Maxwell and Maxwell
[2011] FMCAfam 997
•10 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MAXWELL & MAXWELL | [2011] FMCAfam 997 |
| FAMILY LAW – Interim parenting orders – recently separated – allegations of family violence perpetrated by the father – allegations and issues raised with respect to the mother’s mental health. |
| Family Law Act 1975, ss.4, 13C, 63C, 65DAA, 65DAB, 60CA, 65F, 10B, 10D, 60CG, 69ZT, 69ZW Evidence Act 1995, ss.10J, 131 |
| Griffith & Griffith (1981) FLC 91-064 Rainer & Rainer (1982) FLC 91-239 Cilento & Cilento (1980) FLC 90-847 Cowling & Cowling [1998] FamCA 19 Goode & Goode (2006) FLCA 93-286 Marvel & Marvel [2010] FamCAFC 101 Minister of Immigration v Teoh (1995) 183 CLR 273 Mabo v Queensland [1988] HCA 69 B & B and Minister of Immigration & Multicultural & Indigenous Affairs [2003] FamCA 621 U & U (2002) 211 CLR 238 Pitken & Hendry [2008] FamCA 186 Dylan & Dylan [2007] FamCA 842 |
| Applicant: | MS MAXWELL |
| Respondent: | MR MAXWELL |
| File Number: | PAC 3271 of 2011 |
| Judgment of: | Harman FM |
| Hearing date: | 10 August 2011 |
| Date of Last Submission: | 10 August 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 10 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms O'Bradovic |
| Solicitors for the Applicant: | Peacockes |
| Counsel for the Respondent: | Ms Ofner |
| Solicitors for the Respondent: | Biddulph & Salenger |
ORDERS
That the parents shall have equal shared parental responsibility for the children [X] born [in] 2003 and [Y] born [in] 2004.
The Applicant Mother will have the sole responsibility for making decisions about the day to day care, welfare and development of the [X] and [Y] except during any periods of time when the children are spending time with Respondent Father who will have such sole responsibility for making those decisions at those times.
Both [X] and [Y] shall during school terms spend time with their Father:
(a)From the conclusion of school 11 August until from Thursday till 4pm Saturday 13 August;
(b)From the conclusion of school Wednesday to the commencement of School Monday in each alternate week commencing 24 August 2011; and,
(c)From the conclusion of school Wednesday till the commencement of School Friday on every other week commencing 17 August 2011;
That [X] and [Y] shall spend time with their Mother:
(a)From 4pm Saturday 13 August until the commencement of School Wednesday 17 August 2011;
(b)Thereafter each alternate weekend from the conclusion of school Friday until the commencement of School the following Wednesday, the first period to commence Friday 19 August 2011; and,
(c)In each intervening week from the conclusion of school Monday till the commencement of School the following Wednesday with the first period to commence 29 August.2011.
The Respondent Father will spend time with and communicate with the [X] and [Y] during school holidays as agreed between the parties, but failing agreement as follows:
(a)For one week during each of the New South Wales gazetted school holiday periods in April, July and September/October each by agreement and if no agreement during the first week of such school holiday period.
(b)For three weeks of the New South Wales gazetted school holiday periods in December/January each year by agreement and if no agreement during the first half of such school holiday period in even numbered years and during the second half of such school holiday period in odd numbered years.
(c)At such other times as may be agreed between the parties.
For the purpose of school holiday time the children are to spend time with either parent, the following apply:
(a)For the short school holidays, the first half of the school holiday period commences at 10am Saturday and concludes at 6pm on the middle Saturday and the second half commences at 6pm on the middle Saturday and concludes at 6pm on the last Sunday; and,
(b)For Christmas Holidays, the first half commences at 10am the day after school beaks up and concludes at 6pm on the corresponding day of the week 3 weeks later and the second half of the holiday shall be the remainder of that period.
For the purpose of the children passing into their Mother’s care,
Ms Maxwell shall collect [X] and [Y] from school if a school day and otherwise the children will be delivered to Ms Maxwell at her home if not a school day.
For the purpose of passing into Mr Maxwell’s care, he shall collect [X] and [Y] from school if a school day and if not a school day,
Mr Maxwell shall collect the children from Ms Maxwell’s residence.
If either party is unable to abide by these orders they are to notify the other party in writing either by letter, text message or email communication at least five days prior to their obligation in accordance with these orders.
Within fourteen days of the date of these orders and/or within fourteen days of the [X] and [Y]’s subsequent enrolment at any school the Applicant Mother is to instruct the principal of that school and any delegated school teacher or administration officer that they must ensure the school forwards directly to the Respondent Father photocopies of all of the children’s school reports and merit cards, any written material pertaining to the child’s academic and extracurricular activities including order forms for school photographs.
The father is to provide the children with a pre-paid mobile phone for the purposes of the parties telephoning the children while the children are in the other parent’s care; for no more than ten minutes each day. While the children are on the phone talking to their parent, the other parent will not listen in on the conversation or comment to the children about the conversation they are having with the other parent.
The father is restrained from communicating with or approaching the mother’s child [Z] born [in] 1995.
The parties shall ensure as far as is possible, that [X] and [Y] attend all their extra-curricular, sporting and other activities, and in particular:
(a)That [X] attend all her [omitted] lessons, including “[omitted]” held on the first Friday of every month and all her [omitted]; and,
(b)That [Y] attend all his [omitted] games and training sessions and [omitted] if he chooses to be enrolled in this sport.
Neither party is to denigrate the other party to or in the presence of the children or permit any other person to do so.
The parties will notify the other if the children are injured, require medical attention and/or are ill as soon as practicable.
Each party notify the other in writing of any changes to contact/residential details at least fourteen days prior to any such changes taking place.
Leave is granted to either party to file Terms of Settlement providing for the appointment of a Part 15 Expert if required.
Transfer these proceedings to the Dubbo circuit to be listed, on a date to be advised, before FM Dunkley.
That pursuant to s.13C(1)(c) that the parents shall forthwith and within 7 days contact Interrelate [D] (“the agency”) and arrange and attend the first available and offered intake appointment with a Family Advisor or Family Counsellor with the agency and to allow an assessment to be made by the agency of the most appropriate assistance that can be provided to them and including whether services, courses or programs provided by that agency or by referral to any other family relationship service or professional and with respect to same:
(a)The parent shall then attend at such times, dates and places and pay such fees as are advised by the agency and continue to do so until that service, course or program is completed and the above stated purposes achieved to the maximum extent the agency considers possible;
(b)The agency (and any other family relationship service or professional to whom referral is made) is requested to:
(i)Advise the Court in writing when service provision has been completed or withdrawn;
(ii)Advise the Court in writing should the parent fail to contact the agency within 7 days or fail to co-operate, accept referrals or fail to participate in any service, course or program recommended;
(iii)Advise the Court in the event that a notification to the Department of Family and Community Services is made (by the agency or any other family relationship service provider or professional to whom referral is made) as to any of the matters set out in s.10D(4) and, if the agency considers it appropriate, to provide to the Court a copy of such notification (and noting that this shall be a matter entirely for and within the discretion of the agency as information can be obtained by the Court from the Department of Family and Community Services pursuant to s.69ZW) and in the event such copy is provided:
A.It shall be admitted into evidence of the Court’s own motion and subject to s.69ZT(2);
B.The proceedings shall be relisted as a matter of urgency and of the Court’s own motion and pursuant to s.60K to determine what further interim or procedural orders should be made to:
(i)Enable appropriate evidence about the allegations to be obtained as expeditiously as possible; and,
(ii)To protect the child or an of the parties to the proceedings;
(iii)Deal with the issues raised by the allegation;
An order pursuant to s.69ZW shall be made of the Court’s own motion addressed to the Department of Family and Community Services and/or Police of the Court’s own motion;
Neither the author of such notification (if apparent from any material provided to the Court) nor any service provider referred to by these orders shall be permitted to be required to attend Court, (by subpoena or otherwise) nor called to give evidence nor cross examined.
(a)Any employee of the agency engaging with the parent and any other family relationship service provider or professional to whom referral is made has leave to inspect the Court file and any subpoenaed material produced to the Court and for which leave has been grant to inspect by the parties, their legal representatives.
(b)Evidence of anything said or any admission made by or in the company of the family advisor or family counsellor or any other family relationship service provider or professional to whom referral is made shall be inadmissible in accordance with s.10E (and subject only to the service providers requirements to disclose information in accordance with this order and in accordance with s.10D(4) (dealing with threats, risks of harm and disclosures and admissions of abuse);
(c)No subpoena shall be issued by any party to the agency or any other family relationship service provider or professional to whom referral is made by the agency without the Court’s leave first had and obtained and without notice to and the opportunity for the agency to be heard with respect to such application for leave.
(d)In the event that the agency determines that it would be useful or desirable for the children to be involved in any appointment and/or to also attend for intake and assessment as to any counselling service, course or program that would be appropriate and of assistance to the children then each parent shall do all things, sign all documents and give such consents and authorities necessary to facilitate such attendance and the above provisions shall thereafter apply to the children’s attendance.
IT IS NOTED that publication of this judgment under the pseudonym Maxwell & Maxwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3271 of 2011
| MS MAXWELL |
Applicant
And
| MR MAXWELL |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing parenting applications with respect to two children:
[X], born [in] 2003 and, accordingly, a little over 8 years of age; and
[Y] born [in] 2004, who will in a few months time turn 7 years of age.
The parties to the proceedings are [X] and [Y]’s parents being
Ms Maxwell, who is the applicant in the proceedings and Mr Maxwell, who is the respondent in the proceedings.
These proceedings were commenced by an application filed on 20 July 2011 and the matter has come on on relatively short notice. Both of the parents have travelled today from [N], west of Dubbo, where they live, for the purpose of conducting this hearing as expeditiously as possible. The matter will ultimately return to the Dubbo circuit to avoid any future inconvenience to the parties or at least as much as is possible.
Whilst the application was filed on 20 July 2011, and, indeed, a response has been filed by Mr Maxwell earlier today, the orders that are proposed ultimately and at the time of the hearing of this matter, late in the day, are, in fact, set out in minutes of orders tendered by each of the parents respectively.
Ms Maxwell, in her case, seeks orders that both children live with her and that they spend time with their father from Thursday after school until Monday before school in one week, and from Thursday after school until Friday before school in the other week.
A number of optional proposals are raised in the case addressed and presented by Mr Maxwell. Mr Maxwell would propose that the existing arrangement, or status quo, which has been in place now since early June 2011 as an agreed fact between the parents, would remain. That arrangement sees an equal amount of time overall spent by the children with each of their parent, but with some slight discrepancies. Six nights a fortnight are spent by the children with each of their parents, and the seventh night for each parent is then made up by [Y] spending a Tuesday night with his father and [X] spending that night with her mother, so that they are split for that night.
In the alternative, it is proposed that there would be an equal time arrangement that would be structured either as a week about arrangement or an arrangement of from after school Wednesday until the commencement of school Monday and after school Wednesday until the commencement of school Friday in the other week, which largely replicates the proposal of Ms Maxwell but by commencing each period on a Wednesday rather than on the Thursday.
Material read
Each of the parties has filed an affidavit in these proceedings. In addition, tendered in court at the commencement of the hearing, was an outline of case document on behalf of Ms Maxwell and a statement of agreed facts which both parties have adopted. It is a limited statement but represents, at least, some common ground. There are also two reports tendered by Ms W, who is a psychologist who has dealt both with Ms Maxwell and with [X] and a report by Mr M, Psychologist who has seen [Y].
School reports are tendered with respect to the children, and there are four character references also relied upon in Ms Maxwell’s case.
I hasten to add that Ms Maxwell’s character is not at all an issue in dispute in these proceedings and to the extent that that material is before me, I have not placed substantial weight upon it due to its form. But it would otherwise be admissible, these being Division 12A proceedings, and its admission being subject to weight.
The parties have also, today, had the benefit of a Child Dispute Conference with a Family Consultant and I have read and considered the memo produced and each party has addressed the issues raised therein.
Background facts
The parties agree that they were married [in] 2002 and separated on 14 April 2011.
From any reading of the evidence that each of the parties has led in relation to their separation, the separation has been a most traumatic and somewhat sudden event for both of them. No doubt, that is reflected in a number of comments made by Mr M and Ms W in relation to the impact of these parties’ separation upon their children.
The parties agree, as to the names and dates of birth of their children, that since separation [Y] has lived primarily with his father and that [X] has spent significant and substantial time with her mother. It is also agreed that during the period from separation and ending in early June 2011, when the present agreed arrangement came into being, that [Y] had spent only one night with his mother.
The current arrangement in place, following mediation between the parties, sees both children spending time with their mother from Sunday morning until Tuesday morning. Thereafter, the children are split so that [Y] returns to and spends time with his father for Tuesday night and [X] stays with her mother. Wednesday evening both children stay with their mother and Thursday, Friday, and Saturday evenings both children are with their father.
The affidavit of Ms Maxwell had purported to annex a copy of a draft parenting plan which reflected those arrangements, which draft parenting plan had been prepared following the completion of family dispute resolution. Perhaps thankfully the annexure was omitted as, clearly, s.10J of the Evidence Act 1995 would exclude that document.
A parenting plan does not become such until it meets all of the requirements of the legislation, as set out in Part VII Division 4 s.63C. That requires that the plan or agreement be in writing, be made between parents of a child, signed by the parents, and dated.
As the document is not signed it is, accordingly, not a parenting plan and not admissible. It is a document that reflects settlement discussions in the presence of a Family Dispute Resolution Practitioner and would be excluded by both the operation of s.10J and s.131 of the Evidence Act.
If the document had been signed it would be a parenting plan, would be admissible, and, indeed, the court would be obliged, pursuant to s.65DAB of the Family Law Act 1975 (“the Act”), to consider the plan and to place such weight upon the terms of the parenting plan as seemed appropriate and consistent with the child’s best interests in guiding the decision making process. But, as I have said, thankfully the document was omitted and so no argument regarding its admissibility or otherwise need follow. It does appear common ground, however, that the draft parenting plan, as so referred, reflects the arrangements that the parties have operated under since early June 2011.
Issues in the proceedings
Each of the parties have raised a number of criticisms and allegations with respect to the other.
Ms Maxwell, in her case, has raised a number of allegations with respect to what would, in the broader context of the definition of “family violence” within the court’s best practice guidelines but, perhaps, not, or, at least, not always, within the section 4 definition within the Act, represent family violence.
Significantly, those allegations are levelled against Mr Maxwell and it is asserted that conduct and behaviour has occurred directed not only towards Ms Maxwell, but also with respect to an elder child, [Z], who is Ms Maxwell’s child of a previous relationship, is 16 years of age, and has lived with the parties for the majority of their relationship and until she commenced attending boarding school for the majority of school terms during 2010.
The case presented by Ms Maxwell also suggest that there has been some degree of coercive or controlling behaviour by Mr Maxwell throughout the relationship, and, particularly since separation, that there has been denigration and insult, particularly to, or in the presence of, the children.
Mr Maxwell, for his part, raises issues and allegations as to
Ms Maxwell’s mental health, suggesting that she has, since 2007 or 2008, suffered from and being diagnosed with depression. Those matters are raised not only in the affidavit material of the parties but also in the child dispute memo that arose from the conference that the parties participated in with the family consultant earlier today.
Mr Maxwell asserts that during the period 2007-2008 Ms Maxwell’s behaviour was typified by periods of being up and periods of being down. During the periods of being up he would suggest Ms Maxwell was somewhat manic and highly productive and during periods of being down she was much less so. That is, to a large extent, much of the issue that Ms W’s reports go to.
It is asserted, in response, by Ms Maxwell that she had become depressed as a result of financial issues at that time, and also as a consequence of behaviour that she alleges perpetrated by Mr Maxwell towards her, the impact of which had accumulated over time and impacted upon her wellbeing.
In any event, I am satisfied from that which is produced that there is no present symptomology if, indeed, there ever has been, as a consequence of that malaise, condition or diagnosed illness, which has impacted upon Ms Maxwell’ capacity to self-care or care for or parent these children or indeed her elder daughter, [Z].
It is suggested by Ms W in her report dealing with Ms Maxwell, she having prepared two reports, the other relating to limited consultations with [X], that Ms Maxwell interacts well with all of her children, is clearly committed to their wellbeing, that there is strong, appropriate maternal attachment and that Ms Maxwell is operating as an effective mother. While she is unhappy with the present situation, Ms Maxwell is not described by Ms W as depressed, presumably in a clinical perspective. It is not suggested that there is any evidence of psychosis and/or other symptoms of severe depression. It is clear that
Ms Maxwell continues to take medication and that her symptoms are managed and such is opined by Ms W.
It is also asserted by Mr Maxwell, in like fashion to Ms Maxwell, that since separation he has been denigrated, vilified and insulted, both directly and to and in the presence and hearing of the children. There is some corroboration given to each party’s allegation in that regard arising, at least inferentially, from the report of Mr M who was seeing [Y]. He opines:
“It would be beneficial if the parents were more able to communicate with each other and less prone to fighting and abuse. Research indicates that where children are the focus and family systems remain relatively intact and communicative that the impact on the children is lessened. The less there is agreement about parenting styles, discipline or miscommunication, the more likely it could have a negative impact on the child.”
It is also opined in relation to [Y] by Mr M that:
“It is likely the more difficult this becomes, being parental communication and cooperation, that it will have a negative impact in the longer term on [Y]’s mood and development. If the parents were to deal with parenting plans better, it is likely to soften the impact on [Y].”
What is clear from each of the psychologists who have seen each of the children is that these children are, no doubt and just like their parents, finding the breakdown of their family from an intact family to two separated and, to at least some extent, hostile separated families a difficult transition. They are dependent upon the various adults in their life to assist them through that transition, and it would appear that there are some real emotional difficulties faced by the parents at this time, and certainly as a direct consequence, these children.
It is perhaps for that reason that Family Consultant B has recommended that the parties may benefit from attending a post-separation parenting group that may be available through Interrelate [D], being the most proximate large centre to [N] and which excellently auspices the [D] Family Relationship Centre.
What is otherwise clear from the material that is tendered is that both of these children are doing well at school, and whilst it is difficult to gauge in its totality from the material, they are both polite, intelligent and attractive young children who no doubt are a credit to and the basis of the extreme love that each of these parents shows for them.
These parents are however substantially opposed as to how time arrangements for the future should occur. There is a substantial body of agreement in relation to what might be referred to as specific issues orders in relation to communication between the parents, the type of information that might be communicated between them, both having access to and involvement with the children’s school and medical treatment, and the provision of a telephone to the children so that they can speak with each of their parents, whoever they are not with at that time, on a daily basis. Those proposals all appear entirely prudent and sensible, and it is a credit to both parents that they are in such agreement regarding those matters.
Interim proceedings
As interim proceedings and as the Full Court has made clear since older authorities such as Griffith & Griffith (1981) FLC 91-064, Cilento & Cilento (1980) FLC 90-847, Rainer & Rainer (1982) FLC 91-239 and Cowling&Cowling [1998] FamCA 19 and continuing through more recent Full Court authorities, since the 2006 amendment, such as Goode & Goode (2006) FLCA 93-286 and Marvel & Marvel [2010] FamCAFC 101, the Court is called upon in interim proceedings to deal with the matter on less than complete evidence and in a highly constricted and prescribed basis. Matters are dealt with on the basis of the papers.
The Court is cautioned against making findings of fact unless there is concession or clear corroboration that is undisputable and irresistible. That does not preclude the Court making findings of fact, but with regard to the issues that are in dispute between these parents, there is not yet sufficient evidence or the ability to test it, for findings to be made. Accordingly, the Court in this case, and so commonly with any interim application, is left in the circumstance of a limited substratum of agreed fact and attempting to determine what will be the best arrangement for these children relevantly, by reference to Full Court authority, having regard also to the time that those arrangements will likely be in place before this matter can reach a final hearing.
Thankfully, even on circuit, this matter can, in all probability and provided that it is readied for hearing if that is the course that the matter must take, be made ready for hearing and heard in all probability in April of 2012, some eight months away, and at worst case scenario, within 12 months of today. That may appear a very long period of time for both these parents and these children, but it is a significant improvement on what one has been used to.
In any event, in dealing with interim proceedings, the Court’s legislative pathway is identical to that which follows at a final hearing, albeit that the evidence to which the law can be applied is far more limited and, in most respects, less reliable.
I am required to commence by considering the objects and principles of the Act which provide that the Court should endeavour to ensure that the best interests of children are met by:
a)ensuring children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)protecting children from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence;
c)ensuring the 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 underlying the objects largely reflect the rights which are established for children under the International Convention on the Rights of the Child and enacted domestically to provide that save where it is contrary to a child’s best interests that:
a)children have a right to know and be cared for by both their parents;
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.
That would most assuredly include both the maternal and paternal extended family and these children’s sibling, [Z];
c)parents jointly share duties and responsibilities;
d)parents should agree about future arrangements, and
e)children have a right to enjoy their culture.
Culture has not been raised as an issue in this case. To the extent that it may be relevant, one is struck by the fact that both of these parents have, for a significant period of their life, been engaged in pastoral industries. It may be too long a bow to suggest that this represents a distinct culture of itself, but certainly these children are from a rural and regional area and have experienced, no doubt, a upbringing which is different to those who are entirely town-based.
The objects and principals are not part of the substantive law to be applied by the Court, but are intended to inform all that the Court does, including through the application of other substantive provisions of the Act and procedurally.
In addition to the objects and principles, the Court is also entitled to take account of various other international instruments where they are enacted domestically or otherwise, at least to the extent that they inform the decision-making process of the Court and assist in the interpretation of and in giving meaning to the substantive provisions of the legislation (See Minister of Ethnic Affairs v Teoh [1995] HCA 20, Mabo v Queensland [1992] HCA 23, B v B and Minister for Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621 amongst others).
The Court is then required to turn to s.60C(a) and consider the child’s best interests as paramount in all that the Court does. The test by which any order is held up to the light of scrutiny is that test.
The Court is then required to turn to and consider whether the presumption of equal shared parental responsibility, pursuant to s.61D(a), applies and, if it does apply, whether it is rebutted. It would appear common ground between these parents that there should be an order made for equal shared parental responsibility. The Court is not bound by that proposal (see U v U (2002) 211 CLR 238). However, the Court must, in informing its decision-making process, be guided by the objects and principles. They provide that parents should agree about future parenting of their children, and neither of these parents seeks to displace or agitate for rebuttal at the presumption. Accordingly, I propose to leave it in place.
Lest I am wrong in placing undue reliance upon the parents’ consent I note, in any event, that I would not be in a position to make any finding as to abuse or family violence such as to cause the presumption to not apply, nor am I in a position, at this interim and truncated hearing, to make a finding that it would not be in the children’s best interests for their parents to equal shared parental responsibility.
Sub-s(3) of s.61DA permits the presumption to not be applied in interim proceedings in circumstances where it is considered inappropriate. However, I am not satisfied that this is the case for these parents.
That being so, I am required and mandated to consider, pursuant to s.65DAA and in order equal time, substantial and significant time, and only if then satisfied that neither of those arrangements are appropriate, by reference to the dual test to which I will return, to make orders for any other time arrangement.
All arrangements for these children are to be put into place having regard to the dual test of what is reasonably practicable as defined in s.65DAA(5), and what is in the child’s best interests as set out in s.60CC.
The Full Court has been clear, as have a number of decisions of single Judges of the Family Court (see specifically Pitken & Hendry [2008] FamCA 186 a decision of Murphy J) that the consideration of reasonable practicality is, perhaps, most expeditiously and conveniently, dealt with as part of the s.60CC exercise in most cases.
I do not cavil with that suggestion, but I will in this instance deal with those issues separately and briefly before returning to them as part of the s.60CC considerations.
Reasonable practicality is not defined by reference to logistical issues solely. Indeed, s.65DAA(5), to the extent that it sets out a catalogue of matters to be addressed by the court in determining that an arrangement is “reasonably practical”, can best be described as summarising and codifying, at least in part, the current state of social science literature, as has been referred to by the parties in their respective submissions, regarding the likely indicia of success (by reference to the benefit to children) of shared cared arrangements in the language of social scientists (which both equal and substantial and significant time as defined in ss.65DAA(1) and (3) would equate to).
Work of Australian academics such as Smyth, McIntosh and Kaspiew among others, as well as international social scientists such as Amato, Lamb, Johnson etcetera, have continuously reiterated the importance to functioning post separation parenting arrangements of parental communication, acceptance, capacity to communicate, and availability. All of those arrangements are addressed in sub-s(5).
These parties do not live any significant distance apart, and in any event, it is trite to say that as rural folk they are more used, perhaps, to travelling greater distances with less travel time than those of us stuck in Sydney.
The court is required to consider the parents current and future capacity to implement an arrangement of the children spending equal time, substantial or significant time, or any other time with each parent.
I am satisfied that these parents are capable of implementing any arrangement that they wish, as they are both, as far as I am able to assess from the material before me, capable, competent and decent people who love and are focused upon their children.
I am required to consider the parents’ current and future capacity to communicate with each other and resolve difficulties. That, it is suggested, has been tested, and clearly the communication between these parties is not as good as it could be. That is particularly clear from the report of Mr M. However, the parties are at an early stage of their separation. They have spent a significant period of their life together. They have produced two children together. They have recently separated in somewhat catastrophic circumstances, irrespective of whose version I accept as more accurate, and I am unable to test or make any finding in that regard at this time.
In my mind, I must bear in mind, consider and give some weight to that present impediment. It is not suggested by the family consultant who has prepared the Child Dispute Conference memo that these parties are beyond redemption, so to speak. It is not suggested that they cannot focus and make arrangements between themselves.
It is not suggested that these good parents have been unable, for instance, as recently as May and June of this year, after they had recently separated in a state of some turmoil, to attend family dispute resolution and with that assistance to negotiate a set of arrangements which have been in place for a very little time and which both parents suggest have worked although they could work better and have identified elements to be addressed to make them work better.
These good parents have demonstrated the potential for good communication. Neither is unintelligent and neither is unpleasant. Whilst there are issues and allegations regarding the behaviour of one or other towards the other, or comments by one or other towards their children, they are matters which I must give some leniency to these parents for in light of their recent separation and, no doubt, emotional hurt.
The impact of the arrangement on a child must also be considered.
None of those elements are taken in isolation. It is not that one consideration necessarily wins the day over all others. They all interact with each other, as does every aspect of the decision making process in a parenting decision.
The impact of an arrangement for these children of having stable, settled and consistent arrangements would appear manifest.
These children are in a most vulnerable part of their life, both as to age and as to the recent separation of their parents. So much is reinforced by both Mr M and Ms W. Indeed, Ms W goes so far as to describe [X] as:
“…an intelligent young person with an engaging personality who is, however, young and consequentially vulnerable. It is hoped that with appropriate guidance and support she will learn to manage the current separation.”
That should speak loudly to each of these parents that [X], and for that matter [Y], are having some difficulty coping with their parent’s separation and adjusting and in understanding – understandably and explicably so – why their parents, whom they love so dearly, no longer love each other and no longer live together. That is made all the worse by occasional snipes, comments and criticisms that each parent has, no doubt, made in relation to the other.
But again, I do not propose to be judgmental of these parents if they have sometimes let their mouth run on when, perhaps, they should have been silent. It is easy and open to any person to make comments that are perhaps harsh or inappropriate, ill-advised, or not as well thought through as they might have been, and I accept that in this case that is probably what has happened, rather than either of these parents having any malicious intent to seek to undermine the other’s relationship or cause any conscious emotional upset to their children.
Clearly emotional upset has been occasioned, however, to both children. I have referred to previously to comments by Mr M with respect to [Y], and I repeat those for the purpose of these considerations.
In relation to the child’s best interests, I am required to turn to s.60CC and commence by considering the primary considerations, being:
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 by being exposed to abuse, neglect or family violence.
Whilst there are suggestions of family violence having occurred prior to separation I am not in a position to make any finding. That does not, however, ameliorate the court’s obligation to tread carefully with respect to such matters. The court is enjoined, by various provisions of the Act, commencing with s.60CG, to consider the risk of family violence and to make orders, to the extent that it is possible to do so, consistent with the child’s best interests that ensure that any arrangements do not expose any person to an unacceptable risk of family violence.
Section 60K requires that the court take prompt and diligent action whenever an allegation of family violence is raised, but, at this point in the proceedings, that is what is raised - an allegation. I am not in a position to make findings, and that is not to suggest that I doubt or disbelieve the mother’s allegations for one moment, nor is it to suggest that I accept them, because without the ability to have probative evidence that is testable, and is indeed tested, it is not possible to make any finding, but simply to weigh, as best as one can, those issues.
I do not propose to seek to limit those issues, being raised by
Ms Maxwell as having been directed towards her and towards her elder daughter, [Z], and accordingly dismiss them out of hand. To do so would be to ignore the very nature of domestic violence and its insidious impact on children, as made clear from a wealth of social science available in the public domain, including reports commissioned and released on behalf of the Attorney General’s Department this year and the court’s newly launched and revised best practice guidelines in cases involving family violence.
However, there is nothing that I can point to that either corroborates those allegations or which suggests that, at this point, there is any risk to these children, to either of them, or indeed for that matter
Ms Maxwell, of family violence occurring through the orders that I am asked to make on either parent’s case.
In dealing with the benefit to the children of having a meaningful relationship with both parents, I observe that the consideration requires a balancing of the children’s relationships with both parents.
The focus of this exercise is not upon the children’s relationship with one parent or the other, but upon both simultaneously. The two relationships can impact upon each other, whether through the simplistic view that by taking time from one parent and giving it to the other it will diminish that parent’s relationship or enhance the others, but also through the fact that how the parties react to each other, how the time is structured, and the type of time that is available can itself impact upon the nature of the relationship the child ultimately develops and has with each parent (see, for instance, Smyth’s “The Difference is Night and Day”).
I would also observe at this point that in relation to the interconnectedness of each parent’s meaningful relationship with the child, the court’s obligation is to focus not upon time, but upon meaningful relationships. Too often, although I do not suggest in this case, parents are focused upon time, rather than seeing time as nothing more than a function and a very small part of that which goes towards forming, developing and maintaining a meaningful relationship with a child.
Children are capable of forming and maintaining meaningful relationships with a number of people and maintaining them without necessarily devoting the same time to each of those relationships. Children have, for instance, a very close and profound relationship on some occasions with a school teacher, particularly in the early years of primary school, who they can idolise and see through very rose coloured glasses. They do not spend the majority of their life with the teacher. The same can apply to sports coaches, cultural activity tutors, ballet coaches, etcetera.
Each of these parents has, and will maintain, a relationship with these children, and I am satisfied from that which I have read from each of the parties and all of the other material available to and before me that the children’s relationship with each of these parents is going to be less affected by time arrangements than it is going to be by the plethora of other factors that surround the time arrangements, particularly the presence or absence of conflict, mutual support by each parent of the other’s relationship, and, as is sometimes tritely but importantly put in social science, the children having “emotional permission” from each parent and, for that matter, extended family, to have a relationship, to enjoy it openly and express their love and affection for the other parent in the presence and home of the parent to whom they then return.
The additional considerations are intended to both inform the primary considerations and to stand alone as considerations of their own which can, as observed by Carmody J, as he then was, in Dylan & Dylan [2007] FamCA 842, sometimes take on importance beyond that of the primary considerations.
I am required to consider the children’s views. There is little evidence before me of the children’s views, although clearly each of the psychologists who have prepared a report – Ms W with respect to [X] and Mr M with respect to [Y] – suggests that those children have a preference, a bias or such other nomenclature as might be used towards the parent who has been described. In [Y]’s case, it is suggested by
Mr M there is a bias, or perhaps one might perceive that as preference, in favour of his father, and [X] expresses a similar preference or bias in favour of her mother.
However, both of these children are caught in the middle of a conflict in which there is some degree of enmeshment without any doubt at all, each of the psychologists has spoken of it, as have each of the parties. In that regard, and having regard to the ages of these children and, most importantly, the circumstances of their present lived experience, I do not propose to place any substantial weight upon the children’s views.
I am required to consider the nature of the children’s relationship with each parent, and any other person, including grandparents and other relatives. Mr Maxwell is clear in his evidence that his extended family, or large portions of it, live on the same rural [omitted] property, are in close proximity, and that these children spend a great deal of time with cousins, uncles, aunts and grandparents.
On Ms Maxwell’s side, there is a less clear picture, but quite clearly a large extended family, portions of whom are in court today and in or about [N].
I accept that all of these extended family members have amazing and unique benefits to offer these children, and that they will continue to offer them to these children as long as each parent allows the children permission to receive those benefits. I am satisfied that each of these parents have an excellent relationship with both of the children and that the strains that attach for these children at the moment is a consequence of their parental separation rather than anything else.
I am also conscious that it would appear to be conceded, at least inferentially, by Mr Maxwell that Ms Maxwell has until separation been what is usually described in the literature as the primary parent. That concession is suggested to come from a paragraph in
Mr Maxwell’s material whereby he concedes that:
“[ Ms Maxwell] was the principal homemaker, although I assisted her when I could.”
Much social science literature, including the work of Warshak in an article, “The Primary Parent Presumption: Primarily Meaningless”, poses the question to the court as to what weight or even relevance one places upon past arrangements when making future decisions.
The Full Court has been clear, since Goode& Goode at least, that past arrangements are of some relevance, although the court is no longer bound, as previous authorities such as Cowling& Cowling might have suggested, to slavishly follow or to re-establish “status quo”.
Past history helps to predict the future and what will or may work and, in this case, what will or may best meet these children’s interests. However, it is not to be suggested, and I do not take it as so submitted, though if it were I would not find that it could be supported, that either of these parents is necessarily, as a consequence of who was primarily attendant to homemaker duties, a parent of more importance to the children.
One parent may be more familiar with meeting the children’s physical needs, but both parents clearly have had an involvement and a meaningful involvement with them. Both parents, it would appear, are engaged, and make time available to do so, in tuckshop and maths and reading groups at the children’s school. Both have been engaged in the children’s sporting and cultural activities. That has extended not only to these parents but to extended family members.
Both parents are perfectly adequate and capable parents and I am satisfied that their relationship with these children is excellent.
Next, the court is required to consider the willingness and ability of each of the parents to facilitate a close and continuing relationship, what is sometimes misleadingly referred to in debate as the “friendly parent provision”. Sub-s(c), providing that consideration, does not, in any way, approach a provision that requires parents to be “friendly”. Indeed, if parents were friendly, many fewer cases would come before the court. The section is intended to be considered, not in a vacuum, but within the context of the parties’ present circumstances, to attempt to ascertain and describe the extent to which each parent is capable of putting their own feelings aside and ensuring that the children’s needs are met, emotionally and importantly, when appropriate, through a relationship of a continuing nature with the other parent and, importantly, other family.
Both of these parents are critical of the other regarding their support of the children’s relationship with them. To some extent, a number of those criticisms may well be warranted. However, since June, when the arrangement that is presently in place was negotiated, the agreement has been adhered to without criticism. To the extent that it is asserted that the arrangement does not meet the children’s needs as amply as it might each parent is at fault. But perhaps the court is better guided by looking towards arrangements that will best meet children’s future needs and interests, that which s.60CA requires, than by seeking to blame and apportion blame between parents.
Each of the parents, no doubt, has had periods since separation when they have not done all they could to actively and openly encourage the children’s relationship and time with the other parent or extended family and certainly significant criticism is raised in Ms Maxwell’s material of the father in that regard.
Criticisms are also raised though by Mr Maxwell, particularly those to which I have referred about denigration and criticism, and on one occasion the children, or at least of one of them, indicating to him that their mother had said they would henceforth only be seeing him for two days and nights a fortnight. I do not raise that for any purpose other than to demonstrate the parties’ evidence, and I do not accept such allegations as fact.
I am satisfied that each of the parents has a perfectly capable willingness and ability even though perhaps in the last few months and since their catastrophic separation they have not perhaps demonstrated that willingness and ability as completely and consistently as they might have.
I am required to consider the likely effect of any change, including separation, from any parent or any other person, including any other grandparent, relative or child.
[Z], who is 16, is a part of the mother’s household. Certainly during school terms and some weekends she is not a full-time member of the household. That is not a criticism, it is simply the reality reflected by her attending boarding school, a not uncommon experience for children in rural Australia.
In relation to separation, I am concerned that the arrangement presently in place sees the children separated overnight in the middle of the week. That is a concern based not only on the separation of these children from each other when they, no doubt, offer substantial support and comfort to each other during the rocky period of their parents’ separation and adjustment to it, but also as it sees a number of transactions occurring between these parents and would appear to create a degree of angst for at least one, if not both of them, and a degree of discomfort for these children.
I am satisfied that there would be a positive change for these children if arrangements were put in place that were stable and consistent and which saw these children having the benefit of both of their parents, as the objects require, having a meaningful involvement with them as well as regular and consistent time with both parents and with each other all the time.
I am required to consider practical difficulty and expense, which is not a manifest issue in this case.
Similarly, I have no concerns at all regarding each parent’s capacity to excellently parent these children nor either parent’s attitude towards their responsibilities as parents.
I am required to consider [X] and [Y]’s maturity, sex, lifestyle and background. As I have commented previously they are young, impressionable and, to some extent, at least emotionally at this point, vulnerable children. Their major need at this point is stability and absence of disruption and conflict.
Whilst there are allegations of family violence I am not in a position to make findings in either parent’s case. Neither parent suggests that orders pursuant to s.68B are warranted for the protection of themselves of [X] or [Y]. There are no personal violence orders made in any State Court.
These parents would be assisted by having some intervention from a Family Counselling service as proposed by the Family Consultant. These parents have not previously had to negotiate arrangements between themselves as separated parents let alone with the emotional trauma each has experienced as a consequence of separation and which each, to some extent, continues to experience.
It is explicable that each parent has found some difficulty in adjusting to their separation and their need to interact, now only as parents and no longer partners, regarding [X] and [Y]. However for at least two reasons I propose to make the orders proposed by the Family Consultant and being:
a)The explicable anguish each parent has experienced is impacting or has the potential to impact upon their parenting even if only through their emotional depletion or a deficit of happiness. That will transmit to [X] and [Y] and, as a consequence, the Court’s requirement per s.60CA to treat the child’s best interests as the paramount consideration compels some intervention once that detriment or potential detriment is identified. To not use the Court’s power pursuant to s.13C to order such therapeutic intervention would be a dereliction of the Court’s requirement to proceed treating the children’s best interests as the paramount consideration. To stand by when a matter that does not, presently or potentially, meet the children’s best interests is readily apparent is inappropriate, unacceptable and an abandonment of the Court’s paramount consideration. That is not to suggest that any ordered therapeutic intervention will succeed. That is a matter for the parents and those within the community working with them. But the opportunity must be afforded and created as required by ss.60CA and 65F;
b)Section 65F(2) of the Act requires that Family Counselling (as defined by s.10B) occur prior to any final determination of parenting proceedings. That section provides that:
“…a court must not [emphasis added] make a parenting order in relation to a child unless:
(a) the parties to the proceedings have attended family counselling to discuss the matter to which the proceedings relate; or
(b) the court is satisfied that there is an urgent need for the parenting order [and subsection 3 makes clear that the obligation does not attach to the hearing of interim proceedings] or there is some other special circumstance (such as family violence), that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or
(c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a)”
Clearly neither (b) or (c) above apply in this case and, consistent with ss.13C and 11E the Court has had the benefit of seeking and receiving advice from a Family Consultant recommending this course of action. In my mind and absent circumstances anticipated by paragraphs (b) and (c) the Court is obliged to and must require, by Court order if necessary and utilising the scope of s.13C, that parties attend family counselling which is, by its very definition in s.10B, designed to help:
“(a) one or more persons to deal with personal and interpersonal issues in relation to marriage; or
(b) one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:
(i) personal and interpersonal issues;
(ii) issues relating to the care of children”
It is not suggested that these parents or [X] or [Y] are from an Aboriginal or Torres Straight Islander background.
Issues of family violence are raised and must be addressed. There are no present orders.
Section 60CG of the Act requires that I positively consider making orders that will not expose any person to family violence as well as considering any safeguards that may be required.
I am satisfied that the therapeutic referrals above together with an appropriate address of the mechanism of changeovers and the specific issues orders proposed and consented to by each parent will be sufficient to discharge the Court’s obligations per section 60CG and will be more than adequate in the circumstances.
Finally, I must consider making orders that will avoid future proceedings. As interim proceedings I feel that this can best be achieved through:
a)The use of s.13C to require, as provided by s.65F and as recommended by the Family Consultant, direct and refer these parents to therapeutic family counselling. That Counselling will also, based upon s.10D be confidential and allow each of these parents the most ample opportunity to fully and frankly work with the family counsellor to address matters of concern to them jointly and individually;
b)To order arrangements that will, as far as practicable, address the concerns identified by each parent with the present arrangement and, more importantly perhaps, the difficulties identified by each of the psychologists who have provided reports relied upon;
c)Amending arrangements so that each of [X] and [Y] have the other available to them continuously and are never split;
d)Allow arrangements that are stable, predictable and likely to meet these children’s physical, educational and emotional needs as well as allowing each parent to have and maintain both a meaningful involvement in their children’s life and a meaningful relationship with their children.
Based upon the available evidence I am satisfied that whilst an equal time arrangement for these children would not be entirely disadvantageous that the present tensions and difficulties for each parent as well as [X] and [Y] would obviate against that arrangement at this time. It would be hoped that family counselling will assist these parents and assist them in moving forward together as parents as they each have a profoundly important and beneficial role to play, personally and through their extended family, in these children’s lives.
A substantial and significant time arrangement would be beneficial to these children. Whilst the present arrangement might be suggested as such the division of time and responsibility between [X] and [Y]’s parents does not accord with the Act’s definition contained in s.65DAA(3) being:
“…a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The present arrangement sees [X] and [Y] spending each weekend with their father and thus depriving them of that opportunity to spend unstructured leisure with their mother (and their sister on weekends she is home) and she with them. Similarly and equally importantly, the present arrangements sees [X] and [Y] spending the preponderance of week day time with their mother and thus depriving them (and
Mr Maxwell) of the opportunity of his sharing in that time.
The present arrangement also sees the children split on a weekly basis and with a pattern to time arrangements that is more complex and involving more changeovers than are necessary. At this time and without the assistance and time to overcome explicable hurt and grieving I fear that equal time would provide not shared parenting for [X] and [Y] but divided lives (to borrow a title from a book by Dr W).
For the above reasons I am satisfied that a stable, consistent and predictable arrangement that allows each parent to have involvement with [X] and [Y] for periods throughout the week and weekend are appropriate at this time. One would hope that family counselling (and if considered appropriate and a referral made or service offered possibly also family dispute resolution) would assist these parents and children further along the path that they are all travelling together at present from intact family to functional co-parenting as and between separate households.
I will also make orders as sought in Ms Maxwell’s application and consented to by Mr Maxwell as well as orders sought in Mr Maxwell’s minute of order and consented to by Ms Maxwell.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 19 September 2011
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