Mathers and Stanley
[2011] FMCAfam 1232
•24 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MATHERS & STANLEY | [2011] FMCAfam 1232 |
| FAMILY LAW – Interim hearing – best interests – family violence – meaningful relationship – presumption of equal shared parental responsibility. |
| Family Law Act 1975 (Cth), ss.60CC, 60B, 61DA |
| MRR & GR [2010] HCA 4 Dylan & Dylan [2007] FamCA 842 |
| Applicant: | MR MATHERS |
| Respondent: | MS STANLEY |
| File Number: | ADC 2158 of 2011 |
| Judgment of: | Brown FM |
| Hearing date: | 24 October 2011 |
| Date of Last Submission: | 24 October 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 24 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Rieniets |
| Solicitors for the Applicant: | Denise M Rieniets & Associates Pty Ltd |
| Counsel for the Respondent: | Ms Lewis |
| Solicitors for the Respondent: | Matthew Mitchell |
ORDERS
The matter is fixed for final hearing before Federal Magistrate Brown on 28 & 29 March 2012 at 10:00am NOTING 2 days allowed.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 1 March 2012.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 15 March 2012.
On or before 15 March 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.
The parties and each of them do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court, such assessment to include interviews with the child and, at the discretion of the family consultant, observed interaction of the child with any relevant adult person in addition to the parties as the assessor considers appropriate, the assessment to be carried out by a person agreed in writing between the parties within 14 days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time and with the costs of such assessment and the report arising from such assessment to be borne equally by the parties and released by no later than 15 February 2012.
UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS THAT:
The parties have equal shared parental responsibility for the child of the marriage [X] born [in] 2008.
The child [X] born [in] 2008 live with the mother.
The child spend time with the father as follows:
(a)Each Saturday from 10:00am to 10:00am the following Sunday commencing 29 October 2011; and
(b)From 12:00pm midday on 7 December 2011 until 12:00pm midday on 8 December 2011 provided the father is able to obtain leave from his employment on this occasion.
The child is to be exchanged at a location that is agreed between the parties and failing agreement at the [omitted Play Centre].
The time for the father to spend with the child is suspended during the period 9 December 2011 until 17 January 2012 whilst the mother and child travel to Canada.
The order made on 9 June 2011 restraining the parties from removing or causing or allowing the child [X] born [in] 2008 to be removed from the Commonwealth of Australia is suspended during the period 9 December 2011 until 17 January 2012.
The father have communications with the child as follows:
(a)whilst she is in Canada via Skype communication at 5:00pm Eastern Canadian time on 18 December, 25 December, 1 January and 8 January 2012.
(b)In Australia via Skype or telephone at times to be agreed between the parties and failing agreement at 6:30pm each Wednesday.
IT IS NOTED that publication of this judgment under the pseudonym Mathers & Stanley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 2158 of 2011
| MR MATHERS |
Applicant
And
| MS STANLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case throws up issues which perennially cause controversy between separated parents – overnight time for a child aged between three and four; arrangements for Christmas Day; and overseas travel.
The nature of the issues and the manner in which they must be resolved – either in the affirmative or the negative – is likely to create in the minds of the participants concerned the perception that one is a winner and the other is a loser and the dispute between them has been resolved by reference to factors other than the best interests of the child concerned.
This, in turn, may be the driver for still more disputation between them, which is ultimately likely to be inimical to the fostering of a co-operative parenting regime and so in turn be potentially harmful to the child at the centre of their dispute.
Mr Mathers, “the father”, and Ms Stanley, “the mother”, are the parents of [X] born [in] 2008. Accordingly, [X] is currently three years and two months old.
The mother was born in Canada. The parties married, in Montreal, [in] 2005, although they met when both were studying at university in New South Wales.
[X] herself was born in Canada. She has many relatives there particularly her maternal grandparents. In 2010 mother and child spent two months in Canada.
The father is Australian by nationality. He has worked as a [occupation omitted] in Asia and the Middle East, as has the mother. More recently the parties have lived in Australia.
The parties separated, in difficult circumstances, on 8 June 2011. At the time, they were living in suburban Adelaide, with [X]. The mother left the parties’ home with [X]. She did not tell the father where they had gone. The father feared that mother and child would leave Australia clandestinely and relocate to Canada.
Against this background, [X]’s name was placed on the airport watch urgently, following an ex parte application by Mr Mathers. Ms Stanley had also removed money, from a joint bank account, another factor which caused the father to be suspicious about her.
The mother’s case is that she was forced to flee the household because of the father’s violent behaviour towards her. Mr Mathers has been charged with assaulting the mother. The charge remains outstanding and is defended. The father believes that ultimately the police will withdraw the charge against him.
Mr Mathers’ position is that there was a heated argument about financial issues, which arose in the context of an unhappy and failing marriage. As such, he refutes any suggestion that he is an innately violent person, who poses any form of threat to either the mother or [X]. At worst, he asserts he reacted badly to the pressures and stressors of a difficult situation.
Ms Stanley’s position is that she was absolutely terrified of Mr Mathers, at the time, and regards him as a person liable to “snap” when stressed and so behave in an erratic and aggressive manner. She says she is fearful for [X]’s safety, while she is with Mr Mathers because of this propensity on his part.
These difficult issues, as yet unresolved in an evidentiary sense, continue to reverberate emotionally for each of the parties.
The mother was planning to holiday, in Canada, with [X] in mid-2011. Due to the parties’ separation and the airport watch listing of [X], the trip was postponed. The trip has now been rebooked for between 9 December 2011 to 17 January 2012, at some considerable expense, to the mother.
Mr Mathers was not formally consulted about the rescheduled trip. The father is aggrieved that this will mean he will not have the opportunity to spend time with [X] at Christmas, a time traditionally important to all parents, particularly those of infants.
He is also further aggrieved by his perception that, in the period since separation, the mother has made it as difficult as possible for him to have any meaningful time with [X] and that she seems intent on using exaggerated claims about his past alleged bad behaviour as a mechanism to get her own way and exclude him from [X]’s life.
Since the parties separated, at the mother’s insistence, Mr Mathers has undergone a psychiatric assessment and spent only supervised day time periods with [X].
Now, he wants to spend overnight periods with [X] to advance his relationship with her. The mother is opposed to this arrangement, citing her concerns about Mr Mathers’ alleged violent disposition and the tender years of [X].
In these circumstances, the father is disinclined to agree to lifting [X]’s name from the airport watch list and consenting to her leaving Australia, during the special days of Christmas.
The mother resents what she perceives as the father’s intrusion into her long-held plans to travel to Canada with [X]. It is her case that she, too, has had a stressful time of late and she wants to relax and regroup with those whom she holds dear and have a traditional Canadian Christmas.
If the trip is disrupted, she may lose several thousand dollars, which she can ill afford to do. It will also hardly assist her to feel positively disposed towards Mr Mathers. In turn, the father is bitter at how he feels he has been unjustly portrayed.
Neither party, regretfully, seems capable of significant compromise. Both want the position they prefer and justify it by reference to [X]’s best interests. Whatever is the outcome of these interim proceedings, one and possibly both parties will feel hard done by.
Brief Chronology
On the ninth of June 2011, at 11.25 pm, Coker FM placed [X]’s name on the airport watch list, via an application made to the after-hours crisis service of the Court by Mr Mathers. The evidentiary rationale for the order can easily be explained.
From Mr Mathers’ point of view, the whereabouts of the mother and [X] were unknown to him. The mother has Canadian nationality and $22,000 was missing from a joint account.
In those circumstances, it does not seem to be unreasonable that he would have had some apprehension that [X] might leave Australia with the mother and his relationship with her might have been, at the very least, severely interrupted.
The mother was ultimately served with the application. She came to Court for the first time on 16 June 2011. The parties were referred to a family dispute resolution conference, which was not of much assistance to them in reaching common ground. Necessarily at this stage emotions between them were extremely raw.
The father filed his formal application to the Court on 15 June 2011. The mother responded on 4 July 2011. She raised issues regarding the settlement of property issues between the parties. The matter returned to Court on 8 July 2011.
On this occasion, it was agreed between the parties that [X] would continue to live predominantly with her mother. It was ordered that she spend time with her father on each Sunday from 10.00 am to 4.00 pm. The child was to be exchanged between the parties at the [omitted Play Centre].
Importantly, the father’s time with [X] was to be subject to the informal supervision of either [X]’s paternal grandfather, Mr C Mathers, or friends of the parties, Mr and Mrs H.
Given issues which the mother had raised about the father’s psychiatric condition and her application that the Court direct Mr Mathers to undergo a psychiatric examination, on 8 July 2011, the father agreed that he would undergo a psychiatric assessment by Dr B.
On 8 July, I had before me affidavit material which had exhaustedly canvassed the respective positions of the parties, in respect of their relationship together. In particular, the mother had attached a statement which she had made to police concerning her complaint of assault at the hand of the father.
It was her case that she had been assaulted by being thrown against the wall of a bedroom. She alleged that she had been grabbed, by the shoulders, by Mr Mathers and pushed from side to side. She asserted that he had pushed her face, using both his hands and had yelled at her “how are you going to screw me over?”
She alleged that she had been violently shaken approximately 15 to 20 times by the father. She said she was screaming and asking him to stop. She concedes that his altercation had occurred following discussions between the parties regarding their financial affairs, particularly arrangements for the transfer of the former family home from joint names into the father’s name alone.
In her affidavit, she has deposed that, prior to this incident, on 8 June 2011, the relationship between the parties was in trouble. It is her evidence that she had been attempting to work out an “amiable separation” and what she described as “joint parenting arrangements for [X]”.
In her affidavit of 4 July 2011, she asserted that the father’s behaviour on 8 June had caused her to completely change her mind. She asserted that she was then fearful “that if Mr Mathers”, and this is her terminology “snaps again, [X] might come to serious harm.”
In her affidavit material the mother described the father as a querulous and argumentative person, who had previously been aggressive towards strangers, both in Australia and overseas. She was of the view that Mr Mathers has, and again this is her terminology, “significant mental health issues particularly in the area of anger management.”
The father denied shaking the mother or grabbing her wrists or pushing her. He admits there was an argument between the parties over financial arrangements. In his affidavit, he has provided explanations as to how he became involved in the past conflicted incidents which the mother has set out at length.
Controversially, so far as the mother is concerned, in his answering affidavit, he has provided copies of the mother’s private diary to support his assertion that it is she who is mentally unstable and intent on excluding him from [X]’s life, whereas previously she was open to the parties being each substantially involved in caring for her and parenting her following the parties’ separation.
Mr Mathers has also relied on an affidavit from his father Mr C Mathers. Mr C Mathers lives in Sydney. He has deposed that he is a regular visitor to Adelaide and has spent much time with the parties and [X].
It is his evidence that he regards his son as a person who fully participates in the role of a father and takes on a hands-on role in the day to day care of [X]. Mr C Mathers says he has only observed love and concern between the father and [X].
Further, Mr C Mathers says that he has seen his son cook meals for [X], change her nappies, bathe her, read stories to her, take her to the park and on outings on the bus. He does not have any concerns about his son coming into contact with [X].
Against this background the father was medically examined by the psychiatrist Dr B. Dr B was of the view that the father does not suffer from any psychiatric illness, but was sad at not seeing his daughter. He also took lengthy history from the father about his alleged violent disposition. He took a history in respect of the incident when the parties separated in June.
To Dr B, the father admitted that there had been discussion between the parties about financial issues. The father was apparently disturbed that the mother was not responsive to these discussions. In this context, he told Dr B that he had grabbed Ms Stanley, by the forearms and pulled her into a sitting position. He described to Dr B remonstrating with the mother. He denied any allegations of pushing, shoving, or throwing the mother across the room.
It was Dr B’s opinion that the father has what he described as “mild obsessional personality traits”. As such, he was a person who “was likely to confront people whom he believes who were doing the wrong thing.”
Dr B pointed out that very often such people are useful members of society but may err in voicing their concerns where others may believe it prudent to bite their tongues in order to avoid conflict. In conclusion Dr B wrote as follows:
“Whilst I have discussed aspects of Mr Mathers’ personality, such traits are in many circumstances valued and desired within society. They are certainly important traits that enable him to be productive in his workplace. I therefore anticipate he would be a very reliable father. Children thrive on routine and predictability, and this would certainly be provided by Mr Mathers. Therefore, taking psychiatric issues in the broader sense encompassing both psychiatric illnesses as well as personality attributes, I came to a conclusion that there were no factors that I believe would interfere in Mr Mathers’ ability to be a safe, effective, and appropriate parent for his daughter. I certainly saw no need for supervised care arrangements.”
In terms of the issue regarding Christmas, Ms Stanley’s position is that it is likely to be in [X]’s best interest to go to Canada as she has planned in December so that she can – and these are Ms Stanley’s words:
“Participate in the cultural traditions of my family. Know the large extended network of [X]’s family in Canada and maintain a close relationship with [X]’s grandparents.”
The father concedes that, in the past, he has been agreeable to [X] travelling to Canada, at some time during 2011, at any time other than Christmas. In such circumstances, he asserts that the mother was foolhardy to make the arrangements which she has done.
He says that it would be acceptable to him if [X] stays behind in Australia, over the Christmas period, whilst Ms Stanley goes alone. In his affidavit material he explains that it is only at Christmas time that he is able to get time off work. There are a number of public holidays over the Christmas period.
Mr Mathers says that he has repeatedly asked Ms Stanley not to travel to Canada, over the Christmas period. He says that he was willing to agree to any other time of the year, other than the period of Christmas, as this was the period which enabled him to have the maximum number of days with his family and daughter.
The mother, of course, is vehemently opposed to any suggestion that [X] should spend an extended period of time in her father’s care. In her affidavit material, she has not deposed much as to [X]’s particular disposition. The mother is a [occupation omitted], she works two or three days per week. When her mother is working, [X] attends day care.
In oral submissions, counsel for the mother, on instructions from her client described [X] as “a nervous child”. Both parties describe her as “twirling or twisting her hair”.
The mother has also recently raised criticisms of the father’s previous parenting of [X]. She relies on a statutory declaration, from her mother, regarding an incident when she believes Mr Mathers inappropriately parented [X] and excessively disciplined her.
In his amended application, the father seeks final orders that [X] should live predominantly with her mother. He seeks an order that the parties have equal shared parental responsibility for [X]. He has not specified with any precision the time he would want to spend with [X].
In her response, the mother concedes, on a final basis, that the parties should have joint parental responsibility for [X]. She has not any well-delineated proposals for the time [X] should spend with her father.
It also the position that, notwithstanding the mistrust between the parties, they have been able to agree the property issues between them, following a financial mediation conference. That, of course, is to their credit.
More recently, each party has set out what they propose in respect of short-term arrangements for [X]’s care. The father’s position is that [X] should spend time with him from 6.00 pm Friday to 8.00 am Monday in one week of each fortnight, from 6.00 pm Friday to 6.00 pm Saturday in the other week of each fortnight, and from 6.00 pm Wednesday to 8.00 am Thursday of each week. He would also want to communicate with [X] by way of Skype on at least two occasions per week.
The mother’s position is that, pending preparation of a detailed family assessment report, the orders which were made on 8 July 2011 should continue, but with the requirement for supervision be lifted. Accordingly, she proposes day-time contact, of six hours in duration each week.
However, when asked by me, to consider some mechanisms for compromise, particularly given that she was wanting to travel overseas in December and January, she proposed what she described as “makeup time” which included daytime periods on both Saturday and Sunday, leading up to her proposed travel overseas, with three overnight periods in November and December prior to the trip. With a similar regime afterwards, leading up to the family assessment report.
Legal Principles
It is now necessary for me to outline, as best I can, the legal principles which I have to apply in this case. In making any interim decision, as at the final stage, the best interests of each child affected by the decision remain the most important consideration.
The matters which the Court must take into account in deciding how a child’s best interests are to be served are set out in the Family Law Act 1975 at section 60CC.
What have been called the best interest considerations rest on two main pillars – the first is the importance to children of having a meaningful relationship with both parents – the second is the need to protect children from physical and psychological harm as a result of exposure to abuse, neglect or family violence.
These factors are stressed in section 60B(1), which sets out the objects of the legislation relating to children and are reiterated as the primary consideration in how a court determines what is in the child’s best interest, by section 60CC(2).
Given the emphasis in the legislation in parents being involved in their children’s lives, there is a presumption that it is in a child’s best interest for his or her parents to share equal parental responsibility [see section 61DA]. The presumption relates to the allocation of parental responsibility, not to the allocation of time which a child spends with each of his or her parents.
The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence has occurred. The presumption may also be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
In addition, the Court has a discretion not to apply the presumption at the interim stage if circumstances exist which make it inappropriate for it to be applied [see section 61DA(3)]. This subsection is likely to be pivotal in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
At the interim stage, hearings have to take place in a shortened form. As such, there is no time available for the cross-examination of the parties concerned. Accordingly, where there are issues in dispute between the parties the Court is unable to resolve those dispute at the interim stage.
Necessarily, the final hearing is a longer one than the interim hearing, which allows the Court to make any necessary findings of fact. Essentially deciding if it believes one party or one witness over the other.
In this case, there are many factual matters in dispute but, chiefly, the issue at the centre of controversy is whether the father is the violent and controlling person whom the mother describes.
The following additional best interest factors [see section 60CC(3)] are likely to be important in the current case:
·the nature of the relationship [X] has with each of her parents and others who are significant to her care, particularly her grandparents on both the maternal and paternal side;
·the willingness and ability of Ms Stanley to facilitate and encourage a close and continuing relationship between [X] and her father;
·the likely effect of any changes in [X]’s circumstances, including being separated from one or other of her parents, particularly in an overnight context;
·the capacity of each of the parents to provide for [X]’s needs, including her emotional needs;
·the insight that each of the parties has to the responsibilities of being a parent;
·and importantly the maturity of [X], herself.
This latter factor is particularly telling in a case such as this one. What is the appropriate arrangement for a breastfeeding infant of six months will obviously be very different to a teenager, or even a child of six or seven. The difference, of course, depending on the level of cognitive development of the child concerned.
Younger children have a limited sense of time. They are unable to assess how long they have been separated from a parent and cannot readily understand how long it will be until they are reunited with that parent.
Young children are in the process of developing attachments to their parents and significant others and as such, children will have a varying capacity to tolerate separation from those to whom they are attached.
The degree of this tolerance will vary, depending on the age of the child concerned and the particular circumstances which apply to that child. The issue of overnight time is a controversial one, not only for parents, but also so far as social scientists are concerned.
Humphreys and Kiraly point out that, while brain development begins in utero, it is only 25% of its adult size at birth, yet, by three years it is 90% of adult size. They also point out that a child’s cognitive behavioural and emotional development is dependant upon the way in which the different parts of the child’s brain develop.
There are pitfalls, in terms of a child developing secure attachment, in separating the child concerned from his or her central source of nurture. The psychologist, Ms S, points out that with young children there is a special vulnerability about night-time. She writes as follows:
The state of the human organism is to be more anxious at night; that is hard-wired into our cortisol rhythms.
Given the very significant brain development, which occurs in children up to three years of age, overnight time is frequently contentious for children aged three to four, and older, particularly preschool children, especially in circumstances where the separation between the parents concerned has been difficult, and has been marked by tension and suspicion, as here.
Cashmore and Parkinson present the following features as being ideal in terms of considering both overnight time and a shared parenting regime for children under four. They posit the following ideal preconditions:
·Both parents have a secure and warm relationship with the child before separation.
·The mother is supportive of the father/child relationship, including expressing positive feelings and reassurance on handover and reunion.
·Routine is consistent and predictable and the child is not away from the other parent more than a few days at a time.
·No conflict in front of the child or conveyed in any way to the child.
·Both parents communicate and monitor the child’s tolerance for the separations.
·Any increase in contact should be gradual with continuing sensitivities to the child’s reactions and behaviour.
·Distress at changeover needs to be managed sensitively by both parents, as transitions handled in a negative way will increase the child’s stress.
·Must be able to repair a disruption to create a secure attachment.
One of the dilemmas, which arises in circumstances where a child and a parent may feel forced into a regime, to which they are resistant, is that this of itself may compromise the child being able to form and develop an attachment to the other parent concerned, because of the distress which these arrangements may create both for the primary carer and the child.
The High Court in MRR & GR[1] has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
[1] See MRR & GR [2010] HCA 4
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.
These seem to be important factors in the present case, given the father, I think, aspires to spending substantial and significant time with [X]. As such I have to consider what is likely to work for [X], given her current situation.
I must consider the various section 60CC factors applicable and where possible make findings of facts, about them. I must, of course, bear in mind I am able to resolve issues in dispute between the parties.
In addition, at this stage, I do not have any independent and idiosyncratic expert assessment of [X]’s needs in either a psychological or developmental sense. This is a significant limitation. I must assess the various best interest factors and see what is workable in the situation which currently confronts this family.
In terms of the primary considerations, the mother clearly places significant emphasis on the need to protect [X] from coming to physical or psychological harm as a result of being subjected to family violence through the agency of her father.
In this regard, I bear in mind that family violence is not a homogeneous concept. It may encompass many factual situations. The Court’s responsibility is to assess prospective dangers for any child concerned, arising from family violence, not punish a parent for past failings.
Family violence can range in quality from incidents of situational violence, which arise in response to a stressful situation, such as separation, and which are then immediately regretted by the person concerned to more serious cases where there is an imbalance in power between the parties concerned and one parent uses that power to suborn, humiliate and terrorise the other parent concerned.
In this case, Dr B does not believe that the father is an inherently violent person. The father, to Dr B, has described an unhappy situation between the parties. In her evidence the mother concedes that there was a stressful and an unhappy situation in the parties’ home.
Although I am not in a position to make concluded findings of fact, about the family violence in this matter, it is my view that, at this stage, the Court needs to give more emphasis to the benefits which [X] is likely to have from having a meaningful relationship with both her parents, rather than the need to protect her, per se, from the consequences of psychological harm as a result of family violence.
The mother does not assert that she herself, personally, was subject to violence or intimidation prior to the incident in June. It also seems to be her position that prior to that incident she was open to the father spending significant periods of time with [X].
In the case of Dylan & Dylan[2], Carmody J said as follows:
“The Family Law Act aspires to promote meaningful not optimal or ideal relationships. What “meaningful” is in any given situation depends very much on its own unique circumstances but reciprocal love and affection and mutual respect and concern are common features. What is clear is that meaningful parent-child relationships and involvements take time and effort to build and maintain. Court orders cannot, of course, conjure up meaningful relationships between parents and children. All they can do is create or maintain the circumstances that make meaningful relationships or involvement possible”.
[2] See Dylan & Dylan [2007] FamCA 842 at [58]
Accordingly, in my view, the concept of meaningful parental relationships has both a qualitative and quantitative aspect. Meaningful relationships depend on a parent being able to spend regular periods of time with the child concerned.
To create meaning, emphasis needs to be placed on both the duration of the periods in question and what is done in those periods. The literature indicates that it is possible to have a meaningful relationship between a parent and child, which does not involve overnight time.
In this case, the father wants to be able to spend time with [X] at night-time. He wants to tuck her into bed. He wants to read her a story. He wants to tend to her if she is distressed in the night. He wants to make breakfast for her in the morning. He wants to prepare her for bed.
It is his position, I think, that these types of interaction will add meaning to his relationship with [X] and lead to the two having a sense of comfort and intimacy together. He is concerned that, if he is confined to spending only daytime with [X], his relationship with her will be artificially constrained. He aspires to spending as much time as possible with her.
In this case, it seems clear that the mother is currently [X]’s main provider of care. That must be the case since the parties separated. It is also the case that for extended periods of time, whilst mother and child have been together in Canada, particularly when [X] was a baby and Mr Mathers was working overseas, that [X] has been in her mother’s sole care.
It would seem to be the case that [X] has a very significant attachment to her mother and on balance this is likely to be her most important attachment. It also seems to be the case that she is close to her grandparents on both the maternal and paternal aspects.
It is the father’s case that he is also significantly attached to [X] and in support of his position he relies on the evidence of his father. On any view, the relationship between [X] and her father has the potential to be a very important relationship for her.
At this stage, apart from the mother’s assertion that she is supportive of [X] having a proper level of relationship with her father, there is little evidence to support that she is willing and able to foster a close relationship between [X] and Mr Mathers.
I am required to consider the likely effect of any change in [X]’s circumstances, including the likely effect on her of being separated from either of her parents or any other person with whom she has a significant relationship.
The mother wants to take [X] to Canada for a period of weeks. This may have some consequences for her relationship with her father but, in my view, that separation is not likely to be a significant one in the greater scheme of things. The mother asserts that the effect of being separated from her mother is likely to be detrimental to [X]. There is no concrete evidence to support this assertion.
However, in the present case, there are few of the optimal circumstances which Cashmore & Parkinson point to to support the regime to which Mr Mathers aspires. Clearly, it is the case that Ms Stanley is not supportive of the regime advocated by Mr Mathers.
There seems little facility for the parties to confer with one another as to how [X] is going with any change in her regime which Mr Mathers proposes. My responsibility is to foster an idiosyncratic response to [X]’s needs in these difficult circumstances.
The father’s case is that [X] is going into a familiar environment – her former family home – presumably the bedroom which she knows well and all the things that are there and he would say that there is no doubt that he, as [X]’s father, is a know quantity to the child.
On balance it would seem that there is some validity to these assertions given that prior to the parties’ tumultuous separation in June he must have been an active and living presence in [X]’s life.
The father, although he is a [occupation omitted] by profession, is currently working as a [occupation omitted] in the [omitted] industry. He works conventional hours, Monday to Friday, and takes public transport to and from work.
It is difficult for him to get an afternoon off work, and [X]’s bedtime is at 7.00 pm. In those circumstances, it is difficult for the father to spend daytime periods with [X] during the week. Necessarily, the main focus of the father’s time with [X] is on weekend time.
In terms of the respective parental capacity of each of the parties, the mother has no specific criticisms of the father’s parental capacity, apart from his propensity to violence. It seems to me that Mr Mathers is likely to be able to supply [X]’s “nuts and bolts needs”.
The question is, how easily she will tolerate separating from him in the context of overnight periods. At this stage, I have not been advised that there has been any difficulties with the arrangements which have been in place so far for Mr Mathers to spend daytime periods with [X]. It is also, I think, notable that the mother is prepared to consider some overnight time, albeit that this is not her preference.
Balancing up the respective section 60CC factors, I am of the view that the presumption of equal shared parental responsibility is not rebutted in this case, and should be applied.
The mother concedes that it should be applied at the final stage. It is also clear to me that notwithstanding the criticisms each party has of the other, each is vitally interested in all issues to do with [X].
However, at this stage, I think the topography of the parties’ parental relationship makes it unworkable, given the reality of the parties’ current familial circumstances, for there to be an equal time arrangement. Given [X]’s age, it is also my view that such a regime is not likely to be in her best interests.
It is also my view that a substantial and significant time arrangement is not likely to be reasonably practicable to put into operation at this stage. I also have grave concerns about whether it would be in her best interests.
However, I think bearing in mind the need for [X] to extent her relationship with her father, and to ensure that that relationship maintains its warmth, intimacy and immediacy, it is now appropriate for the Court to think in terms of overnight time.
At this stage, I think that the regime advocated by the father is unduly ambitious. I have reservations that Ms Stanley would easily tolerate it, and I also have concerns that the parties themselves lack the facility to discuss how [X] is coping. In those circumstances, it seems that it behoves the Court to adopt an incremental but necessarily experimental approach to [X] spending some overnight time with her father.
The parties have agreed that they should get some form of assessment of [X]’s idiosyncratic needs. I am going to fix the matter for final hearing on the 28 and 29 March of next year, in the expectation that the report will be to hand at that stage.
It is my view that the parties should jointly nominate the person they wish to conduct such an assessment, so that they can ensure that an appropriate expert is tailored to their individual circumstances. There has been some discussion about who is the best expert, but I will leave that to the parties at this stage.
As I said at the outset, I am concerned that whatever I do about the proposed trip to Canada over Christmas, it will leave a bad taste in someone’s mouth. Ms Stanley, for understandable reasons, wants to be with [X] in Canada, where she feels safe and secure, and where the Christmas traditions of the northern hemisphere are comfortable and familiar to her. For equally understandable reasons, Mr Mathers wants to spend Christmas with [X]. He wishes me to penalise Ms Stanley for behaving in a high-handed manner.
What is best for [X] herself is difficult to assess. She is likely to know that Christmas is a special time. Whichever household she is in, she is likely to be the centre of attention, and to get much love and much attention. She is also likely to get presents.
There is no way that I can keep both parties happy. On balance, I have come to the view, with some reluctance, that I should make orders which will allow the holiday in Canada to take place.
The mother concedes that Australia is both her and [X]’s place of habitual residence. Canada is a signatory to the Hague Convention on International Child Abduction. It has a similar legal system to the legal system in this country.
The father concedes that he was open to [X] having a lengthy holiday with her mother in Canada. There is the opportunity, when [X] is older, to compensate him for this Christmas with [X] forgone.
Although in the strict application of the Family Law Act 1975, the issue of the monies spent by the mother are not strictly germane. I am concerned that if I do not allow the holiday, or constrain it, this will cause the mother to lose some money.
This will cause her to be more bitterly disposed towards the father. That, in the longer term, will not be helpful to the parties, and Mr Mathers’ aspiration to have a cooperative parenting relationship together.
At this juncture, it seems to me that between now and the final hearing, that [X] should spend approximately 24 hours per week in the care of her father, and I am minded to make that from 10.00 am on Saturday until 10.00 am the following Sunday.
It also seems to me to be appropriate that Mr Mathers should have the opportunity to spend time with [X] overnight before she leaves Australia on the Canadian holiday, subject of course to his working commitments, the aim being that he can wish [X] a merry Christmas.
It is also possible, although obviously not optimal for [X] given her age, to interact with her father via Skype and, given the time difference between Eastern Canada and Central Australia, it will be possible for Mr Mathers to speak and see [X] on Christmas Day.
For all these reasons, the orders of the Court will be set out at the commencement of these reasons for judgment.
I certify that the preceding one-hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 24 October 2011
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