Marino and Marino
[2009] FMCAfam 227
•19 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARINO & MARINO | [2009] FMCAfam 227 |
| FAMILY LAW – Children aged 4 and 2 – final arrangements for care – parties agree presumption of equal shared parental responsibility should apply – father seeks equal time arrangement – mother contends parties’ poor parenting relationship makes such an arrangement impractical – mother asserts father is antisocial and criminally inclined and as such father represents a potentially corrosive influence in children’s lives and poor role model – best interests – considerations of reasonable practicality. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, 65D |
| Marino & Marino [2007] FMCAfam 517 P & P [2006] FMCAfam 518 Matthews & Kennedy [2007] FMCAfam 26 In the Marriage of Patsalou (1994) 18 Fam LR 426 A v A (1998) FLC 92-800 Bright v Bright (1995) FLC 92-570 Goode & Goode (2006) FLC 92-286 |
| Applicant: | MS MARINO |
| Respondent: | MR MARINO |
| File Number: | ADC 2600 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 1 October 2008, 6 February 2009 |
| Date of Last Submission: | 6 February 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 19 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Jordan |
| Solicitors for the Applicant: | David Peacock |
| Counsel for the Respondent: | Ms M Dickson |
| Solicitors for the Respondent: | Moody Rossi & Co |
ORDERS
These are orders are to be read in conjunction with the orders of the court made on 22 May 2008 which remain in full force and effect.
The children of the marriage [J] born in July 2005 and [H] born in January 2007 live with each of their parents as follows:
(a)With the father:
(i)In each alternate week from 8:00am (or the commencement of school or kindergarten) on Monday until 5:00pm the following Thursday;
(ii)In the other week from 8:00am (or the commencement of school or kindergarten) on Wednesday until 5:00pm the following Sunday.
(b)With the mother at all other times.
Upon the child [H] commencing school the children live with each of their parents, during school terms, on a week about basis moving between their parents’ respective homes at the conclusion of school each Friday.
Upon the child [H] commencing school the children live with each of their parents, during school holiday periods, subject to the provisions of the orders of 22 May 2008 dealing with special occasions, for half of each school holiday period, the halves to be agreed between the parties and failing agreement to be the first half with the father in each holiday commencing in a year ending with an even number and the second half in respect of each holiday commencing in a year ending with an odd number.
IT IS NOTED that publication of this judgment under the pseudonym Marino & Marino is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2600 of 2007
| MS MARINO |
Applicant
And
| MR MARINO |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Marino “the mother” and Mr Marino “the father” are the parents of [J] born in July 2005 and [H] born in January 2007. These proceedings are concerned with determining what are the appropriate final arrangements for the care of these children.
The father’s position is that, given his extensive involvement in caring for both children, particularly [J], up to this stage, it is now likely to be in the children’s long term best interests that they be parented in what is commonly called a shared parenting arrangement.
To this end, he proposes that [J] and [H] should live with each of their parents, for equal periods of time, moving between their respective parents’ homes on a rotating weekly basis of four days/three days, until [H] starts school, when a week about arrangement should be inaugurated.
On 22 May 2008, the parties agreed, on a final basis, that they should have equal shared parental responsibility for [J] and [H] [Family Law Act section 61DA][1]. On this basis, Mr Marino contends that the court is legislatively directed to give earnest consideration to the two children concerned living in the equal time arrangement which he seeks.
[1] Hereinafter each reference in [ ] is to the Family Law Act 1975
Ms Marino does not seek to discharge the presumption of equal shared parental responsibility, to which she agreed in May of 2008. However, it is her position that currently such an arrangement would be neither in [J] and [H]’s best interests nor reasonably practical to put into effect because of the nature of her relationship with Mr Marino, whom she mistrusts [section 65DAA].
It is her position that Mr Marino is a poor role model for children of the tender ages of [J] and [H]. She contends that Mr Marino has been a drug dealer in the past and currently lives in a criminal and anti-social milieu.
As such, she fears that it is inevitable that the children will be exposed to both the father’s illegal activities in future and his criminal associates, with likely corrosive consequences for the safety of [J] and [H], as well as the possible impairment, within the children, of any proper ethical framework, in which they can grow and prosper as they pass towards maturity.
Ms Marino is also concerned that the father has a violent and abusive attitude to women, particularly those who challenge his authority. Again, Ms Marino contends that such attributes make Mr Marino an inappropriate custodian for [J] and [H], who are likely to learn how to behave towards and interact with women, from their father, particularly if he is extensively involved in providing for their care.
Finally, Ms Marino points to the fact that Mr Marino has not been part of the paid workforce for a period of around nine years. He has been in receipt of a disability support pension. The mother doubts the level of Mr Marino’s disability and contends he earns his living from criminal activities. Again, she contends that the father’s attitude to gainful employment makes him an inappropriate parental model for [J] and [H].
Subsidiary to these arguments, but no less important, Ms Marino submits that, because of his past behaviour, she cannot trust and is unlikely to ever trust Mr Marino, particularly where the wellbeing of [J] and [H] is concerned. As such, she contends that it is essentially impracticable and unworkable that the parties have a shared parenting regime for the two children concerned.
Mr Marino does not seek to resile from the fact that he has a “chequered” past. He has convictions relating to the possession of an unlicensed firearm and ammunition; the cultivation of cannabis; and the possession of amphetamines and ecstasy. However, it is his position that the mother’s past life is not beyond reproach – in the past, she admits that she has also used illicit drugs and worked in the sex industry.
It is the father’s case that he does not seek to emphasise the previous failings of either party but wishes rather to focus on the future. It is his position that he and the mother have turned the page on their past lives and now have a reasonably cordial and workable relationship with one another.
As such, he contends that the mother must have some ulterior motive, unrelated to [J] and [H]’s best interests, which has caused her to launch such a concerted attack on his character and throw so much mud at him and his past behaviour. He suspects that the mother’s motivation is financial, related to the payment of child support.
In this context, Mr Marino is particularly critical and suspicious because the mother did not raise these issues specifically at an earlier stage in the proceedings, or more importantly with the family report writer, who was jointly commissioned by Mr Marino and Ms Marino to prepare a family assessment for the case.
The mother’s case is that she did have a difficult and troubled adolescence, which led to her to becoming addicted to drugs, which in turn led her into prostitution, through which she met the father, who is around twenty years her senior. It is her position that the father took advantage of her relative immaturity and was unscrupulous. She contends he regularly sold her drugs.
It is the mother’s position that she has long since overcome her drug addiction and now leads what can only be described as a conventional life. She worked, until recently, as a temporary [administrative officer], through the aegis of an employment agency. She will get another assignment shortly. On the other hand, she alleges that the father found it difficult to stop his drug use. Essentially, it is the mother’s case that the leopard (Mr Marino) cannot change his spots and will always remain deeply anti-social.
Some of the mother’s concerns about the father stem from what she understands to have been his past relationships with his previous wives and partners, particularly a Ms W. She has subpoenaed police incident reports, which allegedly relate to the relationship between Ms W and Mr Marino.
Ms W did not give evidence in these proceedings. Mr Marino denies the gravamen of the allegations against him, pointing particularly to the fact that he was not charged or convicted of any offence involving
Ms W. He denies stalking Ms W or sending multitudinous and grossly offensive text messages to her.
He is suspicious that the mother has only learnt about these allegations through the use of a subpoena of wide ambit but who is nonetheless content to utilise them in her own case against him, although she has no personal knowledge of the events described in the discovered documents.
It is the father’s case that he has changed significantly and indeed that he was instrumental in assisting the mother to reform her life. Essentially it is the father’s position that the mother overstates her concerns against him to satisfy some emotional or ulterior need of her own, which is unrelated to the best interests of [J] and [H].
These proceedings have taken some time to resolve. The mother commenced them in May of 2007. I made some interim orders, on 22 June 2007, pursuant to which [J] and [H] were to live predominantly with their mother but see their father regularly overnight on weekends and during the day on each Tuesday and Thursday.
The interim proceedings were hard fought.[2] At the time, the pressing issue for the court was the tender ages of the children, particularly [H] who was not yet six months of age. It was also the case that there were significant disputes between the parties as to who of them had been more involved with providing care for [J].
[2] See Marino & Marino [2007] FMCAfam 517
It was common ground between the parties that Ms Marino had been the family’s main breadwinner and had returned to the workforce when [J] was a few months old. In those circumstances, Mr Marino contended that it was an inescapable inference that he had been integrally involved in parenting [J] from a very early stage.
The mother acknowledged that she had been in paid employment whilst [J] was young. However, she was critical of the father’s parenting skills and commitment. Essentially, she argued that the vast majority of parental responsibility for [J] had devolved onto her shoulders, notwithstanding the fact that she was working.
The situation appeared to be different, so far as [H] was concerned. The parties had separated in April of 2007, around three months after [H]’s birth and whilst the mother was still on maternity leave. In difficult circumstances, [J] and [H] had lived predominantly with their mother, after Ms Marino had vacated the parties’ former family home and gone to live with her own mother.
In these circumstances, it was the mother’s position that it was incontrovertible that she was [H]’s primary carer and, as such, it was highly likely that it would have extremely detrimental consequences for his wellbeing if his pre-eminent maternal attachment was disturbed at an early stage of his development.
These were just some of the factual disputes between the parties at the interim stage. I determined, primarily on the basis of the tender ages of the children concerned, that they needed to live more with one parent than the other. It was a difficult decision to make within the applicable legislative framework pertaining to parental responsibility. However, for obvious reasons, “one size” does not necessary fit every family.
Given [H]’s age and obvious level of attachment to his mother, I determined, at this early and interim stage, when emotions between the parties were unacceptably high, that Ms Marino should have responsibility for providing for the children’s predominant care, but that the children should also see their father regularly, during each week, so that both could continue to develop a meaningful relationship, not only with their mother but also their father.
The orders I made provided for [J] and [H] to spend the day, on each Tuesday and Thursday, from 10:00am until 5:00pm, with their father. This coincided with times the mother would be at work. In addition, in order that [J] in particular might have a sense that his father was involved in his day to day life, I ordered that the children should spend twenty-four hours with their father from Saturday morning to Sunday morning each week. In shaping these orders, I was highly influenced by [H]’s tender years and the need for him to develop a meaningful attachment to his father.
At this early stage, it was apparent to me that the parties had a volatile relationship with one another and their final separation had been an emotional and difficult one, which had produced a situation of gross instability for all concerned.
However, within this context, it is noteworthy to point out that neither party alluded to any previous drug taking or illegal behaviour on the part of the other in the affidavit material each filed in support of their respective positions at interim hearing.
The mother contended as follows:
·She had been the children’s primary carer;
·She wanted both children to have a “good relationship” with their father and see him regularly;
·She conceded that [J] already had a “good relationship” with his father;
·She was fearful that Mr Marino might “abduct” both children because he enjoyed joint Australian/Italian citizenship;
·She complained of being “bombarded” with text messages by the father, which she claimed were being sent in an attempt to coerce her into reconciling with Mr Marino;
·She conceded that she had been diagnosed with post-natal depression and deposed that she was fearful the father would use her condition as a pre-text to seek the full-time care of the children;
·She described Mr Marino as an emotional bully, whose behaviour had had implications for her self esteem;
·She deposed to a violent incident between herself and Mr Marino in April 2007, around about the time of the parties’ separation, when he had grabbed her by the throat and abused her;
·She conceded that she had also abused the father and had “lost control” of herself and threatened him with a knife.
The father’s position was that:
·The parties’ marriage had been happy until the mother developed severe post natal depression;
·He had been [J]’s primary carer and the parties had shared the care of [H] equally;
·He had concerns about the mother’s ability to care for the children due to her depression but otherwise he regarded her as a competent parent;
·He was in receipt of a disability support pension as a result of injuries sustained in a car accident in February of 1999;
·He denied having threatened or bullied the mother;
·He acknowledged that the marriage between the parties had recently been unhappy and the parties had argued as a consequence;
·However, it was his position that the mother had a propensity to become physically violent towards him and had done so on several occasions. The most serious of which had culminated in an attempt by her to attack him with a knife;
·He asserted that members of the wife’s family had been abusive and violent towards him at a birthday celebration for the children’s maternal grandmother held on 28 April 2007;
·It was his position that the mother had refused to allow him to see the children following separation;
·It is his case that he also received abusive and threatening text messages, either from Ms Marino directly or from others at her instigation;
·It was the father’s case that the mother’s behaviour towards him, following separation, had become increasingly erratic and involved her engaging in violent behaviour towards him;
·He asserted that at one stage the mother abandoned the care of both children to him but then violently reneged on the agreement reached.
One of the reasons for the delay in these proceedings being finalised concerns related to property proceedings between the parties. The pool of property available to be divided between the parties was modest. In such circumstances, both parties were anxious to avoid incurring unnecessary legal costs and were hopeful of reaching a settlement of the property issues.
This resolution took some time to achieve. In the meantime, on 23 August 2007, the parties agreed to commission an independent expert to prepare a family assessment in the matter. Ultimately, it was agreed that Ms Kerry Cavanagh, a psychologist, should prepare the necessary assessment.
Ms Cavanagh prepared her report in February 2008. She reported that [J] had been able to “spend a lot of time” with his father prior to the parties’ separation. Accordingly, in Ms Cavanagh’s view, the attachment between the two had developed “in a timely and proper fashion”.
On the other hand, Ms Cavanagh thought the attachment process between [H] and his father had been interrupted by the parties’ separation and the fact that [H] had not been able to see his father on a daily basis.
Ms Cavanagh observed Mr Marino with both children and was impressed with his ability to manage them, particularly his expertise in changing [H]’s nappy. She found [J] to be more settled in his father’s care than in his mother’s. From her observations of the children with the parties, Ms Cavanagh considered that the children had a good relationship both with each other and with each of their parents.
As a result of her observations of the children and her interviews with the parties, Ms Cavanagh recommended that there should be a gradual and incremental increase in the time both children spent with their father. In the period ending six months from the date of her report, Ms Cavanagh recommended that [J] and [H] should have two sleepovers each week with their father.
In February 2009, a period of twelve months from her report, Ms Cavanagh recommended that consideration be given to an equal time arrangement for the children. The benefits of this being that it was likely to provide more stability for the children and reduce the number of handovers between their parents.
From Mr Marino’s point of view, he is content to accept Ms Cavanagh’s recommendations. Twelve months have passed from the completion of her report. In Mr Marino’s contention, this period has passed without incident and it is now opportune to move to the regime recommended by Ms Cavanagh.
Ms Marino believes that it would be imprudent and precipitate for the court to adopt Ms Cavanagh’s recommendations at this stage, particularly given that both children are still not of school age and so remain highly vulnerable. It is also her case that Ms Cavanagh’s report is fatally flawed and, as such, no reliance should be placed upon it by the court.
The mother does not directly criticise Ms Cavanagh’s methodology for the alleged flaws in her report. Ms Marino concedes that the affidavit material on the court file, to which Ms Cavanagh had access, did not make reference to the concerns she now raises about Mr Marino. In addition, it is also the case that the mother did not raise her concerns specifically with Ms Cavanagh in interview.
In the light of how events have unfolded in the period since,
Mr Marino is suspicious of this omission on the mother’s part.
As previously indicated, he believes the mother’s various concerns about his past behaviour have been raised for tactical reasons, which are not related to a proper consideration of the children’s best interests, particularly the desirability of a shared parenting regime.
In her oral evidence, Ms Cavanagh indicated that she allowed her interviews with each of the parties to be free flowing so that both could raise any issues of concern to them directly with her. She further described Ms Marino as a person who was “highly articulate and [who] had a lot to say”.
Mr Marino seizes on this description in support of his contention that the mother had ample opportunity to raise her various concerns at an earlier stage of the proceedings. Although Ms Marino may have been stressed by the assessment process, he does not believe she is a person who is easily overawed.
The mother issued a subpoena, directed to the South Australian Police, on 4 April 2008, which required the production of all criminal antecedents and police incident reports relating to the Mr Marino.
The documents were produced to the court on 21 April 2008. It is the case that some of the documents produced by the police have been annexed to the wife’s principal trial affidavit, which was filed with the court on 20 May 2008.
This affidavit was filed in anticipation of the hearing of the parties competing applications, which was originally scheduled for 22 May 2008. The trial did not proceed. Accordingly, Ms Cavanagh was not aware of the contents of the mother’s affidavit, particularly the nature of the documents, which the police produced.
When appraised of the nature of these documents, Ms Cavanagh conceded that if she had known about allegations of drug trafficking; harassment and threats to another female; and possession of a firearm; these factors would have caused her to re-evaluate her recommendation of a shared care arrangement for [J] and [H].
It is on this basis that Mr Jordan, counsel for the mother, contends that Ms Cavanagh’s report and recommendations are fatally flawed and, as such, it is incumbent upon the court, in its pursuit of the children’s best interests, to recommission another expert to prepare a fresh family assessment in this matter, which can be directed, in part, to the possible implications of these issues, particularly the viability of a shared care regime.
Notwithstanding these recently raised issues, the parties were able to agree on a number of matters on 22 May 2008, particularly that they should have equal shared parental responsibility for [J] and [H]. More importantly, it was agreed that the children should have the additional weekly sleepover recommended by Ms Cavanagh, which was an intermediary step towards an equal time regime. Orders were also agreed upon regarding arrangements for special occasions, such as Father’s Day, Mother’s Day and Christmas.
The final hearing was rescheduled for early October. Unfortunately, Ms Cavanagh was interstate on the scheduled dates and the matter proceeded part-heard. In the meantime, the parties were able to resolve the property aspects of the case.
The resumption of the children’s aspect of the proceedings was listed for completion on 6 February 2009, when Ms Cavanagh was able to attend court for cross-examination. Neither party was greatly troubled by this delay. From the father’s perspective, February of 2009 was the date ear-marked by Ms Cavanagh for the inauguration of the equal time arrangement. In addition, the intermediary step recommended by her had taken place in May of the preceding year.
It is the father’s position that, in the almost two years since the parties separated, there has been a steady improvement in their facility to communicate with one another. Ms Marino agrees with this assessment to some extent. However, from her point of view, there remain many problems in the parties’ parenting relationship.
In addition, she has apparently been troubled by a recent incident, which acts as a further impediment to her acquiescing to any extension in the amount of time the children spend with their father.
On the basis of this incident, Ms Marino successfully applied to
re-open her case and lead further evidence. As I understand matters, she had not previously given Mr Marino notice of this application and the nature of the evidence involved.
Ms Marino deposed that in November of 2008 she had had a telephone conversation with Mr Marino about the fact that his home had been burgled. As a consequence, on the following day, he had advised her, via text message, that he would be unable to have the children, as his premises were unsecure.
The mother learnt of this burglary from the father alone. She was concerned about the extent of the damage to the father’s home and believes that it may be the result of some vendetta between the father and one of his criminal associates. She does not believe that it is the sort of incident which befalls “normal” citizens.
For his part, the father asserts that he was randomly burgled by a person or persons unknown to him and, as such, he is a victim of a serious but undirected and non-specific act of criminality, which could befall any householder in the area in which he lives.
A further issue has also arisen between the parties. The mother complains that [J] was given a cap gun by his father, which she asserts was specifically contrary to her direction to the father, who is well aware of her previous objections to such toys on the basis of the danger which they pose to children of the ages of [J] and [H].
The husband acknowledges that he did purchase the toy for [J], after being pestered by him for it. He asserts that he was unaware of the mother’s objection to cap guns but is prepared to abide by her strictures in regards to them in future.
These proceedings are directed towards resolving this complex dispute between the parties. When parents, who no longer live together, ask the court to determine where their child should live, it is the best interests of the child concerned which are paramount.[3]
[3] See Family Law Act at section 60CA
The legal principles applicable
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of [J] and [H]’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles of Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, specifically grandparents [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility [section 61DA(4)].
In this particular case, the parties have previously agreed that they should have equal shared parental responsibility for [J] and [H]. Neither wishes to revisit this agreement and, in all the circumstances of this case, I do not propose to look behind their agreement. However, it is the mother’s position that it would not be in the children’s best interests for what may legislatively follow from the presumption to be applied to the circumstances of the children in this case.
By application of the law, if the presumption applies, the court is required to consider firstly whether the children concerned should live with their parents for equal periods of time, provided this outcome is both likely to be in the children’s best interests and reasonably practical.
If the court rejects equal time, it is then required to consider the children living with each of their parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the children’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
In assessing the various considerations arising under section 60CC (2) & (3) the court is required to assess the degree of participation of the parents concerned in the lives of their children both before and after separation.
This assessment includes how much time and communication each parent has had with the children; the degree of their involvement in long-term decision making; and their fulfilment of financial obligations towards the children [section 60CC (4) & (4A)].
In addition, the court is also required to consider how the parents have each facilitated the involvement of the other in these aspects of their children’s lives. These considerations emphasise the benefits for children of effective co-parenting and the obligations on parents to facilitate it.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the child concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[4]
[4] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
The Evidence
The mother is the applicant in these proceedings, which she commenced on 17 May 2007. She relies on the following document:
i)one affidavit of herself filed 20 May 2008.
The father responded to the application on 27 June 2007. He relies on the following documents:
i)two affidavits of himself filed 14 May 2008 and 26 September 2008.
Besides the parties themselves, the only other witness who gave evidence before the court was Ms Cavanagh. Ms Cavanagh has been a psychologist in private practice in Adelaide since 1995. She holds a Master of Applied Psychology degree. She has been writing family assessment reports for this court and the Family Court over the past thirteen years, during which time she has produced many hundreds of reports.
As a result of her experience, Ms Cavanagh has extensive experience in interviewing and observing children and so assessing the nature of their parental relationships, particularly where there is a significant level of conflict between the parents concerned. Neither party challenged Ms Cavanagh’s expertise to give evidence in these proceedings, although as previously indicated, Mr Jordan contends that, for no fault of her own, Ms Cavanagh’s report is misconceived.
Ms Cavanagh had a significant advantage, over me, in this case. She was able to see the children interacting with each of their parents directly. Accordingly, her impressions of the children are based on an immediate and intimate experience, which I cannot share directly. Accordingly, in my view, her assessment of the fundamental nature of the relationship between each of the parties and their children must be given a high level of regard by the court.
Ms Marino seemed to me to be a strong and fairly determined person. I appreciate that she has suffered from depression in the past. At least in her presentation in court, there was no evidence of this and no indication that she was anything other than an articulate person, who was able to give free rein to the various issues which trouble her in the case and give a good account of herself.
This was the impression Ms Cavanagh also had of Ms Marino. Accordingly, it concerns me that she did not raise her significant criticisms of Mr Marino at an earlier stage and in particular directly with Ms Cavanagh, when I am satisfied that she had an ample opportunity to do so.
On this basis, I have some concerns that Ms Marino’s criticisms of
Mr Marino may be opportunistic and based on what she has subsequently learnt about him from subpoenaed records, rather than of her own direct experience of him gained during the parties’ relationship and subsequent marriage.
Mr Marino presented as a person who wanted to appear as reasonable and unexceptional as possible. He frequently said he wanted to focus on the children and their best interests rather than on his own past. He seemed wearied by and resigned to the mother’s criticisms of him.
The father undoubtedly does have a past. So does the mother. It is not my function to pass moral judgment on either of the parties for their past behaviour, either criminal or otherwise. Rather, my function is to assess the implications of that behaviour for the care of the two children concerned and the ongoing maintenance of their best interests.
My impression is that the father could see no great utility and perhaps much harm in the parties examining various aspects of their past lives. Perhaps this was also the initial attitude of the mother, who in her initiating application stressed her wish that both children should have as good a relationship with their father as possible and indicated that [J] already enjoyed such a relationship.
Accordingly, at this early stage, the mother could see some good in the father’s relationship with the two children concerned. For his part,
Mr Marino also stressed that Ms Marino was a good mother, apart from his initial concerns about her depression and the volatility of her behaviour at separation. However he, like the mother of him, was unable to refrain from some level of attack on the mother’s antecedents.
It is my view that both parties deeply love the two children concerned and accordingly, as a result of their respective level of devotion, both have much to offer the children in future, regardless of any past failings. Indeed both parties concede that this is the case. Regardless of the ultimate outcome in this case, both will continue to be significantly involved in the care of [J] and [H]. What is at issue between them is the temporal mechanics of the necessary arrangements to bring this about.
It remains the situation, as it did at the initial interim hearing, that both parties are jockeying for advantage over the other. In such circumstances, each will use whatever means is to hand to gain some advantage over the other. In this case, both parties have followed the natural human tendency, particularly in vitriolic and adversarial proceedings such as these, to emphasise the past failings of the other and minimise his or her own.
In my view, it is a telling factor that most of the past failings of
Mr Marino, on which Ms Marino wishes to place significant emphasis, occurred prior to the births of both of the children involved and indeed prior to the parties’ marriage.
It is also the case that Ms Marino was prepared to entrust [J] to the father’s care, in the past, whilst she was at work. In addition, she is unable to point to any specific incidents, which have occurred since the interim orders of June of 2007, in which she alleges the children have been subjected to any act of omission, whilst in the father’s care.
Mr Jordan, counsel for the mother, sums up his client’s case with the aphorism “where there is smoke, there’s fire”. The smoke being the father’s prior convictions of August 2002 and his alleged previous interaction with Ms W.
However, to extend the metaphor, in my estimation, during the recently concluded hearing, Ms Marino has been unable to point her finger at any recent incendiary behaviour, on Mr Marino’s part, which is likely to burn these two children. Rather, in my estimation, her case is one based on innuendo and suspicion.
Mr Marino was skilfully and extensively cross examined by Mr Jordan about his prior criminal history. I did not find all of his explanations for his prior misconduct to be entirely satisfactory. However, I suspect that both parties have been involved in past conduct, which is to neither of their credit. However, as previously stated, I do not doubt for a moment the strength of their feelings for [J] and [H].
As a result of the level of complexity, which invariably arises in family law cases, it is often fatuous for the court to decide cases involving children, on the basis of findings of credit relating to the parties themselves – that is the court believing one parent over the other. In effect determining one is truthful and the other not. That is often a simplistic reduction.
It is, I think, becoming increasingly recognised that it is difficult, if not impossible, for courts to make findings of fact about myriad issues, which have arisen over many years, through the imperfect tool of assessing evidence provided in the artificial (and to many intimidating) confines of the witness box and through the reading of formal and often professionally prepared affidavits.
In addition, given the importance for children of their parents maintaining at least the possibility of having a functioning parental relationship with one another, following court proceedings, the court should avoid making potentially hurtful findings of fact, wherever possible, which may unwittingly be damaging to the parties’ future parental relationships, unless it is absolutely necessary to do so.
For all these reasons, the court must be cautious about making findings of fact. However, imperfect though it may be, the process still requires an adjudication, which adjudication can only be made on the basis of the evidence presented before the court. Necessarily therefore, the court must form some impression of the parties and the witnesses involved, so that this adjudication can occur.
In my assessment, both the father and the mother were basically honest witnesses in respect of the central issues in this case – the nature of the children’s relationship with each of their parents. The father honestly believes that the children’s best interests will be served if they live with each of their parents on an equal time basis. The mother’s preference is that the two children should live more with her than the father, but should still see him regularly.
Necessarily how time is divided between parents, in respect of provision of care for their children, will frequently be a matter of extreme controversy. It would be disingenuous to suggest anything other than that very often this level of controversy has a financial aspect to it. In my view, I believe that I must be careful to place this controversy in a proper context and focus on the situation of the children now rather than on that of their parents in the past.
For all these reasons, I believe I must be cautious about making any finding that one parties’ evidence is to be automatically preferred over the other. Rather I must look carefully at all the evidence available to me to determine what is the best outcome for [J] and [H] from these proceedings, within the framework of the applicable legal principles. Certainly this process is not directed to achieving a personal sense of vindication for either the father or mother in respect of any past behaviour.
In these reasons for judgment, findings are made on the balance of probabilities following my observations of each of the witnesses concerned. In what follows, statements of fact constitute findings of fact.
a) Events before separation
The father was born in [F], Italy in February 1961. The mother was born in [M], South Australia in October 1980. They married in April 2005, some months prior to [J]’s birth.
There is considerable controversy between the parties as to the date on which they commenced their relationship and the circumstances of it. The mother’s case is that she was working in the sex industry from September of 2001 and met the father, through her work, a short time later.
At the time, Ms Marino was around twenty years of age. It is her case that she had been using illicit drugs since the age of eighteen. Accordingly, there is no substance to any suggestion that Mr Marino sold her drugs whilst she was under age.
It is the father’s case that the mother moved into his home in 2002, as his tenant. Shortly afterwards, they commenced a sexual relationship with one another but did not commence a more committed de facto relationship until some time in 2004.
It is the father’s case that the mother was working as a sex worker, whilst she was his tenant but he did not pay her money to have sex with him. It is his case that both he and Ms Marino used marijuana and amphetamines from time to time. He denies the mother’s allegation that he was the source of her supplies of the drug or was indeed a drug trafficker.
It is difficult for me to assess the nature of the relationship between the parties in these early years. Although the mother was young at the time, I think it unlikely that she can be described as an “innocent abroad”. In addition, I do not think that it is likely that the father’s lifestyle at this time was not without its sinister aspects. I suspect both parties moved, from time to time, within an unsavoury demi-monde largely unconducive to the proper care of young children.
It is the mother’s case that she quickly decided to cease her drug use but the father did not. On the other hand, it is the father’s case that it was his influence and support, which assisted the mother to become abstinent from drugs. The father deposes that both he and Ms Marino mutually decided to “improve” their lifestyle, once they decided to live together.
In my view, it is noteworthy that the mother indicates that Mr Marino stopped his cocaine, speed and ecstasy use in April and May of 2002, whilst she stopped taking any sort of illegal drugs in February of 2002.[5] Thereafter, she asserts that Mr Marino regularly smoked marijuana, something which she did not.
[5] See mother’s affidavit at paragraph 98-99
It is the father’s position that he has stopped using all “heavy drugs” although he concedes some occasional social marijuana use but denies ever having used the drug or any other illicit drug whilst the children have been in his care.[6]
[6] See father’s affidavit filed 14 May 2008 at paragraph 30-31
The father does not allege any present drug use, on the mother’s part. It is an essential part of the mother’s case that she is fearful that
Mr Marino is understating his current drug use and because of what she asserts is his long term use, there is always the possibility he will relapse into serious and protracted drug use, involving the sale of drugs and resultant association with criminal and dangerous elements.
Apart from the mother’s assertion of this fact, there is no independent corroboration of this aspect of the mother’s case. In particular, in my view, it is telling that the mother did not raise this specific issue with Ms Cavanagh. Certainly, Ms Cavanagh did not see anything untoward in the father’s behaviour or presentation during either his interview with Ms Cavanagh or his observed interaction with the two children concerned.
In this regard, I note that that Ms Cavanagh’s report can only be regarded as a brief “snap shot” in time and it is only to be expected that Mr Marino would go to some lengths to present himself in the best possible light. On the other hand, I would expect the mother, a forthright person, to raise these issues during the family report process.
b) The father’s past convictions
A significant component of the hearing time on 1 October 2008 was devoted to an examination of the father’s most recent prior convictions. The offences to which the convictions relate occurred on 26 August 2001, over seven years ago now and, on the mother’s case, prior to the time the parties met.
The father’s case is that the mother moved into his house in 2002.[7] However, in his oral evidence, he stated that the amphetamines and ecstasy located by the police, in August 2001, belonged to both him and the mother and had been obtained from the mother’s brother. Given the time which has elapsed it may be the case that the father has no exact recollection as to when the parties began to share the same premises.
[7] See father’s Affidavit filed 14 May 2008 at para.17
The précis of the police case is that, acting on information received, officers attended at the father’s home in order to search for a concealed firearm and ammunition. A rifle was found concealed in a lounge room suite and some ammunition was found in a nearby bookcase. The police material indicates that the firearm was later found to be stolen. The mother is gravely concerned at this revelation.
At the same time, police found seven ecstasy tablets in a plastic container in a refrigerator in the kitchen and a small bag of amphetamines on the kitchen table. Some loose cannabis leaf and a pipe were also found. In addition, the police found seven cannabis plants growing in an adjoining bedroom. The plants were being artificially lit and fed hydroponically.
It is the mother’s case that, taken together, the existence of these various items is indicative of a serious level of criminality on the father’s part. The police material also indicates that the informant concerned indicated to police he was fearful of the father because of his ability to access a concealed firearm. Apparently, the person concerned indicated that he wished to obtain some property from the father but was fearful to visit his home because of the existence of this weapon.
It is the mother’s case that the father was evasive to her about the precise reason he had to attend court following this incident. She also points to the fact that the father was not forthcoming about the incident and it only came to the surface as a result of the subpoena issued on her behalf. She denies any suggestion that she was involved in the possession of the ecstasy and amphetamines but at the time in question concedes that she had used both of these drugs.
The father’s explanation for having the firearm in question was that he found it at the Woodville Railway Station and picked it up out of curiosity. Thereafter he deposed that he did not hand it in to the police because of the “trouble” its possession might bring to him. So far as the ammunition is concerned the father deposed that it belonged to his father and was unrelated to the pump action .22 rifle.
Neither of these explanations is particularly compelling. In addition the concealment of the firearm is concerning. However, in my view, there is nothing specific to connect the father directly to any criminal activities of the more serious kind, such as crimes of extreme violence or the trafficking of large quantities of drugs, which would render him liable to prosecution in the superior courts. Certainly, he has no convictions for crimes of serious violence or in respect of drug trafficking.
In terms of the cannabis plants, the father deposed that they were small in size and were being grown for his own personal use. The resulting charges against Mr Marino were dealt with in the Port Adelaide Magistrates Court on 23 August 2002. He was convicted of possessing a firearm whilst unlicensed; failing to keep a firearm properly secured; failing to store ammunition in a locked container; unlawful possession; and the production of cannabis. He was convicted of each of these offences and fined a total sum of $1,200.00.
The father has not been convicted of any offences in the period since. He denies that any charges are pending against him. It is his case that he has not been in trouble with the police for a period of eight years and has not been involved with any criminal activity.
On the basis of the evidence before me, I am unable to conclude, on the balance of probabilities, that the father is lying about these matters. The mother’s suspicions to the contrary are not sufficiently compelling for me to form another view in this regard, particularly given the polarised circumstances of the parties at the present time.
The father’s prior convictions do him no credit. However, he did not receive a custodial sentence. The offences in question occurred several years ago now, whilst the father was self admittedly using illicit drugs, as was the mother herself. His other criminal convictions are older and of less significance. As such I am unable to conclude that he is a career criminal.
In my view, these convictions alone should not act as a bar to the children and the father having an extensive and meaningful relationship with one another. Rather, the emphasis for the court should be on the potential for any aspect of the father’s future behaviour to adversely impact upon the two children concerned.
The mother is highly suspicious about Mr Marino. Suspicions which have been re-kindled by her perusal of his criminal record. I have to make some assessment of the validity of the mother’s suspicions regarding Mr Marino, which are not borne out by any recent behaviour on his part, which she has directly observed and which cannot be supported by any extrinsic evidentiary sources.
In this context, the recent burglary at Mr Marino’s home is relevant. The mother learnt about this break in because the father told her about it. He did so because he adjudged the children might be frightened by seeing broken locks and smashed windows at his home.
I do not think that he can be criticised for being so solicitous about their feelings. Certainly, Mr Marino has gone to no effort to conceal the incident from Ms Marino, which one would suspect he would have done, if the incident had been more sinisterly motivated.
The mother complains about the extent of the damage apparently done to the property. The father deposed that a brick or rock had been used to break a window to gain entry and the intruders had then broken a lock on the attic door and broken another lock to leave the premises.
Mr Marino deposed that he has reported the incident to the police. He regards the matter as being a wanton and non-specifically directed episode of criminality. I am not prepared to conjecture otherwise about the motivation for the burglary.
I do not doubt the level of the mother’s apprehension but am concerned that she has again seized on this incident in an attempt to advance her position in her struggle with the father. In all the circumstances of this case, I am not prepared to advance the significance of the break in, about which the father has given a reasonable and plausible explanation, through the process of cumulative innuendo advocated by the mother.
c) The father and Ms W
The father has been married twice previously. The mother has no personal knowledge of the nature of these relationships. Ms Marino; as far as I know, has never met Ms W. However, it is her understanding that the father and Ms W were involved in a de‑facto relationship, with one another, prior to her becoming involved with Mr Marino.
Mr Marino denies that he was in such a relationship with Ms W. He denies that she was ever her girlfriend. Rather, he describes her as a “pest”, who for some reason was intent on making his life difficult. He confirms that she applied for a Domestic Violence Restraining Order against him, which was apparently confirmed by the Port Adelaide Magistrates Court on 7 September 2001.
It was Mr Marino’s case that, if Ms W had not applied for the order in question, he would have applied for such an order against her and was otherwise content for there to be some mechanism to prevent him coming into direct contact with Ms W and vice versa.
The documents upon which the mother relies to support her concerns, arising from the father’s relationship with Ms W, are a series of police incident reports dating from early September 2001. The reports are written in police jargon and were not prepared in anticipation that they might be produced in court.
In the main, the reports deal with complaints that Mr Marino had been harassing and threatening Ms W through a series of highly offensive text messages. Mr Marino denies sending the messages in question.
The reports apparently also include what appears to be police intelligence about Mr Marino, which describe him as a drug dealer. It is unclear to me what is the source of this intelligence. Needless to say Mr Marino denies that it is accurate.
The material concerned has the potential to be highly prejudicial to
Mr Marino but the fact remains that he was never charged with any offence arising out of these complaints and Ms W herself was not called to give evidence in these proceedings. In addition, the police documents concede that it is unknown whether or not Mr Marino is the originator of the complained of text messages.
Mr Jordan is correct to categorise this source of evidence as producing smoke but given its disputed content; its age; and generally nebulous nature; I did not find it helpful in the overall resolution of this case. The subpoena which compelled its production was not specifically directed towards information concerning Ms W. The impression I have is that the material came to light as a result of a fishing expedition on the wife’s part and on which she has now seized to advance her case.
d)Other matters
Neither party has an extensive educational background. The father has experience in retail and as a hospital orderly. His last employment was as a self employed deliverer of spring water. It is his case that he severely injured his back in a motor vehicle in February 1999, whilst he was working.
At the time, he did not have appropriate insurance and so was not entitled to workers compensation payments. It is his case that he was assessed as being entitled to a disability pension from 24 July 2002 onward and this has been his source of income in the period since.
The mother’s case is that Mr Marino is a malingerer. Apart from her assertion of this fact, she has provided no compelling evidence in support of her position. Rather she asserts that her observations of
Mr Marino are of a fit and healthy person, who has an aversion to work.
Mr Marino himself has not supplied any medical material. He merely states he is an invalid pensioner but gives no specifics of his physical limitations. As such, I am not able to definitively resolve this issue. However, it is not suggested that Mr Marino’s current level of disability should act as an impediment to him spending time with the two children and being significantly involved in their care.
Both parties are generally dismissive and disapproving of the background of the other. Both assert that the other has had unfortunate associations in the past. I suspect that these mutually proffered slurs, against the other’s character, have increased the intensity of the recriminations between them.
A significant proportion of each of the party’s affidavit material deals with their respective attacks on the character of the other and his or her family. This was the focus of much of each of their respective cases, rather than on specific information about how the children have been parented, both before the parties’ separation and afterwards. What information has been provided by the parties about parenting issues is contradictory.
It is common ground that the mother was the family’s main income provider during the marriage. She took four months maternity leave after the birth of each child. Notwithstanding her involvement in the workforce, it is her case that she provided the overwhelming majority of the care for both children. The father does not agree.
However, the mother concedes that, when she returned to work,
Mr Marino “looked after [J] … [and] did a good job in looking after [him]”.[8] In these circumstances, it seems to me likely that Mr Marino did play a greater role in caring for [J] than the mother is now prepared to accept.
[8] See mother’s affidavit at paragraph 287–288
It is also the case that the mother suffered post natal depression following the birth of [H]. It is her case that Mr Marino was generally unsupportive of her during this period. However, she also concedes that Mr Marino very often took [J] out, during the day, during this period so that she and [H] could get some rest.
My impression, at the interim stage, was that Mr Marino had a different level of relationship with the two children at separation. This remains my view, after having considered all the evidence at final hearing. [H] was very young when the parties separated. Necessarily responsibility for his care devolved onto the mother, whilst responsibility for [J]’s care fell more and more onto the father.
However, I do not think it can be said that Mr Marino was a disinterested father in respect of either child. Rather, he was a committed and competent parent, who played a very active role so far as [J] was concerned. Certainly, the mother was prepared to entrust [J] to Mr Marino’s care, whilst she was at work and she has no specific complaints about the standard of care he provided for him.
It is Mr Marino’s position that Ms Marino was (and presumably still is) a good mother. However, he asserts that when she was ill with depression her parenting skills deteriorated. For her part, the mother acknowledges that she had trouble looking after the children, during this period. This must have been a very difficult period for the parties, which culminated in their separation. There were also other additional financial stressors, in the parties’ marriage, at the time.
Given all these factors, it is not surprising that there was a very high level of friction between the parties in the period both before and immediately after their separation. This friction led to physical altercations between them. It seems to me highly likely that both of the parties behaved badly around this time. In addition, after separation, they were also jockeying for advantage, over the other, in respect of who should have pre-eminent responsibility for the two children concerned.
The mother acknowledges that she did draw a knife on the father around about the time of the parties’ separation. She denies throwing a brick and punching him in the head. She describes herself as a “placid” person, and the father as “almost volcanic”. I suspect that both assessments are somewhat overblown. The impression I have is that the relationship between the parties was frequently a turbulent one and both contributed in equal measure to this turbulence.
Both parties complain that, following separation, the other subjected him or her to offensive text messages. It is also the father’s case that members of the mother’s family became aggressively involved with him, following separation. Regardless of this level of difficulty, which I find to be mutually created, neither party saw fit to obtain a domestic violence restraining order against the other.
e)Events since separation
It would be a gross misrepresentation to assert that the parties currently have a respectful and empathetic relationship with one another. As is evident from these reasons for judgment, the tenor of much of each parties’ case is an attack on the moral character and antecedents of the other.
The mother asserts that the father has called her a number of highly derogatory names. She also concedes that she herself has used similar epithets towards the father. In my estimation, from time to time, both parties are more than capable of re-igniting the areas of disputation between them.
Obviously, these are not helpful indications for any shared parenting regime. However, the mother acknowledges that things have improved somewhat between the parties. It is her case that there have been no arguments in front of the children in recent times. In addition, the parties have been able to exchange clothes between them without difficulty – something which did not occur in the past.
In addition, in her oral evidence in October, Ms Marino conceded that both children are healthy and are eating well. She also concedes that [J] separates well at handovers and both children are generally resilient.
Overall, Ms Marino concedes that the parties are now talking directly with one another and are able to exchange information either face to face or through text messages. They have apparently agreed to dispense with a communication book.
However, Ms Marino asserts that she continues to hold the father in low regard. Something she says “may or may not change”. She is fearful that Mr Marino will not be supportive of her role as the children’s mother. For his part, Mr Marino is fearful that the mother will always wish to maintain the upper hand, so far as the parenting of the children is concerned.
Ms Marino concedes that her “heart is not in shared parenting”. This is obviously the case from the stance she has adopted in these proceedings. She does however concede that, given Mr Marino’s desire for shared parenting, it is the likely outcome in the long term. One of the central questions in this case is whether Ms Marino’s opposition to shared parenting stems more from her antipathy for Mr Marino or her valid concerns for the children. I suspect it is a mixture of both.
The impression I have is that the parties’ relationship with one another remains full of potential points of friction, which can easily turn into flashpoints. There have been arguments about who should be responsible for having the children immunised and who should hold their health records. In January of 2008, the father claims that the mother assaulted him, when he indicated that one of the children needed a nappy change.
The mother has complained that the father has been providing the children with coke and strawberry milkshakes. As has earlier been indicated, she objects to the father providing [J] with a cap gun. In general terms, she asserts that the father lacks proper “insight” into the needs of the children.
The father says he was beguiled by [J] into the purchase of the cap gun, which is much safer than the sorts of cap guns to which he had access in the 1960’s, when he was a child. He denies feeding the children with coke and milkshakes. He launches his own attacks on the mother for feeding the children too frequently with fast food from McDonalds, Hungry Jacks and the like.
Issues of this kind are staples in vitriolic disputes between parents, particularly when the exact division of parenting time between them is such a hot issue. However, since June of 2007, there has been a marked degree of progress in the consensual resolution of various parenting issues between them.
For example, the parties have agreed on the legislatively mandated optimal arrangement for the division of parenting responsibility between them for [J] and [H]. In addition, the mother has agreed on an extension of time for the father to spend with the two children. Finally, they have been able to negotiate arrangements for special occasions involving [J] and [H] and have laid down guidelines for the exchange of information between them regarding the children’s education and medical treatment.
In her affidavit, the mother acknowledges that it is highly likely, at some stage in the future, the children will be cared for in an equal time regime. In this regard, I suspect she realises that Mr Marino is unlikely to resile from such an outcome. However, from her point of view, the present time is not the appropriate demarcation point for such a change in care arrangements. In my view, this is the real dispute between the parties.
The mother lives in comfortable rented accommodation in [O]. There is no suggestion other than that this is appropriate accommodation for the two children. Ms Marino, until recently, was working as a [omitted]. She is likely to resume employment shortly. She usually works four days per week and when the children are not with their father she utilises day care or obtains the assistance of her mother to care for them.
The father lives in rented accommodation in [R], which is around five kilometres away from [O].[9] Again, there is no suggestion that the father’s home does not provide appropriate accommodation for the two children. From Mr Marino’s perspective, it would be preferable that the two children are cared for by a parent, whilst the mother is at work, rather than by child care. Ms Marino can see many benefits of the children being able to interact with children of their own ages and to spend time with their maternal grandmother.
[9] By way of example, the two suburbs are on the same page of the Adelaide Street Directory
Other issues arise between the parties in respect of hygiene issues to do with the children. Ms Marino asserts that the children often are returned to her in a “grubby” state. For his part, the father asserts that the mother has been lax in [J]’s toilet training and has not taught him how to use a toothbrush properly.
Financial issues are also a major bone of contention between the parties. Ms Marino was earning about $850.00 gross per week. Due to his receipt of social security, Mr Marino was assessed to pay her the statutory minimum amount of child support. As previously indicated, Ms Marino’s position is that the father’s alleged incapacities do not markedly impinge upon his physical capacity to work. In these circumstances, it is only to be expected that she would be somewhat resentful about the current financial arrangements.
Accordingly, the parties’ relationship is not an easy one. Rather, it is one marked by all sorts of suspicions and mutual animosity. Against this background, the father has consistently pushed for a shared care arrangement. The mother has resisted such an outcome but has been prepared to make some concessions.
Both parties seem to concede that they behaved poorly around the time of their separation and each acknowledges that there has been some amelioration in their relationship in the almost two years which has passed since. It is against this background that Ms Cavanagh’s report must be considered.
f)The family assessment
Ms Cavanagh spent around five hours, spread over five days in January and February of 2008 in her professional rooms, with the parties and their two children. Accordingly, as she herself conceded, her view of the family was a brief one, which occurred in somewhat artificial circumstances.
For obvious reasons, both parties would have been at pains to give Ms Cavanagh the best possible impression of themselves and their respective relationships with each of the children. In this regard,
Ms Marino believes that the father has gulled Ms Cavanagh, to some degree, particularly about the warmth and depth of his extended family.
Ms Cavanagh’s report of the interviews, which she conducted with
Mr Marino and Ms Marino, indicate that each parent had a generally jaundiced view of the other and his or her level of insight into the responsibilities of being a parent. Accordingly, Ms Cavanagh was well aware of the depth of the parties’ mutual animosity for one another.
A state of affairs which was no doubt reinforced by Ms Cavanagh’s reading of the interim affidavit material.
For reasons already provided, it seems noteworthy that Ms Marino did not raise her concerns about the father’s alleged criminal record and attitude towards women with Ms Cavanagh. It may be that she did not know, in any great detail, what the subpoenaed documents would subsequently reveal. In such circumstances, it seems to me that she has “upped the ante” when this material came to hand.
In these circumstances, I do not think that Ms Cavanagh’s report can be said to be fatally flawed. In my view, she did what was required of her, which was to assess the nature of the relationship between each of the children concerned and their parents. In so doing, she was well aware of the level of tension between them. In addition, in my view, it was not her role to attempt to resolve factual issues in dispute between the parties.
Ms Cavanagh concedes that if she had known Mr Marino was a convicted criminal, who had a derogatory attitude towards women, it may have caused her to change her assessment in the matter. Any expert worth his or her salt should be prepared to concede, in the event of new evidence becoming available, that he or she would re-assess any opinion previously proffered. Quite properly, Ms Cavanagh made that concession. However, in my view, that concession does not effect the validity of her observations of the two children concerned.
In my view, a more telling criticism of her observations is that they were brief in nature and artificial in their circumstances. However, notwithstanding this criticism, Ms Cavanagh’s observations are the only impartial view of [J] and [H] and the respective parenting skills of the two parties concerned. In these circumstances, I believe I should be chary of too easily dismissing her opinion.
Ms Cavanagh’s opinion can be easily summarised. She thought both children had a good relationship with each of their parent and indeed with his sibling. In these circumstances, she considered that both parents had much to offer the two children concerned. Accordingly, she was generally in favour of a shared parenting regime in this particular case.
Ms Cavanagh was impressed with how the father dealt with [J]’s somewhat fractious behaviour. She formed the view that both parties were capable parents. The children appeared to her to be well cared for and she noted that neither party made any allegation of serious neglect.
It was also Ms Cavanagh’s understanding, which the parties confirmed, that handovers between the parties had become easier over time. This was another factor, which persuaded her that a shared care arrangement would be viable in this particular case.
Ms Cavanagh noted that both parties have alleged that the other had been violent in the past. In general terms, Ms Cavanagh considered that this violence had been mutual and was situational in nature, relating as it did to the period around the parties’ separation. It did not cause her to reappraise her recommendation.
Determining [J] and [H]’s best interests – section 60CC
a) The primary considerations
The applicable legislation places two considerations in a position of pre‑eminence – the need to protect the children concerned from harm, as a result of exposure to abuse, neglect and family violence; and the benefits of them having a meaningful relationship with each of their parents.
The rationale of the amended provisions of Part VII of the Family Law Act is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care [see Goode & Goode (2006) FLC 93-286 at 80,901].
The children in this case are both young – [J] is three years and seven months; [H] is just over two years. Necessarily the children’s relationships with each of their parents is not as yet fully formed, rather they are works in progress. The years of early childhood are fundamental for the development of parental relationships, which are likely to be central in determining how individuals develop into maturity.
Since June of 2007, Mr Marino has been spending time with both children regularly. This time has been extended to include overnight time. Accordingly, Mr Marino has been tending to the children’s needs in a variety of settings, including at night, the time when young children are most likely to be at their most anxious and unsettled.
It is also the case that Mr Marino has regularly fed the children and attended to their routine hygiene needs. As a result, the relationship between him and the children is based on a matrix of practical responsibilities and obligations, as well as emotional ties. As such, I am satisfied that [J] and [H] know that they only have one father and he is a father who looks out and cares for them.
Accordingly, it is clear that Mr Marino has been integrally involved in providing for both children, in a variety of ways, for a considerable period of time. Certainly when that time is compared to the life span of the children to date. The children know their father well and I have no doubt that they love him.
The same is true of the mother. Ms Cavanagh’s view is that the children are comfortable in the care of each of their parents. Accordingly, it seems likely that both children will benefit, if their parents continue to play as large a role as possible in their ongoing care and parenting, notwithstanding their parents’ now separated status.
Just as the children love their parents, so I am satisfied that both
Mr Marino and Ms Marino fervently love [J] and [H]. Accordingly, there is an emotional closeness and dependence between the children and each of their parents. This emotional closeness, is in my view, the bedrock on which meaning is based in child/parent relationships.
The parties are different people in background and temperament. Necessarily they bring different attributes to the parenting of [J] and [H]. I agree with Ms Cavanagh that this difference in personality will bring meaning to the relationship between [J] and [H] on the one hand and their parents on the other. The children will gain different benefits from their parents.
At a fundamental level, [J] and [H] are the products of the physical union between their parents. Within [J] and [H] is genetic material derived from both Mr Marino and Ms Marino. In the every day mystery of this biological alchemy, the children will have derived characteristics and attributes from each of their parents. This biological nexus also gives meaning to the parent/child relationship. It is fundamental to personal identity that children know their progenitors.
I am satisfied that both parents aspire to parent their children in a constructive fashion. Mr Marino has made no secret of the fact that he wants to play as large a role as possible, in all aspects of [J] and [H]’s lives, as they grow to maturity. The same, no doubt, is true of
Ms Marino. Accordingly, I am satisfied that both children will have benefit, in a positive sense, from having as meaningful a relationship as possible with each of their parents.
There continues to be a significant level of friction between the parties. Each has described some manifestations of emotional insecurity, in the children, at handover. [H] is said by his mother to be “clingy”. [J] separates better but at times has been reluctant to leave his father’s care. Both parties describe [J] as having been “rude” on these occasions.
However, apart from these manifestations, there is no indication to indicate anything other than that the children are thriving. Certainly
Ms Cavanagh did not observe any contrary indications to the children’s physical and emotional wellbeing.
In P & P[10] I pointed out that the practical underpinning of how a relationship for a child with one or either of his parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DAA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned.
[10] P & P [2006] FMCAfam 518 at paragraphs 256-258
The rationale of the section appears to be that children benefit, in both emotional and developmental since from being able to interact with their parents in a variety of settings. The aim being to provide a child with a more balanced and so richer relationship with the parents concerned. The aim being to avoid the compartmentalisation of a parent into either a “good time/contact” parent, as opposed to a “nuts and bolts care providing parent”.
In the bigger picture, Ms Marino has indicated that she regards it as inevitable that both children will spend equal periods of time with their parents in future. Accordingly, although both parties come off a small base, I consider that, as time unfolds, they will each be able to facilitate the other being involved in the lives of the two children concerned.
d)The likely effect on the children in any change of their circumstances
From the father’s perspective, the children have adapted well to the change inaugurated with the extension of time in May of 2008. On that basis, he asserts that there is no reason to suggest that [J] and [H] will not cope with a move to the three/four day rotating regime, which he advocates until [H] starts school.
On the other hand, it is the mother’s position that the change propounded by the father represents an unwarranted and rash experiment, at this stage. She proposes a cautious maintenance of the status quo, until at least some further investigation through another family assessment report has occurred.
For the reasons already provided, I do not accept that Ms Cavanagh’s report is fatally flawed. She reported on the relationships of the children with their parents, as she assessed them in early 2008. At that stage, the children were doing well. The mother, in my view, is not in a position to assert that the changed regime, to which she agreed following Ms Cavanagh’s report, has proved detrimental to either [J] or [H].
Mr Marino has been a constant feature of both children’s lives since the parties’ separation. They are both accustomed to being regularly exchanged between their parents every few days or so. Given this state of affairs, I have no reason to believe anything other than that [J] and [H] will accommodate the change of regime which Mr Marino proposes.
In addition, one of the benefits of the new regime, which Ms Cavanagh also advocates, is that it will reduce the number of handovers between the parties. I think this is likely to be a good thing. In addition I do not think that the division of the week, proposed by Mr Marino, is likely to be stressful for the children, who can be reassured that they will be seeing their other parent in a fairly short period of time.
e)The practical difficulties and the expense of the children spending time and communicating with each of their parents
The parties live fairly close together in suburban Adelaide. They both have access to motor vehicles. Up to this stage, both children have been able to see each of their parents regularly.
I will deal with the emotional landscape of the parties’ relationship shortly and the implications of this topography for them being able to implement successfully a shared parenting regime. This is likely to be far more significant than the location of their respective homes.
f)The capacity of the parties to provide for the children’s emotional, educational and other needs
It is the mother’s case that the father’s attitude and outlook on life represents a threat to the ongoing wellbeing of [J] and [H]. In particular, she believes that he represents a poor role model for the children and is likely to be lead them into a life of crime. I do not believe that the evidence before me is sufficient to enable me to reach such a conclusion.
Both children are of tender years. As such, not a great deal of time was spent in the case examining the parties’ future plans for the children’s education. Both the father and the mother left school early. In the overall circumstances of this case, I have no reason to think anything other than that both parties hold the normal and natural parental aspirations that their children progress as well as possible at school and achieve their full potential.
Both parties are generally critical of the other’s parenting skills, particularly in respect of attending to the children’s routine hygiene needs and providing them with a healthy diet, which is not overly dependent on takeaway meals. In my view, there is no cogent evidence to indicate that either of the parties is a negligent parent. Rather, Ms Cavanagh believes that both children are progressing well.
Overall, I consider that both parties are capable of providing for the children’s emotional needs, although perhaps in different ways. I have no doubt that both Mr Marino and Ms Marino love [J] and [H] and are capable of expressing that love appropriately. Certainly, Ms Cavanagh noted nothing untoward in respect of her observations of the children interacting with their parents.
g) The children’s maturity, sex, lifestyle and background
Issues to do with cultural orientation, lifestyle and background were not raised by the parties in this case. Issues to do with the children’s maturity were. In essence, it is the mother’s position that “one size” does not necessarily fit every family. As such, caution is warranted in applying the provisions of section 65DAA to the case. Essentially, the ages of the children militate against a shared parenting regime.
At the interim hearing stage, issues relating to who of the parties had been the “primary carer” of the two children concerned, given their tender years, were much in controversy. With the passage of time, the level of controversy has receded somewhat. The mother concedes that a shared care regime is the likely outcome in this case but the children, particularly [H], are too young to cope with the implementation of such a regime at this stage.
The children are young. However, my impression is that they are reasonably robust children. Certainly, up to this stage, they have had to accommodate regular changes of carer. In addition, it is clearly the case that Mr Marino has been significantly involved in the care of both children from the earliest stages.
In general terms, Ms Cavanagh does not counsel against the court applying what is legislatively mandated by the presumption of equal shared parental responsibility – an equal time regime – notwithstanding the ages of the children concerned, provided there was some stepping stone before its implementation. Since May of 2008, the children have been spending two overnight periods per week with their father. In these circumstances, I do not consider the children’s ages alone should be a bar to the three/four day rotating arrangement recommended by Ms Cavanagh from February 2009 onwards.
For obvious reasons, issues to do with nurture and care, must be relevant to the issue of whether a shared care arrangement is likely to be in a child’s best interests. Simple circumstances of biology may rule out such an option, particularly in respect of babies.
However, the legislation concerned does not provide specific guidelines as to what age is appropriate for the implementation of an equal time regime or even a substantial and significant time regime. Rather, the court must bear in mind all the circumstances of the case concerned in its application of what has been described as “the legislative pathway”[17], provided by Part VII of the Family Law Act.
[17] See Stuart & Stuart [2008] FMCAfam 177 at paragraph 44
For the reasons provided, I am satisfied that the overall circumstances of this case do not indicate that the ages of the children specifically should militate against the inauguration of an equal time regime. Essentially, I do not think that to impose such a regime would represent an unwarranted “leap into the dark” so far as the best interests of [J] and [H] are concerned.
h)Aboriginality
This is not a relevant consideration.
i)The attitude that each parent has demonstrated to the responsibilities of being a parent
The parties are separated by an age gap of around twenty years.
As such, they bring different skills and life experiences to the tasks and duties needed to be a good parent. As such, both Mr Marino and
Ms Marino are likely to parent [J] and [H] in different ways. However, notwithstanding this state of affairs, it is my assessment that both parties aspire to fully discharge each and every responsibility incumbent in being a good and competent parent.
I am not willing to reach the conclusion that just because Mr Marino has criminal convictions and has not worked for many years he wishes [J] and [H] to follow suit. In my view, such an approach would be erroneously stereotypical and, as such, unwarranted.
One of the responsibilities of being a good parent is to foster cherish the relationship between the children concerned and the other of their parents. In cases involving shared parental responsibility a good and responsible parent is also required to work with the other parent concerned to resolve any differences of opinion which may arise regarding arrangements for the care of the children concerned.
At present, there is an unacceptably high level of conflict between the parties in this case, which is likely to cloud their decision making processes in respect of how [J] and [H]’s best interests are to be served. The parties have been separated since mid-2007. Not a particularly long period of time to enable feelings to be completely reconciled. Necessarily the parties now lead different lives, with different preferences and priorities. In addition, they bring different personalities and backgrounds to the parenting of the children concerned. Inevitably, they are likely to have different priorities and agendas in respect of the care of [J] and [H].
Inevitably, these circumstances must lead to differences of opinion between them, particularly since the relationship between them has ended, an occurrence which, for obvious reasons, is likely to extenuate rather than diminish the potential for differences of opinion to arise between them.
Every case, involving the care of arrangements for children, which comes into court, must involve issues of this kind to some degree or other. It cannot be the legislative intent that shared parenting be ruled out in all of these cases.
In Astor & Astor[18] O’Reilly J said:
“… it is not as if, as soon as communication difficulties between the parties, or other difficulties between them are identified, the discretion ought not be exercised in favour of an equal time parenting order. Rather, the matter is one of balancing all relevant factors …”
[18] Astor & Astor [2007] FamCA 355 (delivered 24 April 2007)
In my view, I must be careful not to adopt an unduly utopian standard for the parties’ communication skills or expect them to adhere to a standard which is clearly unattainable given that they separated in difficult and acrimonious circumstances, as many couples do, particularly those that seek the court’s assistance to resolve their parenting disputes.
The circumstances of the parties’ separation in mid-2007 were very difficult and raw. Those difficulties were exacerbated by the financial issues which arose at the same time. The parties have been able to resolve the property aspects arising from their separation. A little less than a year ago, they agreed that they should have equal shared parental responsibility for [J] and [H] and that the father should spend more time with them.
In addition, the parties report that they are now exchanging information between them in a more constructive manner and there have been periods of rapprochement, reconcile between them, albeit those periods have been fairly brief.
Accordingly, it is my assessment that the parties parenting relationship is improving, albeit fairly slowly. It is to the mother’s credit that she acknowledges that the father is a significant figure in the children’s lives and accordingly, in the long run, an equal time arrangement is inevitable.
j)Family violence
k) Any family violence order
I have already dealt with the issues of family violence in the section of this judgment, which deals with the primary considerations. Neither party contends that the presumption of equal shared parental responsibility should be rebutted by the engagement of the other in family violence involving either the children or a member of their family. There are no applicable family violence orders.
The mother asserts that the father has a poor and dismissive attitude toward women in general. As such, he represents a poor role model for male children such as [J] and [H]. Essentially the mother claims that, if a woman crosses the father, he will respond with vituperation and possibly emotional abuse.
I do not consider that, on balance, the evidence currently available to me is sufficient to enable me to reach this conclusion. Certainly, when aroused the father is capable of being foul mouthed and using abuse with a sexual connotation. But so is the mother. Although such conduct is not acceptable, in many circumstances, it is very often the lingua franca of vitriolic matrimonial disputes.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
The mother wishes the proceedings to be adjourned so that another family report may be commissioned. Necessarily this will prolong the litigation between the parties and will delay the process of the parties reaching any resolution with one another, no matter how strained. This cannot be a good thing for [J] and [H].
The parties’ parenting relationship with one another is poor. This is not a good harbinger for the avoidance of further litigation. However, the parties agree that they should have equal shared parental responsibility for [J] and [H]. Accordingly, whatever is the precise outcome in this case, they will be compelled to have a significant degree of involvement, with one another, for the foreseeable future.
In this, as in many cases complicated by an acrimonious separation and differing views about the developmental needs of the children concerned, the main area of dispute between the parties is the speed of the timetable by which they will progress towards an equal time regime for [J] and [H]. From the mother’s point of view, the pace will be too fast, from the father’s too slow.
I am hopeful that with the court’s resolution of this issue, the level of disputation between the parties will diminish and with it the prospect of the parties pursuing further litigation. However, this outcome cannot be guaranteed. It may be wishful thinking. In any event, the matters which fall for consideration under this criterion cannot be regarded as central in this particular case.
Equal shared parental responsibility
It is not necessary for me to consider the application of the presumption contained in section 61DA to the circumstances of this case. The parties agree that the presumption should apply. For my part, I do not think that there are any considerations, relevant to [J] and [H]’s best interests, which should cause me to disregard what the parties have agreed in this regard.
Accordingly, the next part of the exercise is to consider what should follow from that presumption. The exercise of the presumption is mandated by section 65DAA. I am required by the applicable legislation to consider an equal time arrangement first.
It is only when that arrangement is ruled out, on the basis of a proper consideration of the child concerned’s best interest and/or reasons of practicality that the court is directed to turn to consider a substantial and significant time arrangement.
At the present time, [J] and [H] are spending regular periods of time with their father on both week days and weekends. In addition, the parties have agreed on arrangements for the children to see both their parents on special occasions. Clearly, the children also spend time significant periods of time with their mother. Given the definition provided by section 65DAA(3), this existing arrangement represents one based on substantial and significant time.
Given their ages and level of development, the division between weekdays and weekends is not presently important to these two children. However, it seems to me that the current arrangements do ensure that both Mr Marino and Ms Marino are significantly involved in [J] and [H]’s day to day routine and have been for some time.
This has long been Mr Marino’s central aspiration in this case. He wishes to be as significantly involved, in providing all aspects of care, for [J] and [H], as is possible. Accordingly, the major issue for the court to determine, in this case, is whether there should be now some judicially directed move to an equal time arrangement, in respect of the care of the two children concerned.
The ambit of the court’s considerations, pursuant to section 65DAA is strictly stated. This is in keeping with the overall legislative intent of the Family Law Amendment (Shared Parental Responsibility) Act 2006, which favours the substantial involvement of both parents in their children’s lives.
It is of significance that the applicable legislation requires[19] the court first to consider making an order for equal time before turning to consider substantial and significant time. The Full Court in Goode has made it clear that this is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act.
[19] This occurs because of the use of the word “must” in the relevant part of the section.
In Goode, the Full Court found the meaning of “consider” in section 65DAA:
“… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”[20]
[20] See Goode & Goode (2006) FLC 93-286 at 80,898 [paragraph 64]
Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time.
This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome. Essentially an equal time arrangement is the normative outcome from proceedings brought pursuant to Part VII of the Act.
In determining whether there should be an equal time arrangement for [J] and [H], I must be satisfied in respect of two considerations. Firstly and most importantly, I must be satisfied that such an arrangement will be in the best interests of the children concerned. Secondly, I must be satisfied that such an arrangement can be practically implemented, given the nature of the parenting relationship between the parties concerned and logistical considerations.
Whether it would be in [J] and [H]’s best interests to live in a shared parenting regime – section 65DAA(1)
The exercise of this consideration must involve the weighing and balancing of the findings which I have made in respect of the various section 60CC factors, set out above, giving greater weight to the primary considerations.
In my view, [J] and [H] are likely to benefit from having a meaningful relationship with both their parents, given the strength of the relationship which current exists between Mr Marino and Ms Marino on the one hand and [J] and [H] on the other.
Since mid-2007, after the parties’ difficult separation, the father has seen the children on regular occasions each week. These occasions have been added to of late. In my view, the relationship Mr Marino has had with [J] has been preserved and his relationship with [H] has been extended.
In the absence of protective concerns, the court is directed to give priority to considerations of the children having a meaningful relationship with both of their parents and, as such, is obliged to actively consider an equal time arrangement. Such an arrangement is not specifically ruled out because of the age of any child concerned.
The children concerned, particularly [H], are of tender years. [H] is just over two years of age. Necessarily, he is far from being developmentally mature and so having any level of cognition regarding the timetable for his care. However, Ms Cavanagh was not concerned about an equal time arrangement, provided this arrangement was posited upon an intra-week division rather than one involving a longer time span.
In my view, Mr Marino is highly significant to these children and their ongoing care. Notwithstanding the problems in the parties’ relationship, particularly after separation, it seems to me that [J] and [H] have been able to transition to spending significant periods of time with their father (and indeed with several others) and are currently doing well.
The parties acknowledge that it is inevitable that [J] and [H] will be cared for in a shared time arrangement by both their parents. This being the outcome, which the court is directed to consider first. Ms Cavanagh is also in favour of such an arrangement. She recommends its inauguration from February of 2009.
I have come to the conclusion that it would be in the children’s best interests for them to be parented in an equal time arrangement and, notwithstanding the tender years of the children, I accept that it would not be contrary to those best interests if such a regime commences now.
For the reasons already outlined, I do not think that there are protective concerns, relating to Mr Marino’s care of the two children, which militate against such an outcome. To the contrary, it seems beyond doubt that [J] and [H] have a close and loving relationship with their father.
Reasonable practicality – section 65DAA(5)
The parties live in close proximity in suburban Adelaide. They both have access to motor vehicles. They are accustomed to exchanging the children between them on a regular basis. Accordingly, there are no geographical or logistical restraints to a shared time arrangement.
The parties each acknowledge that their parenting relationship has got better rather than worse, in the period since their separation, and they are now exchanging information better. Sadly, the mother has had her suspicions about the father heightened by the recent burglary at his home. She has vigorously opposed the implementation of an equal time arrangement in these circumstances, but does not rule it out at some unspecified time in the future.
The father sees no difficulty in the parties being able to co-parent [J] and [H], in an equal time arrangement. Given the tenor of his application, it would be unlikely for him to contend otherwise. The mother is not so sanguine. The central question is whether the mother’s disappointment and perhaps anxiety about the instant inauguration of an equal time arrangement will act as a bar to her cooperating with the father to make such an arrangement workable, for the children, in the longer term.
These are difficult issues to answer in prospective terms. To a certain extent, it is axiomatic that the parties are likely to have some level of dysfunction in respect of implementing a shared time arrangement. How could it be otherwise, given that each has expended a considerable amount of their financial and emotional resources in litigating the issue and want the court to ultimately determine it.
It would be simplistic of the court to expect that shared parental time arrangements could only come about organically or consensually. Necessarily these types of issue are likely to generate considerable controversy between the parties concerned. Is the fact that the parties’ parenting relationship is not of a type which is likely to be highly amenable to a shared parenting relationship reason for the court to rule out such an arrangement in any particular case?
In spite of well meaning legislative intent to reduce or remove the adversarial connotations from child related proceedings, such proceedings remain adversarial in nature, involving as they often do skilled lawyers and issues of credit pertaining to the parties themselves. As anyone knows, who has been involved in them, proceedings involving children are invariably emotionally gruelling. Obviously such a forum is not usually conducive to the organic creation of cooperative parenting arrangements.
As such, it is not beyond the bounds of possibility that one parent, who is fervently opposed to either a shared time arrangement or a substantial and significant time arrangement, will be prone to accentuate the level of difficulty between the parents concerned in order to achieve the outcome which he or she prefers and to subvert the intention of section 65DAA. That after all is the nature of adversarial proceedings. Whether such ulterior motives exist in any individual case may be difficult to glean.
In determining issues to do with the parties’ current and future capacity to communicate with one another and resolve difficulties which may arise from a shared parenting regime, the court is required to consider the matters which arise under s.60CC(3)(c) & (i).[21] Accordingly it is the duty of the parents concerned to do all that they can to facilitate close and continuing relationships between the child concerned and each of his or her parents
[21] See note 1 to section 65DAA(5)
Up to this stage, it is my assessment that, apart from some major hiccups, the parties have been able to make the current regime work. The mother agreed to an increase in the time the children spent with their father in advance of the timetable proposed by Ms Cavanagh. She also acquiesced to the parties having equal shared parental responsibility for the two children, presumably knowing what legislatively flowed from this presumption.
It seems to me that the children are currently faring well. In such circumstances, I have no reason to think anything other than that, in spite of her likely disappointment with the court’s acceptance of the outcome advocated by the father, the mother will not in future be capable of remaining focussed on the best interests of [J] and [H].
In common with the vast majority of parents, who seek an adjudication from the court in respect of the arrangements for the care of their children, the parties in this case do not communicate well. The flavour of much of the current proceedings was of a concerted character assassination launched by each of them against the other.
However, notwithstanding these difficulties, they do exchange information about the children between themselves. They regularly interact with one another at handovers. Most importantly, the two children concerned appear to be developing within normal emotional parameters.
As is obvious from these lengthy reasons for judgment, the parties’ relationship is not the most fertile one from which to grow a shared time parenting arrangement. It could perhaps be said to be axiomatic that this is so given that the parties seeking an adjudication, from the court, regarding the issue.
Again, is the fact that the parents concerned do not have the level of communication skills most conducive to the imposition of a shared parenting arrangement, a sufficient factor to rule out such an arrangement. Obviously, this must be a question of degree in the individual case concerned.
It would be nonsensical if the court could only consider an equal time arrangement in the circumstances most conducive to the facilitation of such an arrangement. As previously indicated, parents who litigate with one another are not likely to produce such optimal circumstances. Necessarily, the vast majority of parents who come to court, at the final stage, do not agree on many issues to do with their children and have problems discussing their difference amicably.
Whatever is the outcome in this case, [J] and [H] will still have to accommodate, in some form or other, the transition between two households which mistrust one another, in circumstances where the level of communication between those households is at best, somewhat stilted and lacking in empathy and spontaneity.
As I observed earlier, I must be careful not to apply an unrealistically utopian standard to the parties, particularly in respect of their communication skills. The parties separated, after an unhappy relationship. Inevitably both have experienced some difficulties in adjusting to this change of circumstances. Although far from perfect, it is my assessment that the parties’ level of communication is sufficient to resolve most of the issues which are likely to arise between them from the implementation of an equal time arrangement.
The most important consideration for the court is to put aside the parties’ respective considerations of what is likely to be “fair” to each of them and focus on whether an equal time arrangement will have an adverse impact on any of the children concerned. At present, [J] and [H] spend two evenings per week with their father. There is no indication that they are distressed by such an arrangement.
In these circumstances and given Ms Cavanagh’s assessment, I am not persuaded that the equal time arrangement advocated by the father will necessarily have a detrimental impact on either [J] or [H]. To the contrary, given Mr Marino’s current level of involvement with the children, I am satisfied that each child is likely to be able to accommodate such an arrangement in future.
Accordingly, having balanced the various factors arising under section 60CC of the Act and the issues pertaining to reasonable practicality raised in section 65DAA(5), I have come to the conclusion that it is both likely to be in [J] and [H]’s best interests and reasonably practicable if the children live in a shared time arrangement.
For the next few years, until [H] starts at primary school, in order to ensure that he is not separated from one or other of his parents for an extended period of time, the rotating 4/3 day weekly arrangement seems to be the most practical and best way to bring about the even time regime. But once [H] has started school a week about arrangement would be more appropriate with the school holidays to be divided equally.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding three hundred and forty-six (346) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 19 March 2009
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