Marino and Marino (No.2)
[2010] FMCAfam 951
•3 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MARINO & MARINO (No.2) | [2010] FMCAfam 951 |
| FAMILY LAW – Children aged 5 & 3 – final orders made in March of 2009 – high conflict between parents – consequences for children – whether final orders should be revisited in the light of the rule in Rice & Asplund – shared care – equal shared parental responsibility – what is reasonably practical – best interests. |
| Family Law Act 1975, ss.4; 60B; 60CC; 61DA, 65DAA; 65DAC |
| Marino & Marino [2007] FMCAfam 517 Marino & Marino [2009] FMCAfam 227 Marino & Marino [2010] FMCAfam 318 Rice & Asplund (1979) FLC 90-725 SPS & PLS [2008] FamCAFC 16 MRR v GR [2010] HCA 4 CDJ v VAJ (1998) FLC 92-828 In the Marriage of McEnearney (1980) FLC 90-866 Marsden & Winch [2009] FamCAFC 152 King & Finneran (2001) FLC 93-079 Briginshaw v Briginshaw (1938) 60CLR 336 Godfrey v Saunders 208 FLR 287 Silas & Barry [2009] FMCAfam 448 Astor & Astor [2007] FamCA 355 |
| Applicant: | MS MARINO |
| Respondent: | MR MARINO |
| File Number: | ADC 2600 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 5 & 6 August 2010 |
| Date of Last Submission: | 26 August 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 3 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Britton |
| Solicitors for the Applicant: | SRG Lawyers |
| Counsel for the Respondent: | Mr Keen |
| Solicitors for the Respondent: | Windevere Bellman |
ORDERS
Parental responsibility
The parties have equal shared parental responsibility for the children of the marriage [X] born [in] 2005 and [Y] born [in] 2007 (hereinafter referred to as “the children”).
In the exercise of their equal shared parental responsibility for the children the parties are to consult with each other in respect of all major long term decisions pertaining to the children, which include but are not limited to issues about:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health (including psychological health);
(d)The children’s names; and
(e)Any changes to the children’s living arrangements which significantly interferes with the operation of these orders, particularly with the arrangements for the children to spend time with each parent.
In the event the parties are unable to come to a joint decision about any major long term issue pertaining to the children they are to jointly consult with a family dispute resolution practitioner as defined by section 10G of the Family Law Act1975 and seek the assistance of such family dispute resolution practitioner to come to a joint decision about the major long term issue pertaining to the children in dispute between them.
The mother and father shall:
(a)Keep the other parent informed at all times of his/her residential address and contact details, including mobile and landline telephone numbers and email address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children;
(c)Inform the other parent as soon as is reasonably practical of any medical issue, significant health issue or significant illness or injury suffered by the children. This order authorises any treating medical practitioner to release details of the children’s medical condition and/or injury to the other parent.
The parents authorise by this order, the schools, kindergartens and day care centres attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at the expense of the parent requesting same).
During the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other persons do not denigrate or insult the other parent in the presence or the hearing of the children.
Each parent be at liberty to attend at the children’s school, pre-school or kindergarten for all events that are routinely attended by parents, including parent-teacher interviews, sports days and concerts.
If the parties have not already done so, they are each directed to attend and complete a KidsRFirst Program provided by Anglicare within six (6) months of the date of these orders but it is noted that they need not attend the same scheduled course.
Living arrangements
The children live with their parents from the date of these orders until [Y] has commenced primary school in January of 2012 as follows subject to arrangement for school holidays and special occasions as specified in order 12 and orders 14-24 hereof:
(a)With the father in the alternate weeks of each fortnight:
(i)In the first week from 8:00am Monday until 5:00pm Thursday;
(ii)In the second week of each fortnight from 8:00am Wednesday until 8:00am the following Thursday.
(b)With the mother at all other times.
Upon the child [Y] commencing primary school in January of 2012 the children live with their parents, during school terms, subject to arrangements for school holidays and special occasions as specified in order 12 and orders 14-24 hereof as follows:
(a)With the father in the alternate weeks of each fortnight as follows:
(i)In the first week of each fortnight from after school on Friday until school recommences the following Monday (or Tuesday in the event that Monday is a public holiday);
(ii)In the second week of each fortnight from after school on Wednesday until school recommences the following Friday.
(b)With the mother at all other times during school term subject to the arrangements for school holidays and special occasions as specified in order 12 and orders 14-24 hereof.
School holidays
The children spend equal periods of time, in blocks not exceeding seven (7) days in duration, with each parent during all school holidays commencing with the end of first term holiday in 2011 the exact configuration of the blocks of time to be as agreed between the parties but failing agreement as follows:
(a)The children spend time with the father in the first half of each short school holiday period in 2011 (subject to arrangements for Easter) and each alternate year thereafter;
(b)The children spend time with the father in the second half of each short school holiday period in 2012 (subject to arrangements for Easter) and each alternate year thereafter;
(c)The children spend time with the mother in the second half of each short school holiday period in 2011 (subject to arrangements for Easter) and each alternate year thereafter;
(d)The children spend time with the mother in the first half of each short school holiday period in 2012 (subject to arrangements for Easter) and each alternate year thereafter;
(e)Subject to arrangements for Christmas Eve, Christmas Day and Boxing Day in each year provided by orders 16-19 hereof the children spend alternating weekly periods during the end of year school holiday with each of their parents, the weeks to be agreed between the parties but failing agreement the mother to have the first block of seven (7) days in the school holiday commencing in 2011 and each odd ending year thereafter and the father to have the first block of seven (7) days in the end of year school holiday commencing in 2012 and each even ending year thereafter.
For the purposes of any calculation necessary to implement these orders all school holidays are deemed to commence at 9:00am on the first Saturday after school has ended for the term and to conclude at 6:00pm on the last Sunday of each holiday period.
Special occasions
If Father’s Day does not fall on a weekend that the children are otherwise living with the father pursuant to these orders the father spend time with the children from 5:00pm on the Saturday preceding Father’s Day until 5:00pm on Father’s Day.
If Mother’s Day does not fall on a weekend that the children are otherwise living with the mother pursuant to these orders the mother spend time with the children from 5:00pm on the Saturday preceding Mother’s Day until 5:00pm on Mother’s Day.
The children spend time with the father from 5:00pm on 24 December 2010 until 3:00pm on 25 December 2010 and each even ending year thereafter.
The children spend time with the mother from 3:00pm on 25 December 2010 until 5:00pm on 26 December 2010 and each even ending year thereafter.
The children spend time with the mother from 5:00pm on 24 December 2011 until 3:00pm on 25 December 2011 and each odd ending year thereafter.
The children spend time with the father from 3:00pm on 25 December 2011 until 5:00pm on 26 December 2011 and each odd ending year thereafter.
The children spend time with the father from 9:00am on Good Friday in 2011 until 3:00pm on Easter Sunday in 2011 and each alternate year thereafter.
The children spend time with the mother from 3:00pm on Easter Sunday in 2011 until 5:00pm on Easter Monday in 2011 and each alternate year thereafter.
The children spend time with the mother from 9:00am on Good Friday in 2012 until 3:00pm on Easter Sunday in 2012 and each alternate year thereafter.
The children spend time with the father from 3:00pm on Easter Sunday in 2012 until 5:00pm on Easter Monday in 2012 and each alternate year thereafter.
On each of the children’s birthday the parent with whom the children are not living pursuant to these orders spend a period of three (3) hours with the children at times to be agreed between the parties, bearing the mother’s working hours, and failing agreement to be between 4:00pm and 7:00pm.
Handover
Wherever possible the children are to be exchanged between their parents at their respective schools or kindergartens and when these locations are not available the children are to be exchanged at the parties respective homes with the father delivering the children to the mother’s home when the children move from his care to the mother’s care and the mother to deliver the children to the father’s home when the children move from her care to the father’s care.
All other applications be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Marino & Marino (No.2) 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 [X] born [in] 2005 and [Y] born [in] 2007.
This is the fourth judgment I have delivered in respect of the parties’ competing applications regarding parenting arrangements for their two children.[1]
[1] See Marino & Marino [2007] FMCAfam 517; Marino & Marino [2009] FMCAfam 227; and Marino & Marino [2010] FMCAfam 318;
Essentially, the central area of controversy, between the parties, remains the same. Is it appropriate for the children to be cared for in an equal time arrangement, given their tender years and the parties’ poor and mistrustful relationship with one another?
In May of 2008, the parties agreed that they should have equal shared parental responsibility for [X] and [Y]. As a consequence, the court was required to consider the children living in an equal time arrangement, subject to considerations of their best interests and issues of reasonable practicality.
On 19 March 2009, following a contested final hearing, I decided that [X] and [Y] should live, for equal periods of time, in each of their parent’s homes. I provided extensive reasons for this decision, which can be boiled down to these essential factors:
·The father had been extensively involved in caring for both children, but particularly [X].
·
The children had a good relationship with each of their parents, a finding supported by the opinion of the family report writer,
Ms C.
·The mother regarded it as inevitable that, at some stage in the future, the children would be parented in an equal time arrangement.
·This was because of Mr Marino’s involvement with the children and his determination to achieve such an outcome.
·There were signs that the parties were beginning to exchange information, about the children, more efficiently and their relationship was becoming less conflictual.
Regrettably, insofar as the last factor was concerned, my confidence seems to have been misplaced. The mother asserts that she was assaulted by the father on 12 May 2009, outside [X]’s kindergarten whilst both children were present. Mr Marino was charged by police with assaulting Ms Marino.
In addition, Ms Marino says there have been other significant changes, in the parties’ circumstances, since March of 2009. In particular, she asserts:
·The father is taking illicit drugs.
·He is unreliable in respect of implementing the shared care regime.
·He does not discharge his parental responsibilities, so far as financial support for the children and the making of educational decisions is concerned.
Essentially, it is the mother’s position that the shared parenting regime is not working for [X] and [Y] and needs to be changed. On 12 November 2009, she commenced the current round of proceedings.
In her application, she seeks orders that would see the children living predominantly with her and spending time with their father for four days (three nights) per fortnight between Monday morning and Thursday afternoon.
[X] has recently commenced primary school. [Y] currently attends kindergarten on one afternoon per week. He will start school in 2012. From the mother’s perspective, the arrangement she proposes is one which is suitable for the children. When [Y] starts primary school, she would be open to re-jigging the regime to include weekend time.
The father refutes the allegations of poor parenting made against him. In particular, he asserts that the mother’s account of what occurred on 12 May 2009 is a “beat up”. The police did not proceed with any charge against him and he was in fact awarded costs, in his favour, in respect of the aborted criminal proceedings against him.
The father does not dispute that the parties’ relationship is a far from ideal one. However, it is his case that the mother is driving the conflict for her own purposes and is as equally capable, as he, of being offensive and insulting to the other parent.
It is his position that the court was well aware of the difficulties in the parties' relationship, when it made the orders for an equal time arrangement in March of 2009, and nothing has changed in either the parties’ or the children’s circumstances to justify a change in the shared care arrangement which, in his assessment, is currently serving and will continue to serve the best interests of [X] and [Y].
Essentially, it is the father’s case that the mother’s application is misconceived and, if the court countenances her application, it would be derelict in the discharge of its duty to promote the best interests of [X] and [Y], one of which is the responsibility to spare them from the potentially emotionally deleterious consequences of unnecessary litigation. His position rests upon a legal basis. He invokes the so-called “rule” derived from the case of In the Marriage of Rice & Asplund.[2]
[2] See Rice & Asplund (1979) FLC 90-725
In its simplest formulation, the rule indicates that where there has already been a final order in respect of parenting issues, before the court should embark on a rehearing of those issues, the applicant concerned must establish a significant change of circumstances.[3]
[3] See SPS & PLS [2008] FamCAFC 16 at paragraph 1 per Warnick J
In his response filed 18 February 2010, the father seeks the dismissal of the mother’s application and the confirmation of the shared parenting regime. He also sought an order that the two children could be enrolled at the [A] School.
The issue of the children’s primary education has now been resolved. [X] is currently attending [O] Primary School in [suburb omitted]. [Y] will follow him there in due course. The mother has guaranteed to the school authorities that she will pay the necessary fees involved. This remains a bone of contention between the parties.
At an earlier stage, Mr Marino indicated a willingness to contribute towards the children school fees. He has a back injury and has not been in the paid workforce for a number of years. His sole source of income is social security payments.
These payments have reduced as a result of changes to the parenting arrangements for the children following orders made by the court on 5 March 2010. As a result, it has been Mr Marino’s position that he has been unable to contribute towards the children’s school fees.
The parties’ competing applications first came before the court on 25 February 2010. On that occasion I made orders that the parties attend a child dispute conference, pursuant to section 11F of the Family Law Act. The conference was arranged for 26 February 2010. The family consultant convening the conference was Ms D.
Pursuant to section 11E of the Act, the court has a discretion to seek the advice of a family consultant in respect of any proceedings, which come before it. For that reason, what is said at such conferences is not subject to privilege or otherwise confidential.
Rather, the consultant concerned can report back to the court as to what occurred in the conference, particularly whether any areas of agreement have been reached or how otherwise the matter should be dealt with by the court.
Ms D summarised her impressions of the parties’ presentation towards her as follows:
“The parents demonstrated clearly in the presence of the family consultant that their communication is dominated by ongoing abusive interchanges, deep frustration, unresolved issues from the past marriage as well as post-separation events and lack of ability to listen. It is likely that there are ongoing issues of inappropriate control in this situation on both sides, with each parent having what appear to be unrealistic and possibly inappropriate expectations of the other.
Each parent has transcribed or downloaded examples of abusive and inappropriate text messages from the other which clearly appear to be characteristic of their texting communication.
Each parent appears to include in their abusiveness toward the other, in the text messages, comments about the other’s drug use, use of prostitutes, sexual habits, and negative comments about the care of the children.
The parents are in conflict about the choice of school for the boys, with the mother wishing that the father support her in her wish to send them to a private school, and the father presenting as being financially in a fragile situation due to being a disability pensioner.
Both parents indicated that they understand that the mother is the primary attachment figure for the children, in the sense that if the boys are unwell it is their mother that they want.
The parents are not able to communicate in any way, and it appeared from what both parents said that the children are already showing some of the signs of developmental impact which result from being deeply affected by ongoing and immature parental conflict.
Worryingly, the parents did not appear to be able in any way to quarantine the children from their various adult issues.”
As a result of these factors, Ms D provided the following recommendation:
…it may be that the best interests of these boys require a review into the current equal shared care arrangement, in light of the research findings which indicate that while equal shared care arrangements for children under the age of 10 years are not indicated unless there are a range of clearly specified positive characteristics in the parenting available, for children under 4 years of age, the developmental threat to children is dramatically exacerbated under the circumstances that appear to characterise these parents’ relationship and parenting.”
In these circumstances, Ms D also recommended that a family report be prepared in the case.
Ms D’s advice to court was influential in respect of the decision I made on 5 March 2010. I decided to suspend the presumption of equal shared parental responsibility. In addition, pending the preparation of a family report, I determined that it was not likely to be in the best interests of [X] and [Y] for the equal time arrangement to continue. I said as follows:
“The provisions of section 65DAA are also relevant. I have to assess the viability of the parties' relationship to sustain the children living either in an equal care arrangement or spending substantial and significant time with their parents.
The relevant considerations are outlined in section 65DAA(5). Although, the parties live very close to one another, at this juncture, I have grave concerns about the parties' capacity to implement the orders which I put into place in March of 2009. The parties are soon back in court reiterating the allegations they made against each other in the past. This indicates a compromised capacity to implement a shared care regime.
I have evidence of their facility to communicate with one another which is characterised by mutually offensive text messages. I also have indications that the two children are being adversely affected by the parties' poor relationship with one another. These are all issues picked up by section 65DAA.
I have to give significant weight to the fact that there are significant issues of family violence in this case, but I also have to balance the significance of the children's relationship with their father. I do not think it is likely to be in the children's best interests for the orders that were made on 19 March to be continued in the short to medium term. I also think I need to consider a regime where the mother can feel safe in her future interactions with Mr Marino.”[4]
[4] See Marino & Marino [2010] FMCA fam 318 at paragraphs 41-45
This was the background to me making orders that saw [X] and [Y] spending time with their father from Monday morning to Thursday afternoon in one week of each fortnight. I also made orders that the children be exchanged at a police station, until such time as they were accepted into a children’s contact centre.
The parties competing applications were fixed for final hearing on 5 & 6 August 2010 and it was ordered that a family assessment report be prepared. This assessment was to be completed prior to early June, when I anticipated the matter could come back before the court for further directions.
The family assessment was prepared by Ms L, an experienced psychologist. In her report, dated 3 June 2010, Ms L found as follows:
“I am concerned that the parties are not able to protect the children from their conflict and that their conflict is likely to continue, rather than subside. At this time it seems that there is little evidence indicating that Ms and Mr Marino are able to work as an effective enough parenting team which puts the needs of the children first. I would thus be hesitant to support an equal time regime; if they cannot avoid a conflict on the first or second day of [X] starting Kindy, and he is exposed to this (irrespective of whether Mr Marino was violent or not), it would be hard for the Court to be confident that they can make the children’s need for a calm and harmonious environment a priority over their own conflicted engagement.
Having said this however, I note that for at least the last year or so, the children have been used to seeing their father every three of four days. This is an appropriate pattern for younger children, and in this case, especially for [Y]. Another factor is that they seem to have a good relationship with him. Thus I think that seeing him for only four days and three overnights every fortnight may not be sufficient and indeed, a pattern of more time than this may be indicated. I am inclined to suggest that their time current with him could be extended to include another overnight in the following week, say from Tuesday morning until Wednesday 5:00pm (this covers one of the days that Ms Marino works). This would give the children 4 overnights per fortnight, and until they start school some contact each week. When they do start school, the regime could be wrapped around alternate weekends.”[5]
[5] See family assessment report dated 3 June 2010 at pages 9-10
Accordingly, Ms L, in her report, was not in favour of an equal time regime and believed the children needed to live more with one parent than the other, so that they could be shielded from the potentially deleterious emotional consequences of parental conflict.
However, given the ages of the children and the significance of their relationship with their father, Ms L was concerned at the prospect of [X] and [Y] going for a period of over a week without having an opportunity to interact with their father. In these circumstances, she recommended that the children have one overnight period, with their father in the other week of each fortnight.
On 21 June 2010, in the light of Ms L’s report, I made the following orders:
“The child [X] attend at [O] Primary School commencing term three in 2010.
The father provide for [X]’s attendance at the above said school for orientation between 8:40am until 11:30am on 22 June 2010 and the mother be at liberty to attend at the school during this period.
Both parties be at liberty to attend at [X]’s primary school on his first day.
Order 6 of the orders made on 5 March 2010 be varied so as to read:
“6. The children live with the father as follows:
On alternate weeks commencing 21 June 2010 from 8:00am Monday until 5:00pm Thursday; and
Each alternate week thereafter commencing 30 June 2010 from 8:00am Wednesday until 8:00am Thursday.””
From the mother’s perspective, she is content for these orders to continue, until such time as [Y] starts primary school in 2012. At present, it is her view that these orders are developmentally appropriate for [Y] and will enable him to maintain his relationship with his father, whilst extending the periods of time he is at kindergarten during 2011.
At this stage, she does not think there is any pressing need for either [X] or [Y] to spend time regularly with their father on weekends, although she does say that she would be open to weekend time, if circumstances warranted it.
On [Y] commencing primary school, she proposes that the current regime be reconfigurated so that the children spend from 5:00pm Thursday until the commencement of school on Monday morning, with their father, in one week of each fortnight, during school terms and live with her for the remainder of the fortnight.
During school holidays, she proposes that the children spend one week of each short holiday with their father and live week about, with each of their parents, during the long end of year school holiday. She does not believe the children are sufficiently emotionally resilient to be away from her for periods of up to three weeks. It is her case that she has always been their “primary carer”.
From the father’s perspective, the mother’s proposal is unacceptable. He wishes to return forthwith to the equal time regime, which was originally scheduled to change to a week about arrangement, at the start of 2012, when [Y] commences primary school.
Regardless of whatever is the ultimate outcome of this case, it is clear to me that the parties require clear and unambiguous orders to delineate the discharge of their respective parental obligations for [X] and [Y]. The following issues appear to arise from the parties’ competing applications:
·Should the presumption of equal shared parental responsibility apply to [X] and [Y]’s care? This issue is placed into stark relief by the dispute about which primary school [X] should attend.
·The mother’s application is silent about the presumption. I presume she asserts that it is rebutted. The husband’s position is that it should not be displaced, given the parties’ mutual acceptance of it from 2008.
·Is an equal time arrangement feasible for the children, given the parties’ current circumstances, particularly the police charges against Mr Marino, now dismissed and the manner of communication between them, particularly their text messages to one another?
·Is what has occurred recently just another “blip” in the parties’ parenting relationship, which has historically waxed and waned in the levels of acrimony it has produced or is the parties’ relationship now irretrievably dysfunctional?
·What are the likely psychological consequences, for the children, of the parties’ parenting relationship? How are these consequences to be balanced against the benefits [X] and [Y] are likely to derive from having a meaningful level of relationship with their father?
·This issue is central to the Rice & Asplund considerations raised by the father. Should the court draw a line in the sand and indicate to the parties enough is enough and it does more harm than good for the children if the court provides a forum to their parents to ventilate their mutual antipathy for one another yet again.
·If the children’s best interests do dictate that they should live more with one parent, how should the time they spend with the other parent be delineated, given the extent of involvement both parents have had with their children?
ØIn particular, should it be a 4/10, 5/9 or even a 6/8 night regime each fortnight;
ØShould those periods be spread over each week of the fortnight, if so how;
ØWhat regard should be had to weekends, given Mr Marino does not work but Ms Marino does and given the developmental and educational needs of the children.
·What should happen at school holidays, in particular:
ØShould a week about arrangement start now so far as school holidays are concerned, although [Y] is not attending school yet;
ØShould this regime, certainly so far as the short school holidays are concerned, only be implemented in 2012, when [Y] is at primary school;
ØShould the long end of year school holiday be divided, so that the children spend half of this school holiday, with each of their parents;
ØOr should there be a week about arrangement for this long school holiday;
ØWhat should happen at Easter? Is Easter unimportant to the parties, as the mother asserts or should special arrangements be made, so that the children can spend a portion of Easter, with each of their parents, as the father proposes.
On 22 May 2008, the parties agreed on a raft of orders pertaining to [X] and [Y]’s care. These orders dealt with arrangements for Father’s Day, Mother’s Day; the children’s birthdays, Christmas and how the parties were to exchange and have information about the children’s educational and medical needs. The orders were silent about Easter and school holidays. The orders also provided as follows:
“Unless otherwise specified herein all handovers do occur by way of the wife delivering the said children to the husband’s residence at the commencement of his period of care of the said children and the husband returning the children to the wife’s residence at the conclusion thereto.”
As previously indicated, the children are currently being exchanged at a police station. It is the father’s position that this is inappropriate and the above order should be reinstated. The mother has raised concerns about her personal safety and points to the fact that there is currently a domestic violence restraining order, which regulates the parties’ interaction with one another.
The legal principles applicable
The provisions, in the Family Law Act1975, relating to children, rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm, as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in how a court determines what is in a child’s best interests by section 60CC(2).
The aims and principles of the part of the Family Law Act [section 60B], which deals with children, 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, from being subjected to abuse, neglect or family violence.
When deciding what parenting orders to make, it is the best interests of any child concerned which is the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in section 60CC.
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.
Pursuant to section 60CC(3)(m), I am permitted to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed and an appropriate idiosyncratic order made.
The primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the family law legislation. However, in determining the outcome of a particular case, one or more of the individual considerations may come to the fore.
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act section 61DA]. The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the court finds that it would not be in the best interests of the child for it to apply.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
The court is directed to “to consider” firstly equal time and then secondly 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. 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).”
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.
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.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[6]
The rule in Rice & Asplund
[6] See MRR v GR [2010] HCA4 at paragraphs 13 and 15.
In all matters concerning parenting orders, the best interests of the children concerned is the paramount consideration. As the circumstances of both parents change from time to time, parenting orders are never final in the sense that the court always retains a jurisdiction to deal with such changed circumstances.
However, some degree of change is a necessary corollary of life and should not of itself allow parenting orders to be easily revisited. Otherwise to allow further applications, on the basis of a change of circumstances alone, would be likely to be an invitation to never ending litigation.
For that reason, a court will not readily re-open a case concerning parenting orders recently made. There needs to have been a substantial change in circumstances before a court will do so. This is the basis of the rule in Rice & Asplund.
The primary purpose of the rule is to prevent “endless litigation”[7] and is based on three main pillars. Firstly, finality of litigation avoids expense to the public occasioned by “subsequent hearings and the imposition of them on court time”[8].
[7] See Rice & Asplund (supra) per Evatt CJ at 78,905
[8] See SPS & PLS (supra) at paragraph 56
Secondly, the imposition of the rule avoids the potential “evil” of one judicial officer substituting his or her “opinion of what is in the best interests of a child” for that of another judicial officer, on the basis of the same factual circumstances.[9]
[9] Ibid at paragraph 58
Human nature being what it is, it is inevitable that some litigants will want their cases reheard in the hope that a different adjudicator will reach different conclusions about the evidence led. The rule negates this potential outcome.
Thirdly and most importantly, generally speaking, it is not in the interests of children to have repeated applications before the court concerning arrangements for their living arrangements. Litigation is not helpful to children. It is desirable that arrangements for their care be stable and so final. For obvious reasons, children are not well served by frequent displacements or being subject to uncertainty about where they will be living in future.[10]
[10] See CDJ v VAJ (1998) FLC 92-828 at 85,449
In addition, if the court allows parents to have frequent recourse to litigation to settle disputes between them regarding parental arrangements, it is likely to have significantly harmful psychological consequences not only for the parents themselves, but especially their children. It has been said that the court should not condone a “perennial football match between parents, who … seek to canvass again and again the question of custody of a child …”.[11]
[11] See In the Marriage of McEnearney (1980) FLC 90-866 at 75,499 approved in SPS & PLS (supra) per Warnick J at paragraph 57
It is clear from authority that a court, such as this one, has a discretion to determine whether there has been a sufficient change of circumstances, to justify the reopening of the parenting issues in respect of a child, which have earlier been determined, as either as a discrete or preliminary issue, or after a full and exhaustive hearing of all the available evidence.[12]
[12] See Bennett & Bennett (1991) FLC 92-191 at 78,262
However, as Warnick J pointed out in SPS, it may defeat the essential utility of the rule if it is applied after a final hearing has occurred rather than at a preliminary stage. If the rule is enjoined after all the evidence has been canvassed, there will be no saving of public resources and no protection afforded to the children concerned from the potentially deleterious consequences of litigation.[13]
[13] See SPS & PLS (supra) at paragraph 59-60
I elected not to apply the rule at the interim hearing before me, which occurred on 5 March 2010. This was because of the significant issues of family violence raised by the mother and the caveats raised by
Ms D. In all the circumstances of the case, I decided that I needed to hear more evidence from the parties concerned as otherwise I would neither accord procedural fairness to the parties themselves nor adequately safeguard the best interests of the children concerned.[14]
[14] See Marsden & Winch [2009] FamCAFC 152
However, it remains open to me to dismiss the mother’s application, on the basis of the rule, notwithstanding there has been a full hearing between the parties. The rule in Rice & Asplund is not a procedural one and is not confined necessarily to a hearing “on the papers”.
It will frequently be the case that there is much controversy between the parents concerned as to whether there has been a change of circumstances of such moment as to justify the court re-opening proceedings. This issue must be determined within the matrix of Part VII of the Family Law Act 1975.
The question essentially being whether it is likely to be in the children’s best interests to allow further litigation. In making this assessment, the court must hold in the balance the potentially adverse consequences to the children concerned of allowing them to be the subject of further litigation between their parents.
In arriving at its decision, the court must look to the following matters:
·The importance or seriousness of the issues raised, both individually and where necessary collectively;
·The impact that the issues are likely to have on the best interests of the children concerned;
·Whether the issues raised relate to change alone or new issues, which render it necessary to revisit the earlier decision.
The test is a strong one. The change or fresh circumstances must be of such significance that, once the court has become aware of it, it is left in “no doubt” that it is necessary to re-litigate the parenting issue in dispute between the parties. That is not to say, upon becoming aware of the change of circumstances, the court reaches the conclusion that there must inevitably be a change in orders previously made. That would be putting the test too strongly. Rather, the change of circumstances must be such that there is a “real likelihood” of a change. [15]
[15] See King & Finneran (2001) FLC 93-079 at 88,367
In SPS it was said that the “essential question” for the court to pose itself concerned the “sufficiency” of the new events, which were said to precipitate the need for a new inquiry. In answering this question, Warnick J indicated it was necessary to put the events into the context of the broader circumstances pertaining to arrangements for that child and measure the significance of those events against the significance of the steps, which might follow from them.[16]
[16] Ibid at paragraph 84
The evidence
In the earlier reasons for judgment, I recorded my impression that the parties were constantly jockeying for advantage, over the other, in respect of the arrangements for the care of [X] and [Y]. It remains my view that the parties are highly competitive with one another.
Regrettably, each views the other as an enemy, rather than as a collaborator in the parenting of their children. In these circumstances, I have serious reservations about the credibility of both parties. Sadly, I think both are capable of manipulating their evidence in the hope of achieving victory over the other.
Smyth has written of the “custody wars” between parents, in which the divvying up of time with a child and how it is described becomes paramount to parents rather than the actual quality of the time which they spend with their children.[17] The peril of such “wars” is that the parents concerned become obsessed with the struggle with the other parent and oblivious to the consequences for the child involved.
[17] See Smyth Time to rethink time? The experience of time with children after divorce Family Matters No 76, Winter 2005 at p 4 referred to in Silas & Barry [2009] FMCA 448 per Altobelli FM.
From the date litigation commenced between the parties, in May of 2007, when [Y] was less than six months old, the father has been fixated on an equal time arrangement. In my assessment, he regards such an arrangement as his right, to the exclusion of any consideration relating to the children. The mother, although she has conceded such an outcome is inevitable, in the long term, is equally determined to frustrate such an outcome, which she regards as unworkable with
Mr Marino, a person for whom she has little, if any, respect.
I had hoped that the level of acrimony and competition would reduce between the parties in time. At the earlier stage, I considered both had much to offer their children and, as such, an equal time arrangement was likely to be in the best interests of [X] and [Y].
In the light of Ms D’s advice and the report of Ms L, I now have considerable reservations about this original conclusion. I can find no evidence of an amelioration in the parties’ parenting relationship and no signs that there will be any such improvement in the foreseeable future. Sadly, in my estimation, the parties remain fixated on the “divvying up” of parenting time between them, not upon what occurs during that time.
Parental conflict is potentially deleterious for children. At the extreme end, such conflict takes the form of family violence and, as is clear from the structure of the legislation overall, the court has a duty to protect children from the physical and psychological harm which may result from being exposed to such family violence.
Differences of opinion must arise in all areas of human intercourse, given the complexity of life and the differing perceptions of individuals. For obvious reasons, when parents separate, very often in difficult and acrimonious circumstances, there are likely to be more rather than less areas of dispute between them. As I indicated in the earlier judgment, I must be careful not to attribute unduly utopian standards to the parties in respect of how they are expected to interact with one another.
It is when differences of opinion become entrenched and toxic between parents that they are likely to be psychologically detrimental to children, particularly young children, who are likely to become anxious and emotionally compromised, as a result of the nature of the conflicted relationship between their parents.
In a longitudinal study, funded by the Commonwealth Attorney-General’s Department, Professor McIntosh has studied the mental health of the children of separated parents. Amongst the factors, identified by Professor McIntosh and her colleagues, as leading to high levels of emotional distress for such children were ongoing, high level conflict between the parents concerned and ongoing significant psychological acrimony between the parents.
Professors McIntosh and Chisholm have reported on this data, and data from other Australian studies, in the context of the current family law legislation as follows:
“…the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’60 and the containment of acrimony may prove to be central benchmarks.”[18]
[18] See McIntosh & Chisholm Shared Care and Children’s Best Interests in Conflicted Separation: A cautionary tale from current research (2008) 20(1) Australian Family Lawyer 3 at page 14
a) The incident of 12 May 2010
It is the mother’s position the father assaulted her outside the [P] Kindergarten on 12 May 2010. As a consequence of this assault, she commenced these proceedings, it being her position that this incident provided unequivocal evidence that the shared parenting regime was untenable.
On the other hand, it is the father’s position that no assault occurred and, by necessary implication, the mother has fabricated the incident to serve her own purposes. He suggests that any injury, which the mother exhibited to her general medical practitioner, was occasioned to her as a result of her involvement in a motor vehicle accident, which occurred around about this time.
Accordingly, from both party’s perspective, the incident is important. In the proceedings before me, the parties were the only persons who gave evidence about this incident. As I have already indicated, I have considerable reservations about the credibility of both Mr Marino and Ms Marino, particularly in the context of their struggle for parental supremacy over the other.
Pursuant to section 140 of the Evidence Act1995 (Cth) the standard of proof to be applied in this case is the balance of probabilities. As a result of section 140(2), without limiting the matters which the court can take into account in determining whether it is satisfied regarding any particular matter on such a balance, the court may also take into account the following:
“(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceedings; and
(c) the gravity of the matters alleged.”
These criteria take into account what was said by Dixon J in the case of Briginshaw v Briginshaw[19] as follows:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[19] Briginshaw v Briginshaw (1938) 60CLR 336 at 362
The incident of 12 May, on the mother’s case, had its genesis in what occurred the previous day, which was a Monday. It is her evidence, which I accept, that this day was one on which, pursuant to the court’s order of 19 March 2009, the children were directed to be in the mother’s care. It was also a time shortly after [X] had commenced kindergarten at [P].
The mother’s case is that she arrived at the kindergarten, on 11 May, to collect [X]. [Y] was with her. She observed Mr Marino outside the kindergarten. Mr Marino does not dispute that he was present nor apparently disagree with the mother’s position that both children were scheduled to be in her care.
The mother states she told Mr Marino that, as it was not his time to have the children, he should not be outside the kindergarten. Clearly, she considered his presence there provocative. Thereafter, she says that Mr Marino tried to pull [Y] from her arms and stated to her words to the effect of “I can see my boys anytime I like.” The father admits that he made this comment.[20]
[20] See father’s affidavit filed 18 February 2010 at paragraph 14
The mother says that both she and the children were distressed by this incident. The father says both children were happy to see him and [X], in particular, asked him to return to the kindergarten the next day.
Mr Marino says he agreed to this. He denies having attempted to pull [Y] from the mother’s arms.
On balance, so far as the incident of 12 May is concerned, Ms Marino’s account seems more likely than Mr Marino’s account. In any event, it seems to me to be a somewhat ill-considered action, on his part, to be present outside the kindergarten unannounced.
I reach this conclusion because it is my finding that the parties essentially parent [X] and [Y] in parallel to one another. Their relationship is not one which can accommodate spontaneous or unscripted occasions involving both of them and the children.
I am satisfied that Mr Marino knows this. Even if he did not, he should have been aware that his presence had the potential to discomfort the mother or precipitate some confrontation between her and him.
The following day was again a day on which the children were scheduled to be in the mother’s care. Once again, she had to collect [X] from kindergarten. It is her evidence that she arrived early and parked her motor vehicle in the staff car park to avoid the father.
She says she collected [X] and was walking back to her car, when she discovered that the father had parked his vehicle in front of her vehicle. Thereafter, she deposes as follows:
The father picked up [X] with a cigarette in his hand. I said to him that he should not be holding [X] with a cigarette also in his hand but he ignored me.
I was holding [Y] and attempted to collect [X] from the father when he unexpectedly swung his fist and hit me in the ribs while I had both boys in my arms.
This caused me to drop my mobile phone. The father picked the phone up.
I asked for the phone back and he threw it into my chest.[21]
[21] See mother’s affidavit filed 7 July 2010 at paragraph 18(d) – (g)
Again, the father does not dispute that he was present at the kindergarten on this occasion and that it was not a day on which the children were scheduled to be in his care. It is his case that he was present because [X] had asked him to attend and he was anxious to be involved in the child’s initial involvement with kindergarten.
Given what had occurred the previous day, when the mother had made it clear she did not appreciate his presence at the kindergarten,
Mr Marino should have been aware that his return the next day was a potentially provocative and so incendiary action on his part.
In his affidavit, the father denies that any assault took place. In support of his position, he argues that as many other parents were present, collecting their children, it is inconceivable that there would be no witness to the assault, apart from the mother herself. As such, it is his case that the best he can do is deny the unfounded and malicious allegation against him.
The police record indicates that Ms Marino complained to police of having been assaulted by Mr Marino at about 1:40pm on the day in question. The police did not interview Mr Marino until 23 June 2009. He denied hitting Ms Marino and stated that she may have been accidentally hit in the ribs, as she grabbed her son. Mr Marino also apparently stated to police that he “felt he was being set up as the victim was upset at the recent family court hearing.”[22]
[22] See annexure EM2 annexed to the father’s affidavit filed 28 July 2010
The police summary of evidence also indicates that the prosecution had obtained a statement from Ms Marino’s doctor, Dr P, who had examined the mother at 10:00am on 14 May 2009 and diagnosed a soft tissue injury to her ribs on the right side. I have not been provided with any direct evidence from the doctor concerned.
At the time of the interim hearing, in March of 2010, the police charges against Mr Marino remained pending. He made it clear, at that stage, that he intended to rigorously defend the charge against him, which he regarded as totally unfounded. The charge was apparently listed for a trial in the [P] Magistrates’ Court on 6 April 2010.
The police prosecutor was of the view that it was unlikely the prosecution against Mr Marino would be successful due to a lack of corroboration of the mother’s evidence. In these circumstances, he asked the mother if she was open to the possibility of the charge being withdrawn and in lieu thereof each of the parties being subject to a restraining order that each not denigrate, abuse or harass the other. The mother was prepared to accede to this proposal and the charge against Mr Marino was withdrawn.
I find it difficult to prefer one parties’ account of what happened on 12 May 2009 over the other’s. In my assessment of Mr Marino, he is quite capable of striking out at the mother in the way she describes. Similarly, I do not put it beyond the bounds of possibility that
Ms Marino would opportunistically fabricate or exaggerate the circumstances of Mr Marino’s behaviour in order to secure an advantage for herself over him, in regards to arrangements for the children.
However, in my view, what the incident demonstrates is the extremely dysfunctional and competitive nature of the parties’ parenting relationship with one another. It provides eloquent evidence, in my view, that there was no resolution between the parties, following my judgment in March. Rather, the acrimony and tensions between the father and mother continued to simmer.
b) The parties text messages to one another
One of the communication methods adopted by the parties is telephone text messages. These are a convenient way to send brief snippets of information between parents cheaply and quickly. Given the absence of face to face interaction, they can also short circuit the possibility of confrontation. However, in some circumstances, they can be highly inflammatory.
For the most part, the parties’ text message to one another are unexceptional. However, both parties have the facility to send offensive and insulting messages to the other, in which both allude to incidents in the other’s prior life. As I observed in the reasons for judgment of March 2009, neither party can be described as having an uncheckered past life.
In many ways, I regard the parties’ potential to be abusive towards the other to be unsurprising. In this day and age, when people are upset or angry, it is a common phenomenon for them to use profane language, particularly in the heat of the moment. Such insults once considered “beyond the pale” are now part of the patois of everyday social intercourse.
Text messaging encourages the exchange of ill considered insults, which cannot be called back or easily ameliorated later. To add emphasis, it is easy to add a swear word or two to such text messages, particularly in abbreviated form. Text messages are also devoid of facial content, verbal inflection and so overt emotional affect. They remain words on a screen. As such, they are emotionally less immediate and wounding than an insult delivered face to face, accompanied by an angry or threatening voice or face.
However, the various text messages, in this case, demonstrate to me that the parties have a far from empathetic relationship. They also demonstrate, to my mind, that there are no indications of an easing of tension between the parties.
Essentially, neither party has the capacity to bite his or her lip or to turn the other cheek, in the face of what he or she sees as provocative behaviour on the part of the other. Rather each will respond in kind. The abuse is not central in this case, rather what is important is the unceasing competition between the parties for control of the children, which the messages symbolise.
c) The father’s presentation at handover
The parties live in close proximity to one another in suburban Adelaide. They live in adjoining suburbs. However, it would seem to be the case that neither the father nor the mother visits the other’s home. As such there is an invisible but very real dividing wall between the life the children lead with the mother and the life the children lead with their father.
The reality of [X] and [Y]’s lives, at present, is that they must regularly pass through a metaphorical “Check-point Charlie”, each time they are exchanged between their parents. I suspect this must have some psychological implications for the children. The question for the court being “will a shared living arrangement in this parental context lead to an experience for the child of being richly shared, or deeply divided?”[23]
[23] Ibid at page 14
Accordingly, the mother does not know what goes on in the father’s household, as a result of her own direct observations and vice versa. In the previous judgment, I commented at length on the mother’s perception that Mr Marino was a career criminal, whose way of life posed a significant threat to the children’s development. I found that the mother’s fears were misplaced.
However, one of the flavours of her current application is that the father presents, at handover, in a manner which suggests he is abusing illicit drugs. The mother can present no concrete evidence to confirm her allegations. Merely, she points to the fact that he frequently “wears dark glasses and appears vague and unresponsive or he avoids eye contact.” In addition, she describes him as being “easily agitated.”[24]
[24] See mother’s affidavit filed 7 July 2010 at paragraph 16
The father denies these allegations. He also points to the fact that, in the past, both he and the mother abused illegal drugs. The mother acknowledges this to be true. Mr Marino also denies that he has any issues in respect of the over consumption of alcohol, describing himself as a social drinker.
Again, I am not in a position to make any concluded findings of fact about whether the father does or does not regularly use illegal drugs. Certainly, I do not think that the fact the father wears dark glasses is probative of such allegations.
However, once again, the mother’s allegations demonstrate the stresses in the parties’ parenting relationship. In my assessment, the mother is likely to be suspicious of the father for the foreseeable future. In these circumstances, she is more likely to think the worst of him rather than to confer on him the benefit of the doubt.
This level of suspicion and mistrust is not conducive to the parties having a successful co-parenting relationship with one another. It is clearly the case that Ms Marino perceives that [X] and [Y] are at risk, when they are in the care of Mr Marino. Again, this has been a factor said to be counter-indicative of an equal time arrangement.[25]
[25] See McIntosh & Chisholm (supra) at page 9
For obvious reasons, if one parent thinks the other poses a serious threat to any children concerned, even on an irrational or objectively unreasonable basis, that state of belief is likely to be a bar to a successful co-parenting relationship, particularly if young or vulnerable children are involved.
Although I think there are elements of manipulation in Ms Marino’s allegations, I do not doubt that she considers Ms Marino to be deeply anti-social and, as such, to be a person likely to abuse illicit drugs, as indeed both she and he did in the past.
As I observed in the previous reasons for judgment, Mr Marino presents in court as a reasonable person, who is perennially both frustrated and perplexed by the mother’s opposition to the shared care regime. He regards her opposition as either irrational or maliciously motivated. It is his case that his behaviour is not part of the dynamic driving the dysfunction between the parties. I do not agree.
The father is not conciliatory in his attitude towards the mother. He is capable of being provocative in his behaviour, as his presence at the kindergarten shows. He is not respectful of the mother. He remains, in my assessment, fixated on what he believes is fair to him, rather than what is the best outcome for the children.
I do not think it drawing too long bow to draw that conclusion from the husband’s comment: “I can see my boys, whenever I like.” I do not regard it as likely to be an isolated expression. It conveys a possessive attitude to the children and a provocative and contemptuous attitude to the wife.
d) The choice of schools
The mother’s evidence is that she consulted widely over the appropriate primary school for [X] and visited many schools in the area of the parties’ homes before settling on [O] Primary School. I accept that the mother took a proactive and leading role in respect of this issue.
It is also the mother’s case that the father was disinterested in her research and dogmatically stated to her that [X] would attend [A] School, his preferred choice. It is the mother’s case that the father’s refusal to discuss the issue constructively with her and his tendency to dictate what was his preferred outcome for the boys, is emblematic of the parties’ dysfunctional parenting relationship.
On 5 March 2010, with the consent of both parties, I made an order that they enrol [X] at [O] Primary School, so that he could commence in term 3 of 2010, provided each party paid one half of all necessary fees and expenses involved.
The mother’s evidence is that she has negotiated a discount of the fees involved because of her straitened financial circumstances. It is common ground between the parties that Mr Marino has not been able to comply with this order. As previously indicated, it is his position that he cannot afford to do so.
Be that as it may, the fact that Ms Marino is paying [X]’s school fees, in their entirety, remains a significant bone of contention for her. She regards Mr Marino as a ne’er-do-well, who exaggerates his level of incapacity. Again, she is unlikely to have a conciliatory attitude towards a co-parent whom she does not regard is shouldering his fair share of the financial responsibility for the children, regardless of whether this is objectively fair or not.
For his part, Mr Marino deposes that there is no doubt about his level of incapacity for work and the mother is irrationally critical of him in regards to something over which he has no control. It is his case that the mother wants to exclude him from important decisions pertaining to the children. This is another theme of the parties’ querulous and competitive relationship.
In my view, it would be simplistic to ascribe more fault to one parent over the other in respect of the creation of their largely dysfunctional parenting relationship. It is trite to say that there cannot be one good parent and one bad parent in such a situation. Rather both must be held responsible for producing the difficult dynamic between them. In particular, the following text message demonstrates the father’s contribution to this particular dynamic:
“I told u about [A] so what r u you going on about U lieing X HOOKER. Get a life. U took it 2 court and lost badly get over it. He will be enroled at [A].”
e) Has the father spent less time with the children than the orders of March 2009 envisage
The mother deposes as follows:
“The time the father spent with the children is not directly in accordance with the Orders and was always less than the time he was to spend with the boys. The father regularly requested alterations to the times he spent with our children. If I did not agree to the changed times he would generally become rude and abusive to me. He would call me “whore” and “ex-hooker” often.
The father is very domineering and expects me to change my plans and agree to alterations to the Orders anytime it does not suit him.”[26]
[26] See mother’s affidavit filed 7 July 2010 at paragraphs 7-8
For his part, the father accepts that there have been changes to the care arrangements for the children but these changes have been mutually agreed by the parties and have been in response to legitimate exigencies in both his and the children’s lives. Again, it is his case that the mother is exaggerating the level of difficulty for her own ulterior motives.
In my view, once again, it is unduly simplistic or reductionist to attribute fault to one parent over the other for the controversy surrounding this issue. In my view, it is more appropriate to attribute the controversy arising from how changes in the arrangements for the children’s care has come about, to the fundamental difference in the parties’ personalities and approaches to parenting.
The father presents as laissez faire and somewhat ad hoc in respect of parenting arrangements. The mother is more rigid and less amendable to change, particularly at the last minute. She would prefer it if there was no deviation from any parenting arrangement, unless there was some particular emergency, which could not be avoided.
This, of itself, is not likely to be helpful to the parties having an efficient and cooperative parenting relationship, particularly when overlaid with the mother’s mistrust and dislike of the father, which dislike is reciprocated by the father, as can be discerned from at least some of his text messages to her.
One example of the parties’ different parenting approaches is provided by what happened outside [X]’s kindergarten on 11 & 12 May 2009. The mother’s position is that Mr Marino was not required to be there because the orders did not specifically for it.
From Mr Marino’s point of view he was entitled to be there because it was a significant time for [X]. This may be so, but it is axiomatic from what occurred that the parties’ relationship did not have sufficient give and take to accommodate it.
The family report and the evidence of Ms L
I found Ms L’s evidence to be very helpful. She is an experienced and insightful psychologist, particularly in respect of assessing families where significant levels of conflict exist. Ms L was well aware of the potential deleterious consequences, for children, of being exposed to parental conflict.
In addition, in my estimation, she was alive to what is the central issue in this case – on the one hand [X] and [Y] have a close and significant relationship with their father, as a result of spending significant periods of time in his care. On the other hand, the parties’ parenting relationship is not presently amenable to them having a shared parenting regime.
Ms L observed the children with each of their parents. She found Mr Marino to be warm and responsive to the children, who engaged well with him. Her impression was that the children were well connected with their father, who managed them well.
Ms L found the children to be comfortable in their mother’s company. She to was observed to be affectionate and warm with the children and to manage their needs well. Accordingly, there can be no doubt that [X] and [Y] have a very significant relationship with each of their parents.
Ms L also spoke with the children and played with each of them. [Y] was too young to give Ms L any clear impressions of his feelings. [X], although only four, did provide Ms L with some insight as to how he was currently travelling emotionally. Ms L reported as follows:
“When asked, he told me that mummy and daddy fight sometimes. I asked him what they fight about and he said “they’re not allowed to have me…last time mummy came to pick me up and daddy grabbed me and mummy grabbed me back.
[X] then told me “I think they’re not allowed to fight…I tell them not to fight”. When asked about his three wishes, he said that he would like a magic wand that works and makes spells. He wanted a magic spell on mummy and daddy so they don’t fight. I asked [X] how he feels when they fight. He said “I feel very sad” adding that “they’re really naughty fighting.”[27]
[27] See family report at page 5
In interview with Ms L, both parties reiterated their longstanding complaints against the other, which have been set out in this judgment and in previous judgments. These complaints were the basis of her view that the parties had a conflictual relationship with one another. She reported as follows:
“I am concerned that the parties are not able to protect the children from their conflict and that their conflict is likely to continue, rather than subside. At this time it seems that there is little evidence indicating that Ms and Mr Marino are able to work as an effective enough parenting team which puts the needs of the children first. I would thus be hesitant to support an equal time regime; if they cannot avoid a conflict on the first or second day of [X] starting Kindy, and he is exposed to this (irrespective of whether Mr Marino was violent or not), it would be hard for the Court to be confident that they can make the children’s need for a calm and harmonious environment a priority over their own conflicted engagement.
Having said this however, I note that for at least the last year or so, the children have been used to seeing their father every three of four days. This is an appropriate pattern for younger children, and in this case, especially for [Y]. Another factor is that they seem to have a good relationship with him. Thus I think that seeing him for only four days and three overnights every fortnight may not be sufficient and indeed, a pattern of more time than this may be indicated. I am inclined to suggest that their time current with him could be extended to include another overnight in the following week, say from Tuesday morning until Wednesday 5:00pm (this covers one of the days that Ms Marino works). This would give the children 4 overnights per fortnight, and until they start school some contact each week. When they do start school, the regime could be wrapped around alternate weekends.”[28]
[28] See family assessment report dated 3 June 2010 at pages 9-10
Ms L conceded that the father’s likely resentment at anything less than a shared time regime was likely to be a significant irritant in the parties’ relationship and so have the potential to drive further conflict between them, which was likely to have adverse implications for the children.
Ms L also accepted that it was somewhat arbitrary to make a distinction between four or five nights per fortnight and an equal time arrangement, in respect of the issue of protecting the children from conflict. I agree with both these observations.
Ms L acknowledged that she found the case to be a difficult and perplexing one. She acknowledged that the challenge for the court was to find the ideal division of time, which would ensure that the children had all the benefits of interacting with their father regularly and qualitatively, without the potential detriments implicit in them being continually exposed to parental conflict and competition, which seem inherent in a strictly equal division of parenting time.
Ms L herself had settled upon a four/ten night arrangement, distributed over the two weeks of each fortnight. However, she conceded that a division of five/nine night per fortnight or even a combination of six/eight nights could not be considered outlandish or unreasonable in the circumstances of this case and given the close relationship the children had to their father.
Section 60CC factors
I do not propose reiterating what I said, under this heading in the pervious judgment. The vast majority of my findings remain current. These reasons for judgment should be read in conjunction with the earlier reasons for judgment. I summarise my findings as follows:
a) The primary considerations
Both [X] and [Y] benefit, to a very significant degree, from having a meaningful level of relationship with both their parents, with whom they are closely connected.
The central issue in this case is how the children can continue to have a quality relationship with both their parents, but particularly their father, given the difficult and competitive parenting relationship between the parties.
Quality, in a parental relationship, depends on both the quantity and quality of time a parent spends with a child. A relationship does not necessarily become better if a parent spends more time with a child, but for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
In my assessment, Mr Marino can have a meaningful relationship with both [X] and [Y] if he spends time with them for four or five days per fortnight, as well as seeing them regularly during school holidays and on special occasions. In my view, such an arrangement will provide a sufficient quotient of time to enable the children’s paternal relationship to be meaningful and for the children to benefit from that meaning.
In my estimation, it is likely to be more important to Mr Marino himself than to either [X] and [Y] for there to be an equal time arrangement. In addition, I am satisfied that there is evidence to indicate that [X], in particular, is suffering some psychological discomfort as a result of the parties poor parenting relationship.
In my view, the applicable legislation directs the court to take commensurate steps to protect children from suffering psychological distress, as a result of exposure to parental conflict. Essentially, the court must balance the benefits a child is likely to derive from having a meaningful relationship with a parent with the possible detrimental consequences arising from exposure to parental conflict.
As Ms L observed, it is not always an easy balance to find. As a result of what has occurred since March of 2009, I concede that I did not strike the right balance in my orders of March 2009. The question which arises is whether it is appropriate to revisit those orders so soon after they were made.
Sadly, this case has all the prerequisites of what was described as the “perenial football match” between parents who will never accept a result from the court which displeases one of them and who will accordingly seek to compete with the other, to get a more preferable outcome, in whatever forum is available, regardless of the implications of such behaviour for their children.
In my view, the rule in Rice & Asplund is not to be applied prescriptively. As it is itself an exemplar of the paramountcy principle, it remains subject to the court’s consideration of the best interests of any child or children concerned.
Accordingly, in determining whether to either apply the rule or disregard it, I must be guided by what I think is likely to be in the best interests of [X] and [Y]. I must balance, on the one hand, the need to protect them from the consequences of further litigation between their parents and also discourage such litigation, when appropriate, but on the other hand, I must ensure that the best possible orders are made to regulate [X] and [Y]’s care. Essentially I cannot countenance the maintenance of a regime which I think is detrimental to [X] and [Y]’s best interests through a slavish adherence to the rule in Rice & Asplund.
Having heard further evidence in this case, particularly from Ms L, I am persuaded that the issues Ms Marino has raised are serious and not merely a rehash of her historical grievances. More importantly, they have relevance to the best interests of [X] and [Y]. Fundamentally, I am persuaded that the orders of March 2009 are not working as intended and, as such, need to be revisited by the court.
I have not reached this conclusion because of issues to do with family violence. As I have already indicated, I am unable to conclude, according to the prerequisite standard of proof, whether Mr Marino did or did not assault Ms Marino on 12 May 2009.
However, it is my view that this incident between the parties is emblematic of a significant level of dysfunction in the relationship between them. Regrettably, I have come to the conclusion that it would not be in [X] and [Y]’s best interests for the court to attempt to paper over these problems, in the vain hope that they will go away. I do not think they will.
In the judgment of May 2009, I said as follows:
“Given that the parties’ parental relationship appears to be resolving, albeit slowly, into a more placid one, although not yet one which is highly empathetic or cooperative, I think that considerations of [X] and [Y] maintaining a meaningful relationship with each of their parents should be give more emphasis in this case than issues to do with family violence.”
In the light of what has occurred since March of 2009, I have come to the view that this confidence was misplaced.
As such, with some reluctance, I have come to the conclusion that the service of [X] and [Y]’s best interests must dictate that they should live predominantly more with one parent than the other, albeit that arrangements will still have to reflect the need of the children to maintain a very significant level of relationship with their father.
As Kay J pointed out in Godfrey v Saunders[29] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. I am satisfied that [X] and [Y] are likely to be able to maintain a meaningful level of relationship with their father in circumstances where they do not spend half of all available time with him. This may not be the best possible vehicle to facilitate the children’s paternal relationship but it can still serve their best interests, when other factors are considered.
[29] See Godfrey v Saunders 208 FLR 287 at 298
From Mr Marino’s point of view, an equal time arrangement is no doubt the fairest one to him. But this court, in its application of the legislation, cannot be influenced by such parental perceptions, notwithstanding that an equal time arrangement is the legislatively mandated ideal. I am satisfied that [X] and [Y] can have a meaningful relationship with their father in a regime which falls short of equal time.
b) Additional considerations
I do not propose to revisit what I said in the earlier judgment concerning the matters which fall for consideration under section 60CC(3)(a) & (b). In my view these observations remain apposite.
Under the heading “The willingness and ability of the parties to encourage a close and continuing relationship between the children and the other parent” I said as follows:
“I consider that both parties have some constraints in their ability to encourage and support [X] and [Y] having a close and continuing relationship with the other parent. I do not think that one of them can be regarded as greatly superior to the other in regards to this issue. However, the fact remains that since January of 2007, Mr Marino has been seeing the children regularly and in May of 2008, the parties consensually agreed to have equal shared parental responsibility and for Mr Marino to spend more time with them.
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.”
Again, in the light of what has happened between the parties over the past year or so, I regard these statements as unduly optimistic. In my assessment, the conflict between the parties has intensified rather than lessened and this has had psychological implications for the well being of the children, particularly [X].
In March of 2009, I prognosticated at the potential of the children “to pick up subliminally their parents’ mutual antipathy for one another.” From what [X] told Ms L, it is clear that he is now very well aware of the conflict between his parents and it saddens him.
If I decide to continue the arrangement currently in place for [X] and [Y]’s care, I do not think that this will constitute any significant level of change for them. Similarly, I do not think that, if I re-implement the previous shared care arrangement, this of itself will constitute any great practical change for [X] and [Y].
In my view, what is important, in the court’s deliberations, is the desirability of reducing the children’s exposure to parental conflict. Both before and after the orders of May 2009, the children saw their father regularly, although the configuration of the time has changed. This has led to a situation where there has been a level of continuity in the nature of the children’s relationship with their father [section 60CC(3)(d)].
In day to day terms, both parents seem able to accommodate [X] and [Y]’s physical needs. The mother impressed me as being well motivated in terms of the children’s educational needs, particularly in respect of the extent of her inquiries into which is the most appropriate school for [X] and in time [Y].
She seems better motivated, in this regard, than Mr Marino. In particular, she is prepared to make a considerable financial sacrifice to ensure the children attend the school, which she thinks is best for them. This is to her credit.
Regrettably, the parties were not able to resolve the issue of which school [X] should attend without considerable rancour. As I have already observed, this dispute seems to be emblematic of their difficult relationship with one another. Essentially, both have wanted to have the last word about it and it has been difficult for them to compromise.
In my view, the parties’ competitive and dysfunctional relationship has the potential to cause emotional harm to the children. This is clear from what [X] told Ms L. He would like a magic wand to stop his parents fighting. Regrettably, whilst the shared parenting regime remains in place, I regard it as unlikely that the parents’ relationship with one another will settle to an even keel.
Although I hoped it would be the case, this has not been the parties experience since March of 2009. As such, I consider it necessary for the regime to be revisited, in order to minimise the potential for the children to suffer emotional damage, as a result of their parents arguing with one another.
I think both parents are open to criticism for driving the ongoing conflict and competition between them. Ms Marino has not been accepting of the shared parenting regime. But nor has Mr Marino adopted a conciliatory or child focussed approach to it. My perception is that his stance in these proceedings has been more motivated by his feelings and aspirations than those of the children.
In these circumstances, it is difficult to see which parent is likely to be more conducive to providing an environment which will protect the children from such a level of emotional buffeting. On balance, I think it is likely to be the mother. I reach this conclusion because she seems to be the children’s main source of emotional succour, particularly when they are unwell and she was more involved with caring for [Y] when the parties separated.
Although Mr Marino will regard it as deeply unfair to him, if a regime is configured which directs the children spend more time with their mother than with him, and this of itself will drive more conflict between the parties, I think it preferable that the children live more with their mother than with him.
For obvious reasons, the mother will prefer such an outcome, to which she has been working for some time. I accept Ms L’s assessment that it is necessary in order to secure some protection for [X] and [Y] from the abusive and disrespectful relationship between their parents, that the shared parenting regime not be reinstated [section 60CC(3)(f)].
Also in the earlier judgment, under the heading “the attitude that each parent has demonstrated to the responsibilities of being a parent” I wrote as follows:
“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.”
For obvious reasons, in order to discharge such a responsibility, the parents concerned need to be able to communicate effectively with one another. Successful parents have many mechanisms to communicate successfully, particularly when issues of dispute arise between them. They may attempt to persuade the other; they may compromise; or beat a strategic retreat; they may defer to the other; - to name but a few strategies.
At times in the past, the parties have been able to use some of these tools to defuse areas of potential conflict between them. In March of 2009, I thought there were hopeful signs, arising in the parties’ relationship that they would utilise more of these strategies in future. I do not think this any longer.
In March 2009, I was well aware that the parties’ parenting relationship was far from perfect but I thought it was getting better. At that stage, I warned myself that it would be both unrealistic and also contrary to the applicable legislation to require the parties to have a utopian or completely empathetic mode of communication with one another, before any thought was given to an equal time parenting regime.
Clearly, given that most separated parents, who come before the court have had a difficult period of adjustment, following relationship failure, it would be unrealistic for the court to consider that the legislature had intended such parents to be automatically disqualified from having an equal time arrangement for the care of their children.
In this regard, I made reference to what O’Reilly J has said in Astor & Astor.[30] In my view, although I must have regard to the level of communication difficulties between the parents concerned and the implications of those difficulties for any child concerned, communication is one factor amongst many, which must be taken into account.
[30] See Astor & Astor [2007] FamCA 355
In this particular case, I have come to the reluctant view that the parties’ communication difficulties are entrenched. In March of 2009, I was of the view that there had been growing periods of rapprochement between the parties. I noted however those periods had been brief. It is now my assessment that this brief spring has returned to winter.
In March of 2009, I also wrote as follows:
“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.”
The mother’s position now is that she does not see an equal time arrangement as inevitable. To the contrary, she vehemently opposes it. As such, I have grave reservations about the workability of reimposing the equal time regime.
In my opinion, the parties’ communication difficulties are not of the magnitude usually to be found in separated parents, who are neither extraordinarily saintly nor unusually difficult but who are likely to be able to ameliorate their difficulties with time. In my assessment, the communication difficulties between the parties are in the extreme range of dysfunctionality and sadly likely to remain so.
Under the heading “whether it would be preferable to make that order be the least likely to lead to the institution of further proceedings” I wrote as follows in the judgment of 19 March 2009.
“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 [X] and [Y]. 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 [X] and [Y]. 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.”
The court and the experts enlisted by it are often called upon to prognosticate about how various options will best serve a child’s interests. Necessarily, the process of such prognostications is uncertain. In this case, I concede that it was wishful thinking, on my part, to think that the level of disputation between the parties, in this case, would diminish over time.
Equal shared parental responsibility
I do not propose to re-visit the allocation of parental responsibility in this case. Although the parties’ parenting relationship is poor, both
Mr Marino and Ms Marino remain vitally interested in [X] and [Y]’s lives and both will continue to spend extensive periods of time with the children.
As such, I do not think it would be in the children’s best interests if one parent was to be conferred with sole or exclusive parental responsibility for the children. This of itself is likely to lead to even more conflict between the parents.
Pursuant to section 65DAC, where a parenting order is made which result in parents sharing parental responsibility for their child, such an order confers joint parental responsibility, on those parents, in respect of the making of decisions relating to major long term issues pertaining to that child. As such, the legislation requires those parents to consult one another and make a genuine effort to come to a joint decision about any such major long term decision.
Major long term issues relate to questions of the child’s education, both current and future; the child’s religious and cultural upbringing; the child’s health; the child’s name; and any changes to the child’s living arrangements which would make it significantly more difficult for the child to spend time with a parent.
I acknowledge that the indications are not good, so far as Mr Marino and Ms Marino are concerned, regarding their capacity both to consult with one another and reach joint decisions about major issues pertaining to [X] and [Y]. The most striking example of this is the impasse relating to which school [X] should attend.
However, notwithstanding these difficulties, I am not persuaded that it would be in [X] and [Y]’s best interests to confer parental responsibility for making major decisions about the children on one parent alone. The parent who was excluded would labour under a sense of grievance, in which resentment would easily flourish.
Such an outcome would be extremely detrimental to the parties’ ongoing parenting relationship. Whatever is the outcome of this case, it is clear that both the mother and father will continue to be significantly involved with [X] and [Y] no matter how the time the children spend with each of their parents is ultimately divided up.
Conclusions
However, alive to the ever present possibility of controversy arising between them regarding major long term parental issues, I will mandate a mechanism to resolve these disputes involving a family dispute resolution practitioner. It should be borne in mind that the parties do not have to consult about day to day parenting matters [section 65DAE].
The allocation of parental responsibility does not strictly determine the allocation of time, which a child spends with each of his or her parents. How parenting time is distributed depends on both what the court considers to be in the best interests of the child concerned and what is reasonably practicable in all the circumstances.
In all the circumstances of this case, I have come to the conclusion that it would be neither in [X] and [Y]’s best interests nor reasonably practicable for them to live in a shared time regime. For the reasons already provided, I am satisfied that this arrangement did not work in the past and was having adverse emotional consequences for the children.
In assessing what is reasonably practicable, the High Court has said in MRR that the court should be concerned with the reality of any child’s familial situation. In making orders, the court must be concerned, above all, with this reality of a child’s circumstances not with what may or may not be theoretically desirable for that child.
Inevitably, there will be some parental relationships, whose individuals features render them unsuitable for either a shared care regime or a substantial and significant time arrangement, no matter how much the child concerned may potentially benefit from such an outcome.
In theory, it is likely to be beneficial for [X] and [Y] to live with their parents for equal periods of time. However, in my estimation, although the parties live a short distance from one another and have much in common, their relationship with one another and mode of communication is too problematic to support an equal time regime.
In my assessment, the topography of the parties’ relationship dictates that [X] and [Y] need to live more with one parent than the other. Given the ages of the children concerned and the fact that Ms Marino was each of the children’s primary carer from birth, she is the parent best placed to provide the children’s predominant place of residence.
I appreciate that this decision will emphasise, in each of the parties’ minds, the impression that one of them is a winner and the other a loser in the perennial struggle between them. This is not my intention. Rather, I have come to the conclusion that the father’s preferred outcome is not workable.
In my view, the parties’ competitive relationship (and other of the factors delineated in section 65DAA(5)) are so detrimental to [X] and [Y] as to render a shared time arrangement impracticable, notwithstanding the other possible beneficial aspects of such an arrangement for the children. This essential dichotomy is implicit in section 65DAA, as it has been interpreted by the High Court.
However, the strength and continuity of the children’s relationship with their father dictates that [X] and [Y] should spend substantial and significant periods of time with their father, so that the current meaningful level of relationship between father and children may be maintained. I do not think that it would be in the children’s best interests for the children’s level of relationship, with their father, to be reduced from what is legislatively defined as substantial and significant time.
Substantial and significant time is defined as days that fall on weekends, holidays and days that do not fall on weekends or holidays. In addition, it includes time that allows a parent to be involved in a child’s daily routine and occasions and events that are of particular significance to both the child and parent concerned.
Clearly the intent of this definition is to lead the court to make orders that will enhance a parent and child’s relationship, so that it becomes both a richer and more balanced one. In the past parents, particularly fathers, have been critical of orders that characterise them as holiday or weekend dads, unable to spend time with their children in the more mundane but no less meaningful setting of the school week.[31]
[31] See Marino & Marino [2009] FMCAfam 227 at paragraphs 196-198
In Silas & Barry,[32] Altobelli FM referred to some of the current social science and psychological perspectives on this issue. He quoted Smyth as follows:
“A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parents wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[32] See Silas & Barry [2009] FMCAfam 448
At present, Mr Marino is spending only week days with [X] and [Y]. This arrangement has been largely dictated by the fact that Mr Marino is not employed and [Y] is not as yet attending school. Accordingly, weekends have not assumed the significance they often hold for older children with working parents.
In addition, the orders made in March of 2009 recognised both children’s, but particularly [Y]’s, tender years and, as such, envisaged a break up of each week so that the children were not separated from one or other of their parents for more than three or four days. However, the orders anticipated a week about arrangement, when [Y] started primary school in 2012.
In my view, a maintenance of the current regime, with some alterations so far as school holidays and special occasions are concerned, will enable Mr Marino to maintain a meaningful level of relationship with both children. However, in my view, this regime will need to be changed from the start of 2012 onwards to incorporate arrangements for the children to spend time with their father on weekends.
At present, the children spend four nights per fortnight in their father’s care. [Y] attends kindergarten for one day per week. This will be extended in 2011. Accordingly, I am satisfied that such a regime enables [Y] to have a qualitatively rich relationship with his father. I do not think it can be said that such a level of time will retard the development of a meaningful level of relationship between the two.
[X] is attending primary school. His father can be involved in that educational process. He will be able to collect and deliver [X] to and from school. In addition, he will provide meals and nurture to both children.
Under the current regime, Mr Marino will be an involved father, albeit not so involved as was envisaged by the March 2009 orders. However, in my view, the beneficial trade off for the children, will be, I hope, a lessening in the tension between the parties. I hope this will be achieved by inaugurating an arrangement whereby the children live more in one of their parent’s households than the other.
As has been the case, in the past, the tender years of [Y] and his individual development needs, must dictate, to some extent, the nature of the orders made by the court. When he starts primary school, in my view, it will be the appropriate to re-configure the orders in a more conventional way to recognise the difference between weekdays and weekends.
Until that time, I am satisfied that a maintenance of the current regime will serve the best interests of [X] and [Y] with some provisos. In particular, I will make orders dealing with special occasions. I also think it appropriate to make orders dealing with the allocation of block periods of time, during school holidays, although [Y] does not as yet attend school.
In my assessment, the appropriate time to start these block periods of time will be during the 2011 school holidays. In my view, when [Y] has attained his fourth birthday, it will be appropriate for him and [X] to spend periods of seven days, during the school holidays, in the care of their father.
It is the father’s wish that specific orders be made in respect of the children spending equal periods of time, with each of their parents, during the Easter periods. The mother’s view is that, as neither party has a religious orientation, it is not necessary to make orders to do with the division of Easter.
Australia is a predominant secular country. However, the majority of its citizens regard Easter as a special public holiday, involving celebration with family and friends. Although increasingly commercialised, it is also a special time for children, who customarily receive gifts of chocolate, usually in the form of eggs, from their parents and relatives.
For these reasons, I accept that Easter is likely to be a significant time for both Mr Marino and the children, notwithstanding Mr Marino’s lack of any specific religious orientation. As such, time at Easter falls within the legislative definition of substantial and significant time.
For these reasons, I propose making orders which will see the children spending equal periods of time with each of their parents over the Easter period. In my view, it is appropriate that the mother have the children for Good Friday in one year and Easter Sunday in the other year and vice versa so far as the father is concerned.
As previously indicated, when [Y] starts primary school will provide an obvious point of demarcation at which to revisit the current regime. In my view, at that stage, in keeping with the view I have taken that the father should spend substantial and significant periods of time with the children, it will be appropriate to move to a mixture of weekdays and weekends during school terms for the children to live with their father.
Like Ms L, I am troubled as to what the strict mix of the days should be. I agree that it is problematic to predict whether a 4/10; 5/9 or even a 6/8 night regime per fortnight, during school terms is more likely than any other regime to reduce the endemic level of parental conflict between the parties. I am however satisfied, for the reasons provided, that the equal time arrangement, previously imposed, was not working and was contrary to the children’s best interests.
Again, a balance must be struck between the desirability of both children having a meaningful relationship with their father, which encompasses interacting with him in a variety of circumstances, including just “hanging out” together with the need to reduce the potential areas for conflict to occur between their parents.
On balance, I have come to the conclusion that the appropriate balance, once [Y] has started primary school in 2012 is for the children to spend five nights per fortnight, during school terms, in their father’s care.
I envisage that this period will commence after school on Friday and conclude at the commencement of school the following Monday (or Tuesday if the preceding Monday is a public holiday) in one week and in the other week encompass two school nights, say Wednesday and Thursday.
When combined with approximately half of each school holiday period, and arrangements for the children to spend time with their father on special occasions, such an arrangement will ensure that both [X] and [Y] maintain a meaningful level of relationship with their father, within the framework of a substantial and significant parental time sharing regime.
The outcome which I will envisage will see the children living more with one parent than the other. Inevitably, this outcome will create a sense of grievance for Mr Marino. However, I am also satisfied that such a regime will maintain his existing strong level of relationship with [X] and [Y] and will not reduce him to the level of a tokenistic parent.
Above all, I am satisfied that the parties’ current dysfunctional relationship, of which Mr Marino’s provocative behaviour at times forms a constituent part, rules out an equal time regime for these children. Shared care did not work for [X] and [Y]. Accordingly, a consideration of their best interests dictates that the orders of March 2009 should be revisited.
At present, the orders made in March of 2010 envisage the children being exchanged between their parents at either a police station or a children’s contact centre. I agree with Mr Marino that a police station is a regrettable place for children to be exchanged between their parents. Children associate police stations with those who break the law and get into trouble. In my view, it is not healthy for a young mind to associate spending time with a much loved parent with a police station.
Children’s contact centres provide a more natural and child focussed location for parents, particularly those who have problematic or high conflict parenting relationships, to exchange their children. However, at the current time, there is a scarcity of such facilities within Australia generally and accordingly there is much call on those services which are currently in place.
As I understand matters, the parties in this case have not formally enrolled in a children’s contact centre. The mother prefers the [P] Police Station. This of itself is a significant source of recrimination for Mr Marino.
At the present time, the parties are restrained from harassing, intimidating or otherwise insulting the other party, as a result of the restraining orders issued by the [P] Magistrates’ Court, following the dismissal of the police complaint against Mr Marino. The charge of assault was not established in the criminal court to the prerequisite standard of proof. In the civil proceedings before me, I was not satisfied, on balance, that an assault had occurred.
However, without doubt, the incident of 12 May 2009 was an unpleasant incident. I am satisfied that Mr Marino played a part in ratchetting up the tension between him and the mother. This was not good parenting on his part.
In my view, it is unworkable, given the regime I have mapped out for the care of [X] and [Y], for the children to be exchanged indefinitely at the [P] Police Station. Both parties seem passively resistant to utilising a children’s contact centre.
In these circumstances, the best option for the exchange of the children is at their school or kindergarten, wherever possible. Failing this, the parties will have to collect and deliver the children to and from their respective homes, which are conveniently situated.
The parties need to bear in mind that the dispute between them is their dispute, not their children’s. They need to remember that any provocative or inflammatory gesture is likely to have consequences for the emotional wellbeing of their children. This behaviour must stop. It represents a failure of parenting of a serious kind.
On 5 May 2010, I also ordered that the parties attend at a KidsRFirst Program. This is a post-separation parenting course, designed to assist separated parents to have a viable parenting relationship, which is beneficial to their children by providing them (the parents) with strategies to assist in improving communication and ancillary matters. At this stage, it is unclear to me whether both parties have completed the course.
The course is important. At the present time, I have come to the conclusion that the parties’ relationship with one another is causing emotional problems for [X]. I would be naïve to think, unless there is some radical change of attitude, these types of problem will not surface in [Y] in time.
The answer to these issues is that the parties try and work more constructively together in their parenting of their children. Mr Marino says he aspires to such an outcome. The orders I propose will see him continuing to play a significant role in the children’s lives. For these reasons, it is incumbent upon him and the mother to complete the KidsRFirst program as soon as possible. I will reiterate my order to this effect.
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 two hundred and fifty-two (252) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 3 September 2010
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