect to Mr Barrow’s suggested poor driving record and propensity for speeding and dangerous or erratic driving is limited.
Mr Barrow makes some limited concessions regarding traffic infringement notices he has received in the past. However, he confirms that he has not, at any time, lost his licence nor been apprehended or dealt with for any driving offence more serious than as has warranted a traffic infringement notice.
I am not satisfied that there is any basis upon which a finding could be made that Mr Barrow’s driving or driving record is of relevance to or would negatively impact upon X’s welfare.
Does either parent have a mental health condition that would be relevant?
Each of the parties has given evidence that they have, at some point in the past, consulted with a medical practitioner regarding depression.
Neither party has led any evidence that would suggest that there has ever been:
a)Any symptomology warranting or requiring more active intervention than a voluntary medical consultation;
b)Any lack of insight by either parent into a depressive condition (whether by way of clinical diagnosis or lay observation); or,
c)Any interference in either parent’s functioning (indeed each parent conceded the other is “a functional parent”).
In the above circumstances I am not concerned as to whether either parent has been, is or could be described as suffering from depression. It is simply not relevant as the evidence of the parties does not make it so. In any event there is no evidence available that would allow such a finding to be made.
Does Ms Mahoney have a “volatile temper”?
The parties and each of them have given limited evidence as to events that have occurred and which could be suggested to demonstrate volatility (or threatening or intimidating behaviour) by the other.
The evidence of the parties is largely confined to an event that occurred on 2 or 3 July 2012 at a time when both parties were living separately and apart under the one roof. On that occasion clearly the Police were called. No records from the Police are tendered in evidence and thankfully so as:
a)Whilst clearly a Police attendance was required (irrespective of who called them) that which occurred did not involve physical violence;
b)Whilst the parties are at odds as to what did, in fact, occur it would seem that one or both parties spoke to the other in a fashion that was unnecessary, inappropriate, offensive and upsetting; and
c)The Police attendance 2 or 3 July, 2012 is the only suggested event (although Ms Mahoney gives evidence that on at least one occasion since physical separation that Mr Barrow has spoken to her in a terse fashion).
I am not satisfied that I can or should make any finding that family violence has occurred and as defined in s.4AB.
I am not satisfied that there is evidence sufficient to demonstrate that Ms Mahoney has a “volatile temper”.
At its highest there is a suggestion that in a period when the parties were living separately and apart under the one roof and had been doing so for some ten months that tempers frayed and flared, words were exchanged and, possibly (although I am satisfied I need not make any finding as to same) voices were raised and inappropriate language used in the presence of X.
The event 2 or 3 July 2012, is the only occasion when it is suggested that any like event occurred. The evidence does not suggest that Ms Mahoney nor either party has ever acted towards X in any fashion that would be harmful or damaging to him (whether emotionally or physically).
Accordingly and whilst this issue is raised I dismiss it as a concern in my mind.
Parental communication
Both parties have raised issues with respect to communication.
Mr Barrow has urged in his case that the Court would be satisfied that the parties communicate well and effectively.
Ms Mahoney has suggested the parties’ communication is, at worst, “icy” and at best “formal and polite”.
What is clear from a consideration of the evidence (from the Affidavits of the parties, Mr G's Report and various of the tenders) is that:
a)The parties communication has continued to improve since separation and since the situational events that occurred on 2 or 3 July 2012 at a time when the parties were living under the one roof;
b)Since the parties have ceased to live separately and apart under the one roof their communication has become far more fulsome;
c)The parties have been able to negotiate a number of changes to arrangements including for a period of two weeks when Mr Barrow was required to travel overseas for work and on not less than two occasions when arrangements had been made for Wednesday evening time between X and his father to either change days and/or to become an overnight period;
d)The parties have been able to co-operate with respect to X’s recent birthday and a party arranged to celebrate that birthday. The evidence suggests that Ms Mahoney had arranged a party for X and invited friends from his day care centre and that Mr Barrow had also intended to arrange a party and invite the same or similar number of friends. When Mr Barrow became aware of this he expressed disappointment that the parties had not consulted each other but a compromised arrangement was quickly found to ensure that X was able to enjoy a pleasurable birthday experience and without inconvenience to any (including X’s classmates and their parents);
e)The parties have been able to negotiate an agreed General Practitioner for X. Each party had some difficulty with the General Practitioner preferred by the other but they had quickly arranged and negotiated a practitioner suitable to both and so as to ensure continuity of care for X and confidence by each parent in X’s treater;
f)Each parent has been able to contact the other and co-operate to ensure participation when X has had significant illness including on two occasions when he has needed to be presented to a doctor as a matter of some urgency; and
g)The parties have recently exchanged information and proposals (by oral communication and by email) regarding X’s school enrolment for 2015.
Having regard to the above matters and the evidence in its totality, I am satisfied that the parties’ communication is far from strained.
The parties are still at a relatively early stage of their separation from each other and the termination and conclusion of what is, for Ms Mahoney, her first significant relationship and what is for both parties a relationship that has seen the birth of their first child. In those circumstances I would be loath to be overly critical of the parties for the difficulties that they have experienced in communication with each other and which are, I am satisfied, of an historical nature.
As at the present the parties are able to co-operate with each other effectively and purposefully. Their communication may well be somewhat formal but it is polite and it is, most importantly, child focused, child welfare infused and effective.
Mr G had observed with respect to communication the description by the parties and each of them that it was somewhat “icy”. However, Mr G was clear in offering that:
a)His observation of the parties had been nearly 12 months ago;
b)One would expect that communication would continue to improve;
c)Even when communication was described as “icy” the parents were still able to be in the same proximity as each other, be cordial, polite and respectful of each other and to co-operate and find solutions to problems as they presented themselves (including at the observations).
Mr G had opined (paragraph 44):
The relationship between the parents continues to be strained although they reside within very close proximity and come into contact each week during changeover. Each person sees matters from his/her point of reference including their son’s behaviours and needs.
I do not accept that the above is an overt criticism of the parties or either of them. At their then point in life (recently separated from each other after a relationship of significance to each and having given rise to their only child) their presentations are indeed reflective of the dignity and decency that each affords to themselves and the other.
I am satisfied that communication has also substantially improved since that time and would no longer be appropriately described as “strained”. It is not complete, open and as friendly as it could be but it is most assuredly polite albeit somewhat formal. Again, the most important element of communication between the parties is the fact that it is effective and results in the resolution of dispute and the making of clear plans for the benefit of X.
Finally, with respect to communication, Mr G commented during his cross examination that the most important elements required to be present for X’s continued emotional health and to allow him to benefit from substantial involvement with each of his parents were from factors such as:
Proximity, practical considerations, the parents fitting in with the child rather than the child with them, co-operation of the parents, they need to be able to co-operate well and accept each other in X’s living arrangements. …Parents who have equal time need to be able to take account for the developing needs of their child and his changing needs and wishes.
Mr G also conceded in cross examination that he could see no barrier, arising from practicality or the relationship between the parents to a shared care arrangement (whether in a broader sense of that term or an equal shared care basis).
Mr G did opine that if equal shared care were to occur that it would be preferable for this to be built towards from the present point rather than commenced immediately and with a preference for a shared care arrangement (what might be described as substantial and significant care by reference to s.65DAA(3)) commencing now and a change to equal care occurring either prior to X commencing school or after he has been at school for one or two terms so as to ensure that there are not “too many changes at a time when X is starting school”.
Mr G opined that he saw no issue regarding the parenting capacity and ability of each parent to support X in a substantial and significant or shared care arrangement but proposed some slight deferral of any significant increase that X spends with either parent until he is slightly older and of school age (2015).
Mr G also expressly rejected any benefit to X of a reduction in the present time arrangement that he enjoys with each parent.
I do not propose to canvas the balance of evidence in detail. Suffice to say I have read and considered each of the documents that the parties have provided (whether sworn testimony or exhibits) together with the report of Mr G and the case outlines and submissions of the parties. To the extent that it may be necessary I will refer to further, specific portions of the evidence in addressing the legislative pathway to which I now turn.
Legislative pathway
I must commence with the objects and principles of the legislation set out in section 60B which I incorporate herein.
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
I am satisfied with respect to the proposals of the parties that:
a)I could not appropriately or adequately meet the objects and principles by reducing time that X presently spends with either parent (as is Ms Mahoney’s application); and
b)That the objects and principles would be met and served through a variety of different proposals including a maintenance of the present ordered arrangement or an increase thereof up to and including equal shared care and whether as proposed by Mr Barrow or as commented upon by Mr G (as above).
Otherwise with respect to the objects and principles, I am satisfied that no issue arises in these proceedings regarding X’s protection from physical or psychological harm. There are no such negative elements that require my attention or determination.
I am conscious to ensure that orders made by me will allow, permit and continue both a meaningful relationship between X and a meaningful involvement by each of these parents in X’s life.
Section 60CA then reminds the Court that the child’s best interests are the paramount consideration at all times.
I must then consider s.61DA and determine whether the presumption of equal shared parental responsibility applies.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child or in family violence.
I am not satisfied (for the reasons set out above) that a finding of abuse or family violence can be made in this case and referable to either parent.
In light of the above the presumption applies least it is rebutted on the basis that it is not in the child’s best interests for the parents to have equal shared parental responsibility.
Each of the parents propose that an order would be made for equal shared parental responsibility. I am required to determine the parties’ proposals (see U & U [2002] FLC 93-112) and to afford to them due process in the event I intend to depart therefrom. However, I am not bound by the proposals of the parties.
I do not propose to consider any order other than an order for equal shared parental responsibility. That is particularly so as:
a)Each of these parents has demonstrated (and conceded) the capacity of the other as a parent;
b)Each of these parents has demonstrated (and conceded as regards the other) that they are functioning parents who are child focused and are able to make decisions that are in their child’s best interests;
c)It is clear from the evidence (and the parties concede) that they have shared commitment to their child as well as shared values, hopes and ideals for him. Thus conflict would not likely arise as regards decision making;
d)On the basis that these parents are parents of great quality I see no reason to interfere with nor impede that which they jointly advance being an order for equal shared parental responsibility;
e)I am satisfied that there would be a wholly negative impact upon X of any restriction upon either parent being involved in decision making, receipt of information or any other aspect of his life.
In light of the above and in due course an order for equal shared parental responsibility will be made by me and as sought by the parties.
As the presumption of equal shared parental responsibility applies I am then mandated to consider equal and substantial and significant time before considering any other time arrangement. I propose, however, to consider all time arrangements at large and by reference to s.60CC and incorporating therein s.65DAA(5) dealing with reasonably practicality.
Section 60CC
I am required to commence with the primary considerations being:
a)The benefit of the child having a meaningful relationship with both parents; and
b)The need to protect the child from physical or psychological harm.
The latter is prioritised over the former either by operation of subsection 2A and as a matter of common sense.
There is no issue raised in these proceedings regarding protection of X from harm. Thus I am left with the sole primary consideration of the benefit of X having a meaningful relationship with each of his parents.
I am satisfied and so find that X presently has a meaningful relationship with each of his parents. The relationship has meaning and importance to each parent and to X. Indeed, I am impressed that each of the parents acknowledges and recognises the importance of X’s relationship with the other parent and acknowledges it as meaningful.
Concern is raised by Ms Mahoney that her relationship with X is not supported by Mr Barrow or not supported with the same vigour as she supports Mr Barrow’s relationship with X. I do not accept that this is so.
I do accept Ms Mahoney’s evidence that she has felt undervalued and unsupported by Mr Barrow in the past and in particular during their relationship together and especially during the period of their living separately and apart under the one roof. However, I am concerned that Ms Mahoney may have interpreted Mr Barrow’s desire to spend greater time with X as a desire to limit her time with X or to take from her time which she should have (and which would by and of itself benefit X). However, I do not accept those criticisms as valid. That is not to suggest that I do not accept Ms Mahoney as a witness of truth. I most assuredly do.
Each of these parents, for the reasons and motivations set out above, has a real and genuine concern that their role in X’s life will be impacted by any reduction in the time that they spend with X (which is a necessary corollary of an increase in time that X spends with the other parent). They need feel no such fear.
Time is but the tool by which the Court seeks to achieve a child’s meaningful relationship with a parent. There are, however, many more important tools or considerations including those which are clearly present and apparent in the facts and circumstances of this case including:
a)The joint hopes, dreams and values of the parents;
b)The joint commitment of these parents to various aspects of X’s wellbeing including his education;
c)The quality of parenting provided by each parent;
d)The ability to recognise the importance to X of the other parent of the child;
e)The ability to make sacrifice of self for the child’s wellbeing including through the sacrifices these parties have already made and will, no doubt, continue to make regarding their employment and social lives.
I have no concern whatsoever that X presently has a meaningful relationship with each parent and will continue to have such relationship in the future on an increasingly burgeoning, developing basis.
I am satisfied that each parent recognises, appreciates and supports the importance of X’s relationship with the other.
The above primary consideration would lend support to both equal and substantial and significant time and would obviate against any lesser arrangement and would certainly obviate against any reduction of the present time arrangement (which might be described as substantial and significant time).
Additional considerations
Views
X is four years of age.
There is no evidence that X has any clear view. Indeed the best evidence available as to X’s views and attitudes towards his parents and each of them is contained in the records of the “(omitted) Day Care Centre”.
Each parent has opined, based upon an interpretation of events, what they perceive as X’s needs, views or wishes. However, the day care centre records speak volumes as to the presence of each of these parents in X’s minds at all times.
A record for 8 May 2013 reads as follows:
Free hand drawing
X at the writing table. He is drawing a rainbow for his mummy and daddy. First X picks a blue coloured texta. X starts to make an arch like line and he goes a few times over the line to make a slightly thicker line. X concentrates well and continues to draw. This time he picks a different colour texta – orange. He draws another arch line next to the blue one. He sees me “look I’m making a rainbow” [the worker replies] “yes its great”. X “it’s for mummy and daddy”.
The above is particularly significant as it demonstrates that X has both parents alive in his mind at the same time irrespective of who may have delivered him to day care that day and who will collect him (a matter which each party sought to agitate to some extent). It also suggests that the curious issue observed by Mr G of his observations December 2012 (whereby X referred to his mother by her first name rather than “mummy”) would appear to have been addressed.
I am not satisfied that there is any evidence of any view expressed by X and to the extent that he might be suggested or inferred to have a view same would be far from dispositive or determinative and would confirm the importance to X or each parent.
Nature of the child’s relationship with each parent and other persons
I am satisfied that X enjoys an equal and excellent relationship with each parent.
Whilst each parent has sought to assert some primacy of care, attachment or affection from X, I do not accept that any differentiation would be appropriate. X’s commitment to, attachment with and love for each of his parents cannot be differentiated on the evidence available.
X also enjoys an excellent range of relationships with others including peers at his day care centre (where he is a gentle and popular child), the paternal and maternal grandparents.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in decision making, spending time with X or communicating with him
This has not arisen in the evidence.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
This has not arisen from the evidence.
The likely effect of change and the child’s circumstances including likely effect of separation from either parent or any other child or person
This is perhaps the fulcrum upon which the decision balances.
As X presently enjoys an excellent relationship with each parent, it might be suggested that such relationships could be adequately addressed through a continuation of the present arrangement.
Counting against this, however, is the evidence of Mr G and that of the parties themselves.
Ms Mahoney concedes that the present arrangement is working well. It is, accordingly, difficult to understand why it is thus suggested that the arrangement be significantly reduced as is Ms Mahoney’s application. X is presently spending time with his father each alternate weekend from Friday through to Monday, in each intervening week from Monday to Tuesday as well as for a period each Wednesday from the conclusion of day care until 7.30pm. The Wednesday period is that the subject of the greatest criticism by Ms Mahoney.
Ms Mahoney’s application would see a reduction in time such that X would be in his father’s care on each weekend from 8am Saturday until 8pm Sunday as well as for a period each Wednesday afternoon until 7.30pm (the criticised period).
I am not satisfied that that is a necessary or appropriate change nor one which would benefit X.
Clearly, any increase in the time that X spends with his father will affect a separation of X from his mother. However, this factor requires that I address the likely affect upon X of that change and of his separation from both parents.
I am satisfied that there is a benefit to X of further exploring and developing his relationship with his father. Indeed, on the evidence of Mr Barrow the present interim orders have affected a substantial reduction in his level of past pre physical separation involvement.
Whilst accepting that there would be a positive benefit from X increasing his time spent with his father I do not intend to suggest or imply that there is a benefit to X in reducing the time that he spends with his mother.
This is the simple conundrum that arises when two competent, caring parents no longer wish to live together. Whereas they have previously been able to spend each and every day with their child jointly they must now seek to spend time with X separately and any order in favour of one is potentially (at least perceptionally) at the detriment of the other.
On balance I am satisfied that:
a)Any detriment to X of reducing his time with his mother will be compensated by the benefit to X of increasing his time with his father;
b)X’s relationship with his mother will remain meaningful and will not be undermined or disadvantaged by any increase in time that X spends with his father (and thus a reduction of time with his mother);
c)An increase in time between X and his father will benefit that relationship and without detriment to the relationship X enjoys with his mother.
The other issue that arises regarding separation is the manner in which time would be structured between the parents.
Mr Barrow seeks relief in the alternative that either:
a)X live in a week about arrangement; or
b)X live in a week about arrangement but with some portion of each week then spent with the other parent. The net effect of this arrangement would be a model of shared care as more commonly seen in the North American experience being an arrangement of five/two/two/five nights with each of the parents over a fortnight.
Based upon the totality of the evidence but particularly that of Mr G, I am satisfied that, at this age and stage of development, that week long separations of X from either parent would be undesirable. However, I am satisfied that X has done well with the arrangement presently in place which sees him spending Friday to Monday with his father and that he would do well, cope with and benefit from an extension to that period to occur forthwith.
I am given some comfort in the above view in that Ms Mahoney’s evidence (which I accept) suggests that the present arrangement is working well and to X’s benefit.
Whilst Mr Barrow’s evidence is that the arrangement is not working well, as indicated above, this would largely appear to relate to:
a)The Wednesday evening changeovers being problematic (or having been so); and
b)A concern on the part of Mr Barrow that X is not spending enough time with him and that the separations from him, especially after a brief period such as that which occurs on Wednesdays, are thus more problematic.
I am satisfied that the evidence of Mr G, given during his cross examination, has some real force and benefit and should be accepted by me. Accordingly I am satisfied that there would be a benefit of X to moving to a more “shared care” arrangement immediately and by this providing for an overnight period of time in each week.
Further, I am satisfied that there is no impediment to and indeed there is benefit to X of moving to an equal shared care arrangement once he has commenced school.
I propose to delay this slightly longer than suggested by Mr G (who had opined that it might commence from the end of first or second term 2015). I propose to introduce it from the conclusion of term three 2015. That will allow X to be approaching his sixth birthday.
As regards the structure of this time I am also concerned to ensure that the parents and each of them have as much time available to them, at times when they are not actively engaged in employment, as is possible. On the basis that Ms Mahoney’s employment is shortly to change so that she is not in paid employment on Mondays and Tuesdays. I propose thus to focus midweek time that is spent between X and his father on Thursdays and Fridays and thus leaving Mondays and Tuesdays for X to be in the care and responsibility of his mother.
Practical difficulty and expense
I will deal with this as part of s.65DAA(5).
Capacity of each of the parents to meet the child’s needs
I am satisfied that each of the parents has demonstrated and has an excellent capacity to meet the child’s needs and that their capacities are equal.
Maturity, sex, lifestyle and background
X is a clever and creative young boy. All of the evidence supports this (including that of his parents).
Mr G has opined that X is meeting or exceeding his developmental milestones and but for some further period of time to enable his maturity to further develop that an equal shared time arrangement would benefit him. Accordingly, I am satisfied that this factor would support a shared care arrangement between the parties (and within a broader sense) and would support some slight delay or deferral (by less than two years) of an equal time arrangement.
I am conscious in such a deferral that this might be perceived to rely upon the success of arrangements in the preceding period to support that eventual change or transition. I am conscious that there is some force to this position.
I am satisfied, based on the totality of evidence but particularly that of Mr G, that X would most probably benefit from an equal time arrangement at an earlier time and prior to his commencing school in 2015. However, on balance I am satisfied that an eventual rather than immediate equal care arrangement will be the best for X and particularly having regard to:
a)X’s age;
b)Mr G’s evidence regarding the desirability of a further period to allow X to develop greater maturity and understanding and simply to settle into arrangements; and,
c)Ms Mahoney’s desire to continue to spend time with X on a substantial basis and particularly to address her concerns that her relationship might otherwise be impacted
The period I propose to allow before an equal shared time arrangement would automatically commence (approximately two years) will, I would hope, alleviate any concerns or perceived concerns held by Ms Mahoney.
If the child is from an Aboriginal or Torres Strait Islander background
X is clearly not from an Aboriginal or Torres Strait Islander background
X’s parents are both from (country omitted). It is a delight to read that X is bilingual and that both of his parents support his ongoing development of this.
It would be hoped, as I had remarked to the parties during the hearing and during the course of which media reports had been published, as to the perceived lack of diversity within the Court structures, that X will achieve academically at the level of each of his parents and to the level they each desire that he will. X may, perhaps, one day at or after my retirement, be sitting in my seat and presiding as a Judicial Officer from a culture with a proud and glorious history of literary and judicial achievement.
There is nothing to differentiate between these parents in their support and encouragement of X's (country omitted) culture and the orders I propose to make, for a shared care and ultimately an equal shared care arrangement, will allow X to continue to maintain a connection with that culture and to have the support, opportunity and encouragement necessary to explore the full extent of that culture and to develop a positive appreciation of same including with persons from that culture (being his parents and extended family).
The attitude to the child and responsibilities of parenthood
As would be apparent from the above, I am satisfied that each parent has demonstrated an abundantly appropriate attitude and acts upon that attitude.
Family violence
As indicated I am not satisfied that any finding of family violence can or should be made by me and thus I do not consider it a relevant factor.
Family violence orders
There are and never have been any family violence orders.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
One possibility that I have entertained is to make orders that would last until X has commenced school in 2015 and to then leave it to the parties, through negotiation, Family Dispute Resolution, or if necessary (but hopefully not so) litigation to address any further changes that might occur.
I am satisfied that with a view to avoiding future proceedings that I should set a path from now until September 2015 (some two years hence) for the care arrangements for X and prescribe what those arrangements will be at the conclusion of that path.
Reasonable practicality
In turning to s.65DAA(5) I consider the following:
How far apart the parents live
The parents presently live within sight of each other.
The parents each propose to move but the moves that will occur will leave these parents living in remarkably close proximity to each other and some 10-15 minutes apart.
The parent’s current and future capacity to implement an arrangement for a child spending equal time, substantial and significant time or other time with each parent
I am satisfied that these parents have demonstrated, during the period that the interim orders have operated, a capacity to implement an arrangement for substantial and significant time.
Whilst the interim time arrangement might be described as being at the lower end of that which would be expected of a substantial and significant time arrangement (see s.65DAA(3)), I am conscious that each of the parents has presently, with or without the need of Court orders, spent time with X on weekends, holidays, weekdays and at times that allow both parents to be involved in X’s routine and events that are significant to X or them. There is no reason why this should not continue to occur.
I am satisfied that the change that would be affected by a slight extension of the present arrangement, such that time commenced on Thursday rather than Friday and occurred in the off week from Thursday to Friday, is readily supportable by these parties.
Each of the parties has, somewhat refreshingly and I accept genuinely, indicated to the Court that they will make any orders made by the Court “work” rather than railing against them or seeking to find small points of difference to disable the orders. This gives me further confidence that the parties have the capacity to immediately implement an arrangement for shared care (at least to the extent of substantial and significant time) and ultimately equal shared care.
The parent’s current and future capacity to communicate with each other and resolve difficulties
These are two parents who are articulate, intelligent, well-educated and child focused.
These parents have a commonality of world view (by and large) and remarkably homogenous values.
I have no concerns, based on the parties’ present communication, as to the ability of these parents to communicate with each other and resolve difficulties in the future.
The evidence is littered with examples whereby the parties have been able to negotiate arrangements and resolve difficulties including in times of stress (such as when X has been ill or injured) and to do so to good effect.
The impact of the arrangement on the child
I am satisfied that this is addressed above as regards the impact of change.
I am satisfied in summary that:
a)There would be a positive impact upon X of having the opportunity to spend greater and more equal time (and ultimately equal time) with each of his parents; and
b)There would not be any detriment or corresponding detriment as a consequence of those changes.
Summary
For the above reasons I propose to make orders that will immediately move to a substantial and significant time arrangement and will, by the conclusion of term three 2015 move to an equal time arrangement.
I am conscious that Ms Mahoney may well perceive this as a criticism of her or some inherent finding of fault with respect to her worth, value or benefit to X as a mother. I wish to disabuse her of that notion.
I have been impressed with the dignity of both of these parents and have especially been impressed with the dignity and grace with which Ms Mahoney has conducted herself throughout these proceedings.
Ms Mahoney’s description of her relationship with her son and the efforts she has taken to meet his needs satisfies me that her relationship with her son is deep and profound and would survive more rigorous testing than the temporary absences of X from her household that a shared care arrangement would entail.
Ms Mahoney is clearly alive in X’s mind at all times including when he is at the home of his father. That is explicable as she is a lovely and loving mother.
X receives communication from both of his parents (indeed each has urged that I need not make orders with respect to such communication as it already occurs and will continue to occur) and each parent supports, encourages and facilitates a ready flow of information including photographs and snapshots of the child’s day whilst he has been with them.
Ms Mahoney is a most excellent mother. Fortunately for her and for X, Mr Barrow is also an excellent father.
It is tragic that for whatever reason these two parents have determined that they do not wish to live together and raise their child together. That is, no doubt, what they each had hoped for at the time of his conception.
Any orders made by me are required to focus, as the primary consideration in s.60CC(2A) makes clear, upon X’s meaningful relationship with both (emphasis added) parents. That is all that I have attempted to do and I do not intend any slight or disrespect to Ms Mahoney in failing to accede to her application or to grant the relief that she has sought.
Airport Watchlist order
Each of the parties consents to an order that the child remain on the Airport Watchlist.
The evidence with respect to this suggests that each parent has some degree of distrust that the other would seek to remove the child permanently from the Commonwealth of Australia.
The mother denies that any such consideration would operate in her mind and for reasons addressed in her affidavit material. The mother does raise concerns, however, that the father would take such action.
As the parties each consent to the order I propose to make it and so as to ensure that neither feels prejudiced, disadvantaged, anxious or unable to trust the other. To that extent it is an order which may well aide these parents in their communication and cooperation in the future.
I have some reservation in the order being made, albeit by consent, in that it will potentially operate to preclude X from leaving the Commonwealth and experiencing the great benefits available to him from travel especially if it involves his immersion in the home culture of his parents. However, I note the provisions of s.65Y which would allow X’s removal from the Commonwealth at any time with the written consent of both parents or an order of the Court.
Accordingly and even absent X’s inclusion on the Airport Watchlist each parent would potentially commit a criminal offence by removing X from the Commonwealth other than in accordance with the provisions of that section.
Accordingly that order will be made and will continue until X attains the age of 18 years (as Ms Mahoney has sought).
Accordingly I make the following orders.
I certify that the preceding two hundred and fifty-six (256) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 21 November 2013
Key Legal Topics
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Family Law
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Jurisdiction
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