Marshman & Slade
[2023] FedCFamC2F 1447
•10 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marshman & Slade [2023] FedCFamC2F 1447
File number: ADC 1749 of 2022 Judgment of: JUDGE BROWN Date of judgment: 10 November 2023 Catchwords: FAMILY LAW – PARENTING – final parenting arrangements for a child aged 3 years old – where the parties are of different cultural backgrounds – where the parties have no capacity to co-parent and solve problems – where the mother is the child’s primary carer – father seeks a gradual increase to shared care arrangement – mother reluctant to increase father’s time spending – where the parties assert mutual family violence allegations – where the child has been exposed to family violence – allocation of parental responsibility – assessment of risk – best interests of the child – matters to be considered Legislation: Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60I, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 68B, 68L, 68LA, 102NA
Cases cited: Amador & Amador [2009] FamCAFC 196
B & B (1993) FLC 92-357
B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676
Bartel & Schmucker (No 3) [2012] FamCA 1094
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
Fox v Percy (2003) 214 CLR 118
Goode & Goode (2006) 36 Fam LR 422
In the Marriage of Blanch (1998) 24 Fam LR 325
In The Marriageof Patsalou (1994) 18 Fam LR 426
JG & BG (1994) 18 Fam LR 255
Jurchenko & Foster (2014) 51 Fam LR 588
Mazorski v Albright (2007) 37 Fam LR 518
MRR v GR (2010) 240 CLR 461
Penrose & Albrecht [2023] FedCFamC1F 803
Russell & Russell and Anor [2009] FamCA 28
Slater & Light [2013] FamCAFC 4
T & N (2003) 31 Fam LR 257
Division: Division 2 Family Law Number of paragraphs: 264 Date of hearing: 7, 8 & 29 August 2023 Place: Adelaide Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: Daniel John Lawyers Counsel for the Respondent: Mr Praolini Solicitor for the Respondent: Denise M Rieniets & Associates Pty Ltd Counsel for the Independent Children's Lawyer: Ms Boyle Solicitor for the Independent Children's Lawyer: Adelta Legal ORDERS
ADC 1749 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MARSHMAN
Applicant
AND: MS SLADE
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
10 NOVEMBER 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.The mother shall have sole parental responsibility for the child X born 2020 PROVIDED THAT within seven (7) days of making any long-term medical or welfare decision for X the mother shall notify the father in writing of any such decision and recommended treatment for same.
3.X shall live with the mother.
4.X shall spend time with father as follows:
(a)Commencing 13 November 2023 and concluding on 5 January 2024, on each Monday from 9.00am to 3.00pm with the first three (3) hours to take place at B Venue at C Street, Suburb D with the handover into the father’s care to occur at B Venue and the handover at the end of the father’s time to occur at Suburb E Police Station.
(b)Commencing 5 January 2024, and subject to him providing written evidence to the mother that he has enrolled in each of the courses specified in paragraph 7 herein, from 3.00pm Friday to 3.00pm Saturday and each week thereafter;
(c)Commencing from the father’s first usual rotation in January 2025, and subject to compliance with paragraph 7 herein, from 3.00pm Friday to 3:00pm Sunday and each alternate week thereafter;
(d)Commencing from the father’s first usual rotation in January 2026 from 3.00pm Friday to the commencement of school on Monday (or 9.00am if a non-school day) and each alternate week thereafter.
5.X shall spend time with the parties during the following special occasions NOTING that time spending in accordance with paragraph 4 is otherwise suspended:
Christmas
(a)With the mother in 2023 and each odd numbered year thereafter from 4.00pm on Christmas Eve until 4.00pm on Christmas Day;
(b)With the father in 2023 and each odd numbered year thereafter from 4.00pm on Christmas Day until 4.00pm on Boxing Day;
(c)With the mother in 2024 and each even numbered year thereafter from 4.00pm on Christmas Day until 4.00pm on Boxing Day; and
(d)With the father in 2024 and each even numbered year thereafter from 4.00pm on Christmas Eve until 4.00pm on Christmas Day;
Mother’s Day
(e)With the mother from 10.00am until 5.00pm on Mother's Day;
Father's Day
(f)With the father from 10.00am until 5.00pm on Father’s Day.
6.All handovers (save and except paragraph 4(a) herein) that do not take place at X’s kindergarten or school shall take place at the Suburb F Police Station or as otherwise agreed by the parties in writing.
7.The father shall attend and/or complete the following counselling and parenting courses as follows:
(a)Attend G Counselling for a minimum of six (6) sessions;
(b)Complete the H Program Parenting Course;
(c)Complete the J Program Parenting Course; and
(d)Upon completion of the above, the father shall provide the mother with evidence in writing of same.
8.X remain on the Airport Watchlist maintained by the Australian Federal Police at each of arrival and departure from Australia until 2035 when he attains the age of fifteen (15) years.
9.The parties communicate in relation to the care, welfare and development of X by way of the AppClose app or such other parenting application as may be agreed between the parties.
10.The parties be restrained, and injunction is hereby granted restraining them from:
(a)discussing these proceedings with or in the presence of X, or allowing any other person to do so; and
(b)abusing, denigrating or rebuking the other person and/or their family in the presence of X or from permitting any other person so to do.
11.Both parties be at liberty to attend all of X’s school, sporting and extra-curricular activities routinely attended by parents, provided that:
(a)In the event the father intends to attend such an event he provides that mother with no less than twenty-four (24) hours’ notice of his intention to attend; and
(b)Neither party shall approach the other at such event save for where the approaching party has been invited to do so by the other party in writing.
12.Each parent be at liberty to attend at parent/teacher interviews and obtain copies of X’s school, academic records, report cards and school photographs to which parents would ordinarily be entitled to attend or receive at their own expense and/or request.
13.In the event of a medical emergency or serious injury involving X, the parent who has the care of the child shall notify the other parent as soon as reasonably practicable and shall allow the other parent to attend upon the child.
14.The mother provide the father within fourteen (14) days of the making of these orders the names of all medical professionals upon whom X attends, and advise the father of the names of any new medical professionals that X attends as and when such attendances arise, and the father shall be at liberty to request information from such medical professionals subject to the discretion of the said medical professional/s.
15.Each party keep each the other advised of their current residential addresses and contact telephone numbers to be used for emergency contact numbers within fourteen (14) days of the date of these orders and shall keep the other party advised of any changes to same within seven (7) days of such change.
16.Twenty-eight (28) days following the date of these orders the appointment of the Independent Children’s Lawyer is discharged.
17.All extant applications are hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These are final parenting proceedings. Mr Marshman (‘the father’) and Ms Slade (‘the mother’) are the parents of X born 2020. These reasons for judgment are directed towards determining what is the best outcome for X in respect of his future care arrangements within the legal matrix provided by the Family Law Act 1975 (Cth).[1]
[1] Hereinafter referred to as “the Act”.
It is a case characterised by serious but conflicted claims of family violence made by each parent against the other. As a consequence, the case was designated by the court as an Evatt Matter.[2]Such designation occurs after one or both of the parties concerned have been independently screened regarding the existence of risk factors in their family, including in respect of issues of serious family violence and the material in the case has been assessed by a judicial registrar and a triage counsellor.[3]
[2] See Orders dated 23 May 2022.
[3] See Family Law Practice Direction: Lighthouse Project & Evatt List issued 1 September 2021.
As Berman J indicated in Penrose & Albrecht[4] the overarching aim of the Evatt process is that high risk cases should receive considerable front end attention and evidence gathering. In jargon borrowed from the emergency room, such interventions are referred to as triage. Invariably, the process also entails the appointment of an Independent Children’s Lawyer[5] and the obtaining of information from relevant government agencies, particularly police and child protection services. These steps were engaged in the current matter.
[4] Penrose & Albrecht [2023] FedCFamC1F 803 at [45].
[5] Hereinafter referred to as the “ICL”.
At the date of the final hearing, X remains living in his mother’s care, which has been the situation since the parties separated in early 2022. Since that date there have been a number of interim hearings and in this context firstly a Child Impact Report[6] was prepared and released to the parties in August of 2022 and secondly, in the lead up to the current final hearing, a more detailed Family Report released to the parties in June of 2023.
[6] Hereinafter referred to as the “CIR”.
In each case the compiler of the report was Child Court Expert Ms K, an experienced family consultant, who is a social worker by profession.[7] Throughout the court process to date, the emphasis has been on issues of family violence, which remain bitterly contested. At the early stage of the CIR, it was Ms K’s assessment that the mother was most likely the primary provider of nurture for X. Certainly, the child had been in her care since the parties’ turbulent separation.
[7] Hereinafter referred to as “the family report writer” or “Ms K”.
Given the serious allegations of family violence and the evidence which indicated that X had been directly exposed to it. Ms K was greatly concerned that X was at significant risk in respect to his current and future emotional/psychological/physical development notwithstanding his cognitive immaturity. Ms K provided the following general professional opinion, derived from the relevant literature, regarding the danger arising for children of tender ages being exposed to family violence:
Children who are exposed to intense levels of conflict/violence often develop heightened sensory/emotional responses if re-exposed to aggression, conflict and intense emotion, thus reinforcing their anxieties that their world is unsafe. They may also have poorer longer-term outcomes in respect to their emotional/mental health, cognitive and emotional development, learning, peer relationships, coping mechanisms, and overall capacity to thrive. [X] may also be sensitively attuned to and impacted by any residual and/or renewed anxieties and fears experienced by [Ms Slade] because she is his primary carer.[8]
[8] CIR at [27].
I endorse those comments, which are congruent with the applicable provisions of the Act which prioritise the need to protect children from suffering psychological and physical harm as a consequence of being either subjected to or exposed to family violence. This is the main evidentiary issue in the case. Ms K summarised the controversy between the parties in the following terms:
Both parties alleged that the other has been the instigator/perpetrator of the violence between them and they have acted only in self-defence or when feeling emotionally pressured because of the other's behaviour.[9]
[9] CIR at [15].
Again, I endorse this statement as being reflective of the evidence currently available to me. At the Family Report stage, Ms K reported that it was Mr Marshman’s perception that he had been unfairly treated by the system, which he described as being so corrupt. The implication being that because of his gender and background he faced significant impediments in having his accounts of being the victim of family violence accepted by those in authority, including the court.[10]
[10] Family Report at [12] & [14].
At the early triage stage, it was Ms K’s opinion that Ms Slade’s concerns regarding Mr Marshman were of a more substantial and pervasive nature than those asserted by [Mr Marshman].[11] In these circumstances, when coupled with the fact that it seemed more probable than not that Ms Slade had been and remained X’s primary carer, the court elected to take a cautious approach in respect of the child’s interaction with his father. In addition, the fact that X was only two years of age at the time was an influential factor.
[11] CIR at [31].
In these circumstances, on 30 June 2022, an order was made for the father to spend time with X at the L Children’s Contact Centre[12] subject to the professional supervision of one of the Centre’s workers. There were to be six such sessions occurring fortnightly each of which was to be of two hours in duration.
[12] Hereinafter referred to as “the CCC”.
Due to pressures of demand, these visits were unable to commence until October 2022, with the final visit occurring in December 2022, at which stage a detailed report was prepared.[13] The report indicated the father and X interacted happily and appropriately during the six sessions.
[13] See Annexure MM-10 to the father’s affidavit filed 11 July 2023 (hereinafter referred to as “the father’s affidavit”).
CCCs are not intended to provide supervision of a parent’s relationship, with a child, for an indefinite period of time in anything other than exceptional circumstances. Part of their rationale is to provide a safe framework for parent/child contact, until the parents concerned are able to move to self-management of their parenting arrangements.[14]
[14] Children’s Contact Services: Guiding Principle Framework for Good Practice published by the Australian Government Attorney-General’s Department and Moose & Moose (2008) FLC 93-375 at [119] – [120].
However, at the end of the supervised visits process, the parties remained in dispute as to the appropriate means by which the father should interact with X. The mother sought continued supervision, whilst the father wished for a less restricted form of time with X. On 7 February 2023, the case was fixed for final hearing in the following August, which was the earliest date then available, and the Family Report ordered. In addition, over the objection of Mr Marshman, it was determined that Mr Marshman would spend time with X at the unsupervised playgroup offered by the CCC, again on a fortnightly basis.
Regrettably, the parties were unable to agree on a suitable lay supervisor, who was acceptable to each of them. In addition, difficulties arose in respect of clashes between when the playgroup was available and when Mr Marshman had to work. In these circumstances, on 5 July 2023, it was agreed that the father should start to spend time with X at a children’s play café, although from his perspective, the time provided was inadequate and the location inappropriate.
This response was significantly informed by the contents of the Family Report, which has been released a few weeks earlier. In that report, Ms K recommended as follows:
·X lives with his mother.
·X commences a process of increased contact with his father (on an incremental basis) beginning with unsupervised contact at a Play Centre or other pubic facility one day each week (for three hours) for a period of two or three months, increasing to five and then eight hours (one day/week) over the following five to six months, during which it would be of benefit for Mr Marshman to introduce X to his home environment. The number of days that X spends with his father might increase at that point to two days/week (no overnights) if X is coping well and Mr Marshman is available (in respect of his work commitments).
·It would be of benefit for this arrangement to be allowed to consolidate for a further six to nine months before overnight visits are considered, and even then, whether or not they proceed at that point would ideally be determined by how well X is coping. The parents might be guided by their respective Counsellors and/or appropriate agencies/Clinicians who are engaged with X.
·It is recommended that when overnight visits commence, they should initially occur for only one night with X returning to his mother’s care the following morning (mid‑morning) for a number of visits before this is extended to a full second day. The parents might consider moving at that point to a more conventional ‘alternate weekend’ time-spending arrangement.[15]
[15] Family Report at [72].
Accordingly, the first step of increased contact, envisaged by Ms K was largely implemented by the 5 July 2023 order. Following the hearing of the evidence, due to the case’s complexity, I was not in a position to deliver judgment immediately. In these circumstances, the following order was made on 29 August 2023 , which went someway to further implementing Ms K’s recommendations:
Pending the judgment delivery, commencing Monday 4 September 2023, the father will spend time with the child each Monday from 9.00am to 3.00pm with the first 3 hours to take place at [B Venue] at [C Street, Suburb D] with the handover into the father’s care to occur at [B Venue] and the handover at the end of the father’s time to occur at [Suburb E] Police Station.[16]
[16] Orders dated 29 August 2023.
However, at the end of the hearing, the parties remained in dispute about what should happen next and how parental responsibility should be distributed between them. Mr Marshman seeks the conferral of equal shared parental responsibility.
So far as his on-going interaction with X is concerned, he concedes that any future time spending regime needs to proceed at an incremental pace congruent with X’s developmental needs. He would characterise his current level of relationship with X as being embryonic and axiomatically in need of rapid advancement. A state of affairs he attributes to the mother’s idiosyncratic personality, which renders her incapable of trusting anyone, not just him.
Ultimately, Mr Marshman proposes that after the introduction of two full days to be spent with X on the Monday and Tuesday of each week (which coincides with his days off); then moving to the introduction of an overnight block after a period of four months, which would be further extended two months later; the resulting blocks of time being extended a day at time over the next eighteen months or so, until an equal time regime is reached in mid-2025 or so.
For her part, the mother proposes that there be a slower and more cautious approach which culminates in alternate weekends from the conclusion of school on Friday until 3.00pm the following Sunday. This would occur after a period of 84 weeks and presumably be reached when X starts primary school. She seeks the conferral of sole parental responsibility.
The father describes the mother’s proposal as unduly conservative and glacial in nature and replete with the risk that it will ultimately lead to the extinction of any proper level of relationship between him and X, which would be antipathetic to the service of the child’s best interests.
In broad terms, this represents the extent of the dispute between the parties. However, it needs to be emphasised that it will not be resolved by any positive finding that one of the parties behaved more egregiously than the other. Although issues of family violence are given a predominant emphasis in the applicable legislation, they are not the only factors to be taken into account.
The court’s emphasis must always be on the service of X’s best interests, not those of the parties. In the present matter, considerations relevant to those interests will centre on the benefits the child is likely to derive from having a meaningful level of relationship with those who are significant to him, both now and into the future – most relevantly his mum and dad; the nature of those parental relationships and their capacity to develop; his age; and each of the parties’ level of parental capacity and insight, particularly in the context of providing for X’s emotional needs. The aim of the court to provide an idiosyncratic response to his unique circumstances and family.
In this context, the evidence of Ms K assumes central importance. Necessarily, she is in a superior position to me in the sense that she has been able to observe X directly interacting with each of parents and so can form of visceral impression of those relationships. I have never met X. Ms K described him as an active and curious child. Given his age, it was clearly inappropriate that he be formally interviewed.
As I will expand on in due course, she also noted that X interacted with each of his parents in different ways. I acknowledge that this may be attributable to the fact that he has spent much more time with his mother since the parties separated than with his father.
Ms Slade was described as no fuss, understated and quietly responsive in her engagement with X. She did not play with him but spoke quietly and easily with him. With his father, X was described as initially uncertain and hesitant. However, later the two engaged in exuberant and physically active manner, of which Ms K’s impression was X’s behaviour appeared to morph into hyper-arousal and some uncertainty/tentativeness of which Mr Marshman himself appeared to be unaware. In this context, Ms K provided the following opinion, in the evaluation section of the Family Report:
While [Mr Marshman] did not present as being as attuned to or prioritising of [X’s] needs as did [Ms Slade], he conveyed that he dearly loves him, is committed to being significantly involved in his life, and has different strengths/gifts to offer. The pace at which time- spending is now increased is likely to challenge his expectations/wishes and cause him frustration, which he may require support in managing in a constructive manner. He conveyed a limited understanding of [X’s] developmental needs, including the emotional/psychological demands associated with him separating from [Ms Slade] to spend increasing amounts of time with him in what will initially be an unfamiliar environment.[17]
[17] Family Report at [69].
I too unequivocally accept that both Mr Marshman and Ms Slade deeply love and care for X and each of them wishes the best outcome for him, although they greatly differ as to what this should be. In this context, Ms K viewed the endemic mistrust between the parties and their currently significantly compromised capacity to communicate effectively with one another, to be a risk factor so far as X’s on-going care was concerned.
Ms K considered it to be of fundamental importance for X that he not be exposed to further inter-parental conflict, which could include not only overt physical or verbal conflict (to which he was clearly exposed before and after separation) but could also arise from a generalised atmosphere of heightened tensions. It would be naïve to think, given the fact that the case has had to proceed to final hearing, that these tensions either have or are likely to easily dissipate in the foreseeable future.
Whatever is the ultimate outcome of the case, it seems more likely than not that the parties will experience on-going trust and communication issues. For obvious reasons, in my view, this state of affairs is likely to have serious implications for the overall viability of any parenting regime posited on equal time.
However, on a more positive note, Ms K was of the view that given the absence of any recent complaints by either party of having been subject to incidents of family violence from the other, that concerns relating to family violence were no-longer a risk factor for the family. She was not so confident regarding issues of trust and communication, given the obvious difficulties which has arisen during the parties’ relationship. She noted as follows:
Both parents identified that in moving forward, their main concerns relate to a generalised mistrust/unknowing of what the other may do to cause further trouble/drama, rather than concrete concerns regarding further physical violence and their own safety.
Family violence is not considered a risk factor while the current injunctions/restraints remain in place and the parents don’t have substantial renewed contact.[18]
[18] Family Report at [30] – [31].
Overall, not without some misgivings, it was Ms K’s opinion that parental responsibility for X should be shared between the parties provided the court set boundaries in respect of how they communicated with one another over salient issues to do with him. In this regard she proposed that they utilise a parenting app.
Equally significantly, Ms K recommended that the various injunctions regarding non‑denigration and the like remain and with any handover of X be conducted in public – initially at a police station (as is Ms Slade’s preference) but if nothing untoward has occurred at a McDonald’s (Mr Marshman’s preference).[19]
[19] Family Report at [72 (f) & (g)].
In addition, Ms K recommended that the parties embark on a separate course of personal counselling to address what she perceived to be the fundamental problems in their co-parenting relationship. I believe these can be summarised as follows:
·Their pattern of escalating conflict/violence arising from each of their respective up bringing and personal vulnerabilities.
·Ms Slade being over-reactive to her concerns that Mr Marshman might not parent X with the same level of attention, prioritisation and care which she exercised. The implication being that she should access professional assistance to help her balance her anxieties about X spending time with his father and the benefits likely to ensue for the child from such a relationship, whilst maintaining an appropriate level of concern for his safety.
·Assistance to help Mr Marshman to move away from his narrative of being Ms Slade’s victim and to enable him to have a greater understanding of the emotional/psychological demands arising for X of having to separate from his mother and spend time with his father for increasing periods of time in an environment initially unfamiliar to him.
In this context, Ms K recommended as follows:
[Mr Marshman] would benefit greatly by receiving support to develop his broader parenting awareness/knowledge and skills-base in areas such as the care requirements of a three year old regarding routine/sleep/diet, and how to recognise the signs that a child is experiencing separation anxiety and support them.[20]
The parties have each indicated a willingness to undertake such counselling and, in this context, the ICL has designated a number of courses which she believes will assist Mr Marshman.[21]
[20] Family Report at [70].
[21] See Exhibit A.
In my view, the challenges which this case presents can be readily summarised but are not ones which are readily soluble. X is a vulnerable child of tender years; hitherto his relationship with his father has not been extensive, certainly over the last twenty months or so; there is an extreme lack of trust between the parties; Ms Slade is highly protective of X against a background of her having legitimate concerns about Mr Marshman’s parenting capacity.
As a consequence of these factors, there is currently no viable basis for any form of co‑parenting relationship arising between the parties. In these challenging circumstances, Ms K wrote as follows:
A realistic, optimal outcome for [X] at this point in time would be that through spending increasing time with his father at a pace he can manage, they (he and [Mr Marshman]) will forge a more trusting/involved relationship, that the parents will each separately engage with a Psychologist/Counsellor to address their issues and improve their co-parenting relations in order to communicate appropriately about child-related matters, and [Mr Marshman] will seek to further develop his parenting understandings/skills.[22]
[22] See Family Report at [71].
BACKGROUND
The father commenced these proceedings on 24 April 2022. At this initial stage, he sought both final and interim orders, which would have seen X living primarily with him and spending only supervised time with his mother, with the child being exchanged between his parents at the secure location of a police station. He asserted that he and the child required such protection because he had been the victim of the mother’s violent behaviour in the past.
In order to achieve this outcome, on an interlocutory basis, he sought that the court issue what is known as a recovery order for X, which would have had the effect of directing police to compulsorily remove the child from his mother and placing him in the care of his father.
After the recovery order had been made, the father proposed a regime of supervised contact between the mother and X at a Children’s Contact Centre. Necessarily, the regime proposed by the father required an immediate change in care arrangements for X, who was 2 years of age at the time and thereafter that his relationship with his mother should be significantly reduced in temporal terms and subject to outside supervision.
Axiomatically, a recovery order is an extreme order for the court to make given the potential for such a removal to cause emotional upset for the child effected, particularly a child of tender years, such as X. At the time of the application, it was recognised that X had been in the care of his mother, since the parties ceased to live together, in a property owned by the mother at Suburb M, a suburb of Adelaide, in early 2022.
However, as will be outlined in greater detail in due course, it is apparent that the relationship between the parties had been subject to significant difficulties over the preceding few years, with arguments occurring between them about many issues, particularly about financial issues.
The parties have never been legally married, although they went through a religious marriage ceremony in 2016, shortly after they had met. There is no dispute between them that they physically separated, in difficult and controversial circumstances, which involved police coming to their home, in early 2022. X has lived with his mother since that date at the Suburb M property.
Earlier, it appears clear that they had elected to separate under the same roof in November of 2021. At the time, the parties were jointly engaged in operating a business in Suburb N and the father had no easy or obvious access to alternative accommodation.
In this context, the father makes much of the fact that in early 2022 the parties, ostensibly at least, made a joint application to Centrelink for social security on the basis that they were sharing the care of X on what was described as a 50/50 basis. In his submission the relevant application provides independent documentary evidence that he had been integrally involved in providing significant care for X.
The mother has a different take on this application. It is her case that the father largely left the parenting of X to her and exploited the fact that she had a greater level of financial backing than him. She acknowledges that this led to conflict between the parties. She deposes as follows:
In or around November 2021 I insisted that the father and I separate. He pleaded with me to give him another chance, and that he would sell the [business] so that he could return to work and contribute to the household expenses. We agreed that he could remain living in my house so that the child could have both parents under the same roof, and that he would pay half the household bills and do half of the housework. I also asked the father to sign paperwork with Centrelink to ensure that my parenting payments would not be cut off once the father started working in the paid workforce. He refused to do so and kept insisting that I give him another chance in the relationship. I told the father that we could continue to live separated under the same roof, and that we could see how things worked out between us. The father claimed that it would be fraudulent if l claimed Centrelink benefits whilst we were both living under the same roof.[23]
[23] See affidavit of Ms Slade filed 24 July 2023 at [51] (hereinafter referred to as “the mother’s affidavit”).
The evidence unequivocally indicates that the parties were not able to maintain a relationship as housemates and co-parents under the one roof. This arrangement came to an abrupt end in early 2022, with each party accusing the other of being physically violent. It is also clear that X was present during the prolonged altercation between his parents, which took place on this occasion.
The father deposes that the altercation between the parties began with the mother slapping him in the carpark outside the Suburb N business. During the ensuing afternoon and evening, although it is difficult for me to ascertain precisely what occurred, the argument escalated with the parties exchanging invective about their respective romantic intentions.
Necessarily these exchanges were heated, and each acknowledges that they occurred whilst X was being bathed. Both attempted to call police. The father attempted to leave the home with X, who was removed from the car, by a neighbour. Who precisely called the police during this unpleasant incident is unclear. However, police did attend in response to a complaint of disturbance at the home.
SAPOL records produced to the court indicate police attended the home on two occasions on that date. During their initial attendance, police spoke at length to the parties and urged them to seek relationship counselling. However, axiomatically this did not result in tensions between the parties reducing, as the records further indicate police were re-called to the house approximately fifteen minutes later, at which stage Ms Slade indicated that the argument between the parties had resumed immediately after the police had left.
During this argument, she alleged that Mr Marshman had assaulted her by grabbing her arms and covering her mouth causing her to sustain a laceration. On the night in question Ms Slade declined to press charges but did so the next day when she attended at the local police station. Mr Marshman subsequently surrendered to police and was charged and an interim intervention order was made, on the application of police, which named Ms Slade as the protected person.
It was at this stage that Mr Marshman vacated the Suburb M property, leaving X in Ms Slade’s care. In these circumstances, on 9 March 2022, the parties engaged in a process of family dispute resolution but were unable to resolve the parenting issues arising between them. As a consequence, a certificate was issued pursuant to the provisions of section 60I of the Act. It was against this difficult and highly contested background that the father commenced the current proceedings.
At this time, from his perspective, there was a level of extreme urgency relating to the safety of X, whilst he remained in the mother’s sole care. He described Ms Slade as an unpredictable and erratic person, who was prone to angry outbursts, during which she was capable of anything. In addition, he alleged that she suffered from a number of significant mental health issues relating to having suffered significant childhood trauma.[24] Necessarily, it was his position that it was she, rather than he, who had instigated the various altercations between them in the past.
[24] See affidavit of Mr Marshman filed 24 April 2022 at [11]-[12].
In particular, he pointed to a recent event which caused him to be gravely concerned regarding X’s safety. He alleged that on 13 March 2022, he had received an email from Ms Slade in which she had threatened homicidal violence against the child. He also alleged that the mother had physically assaulted him by striking him and spitting on him, in early 2020, whilst at the business and which had been recorded on the business’ CCTV camera.
I have been provided with a copy of the relevant video footage, along with other videos he has taken of Ms Slade on his mobile phone.[25] He also alleged that the mother was an alcoholic. Essentially, it is his case that he is able to provide incontrovertible evidence that he has been the victim of the mother’s violent behaviour and further she has acknowledged her violent behaviour against him to Ms K.[26]
[25] See Exhibit B.
[26] See Family Report at [24].
The evidence establishes that police became involved following the spitting incident and given the incontrovertible evidence that Mr Marshman had been assaulted they (police) sought an interim intervention order which named him as the protected person.[27] At the time the mother was pregnant with X. It is the father’s evidence that the mother prevailed upon him to withdraw the family violence order, which he did.
[27] See Annexure M-5 to the father’s affidavit.
I have viewed the footage. It is silent. It shows the parties engaged in a vigorous conversation behind the counter of the business. It is clear that there is some matter about which they disagree. Each gesticulates. Each leaves the conversation and then returns to it.
As the video concludes, Mr Marshman walks away, as does Ms Slade before the latter abruptly turns and strikes Mr Marshman. She then grabs her handbag from underneath the counter and walks vigorously out of shot. Mr Marshman turns and starts texting on his mobile phone. He appears calm.
Clearly what occurred was unacceptable. But from my perspective, it is very difficult to ascertain the human context from the video footage alone. Such context is likely to arise from what the parties said to each other, rather what they each physically did. However, as she herself concedes, Ms Slade does have aspects of a highly reactive personality. For what it is worth, in the video she did not present as being fearful of Mr Marshman, nor he of her.
Mr Marshman also alleges that in mid-2021, Ms Slade threw a can of tuna, intending to hit him with it but it struck X in the back. He alleges another similar incident when he alleges the mother threw the child onto a sofa, when she had lost her temper. The mother specifically denies behaving in this way or otherwise putting the child at risk. She agrees that, on one occasion, she did throw a can of tuna, striking the father on the foot, but causing no harm to X. It is her position that Mr Marshman has exaggerated the incident to serve his own purposes.
In all these circumstances, Mr Marshman contends that his evidence regarding his close and loving relationship with X; that he has been the victim of the mother’s violence towards him, which has also placed X at risk; and the fact that, prior to the parties’ separation, he provided an equal, if not greater degree of care for the child – as evidenced by the jointly executed application to Centrelink – should be accepted by the court.
As will be detailed in due course, Ms Slade does not accept this characterisation of either her or the parties’ relationship with one another or the nature of their respective parental relationships with X. It is her case that it is she who has been the victim of Mr Marshman’s coercive and controlling behaviour rather than the contrary and indeed she asserts that Mr Marshman was able to manipulate her into reacting violently against him so he would be able to portray himself as a victim to authority, if necessary.[28]
[28] See Family Report at [24].
In her affidavit prepared for the trial, she alleges it is the father who abuses alcohol rather than she and is a person, who smokes cigarettes heavily and marijuana on occasions. She describes him as person who is financially irresponsible – borrowing money he cannot repay from family and friends as well as from lending institutions – and with a weakness for gambling.
Essentially both the father and mother assert that the other represents a significant risk to the psychological and physical safety of X. In these circumstances, the principle focus of these proceedings is on the court’s assessment on how X’s best interests can be advanced by ensuring he is both protected from coming to harm, whilst at the same time ensuring that he maintains a sufficiently close level of relationship with those who are emotionally significant to him – his mother and father.
Given the extreme level of dichotomy between the positions of each of the parties and the lack of evidence from any independent or objective sources, much of the burden arising from this task falls on how the court assesses the respective credibility of each of the parties. Necessarily, the task also involves the court, as best it can, assessing the risks arising for X, given the serious allegations each parent makes against the other.
The mother responded to this application on 6 May 2022. She prepared her own documents for the court. She has only recently become legally represented as a consequence of an order made on 7 February 2023 pursuant to the provisions of section 102NA of the Act, which banned each of the parties from directly cross-examining the other.
On both a final and interim basis, she sought orders that X live with her, and she have sole parental responsibility for him. She also proposed that the father only be able to engage with X, on a professionally supervised basis, for a maximum of 2 hours per fortnight for an indefinite period of time. She also wished for Mr Marshman to be directed to complete an anger management course along with undertaking psychiatric counselling.
It was her position that during the parties’ relationship of approximately 5 ½ years, she had been the victim of serious domestic violence, which had been perpetrated against her by Mr Marshman. In this context, she deposed that the constant mental, emotional, financial and sometimes physical abuse, to which she had been subjected to by the father had led her to suffer from a significant reactive depression. She acknowledged having struck and spat upon the father but deposed that this was in retaliation to his constant mental, financial and physical abuse.[29]
[29] See affidavit of Ms Slade filed 6 May 2022 at [10] & [12].
In respect of the allegation that she had sent a threatening email regarding the safety of X, Ms Slade alleged that the email in question had in fact been sent by Mr Marshman to sully her character and advance his case against her. She asserted that he had in fact broken into her home and illegally accessed her laptop computer to send the relevant email. From her perspective, this behaviour demonstrated that the father has a highly manipulative and anti‑social personality, which represents a threat to both her and X’s welfare.
She denied that she was an alcoholic, violent or mentally unstable person. Rather, she portrayed herself as a person who had been pushed to breaking point by the father’s manipulative behaviour. In essence, it is her case that Mr Marshman is highly intelligent but pathologically untruthful person, who has a capacity to present himself as a victim of events, which he did to police in the aftermath of the events of early 2022.
Ultimately, in late 2022 the charges laid against the father and the interim intervention order naming the mother as a protected person were discontinued by the police. The father’s perspective is that the police became convinced that the mother was an unreliable witness. The mother’s perspective is that the police glibly accepted the father’s explanation that the injury to her had occurred when Mr Marshman was trying to calm her down.
As this introduction shows, the positions of the parties are diametrically opposed. This dichotomy is reflected in the parties’ respective cultural backgrounds, which are also significantly different. It also seems probable to me that they each have a different approach to the parenting of X, which in turn is a reflection of their respective experiences of being parented as infants. Certainly, this was the expert opinion of Ms K, who noted that each party had reported to her having experienced a problematic childhood, but in different ways.
The mother acknowledged that she has struggled at times to play actively with X, an issue which she attributes to her challenging childhood. She reported that Mr Marshman was good at playing with X, but only for short periods of time, before losing interest or patience. It is her position that she has always been X’s main provider of care.
Whilst Mr Marshman conceded that following X’s birth, he had been compelled to work long hours, it was his position that he had been very significantly involved in caring for him, including bathing, feeding and playing with X. As a consequence, it is his position that, prior to separation, X and he were strongly attached to one another. He reported to Ms K having been harshly treated by his step-father, emotionally neglected by his mother and denied contact with his father.[30]
[30] See Family Report at [13].
What the parties agree upon is that their relationship, in its later years, was one marked by increasing levels of acrimonious conflict, marked by mutual mistrust, which escalated over time. This is undoubtedly the case. It is the mother’s position that she came into the relationship in a markedly superior financial position to the father and over the years of their involvement with one another, he exploited her financially, particularly in respect of sending money to his family overseas.
The monies which the mother advanced to the father were a source of great friction between them. It being the mother’s position that the father concocted some of the claims for money needed to supply the medical needs of a relative and other expenses and in fact lied to her that his mother had cancer, which was not true. It is also her evidence the father also stole money from her. In her affidavit material, she has also expressed resentment that she financed a number of expensive holidays for Mr Marshman and subsided both his living and general expenses, whilst he did little to support himself.
Mr Marshman was born in 1981 in City P, Country Q. He migrated to Australia, with his former partner, when he was aged 28 years. He has a career background in hospitality and is currently working as a manager at a venue in Adelaide. Previously, he was the proprietor of the business in Suburb N, which the mother asserts she largely financed and in which she also worked from time to time.
The mother was born in 1985 in City R, Country S. She attended a boarding school in Country T and has always been academically orientated. She moved to Australia, at the age of 15, to complete her education and moved on to tertiary studies in Adelaide, where she completed a postgraduate qualification. She was employed as an academic for a period of about 6 years.
It is the effect of her evidence that her employment enabled her to purchase the former family home in Suburb M and which remains her and X’s home. It is also her evidence that she provided $35,000.00 to enable the purchase of the Suburb N business and then a further $20,000.00 to enable its renovation, which she funded from her savings. She deposes that she agreed to the purchase because Mr Marshman was unhappy being in the paid workforce. She also deposes that she advanced other significant sums of money to him, which he sent overseas.
It is the effect of her evidence that the business was ineptly managed by Mr Marshman and never made a profit, which resulted in her continuing to have to subsidise Mr Marshman. In these circumstances, in 2019, she elected to not renew her employment contract and go and assist in the business. It seems clear to me that this resulted in yet more conflict between the parties.
Ms Slade describes the relationship between the parties, as being toxic in nature. It is her case that she was subject to several incidents of significant violence at the instigation of Mr Marshman, which included being choked; her arm being grabbed and twisted; pushing her to the ground; and her pinning against the wall or furniture. She deposed that she did not call the police in respect of the majority of those incidents.[31]
[31] See the mother’s affidavit at [14].
Given how she characterises the parties’ relationship, it is her case that she suffered a serious and reactive depression to her situation, which led her to self-harm in 2018. The incident was the catalyst for her seeking a mental health plan for herself, which resulted in her being prescribed anti-depressant medication.
As previously indicated, it is the father’s case, that it was he who was more frequently the victim of the mother’s violent outbursts. He alleges that police were involved in respect of an incident in late 2018, when Ms Slade kicked him, whilst he was on the ground.[32] Records produced by SAPOL, pursuant to the Co-Location Information Project indicate as follows in respect of the incident:
[…]2018 - Domestic Abuse Offence - Police were called in relation to a domestic disturbance. On arrival police established that [Mr Marshman] and [Ms Slade] had become involved in a heated verbal argument over their finances. During argument, [Ms Slade] reportedly tried to leave the house in an attempt to de-escalate, with [Mr Marshman] reportedly attempting to prevent her from doing so as he wanted to continue arguing. Whilst [Ms Slade] was trying to leave the house she reportedly slapped [Mr Marshman]to the right side of his face, and then whilst trying to close front door has caused [damage to the door]. [Ms Slade] managed to leave house, and then called for police mediation from her car down the street. No visible injuries to [Mr Marshman] only soreness. Police noted that [Mr Marshman] did not call police or want any intervention. In a follow up with [Mr Marshman], he stated that he and [Ms Slade] had discussed the issues and that he believed they had resolved them. [Mr Marshman] stated he knew he did the wrong thing by stopping [Ms Slade] from leaving, and that he knew that was what one of them should do. [Mr Marshman] advised that they had been to a counselling session […] and that he thinks things had been better since then.
[32] See the father’s affidavit at [20].
In support of his claim that he was the victim of the mother’s violence against him, Mr Marshman relies on the contents of a text message, which Ms Slade sent to him, which he asserts contains admissions of her misconduct, particularly that she is prone to explode. I am usually reluctant to rely on such messages, in vitriolic family law proceedings such as these, given the spontaneous nature of such correspondence and the fact that it invariably arises within the private confidences of an intimate relationship and, as such, caution needs to be taken before utilising them to make concluded findings of fact.
However, as I will expand upon in due course, when outlining the legal principles applicable in the case, it will be necessary for me to attempt to categorise the nature of the family violence, which clearly has been endemic in the parties’ relationship with one another over at least the past two to three years.
In these circumstances, in my view, the message is emblematic of the extraordinarily unhappy situation in which the parties found themselves in the latter stages of their relationship, which was clearly bedevilled by financial pressures, incompatibility and, following X’s birth, the challenges of parenting a baby. It seems to me to be likely that that neither party behaved impeccably in such circumstances. The text is as follows (the father in italics):
I really cant take this anymore. Dealing with you is exhausting
Whst ever. Yea i explode and being a bitch again fine
You want to talk and me listen even if you say what I am not agree with but when I start talk then you not agree what I am saying then you intrupe me
I have to hang up 3 times
I told you we better don’t talk now but you keep going
Ok I will not come home
And you can think or believe what you want over one thing I said about the dogsYou need to fix your attitude. I cant take it anymore
I hqve been doing most of the house work taking the dogs out everyday before we move here. You’ve been only been doing it for 2 mo ths and you’re already giving me attitude
I really cant take it anymore [Mr Marshman]
You want me to hit you again coz you keep defending yourself
Sorry i didn’t meant this i am just exhausted emotionally and need help[33]
[33] See Annexure M-2 to the father’s affidavit.
Ms Slade does not dispute that she was reactive to what she would characterise as an intolerable situation for her. She is not in a position to deny the contents of the video relating to the incident when she struck Mr Marshman at the business. However, it is her position that she responded to provocation and Mr Marshman was more violent overall than she. It is also her case that she was reluctant to involve police and felt isolated in Adelaide. She did however seek some advice from SAPOL in early 2019, which was recorded as follows in the co-location information release provided to the court:
[…]2019 - Domestic Abuse Non Offence – [Ms Slade] attended a police station to seek some advice about domestic abuse. [Ms Slade] stated she had been in a relationship with [Mr Marshman] for about 3 years. She moved over from [Country S] 17 years ago and met him in Adelaide. She has no other friends or relatives here. They had no children together at time of reporting, they co-own a [business]. [Ms Slade] stated that [Mr Marshman] antagonizes her sometimes, which leads to her becoming very frustrated. [Ms Slade] advised that this might happen once every couple of weeks, however the behaviour had escalated in the last few months. [Ms Slade] stated that about a year ago, [Mr Marshman’s] taunting became so bad that she hit him to the face. Police were called, attending patrols advised the parties consider counselling. [Ms Slade] stated that [Mr Marshman] did not want to attend counselling and that they stopped trying to work through the relationship. [Ms Slade] stated that today at home a verbal altercation ensued over minor issues. [Ms Slade] stated that [Mr Marshman] was very rude and they were both saying they were 'on the edge'. [Mr Marshman] reportedly stormed off and grabbed the cash for the [business], at which point [Ms Slade] slapped him across the face. [Ms Slade] stated that she feels on-edge all the time, and is having other life problems. She stated that she didn't want to hit [Mr Marshman] but stated that she just loses control sometimes. [Ms Slade] advised that she sometimes hits herself instead, hits her head against the wall or wardrobe. [Ms Slade] stated that [Mr Marshman] had hit her once after she slapped him. [Ms Slade] stated that [Ms Marshman] subjected her to ongoing psychological abuse and taunting. [Ms Slade] stated that she was at a loss and didn't know what to do or where to turn. She had no support in SA and did not want to return to [Country S].
Police made a follow up call with [Ms Slade], in which she stated that a lot had happened since she reported, and that things were improving. [Ms Slade] advised that both her and her husband have endured family tragedy and business stresses, both at their [business] and through her own employment […]. [Ms Slade] explained that she had left her job and planned to spend more time at their [business]. [Ms Slade] explained that she and [Mr Marshman] had talked a lot this week and examined what their stresses were. [Ms Slade] had been seeing her GP and is now on a MH plan and on prescribed anti-depressants. She indicated that her stress levels had already reduced now that she has finished her job as this was her primary cause of stress. She added that maybe financial worries would now arise but so far things were much better. Police offered further supports/ links, however [Ms Slade] declined. Contact details provided for further assistance/ advice.
It needs to be stressed that it is not the function of these proceedings to determine who of the parties was more at fault in what was clearly a deeply unhappy and dysfunctional relationship on many occasions. In addition, I have not been informed to any degree as to whether there were periods of happiness or indeed cooperation between them from time to time in their relationship as partners over a period in excess of five years.
Rather, I must remain focussed on what is the best outcome for X. He is not to be awarded, like some form of prize or compensation to the party whom I consider is the more put upon of the two.
Clearly, there was a significant level of mistrust between the parties in the period prior to their separation. This mistrust has continued throughout the proceedings to date. One significant factor, from the mother’s perspective, leading to her chronic mistrust of the father, arises from the fact that after the parties finally separated, she discovered Mr Marshman had previously been married and had two children now aged about fourteen and nine.
In addition, she discovered papers, concealed in her home, after Mr Marshman had vacated it, which revealed that he had been the subject of a family violence order instigated by his former partner. It is Ms Slade’s evidence that Mr Marshman concealed from her the fact that he had two children from whom he was estranged.
Ms Slade asserts that the effect of the papers, which she discovered is that Mr Marshman remains married, and his wife has made serious complaints to police about him regarding the commission of family violence, including financial abuse; threatening to kill one of the children and her; and physical assault.[34]
[34] See the mother’s affidavit filed 27 June 2022.
Ms Slade is highly suspicious at the fact that Mr Marshman did not reveal something as significant as the fact that he was married and had children to her. From her perspective, the father has repeated a pattern of coercion and control, with her, as he had earlier done with his wife.
Mr Marshman and Ms Slade are not the only parties to these proceedings. As previously indicated, due to the screening of the matter and the parties’ significant but opposing allegations of family violence, on 10 May 2022, it was ordered that X be represented independently of his parents in the proceedings pursuant to the provisions of section 68L of the Act. X’s representative is Ian Charman, an experienced family lawyer based in Adelaide.
Mr Charman is to be regarded as a party of equal importance to the parents in the case. He instructed a barrister, Ms Boyle to appear on his behalf at the final hearing, which took place over three days in August of 2023.
Pursuant to the provision of section 68LA of the Act, both Mr Charman and Ms Boyle are under statutory duty to examine all relevant evidence and then advocate to the court the outcome which they believe will best serve the interests of the child, whom they represent.
At the present time, on the basis of their assessment of the evidence, they favour X remaining in the predominant care of Ms Slade and she being conferred with sole parental responsibility for him. It being Ms Boyle’s submission that the endemic conflict and currently compromised levels of communication between the parties militating against any sharing of parental responsibility.
Ms Boyle does however submit orders should be made requiring the mother to inform the father of significant developmental and educational decisions which need to be made in respect of X and that she keep Mr Marshman in the loop about any medical issues pertaining to the child.
In the short to medium term, Ms Boyle proposes that there be a cautious approach taken to X interacting with his father, but time be incrementally increased through 2024 and 2025. However, the end point of this process would be the child spending alternate weekends, with his father, from 3.00pm on Friday until the commencement of school the following Monday.
Ms Boyle makes some specific proposals for special occasions such as Christmas and Mother/Father’s days. Her proposal is silent in respect of school holidays. Given concerns ventilated regarding the removal of X from Australia, she proposes his name remain on the Watch List until he is aged 15 years.
As previously indicated, she has proposals for a number of parenting courses which Mr Marshman should attend and endorses the continuation of standard injunctions regarding non-denigration and the like. She favours handovers at a police station or the child’s school.[35]
[35] See Exhibit A.
THE EVIDENCE
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[36] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[37]
[36] See Evidence Act1995 (Cth) s 140.
[37] See Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
In addition, I bear in mind section 140(2) of the Evidence Act 1995 (Cth), which indicates that in applying this standard of proof, I am entitled to consider the nature of the subject-matter of the proceedings and the gravity of the matters alleged.
The most significant forensic task required of the court, in reaching judgment in this case, is whether the father exposed the mother to coercive and controlling behaviour during the parties’ relationship. However, any such finding alone cannot be determinative of the outcome of the case from the perspective of what is best for X.
Rather the court must utilise any findings it makes to assess the level of risk – in all senses of the word, both psychologically and physically – which arises for X from each possible parenting outcome arising in the case.
In my view, it is extraordinarily difficult, given the twisted skein of allegation which meets counter allegation in the case, for any unequivocal finding to be made regarding who was the major protagonist of family violence in the case. Neither party can be presented as obviously the victim of the other.
In my general assessment, each of the parties behaved inappropriately from time to time, as a consequence of the grossly unsatisfactory situation in which they both found themselves. For all sorts of reasons, the parties were singularly unsuited for one another. Accordingly, I would characterise much of the violence between them as being situational in nature.
In this context, in my view, it is simplistic and indeed impossible, on the basis of credit assessments alone, to reach a conclusion that one party was always the proponent of family violence and one always the other victim given the extreme level of polarisation in the evidence available.
In these circumstances, Ms K’s assessment that if the parties remain quarantined from one another, with clear orders made restricting the possibility for direct engagement between them, the risk of X being exposed to future incidents of family violence arising between his parents to be minimal, appears to me to be a correct one.
However, notwithstanding such a finding, it still remains necessary for the court to make some sort of assessment of what is the nature of the parties’ current relationship and how amenable it is to any co-parenting regime in future and what are the overall implications of this for the service of X’s best interests.
At this stage, it is my general finding that the mother was the more credible witness in respect of these matters than the father. She accepted that she had behaved inappropriately in the past. Both in court and to Ms K she made concessions about her behaviour, which rung true for me and led me to reach the view that her characterisation of the overall dynamic of the parties’ relationship was the one more likely to be reliable.
She reported to Ms K as follows:
[Ms Slade] conveyed that given her background as previously described wherein she assumed responsibility for her own survival/well-being and was independent from a very young age, she has a low tolerance for feeling disempowered or used by others, commenting; ‘I’m not a woman […] in [Country Q], I’m not the type of person to be controlled’. She acknowledged there were times when she became extremely angry and retaliatory, commenting; ‘I’d get up and shove him back to show him you can’t do that to me, another time I scratched the hell out of him’. She asserted that in retrospect, she now believes there were times [Mr Marshman] manipulated her into reacting in order to create a narrative that she was abusing him. [Ms Slade] conveyed she is unembarrassed by her reactions, believing she was entitled to respond as she did even though this contributed to an escalating cycle of conflict and their current impasse. She said in the end, she was less invested in their relationship surviving and just wanted to ‘get out’.[38]
[38] See Family Report at [24].
The admissions of violent behaviour, made against self-interest, accorded with my own assessment of Ms Slade, in the sense that she is both honest and capable of self-criticism and analysis. For want of a better word, she can be described as being feisty on occasions. Certainly, she has reacted strongly to what she has perceived as being unwarranted behaviour exercised against her. This does not mean that she cannot herself be subject to coercion or is immune to its corrosive consequences, as her self-harm incident demonstrates.
I find that Mr Marshman did attempt to coerce and control Ms Slade during much of the parties’ relationship and this did elicit a violence response from her from time to time, given her resistance to such behaviour. It also seems to me to be highly probable that Mr Marshman, at the very least, took advantage of Ms Slade financially and was aware how he could goad her.
It also seems to me to be much more probable that she was and remains the parent who has the greater degree of insight into what was occurring and also has the better conception of what is entailed in being a responsible parent. Ms K noted that Ms Slade accepted that X needed to have a relationship with his father and was able to concede that the child’s experience of seeing his father was generally positive. Again, Ms Slade reported to Ms K as follows: he’s happy to see his Dad…you can see he’s very excited to go…I can hear [X] laughing and having fun with [Mr Marshman].[39]
[39] See Family Report at [46].
I also accept Ms K’s assessment that during the parties’ relationship and afterwards Ms Slade has been X’s main provider of both emotional and physical care. She described X as being strongly bonded with his mother. That is not to say that Mr Marshman was not involved with X, but I do not consider it was to the same degree. In my view, this finding is congruent with those arising from Ms K’s report of the interaction between X and his father, which was marked by initial hesitancy and then some level of hyperactivity.
It was Ms K’s view that Mr Marshman had a limited understanding of X’s needs and was more focussed on his own rights, particularly in regards to moving to an equal time regime as soon as possible.[40] In response, Mr Marshman has criticised Ms K for being biased against him. In all the circumstances of this case, particularly because she was more favourably impressed by Ms Slade’s level of insight that there is any merit to such criticism.
[40] See Family Report at [43].
Given what has occurred between the parties, both before and after separation, I can understand why Ms Slade is apprehensive about interacting with Mr Marshman and why she is so liable to be protective of X. I accept that her responses to Mr Marshman’s conduct towards her has driven both such outcomes. However, in my view, Ms Slade’s proposal to advance time spending arrangements is both more realistic and child focussed.
This accords with Ms K’s opinion. She did not consider that a shared care regime was feasible but rather a graduated response was required in respect of future time spending arrangements between the father and X. She wrote as follows:
[A] shared care arrangement requires a higher level of cooperation and goodwill between parents to manage/coordinate the many practical aspects involved. As previously noted, the parties presented as having continued high levels of mistrust of each other and a reasonable risk of re-engaging in conflict should they come into regular contact again.
[Ms Slade] conveyed a more realistic understanding that [X’s] time with his father should be incrementally increased. … She suggested that when unsupervised contact commences, it should initially occur at a public facility such as a dedicated play centre/café which replicates the environment of the ‘Contact Centre’ where [X] has recently been used to seeing his father. [Ms Slade] is also likely to be more reassured if unsupervised contact commences in this way, which in turn will support [X] to feel confident and thereby to separate from her with greater ease.
[Ms Slade’s] proposal that a third party should be present at changeovers (such as at a Police Station or other public venue) is realistic given the parties’ history of conflict, relative non-resolution of their relationship dynamics and respective, on-going concerns. As previously noted, further occurrences of overt conflict with [X] present will potentially negatively impact his emotional/psychological/cognitive health and development.[41]
[41] See Family Report at [49] – [51].
Much effort was spent in each party trying to discredit the other in respect of the provenance of the dispute email of 13 March 2022. Mr Marshman relied on an alibi to establish that he could not have physically be able to send the email at the time it was despatched. Ms Slade pointed to the email’s poor grammar and spelling error as demonstrating that she could not be its author given her level of education in Australia since high school and the fact of her academic qualifications and experience.[42]
[42] See mother’ affidavit filed 6 May 2022 at [8].
On balance, it strikes me as improbable that the mother would have sent the email. She had no motivation to do so, given X was in her care and, at the time, she was the subject of a protection order. She had no need to threaten Mr Marshman. On the other, at the time, Mr Marshman did have a reason for wanting to discredit the mother and categorise her as a potential threat to X. If, on balance, Ms Slade did not send the email, it must have been sent by Mr Marshman.
In all these circumstances, regrettably, I have come to the conclusion that Mr Marshman is a person capable of the Machiavellian intrigues attributed to him by Ms Slade. I also accept that he generated significantly more of the discord in the parties’ relationship and Ms Slade reacted to this state of affairs. This is a significant finding and I appreciate it is largely one based on what must be regarded as the imperfect exercise of assessing credit from presentation in the witness box. I also find that Ms Slade also contributed to the parties’ labile relationship.
I also appreciate how easy it is for individuals, at a distance, to pass sanctimonious judgment on the conduct of unhappy individuals placed under great pressure by circumstance. However, from the court’s perspective, more important than attributing fault in the parties’ past relationship is the consideration of the impact of the extreme dysfunction between them on their child.
In this context, I wholeheartedly agree with Ms K’s opinion that X has been negatively impacted by the conflict, which emanated more from the father than the mother. I also find that the mother is likely to have the greater degree of insight into the emotional consequence of this for X’s future development.
In these circumstances, it is my view that a large component of Ms Slade’s heightened protective concerns for X’s safety emanates from her explicable reaction to Mr Marshman’s conduct towards her. Although I appreciate it is Mr Marshman’s position that Ms Slade’s anxiety is either exaggerated or concocted for strategic reasons related to these proceedings or her animus towards him, I do not consider this to be the case. Notwithstanding Ms Slade’s expression to Ms K that she would, in effect, not be pushed around, in my estimation, she has demonstrated ample reason for her to be apprehensive of Mr Marshman.
In these circumstances, I agree with Ms K’s opinion that it would be helpful for X, before unsupervised time commences, for Ms Slade to feel as much reassurance as possible that this can occur safely. This militates in favour of a graduated approach.[43] It was also the context in which Ms K recommended that Ms Slade engage with a counsellor to help her deal with her stress. It also accords with applicable authority.[44]
[43] See Family Report at [50].
[44] See B & B (1993) FLC 92-357 at 79,780.
I appreciate that I have made extensive reference to Ms K’s Family Report. I accept her expertise to provide the report and the opinions and recommendations, which it contains. I can find no justification for the assertion of bias made by Mr Marshman, although I appreciate that he vehemently disagrees with its conclusions.
LEGAL PRINCIPLES APPLICABLE
Part VII of the Act deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration.[45]
[45] Family Law Act 1975 (Cth) s 60CA.
Part VII is subject to a number of principles and objects set out in section 60B. These, if you like, provide the philosophical underpinning of the Act as it relates to decision-making so far as children are concerned. The court is obliged to ensure that a child’s best interests are served by ensuring it considers various fundamental principles. I will provide each of them verbatim:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
What is interesting to note about these various principles and objects is the fact that it is children who have rights under the legislation and parents who have obligations and duties. In particular, the benefits likely to accrue to a child of having a meaningful involvement with a parent must be viewed within the context of the child’s overall best interests, which consist of a number of considerations and factors.
The Act, picking up on section 60B, provides a specific list of matters, which the court must take into account in determining how a child’s best interests are to be served in the making of any parenting order. They are contained in section 60CC.
Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s interests will be best served in proceedings before it. They are designated as primary considerations of which there are two and additional considerations, of which there are some fourteen in number.
In general terms, given their close connection to the objects and principles contained in section 60B the primary considerations are to be given more weight in the court’s deliberations. However, given the idiosyncratic issues arising in any particular case, one or more of the additional considerations may come to the fore.
The two primary considerations, set out in section 60CC(2)(a) and (b), are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In the past, these considerations were not formally ranked in respect of one another. They are now. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations, to give greater weight to section 60CC(2)(b), which is the primary consideration relating to the need to protect children from physical or psychological harm, from being subjected to or exposed to neglect, abuse or family violence.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Accordingly, the legislature has directed the court, in respect of how a child’s best interests are to be secured, to give pre-eminence to protective concerns raised in respect of the child’s exposure to abuse, neglect and family violence. Although the court cannot overlook the benefits likely to accrue to a child from meaningfully interacting with a parent, it must give greater weight to protecting children. Necessarily, how this balance is to be achieved, to secure an outcome consistent, to the maximum extent, with the best interests of the child, must depend on the idiosyncratic circumstances of each case.
Given the finding made about the aetiology of the toxicity in the parties’ relationship, the anxiety Ms Slade is likely to experience at the prospect of X’s relationship being advanced at a pace which is faster than she can emotionally accommodate is a factor which the court can take into account and which was influential in Ms K’s ultimate recommendations. In B & B[58] the Full Court said as follows:
…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
[58] B & B (1993) FLC 92-357 at 79,780.
As indicated above, the additional considerations are set out in section 60CC(3), which include, pursuant to section 60CC(3)(m) any other fact or circumstance which the court considers relevant. This is to ensure that the infinite variety of circumstances, arising in the life of each individual child who will be affected by the court’s order, may be adequately addressed.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.[59] The court’s duty is to deliver individual justice, for the child affected, in every case.[60] In this sense, the court’s inquiry is a positive one tailored to the best interests of the particular children and not children in general.[61] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[62]
[59] Family Law Act 1975 (Cth) s 60CA.
[60] See B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, 755 [34] (Nicholson CJ, Fogarty and Lindenmayer JJ).
[61] See B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, 734 [26].
[62] See Russell & Russell and Anor [2009] FamCA 28 at [141] (Ryan J).
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.
In the current matter, the following additional considerations set out in sub-paragraphs (b);(d); (e);(f);(g);(i) &(l) are likely to be central. These sub-paragraphs deal with the following issues:
·The nature of the children’s relationship with each of their parents and other family members. As previously indicated, both parties have family overseas and Mr Marshman is estranged from his children from an earlier relationship. In these circumstances, the most important relationships for X are those he shares with each of his parents.
·The likely effects of change in the child’s circumstances. As previously indicated although each of the parties agree that there must be some degree of change in how X interacts with his father, there is a fundamental disagreement between them (and the ICL) about the degree of that change and what is end point should be.
·The practicality of time spending arrangements. Given Mr Marshman’s work commitments and the tensions inherent in the parties’ relationship, what will work in respect of X spending time with his father must be an important consideration.
·The capacity of the parties to provide for the emotional needs of X is a central issue. The mother asserts that she is better placed in this regard. The father asserts he has a close relationship with X, which the mother is intent of undermining. Each party asserts that the other is a flawed parent, who has enmeshed the child in the endemic conflict between them.
·The age of the child. Given X’s age at present, the mother asserts the court needs to continue to take a cautious and incremental approach to extending his relationship with his father.
·X is heir to two different cultural backgrounds. In the present case, neither party placed emphasis on cultural issues for the child.
·Each assert that the other has a compromised understanding of what is entailed in being a responsible parent.
·The desirability of finalising proceedings. Necessarily if the orders made are too limited in their temporal application, the prospect of further proceedings must be enhanced.
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.
Because of the importance the legislature places on both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child.[63]
[63] Family Law Act 1975 (Cth) s 61DA.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence.[64]
[64] Family Law Act 1975 (Cth) s 61DA(2).
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned.[65]
[65] Family Law Act 1975 (Cth) s 61DA(4).
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child, particularly the presumption of equal shared parental responsibility. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA(1), 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 Act.[66] 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.
[66] Family Law Act 1975 (Cth) s 65DAA(3).
More significantly, it is time which enables a parent to be involved in a child’s daily routine as well as 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.
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 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 section 65DAA(1) and (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made (and with equal effect a substantial and significant time order).[67]
[67] See MRR v GR (2010) 240 CLR 461, 466 [13] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
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. This is because section 65DAA(1) and (2) are expressed in imperative terms and oblige the court to consider both questions. The affirmative answer to both being an essential jurisdictional fact before an equal time or substantial and significant time order is made.[68]
[68] MRR v GR (2010) 240 CLR 461.
Accordingly, courts such as this one are directed to consider the reality of the situation which confronts parents and children and not merely whether it is desirable, in the sense of facilitative of the child’s best interests alone, that an order be made for equal time to be 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.[69] As a consequence, a proper consideration of what is feasible requires the court to consider the circumstances of each of the parties concerned.
[69] See MRR v GR (2010) 240 CLR 461, [13]-[15].
The legislative pathway to determine a child’s best interests, which was delineated by the Full Court in Goode & Goode,[70] can be summarised as follows:
[70] Goode & Goode (2006) 36 Fam LR 422.
•The Court is to consider the section 60CC matters relevant; then
•Decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
•there are reasonable grounds to believe abuse or family violence has occurred;
•or in an interim matter only, it is not considered “appropriate” for it to be applied;
•If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
•If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
•If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
•If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
•Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the Court considers it to be in the best interests of the child concerned.
It is the position of both the mother and the ICL in the present matter that the presumption should be rebutted because there are reasonable grounds to consider that family violence has occurred. This is undoubtedly the case. I have no difficulty in reaching the conclusion that family violence has occurred between the parties on multiple occasions during the course of their relationship.
The parties fundamentally disagree about the allocation of parental responsibility between them. The mother seeks to be conferred with sole parental responsibility. The ICL concur with the outcome subject to a proviso that the mother advise the father of any significant issue relating to the child’s health or education. The father seeks the application of the presumption arising under section 61DA and ultimately for there to be a progression ending with X living with each of his parents for equal periods of time.
As indicated above, even if the presumption is applied, any equal time or substantial and significant time regime following from it, is posited on the basis of the satisfaction of two conditions – the regime satisfies the best interests of the child and it is reasonably practicable to implement.
It is Ms Slade’s position, based on X’s tender years, the fact that she has been his primary carer for a protracted period and what she would characterise as the father lack of parental insight and capacity that the outcome proposed by the father is not in the child’s best interests. Even if this hurdle could be overcome, she further asserts that the parties compromised capacity to communicate effectively or resolve even the most trivial aspects of the child’s care – as these proceedings have demonstrated – rules out the outcome advocated by the father.
I agree with this submission. However, notwithstanding the rebuttal of the presumption created by section 61DA, it is still open to the court to consider an equal time regime and how best to confer parental responsibility by reference to the overall circumstances of the case. The lodestar, for the court, remaining the best interests of X.
How responsibility for the parenting of a child is formally conferred upon a person, in proceedings conducted under the Act, is through the making of a parenting order. Parental responsibility, ‘in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children’.[71]
[71] Family Law Act 1975 (Cth) s 61B.
The court has authority conferred upon it, through the provisions of Part VII of the Act, to alter the conferral of parental responsibility on any parent or parents, which arises by reason of their status as parents of any child concerned. This is done through the mechanism of a parenting order.
A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions.[72]
[72] Family Law Act 1975 (Cth) s 64B(2).
Pursuant to section 65C of the Act, a child’s parents; the child; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order.
As is evident in the current matter, each of the parties is quite clearly and fervently interested in all issues to do with the long term parenting of X. As such, each of them can only be described as interested in the care, welfare and development of their children. Accordingly, the father has the legislative authority to seek the orders, which he does.
In addition, as a consequence of the provisions of section 65D, the court is empowered to make whatever parenting order it considers “proper”. Pursuant to section 64B parental responsibility can be allocated to two or more persons. Clearly this provision, when considered in the light of the objects and principles underlying Part VII, contained in 60B, is supportive of the concept of parents sharing parental responsibility and meeting their responsibilities concerning their children’s care, welfare and development.
Clearly, the viability of the parties’ on-going parenting relationship must be a relevant consideration as to how parental responsibility is conferred between them. In Bartel & Schmucker (No 3), Cronin J said as follows regarding the nature of parental responsibility:
Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.[73]
[73] See Bartel & Schmucker (No 3) [2012] FamCA 1094 at [18] (Cronin J).
Justice Cronin further said of the concept of parental responsibility that it:
[I]s a broad concept as described in s 61B and that task covers many things. Parents are expected jointly to endeavour to promote their children’s development by ensuring they have the greatest potential in adulthood whilst at the same time enjoying the security of childhood they deserve.[74]
[74] See Bartel & Schmucker (No 3) [2012] FamCA 1094 at [21].
An order which provides for shared parental responsibility requires that the parties to it consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned.[75]
[75] Family Law Act 1975 (Cth) s 65DAC.
By necessary implication it is the submission of the ICL that it is currently not likely to be the case that Mr Marshman and Ms Slade are capable of making any such genuine effort but rather will become deadlocked in any such consultation regarding X. The evidence available to me indicates the cogency of such a submission.
Major long-term issues is a concept defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
It is in the context of this provision that Ms Boyle has proposed a form of half-way house in respect of issues related to parental responsibility. This recognises the fact that Mr Marshman is and will remain vitally interested in all major decisions pertaining to X but the reality of the parties’ parenting relationship renders consensual decision-making problematic in the extreme. In this context, she proposes the application of the first limb of section 65DAC but not the second.
The parties agree on the fact that they are currently unable to communicate. They have been separated for a period approaching two years. As far as I can discern there has been nothing nearing a rapprochement between them. As the evidence currently stands, I consider any lessening of hostility between them to be against the balance of probabilities.
I appreciate that I must be careful not to adopt an unduly utopian standard for the parties’ communication skills or expect them to adhere to a standard, which is clearly untenable, given that they separated in difficult and acrimonious circumstances, as many couples do, particularly those that seek the court’s assistance to resolve their parenting disputes.
However, I would assess the conflict between the parties, in the current matter, to be at the more extreme end of acrimony and as such an issue of particular concern in respect of the allocation of parental responsibility. It is important the important decisions, for X, be made promptly and not become mired in argument.
In these circumstances, in my view, the ICL’s proposal in respect of the conferral parental responsibility, which includes an informative aspect, has much to recommend it. Chiefly it recognises the reality of the parties’ situation. It also seems to me to be protective so far as X is concerned and avoid him being exposed to more conflict between his parents.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or the other of them.
This is to ensure that the myriad of decisions, which have no long-term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
The mother and the ICL seeks a range of injunctive orders against the father. The law relating to such injunctions is contained in section 68B of the Act. The court is authorised to make any injunction it considers appropriate for the welfare of any child concerned in proceedings before it. It may make an injunction for the personal protection of a child or a child’s carer.
DETERMINING THE BEST INTERESTS OF THE CHILD – SECTION 60CC
a) The primary considerations
The applicable legislation requires me to consider two criteria primarily – protective concerns relating to the exposure of a child to abuse, neglect and family violence – and the benefits of a child having a meaningful relationship with both of his or her parents. As previously indicated, the former criterion is to be given greater weight, in appropriate cases.
I am satisfied that X was exposed to family violence during the period the parties lived together in the mother’s property at Suburb M. I accept that although Ms Slade’s behaviour during that period cannot be described as being beyond reproach, the majority of the corrosive factors in the parties’ relationship, particularly in terms of coercion and control emanated from Mr Marshman.
In this context, it was noteworthy that each party reported to Ms K that X had been present during at least some of their incidents of conflict/violence and had become very distressed as a result. It also is likely to be the case that his household, prior to his parents’ separation, was one infused with an atmosphere of discord.
I accept Ms K’s expert opinion that the fact that X was only an infant at the time does not lessen the potential for him to have sustained emotional harm as a consequence of such exposure. In the Family Report, she wrote as follows:
[F]or very young children of [X’s] age, while they are unlikely to remember the actual experience/s, the impact is often expressed through behaviours such as increased clinginess and separation anxiety, disturbed sleep patterns, regressive toileting/eating habits, generalised irritability, and a hypersensitivity to raised voices/conflict. This can impact their development/learning, emotional/psychological health and overall functioning which over time, can result in inappropriate coping responses such as emotional/physical dysregulation and/or withdrawal, anxiety and depression throughout childhood, adolescence and possibly into young adulthood.[76]
[76] Family Report at [64].
More significantly, it was further Ms K’s opinion that there were dangers arising for X as a consequence of exposure in future to his parents’ severely compromised relationship with one another. She went on to say in the Family Report as follows:
It is also acknowledged that behavioural disturbances can arise for children (particularly when they are as young as [X]) when their parents are significantly estranged, as is the case for [Mr Marshman] and [Ms Slade]. This is because they (children) are exquisitely attuned to their parents’ unresolved feelings of anger, distress and fear towards one another, and of resultant tensions within the co-parenting relationship. For a child of [X’s] age, this is again typically expressed through regressive behaviours such as those noted above, especially when the child is regularly transitioning between the parents’ households.[77]
[77] Family Report at [65].
In these circumstances, as previously indicated, the presumption of equal shared parental responsibility should not be applied. In addition, I do not consider that even in the relatively distant future, it can be considered that a shared care regime could be in X’s best interests or be anywhere close to being practically implemented. The same can be said of a significant and substantial time regime.
I accept Ms K’s assessment, which accords with my own, that Ms Slade has the greater capacity for critical self-reflection and self-awareness than does Mr Marshman. It is to her great credit she has acknowledged – albeit not to the extent Mr Marshman would have wished – that X enjoys spending time with his father and the two can play together more fluently than she is able to. I do not consider her indication that X needs to have a relationship with his father to be a hollow one.
In these circumstances, it is in my view clear that X’s best interests will be served if he continues to live predominantly with his mother. I accept Ms Slade is more entuned with X and consequently he is likely to be well aware of his mother’s anxieties. In this context, Ms Slade’s emotional response to the prospect of X interacting with his father and the circumstances surrounding such involvement are relevant considerations and, in my view, militate in favour of a cautious approach being adopted.
However, in the longer term, I accept that X is likely to derive significant benefits from having a meaningful level of relationship with his father, who clearly loves him. These benefits include the love of a parent and the creation of happy shared memories. As X develops through being a pre-adolescent and then adolescent boy, he is also likely to benefit from having an engaged father in his life, with whom he can just to do things and receive positive approbation for his various activities.
These things are important but so is the shared capacity of father and child to just hang out together without stress or artificiality because the two know each other, as a consequence of easy familiarity having arisen between them. Such relationships need time and regularity to establish.
Necessarily, X will need to spend time with his father, at the latter’s home and for Mr Marshman to become responsible for discharging some of the more mundane aspect of parenting such as preparation of meals and overseeing bedtime routines for the relationship to develop to this degree and become meaningful in the sense envisaged by the legislation.
This is the more difficult aspect of the case – the balance between the need for X’s paternal relationship to be advanced and normalised and the necessity to protect him from coming to emotional harm as a consequence of the fractured and mistrustful relationship between his parents, a state of affairs which is unlikely to be remediated any time soon.
In my view, Ms K, in her recommendation, has provided an appropriate balance, which takes into account X’s current age – 3 years and the fact that his relationship with his father has for the last eighteen months been based on short periods of time. It moves to longer periods of daytime with the implementation of overnight time in approximately twelve months.
Mr Marshman will consider this to be too slow but, in my assessment, a too hasty approach will have the potential to be derailed and set back the relationship rather than enhance it. The hope is that both Ms Slade and X will accommodate such a graduated approach and X will become more accustomed to his father and Ms Slade will become less anxious and mistrustful of him.
THE ADDITIONAL CONSIDERATIONS
a) The child’s views
This is not a relevant consideration given X’s age.
b) The nature of the child’s relationship with each of his parents and significant others
This is a more significant consideration. In my view, the evidence clearly indicates that Ms Slade has been X’s primary carer and he is thriving in her care. His relationship with his father is currently subsidiary to that relationship but clearly has the potential to be very important for X as he develops.
Ms K expressed some concern that Mr Marshman had a limited awareness of the potential for a child of X’s age to experience anxiety when separated from his primary carer, notwithstanding his capacity to play happily with other individuals. As such, she advised as to the need to incrementally increase contact so [X] can develop greater familiarity with him/his environment and adjust to increasing periods of separation from [Ms Slade].[78]
[78] See Family Report at [43].
In my view, this is a central issue in the case. The court’s focus must remain on what is best for X. I accept that given his age/stage of development and the limited nature of his contact with his father, since the parties’ traumatic separation, a graduated process directed toward the father spending time with X is warranted.
c) The extent to which each of the parents has taken or failed to take the opportunity to be involved in decision making and to spend time or communicate with the child
ca) Provision of financial support for the child
The two above are not strongly relevant considerations in the case and do not require individual consideration.
d) The effect of change
This is not a case concerned with any abrupt change in X’s circumstances. Rather, it is one concerned with the making of gradual, incremental changes in his care arrangements in order to develop his relationship with his father. As noted above, in my view, the court needs to ensure that this process is carefully managed. A balance needs to be struck so both Ms Slade and X can become accustomed to the process but it not be so slow that Mr Marshman’s relationship with the child loses its potential to become consolidated. Necessarily, wherever the balance is struck, it is probable it will be too fast from Ms Slade’s perspective and too slow from that of Mr Marshman.
Given the credence I have given to the opinion of Ms K and my acceptance of her expertise, which stems from the fact that the assessment of the dynamic within the family conforms with my own, it follows that I accept her recommendations in respect of how the time should be extended and the limitations, which should be placed on it. As indicated above, I do not consider an equal time regime is either likely to be in X’s best interests or feasible to implement.
e) The practical difficulties and expense of the child spending time and communicating with each of his parents
Given the requirement that Mr Marshman must work and his employment is in management with an emphasis on weekend work, I appreciate there are likely to be practical issues arising in respect of X spending time with his father. However, as he grows up, for obvious reasons, X will be living to a schedule which involves attendances at kindergarten, pre-school and primary school on weekdays and weekends off. The parties must recognise the reality of this situation.
Otherwise, given the parties each live in suburban Adelaide and have access to motor cars, there are few practical impediments to X spending time and communicating with his father. The greater barrier, in this regard, is the compromised co-parenting relationship between the parties.
f) The capacity of each of the child’s parents and other persons to provide for the emotional and intellectual needs of the child
i) The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the parties
The above two considerations are closely related and, as such, it is convenient to consider them together. These have been particularly bruising and adversarial proceedings. No quarter has been given by either party to the other, each of whom has focussed on the negative aspects of the other’s parenting performance.
For her part, Ms Slade conceded that Mr Marshman was able to play more effectively with X than she could. However, she was critical the he lost patience with the child and was more inclined to return to his game console. Ms K also had some concerns regarding Mr Marshman’s capacity to emotionally regulate X.
Ms K was also concerned that Mr Marshman prioritised his own emotional needs, particularly his desire for shared care and the achievement of what he perceived as being fair for him over X’s needs. She wrote as follows:
[Mr Marshman] conveyed that because [X] is comfortable playing with him within a contained/structured environment for short periods, this reflects sufficient bonding for them to progress to an arrangement of shared care. In general, [Mr Marshman] demonstrated limited insight in respect to [X’s] needs vis a vis his own in terms of [X’s] age/stage of development and the limited nature of their recent contact.[79]
[79] Family Report at [43].
As previously indicated, it was Ms K’s opinion that Ms Slade had a greater capacity for self‑reflection and was more child aware. In this context, she conceded that playing with X was not her forte. This does not mean that she is not aware of his emotional and physical needs in other areas. Ms K wrote as follows:
She conveyed a level of self-reflection in respect of her own approach, such as wanting to balance when she steps in to help/protect [X] or allows him space and opportunity to problem-solve on his own. She said she is also learning how to play games with him, commenting she believes she will find this easier as he grows older and can engage in sporting activities together. [Ms Slade] conveyed she is a dedicated, conscientious parent who has high self-expectations in her parenting of [X]. She said she is pleased with his progress, commenting that he is happy, smart and playful, can think for himself and is appropriately cautious.[80]
[80] Family Report at [44].
My assessment of Ms Slade, notwithstanding Mr Marshman’s criticisms of her that she is a mentally unstable, alcoholic and violent person, is that she is a capable parent who is able to supply X's emotional needs appropriately. In addition, given her own academic background, it would appear probable that she will be able to supply X’s educational requirements.
g) The child’s maturity, sex, lifestyle and background
In my view, whatever orders are made must reflect X’s current tender years, the fact that his mother has been his primary carer and his comparative degree of unfamiliarity with his father. As I have already noted neither party made any specific reference to X diverse cultural heritage. In this context, the only special occasions to which reference have been made are Christmas and Mother and Father’s Day.
I acknowledge that issues to do with his X’s sense of connection to each of his parents, within the Australian context, are likely to be significant as he grows to maturity and develops a greater sense of his personal identity. However, the parties elected not to explore these issues in either their respective cases or the orders sought by each. This, of course, is their prerogative.
h) Aboriginal Heritage
This is not a relevant consideration in the case.
j) Family violence
k) Any family violence order
I do not propose to add in respect of these matters, which have been addressed throughout these reasons for judgment.
l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
The evident problem in this case is that, at this juncture, it cannot be ascertained with certainty, how X will react to each of the stepped advances proposed by Ms K. However, it is not in his best interests to prolong the litigation any further. In these circumstances, as the ICL proposes, the court must do its best to put in place an appropriate progression which balances the various considerations.
CONCLUSIONS
In summary, I do not propose to apply the presumption of equal shared parental responsibility and need not give active consideration to either equal time or substantial and significant time. The presumption is rebutted by the existence of serious family violence during the course of the parties’ relationship. More significantly, the deficits in the parties’ co-parenting relationship make such an outcome unfeasible and contrary to X’s best interests – both currently and in the reasonably foreseeable future.
In my view, it would not be realistic for the court to put in place a regime which leads to such an outcome, even if it be years in advance, in the hope that the parties will become more accommodating of the other’s aspirations. In my estimation, this would be a vain hope and would very likely lead to more litigation between the parties in future.
Although I accept Mr Marshman’s deep love for X and his obvious interest in all matters pertaining to him. In my view, the reality of the parties’ situation is that they will struggle to reach any joint or consensual position in regard to major long-term issues to do with his care. In order to avoid X become enmeshed in such controversy, it is preferable that one parent be conferred with parental responsibility but with an associated obligation to inform.
Given Ms Slade’s level of insight into the responsibilities of being a parent and her warm relationship with X, which derives from the fact that she has been his primary carer, it is in X’s best interests that he remains living with her, and she be the parent conferred with parental responsibility along the lines recommended by the ICL.
The more difficult aspect of the case is to determine how X’s relationship with his father should progress, given the significant findings, which have been made regarding the existence of coercive and controlling behaviour in the parties’ relationship. I acknowledge that much of that behaviour is reflective of the unfortunate situation in which the parties found themselves in the period prior to their separation – a period in which neither party can be described as being without fault.
However, the powerful emotions released by that period continue to reverberate for each of them and so for X and his best interests. In these circumstances, in my view the court is obliged to take a cautious approach. In my view, the court has been much assisted by the early provision of expert evidence from Ms K, who conscientiously applied herself to examining the dynamic of the family. In my view, her recommendations, as adapted by the ICL, are workable, sensible and child focussed.
In these circumstances, I propose to make the orders as proposed by the ICL, subject to the fact that the first progression has already been implemented. 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 sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 10 November 2023
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