McShane and Tanner (No.2)
[2011] FMCAfam 508
•1 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MCSHANE & TANNER (No.2) | [2011] FMCAfam 508 |
| FAMILY LAW – Child – parenting responsibility – father’s time with child. |
| Family Law Act 1975, ss.4, 60B, 60B(2), 60CA, 61C, 60CC Evidence Act 1995, s.128 |
| McCall v Clark [2009] FLC 93-405 Mazorski v Albright (2007) 37 FLR 518 |
| Applicant: | MR MCSHANE |
| Respondent: | MS TANNER |
| File Number: | ADC 4912 of 2009 |
| Judgment of: | Cole FM |
| Hearing dates: | 25 & 28 June, 16, 17, 18 & 19 August, 5 October, 24 November, 21 December 2010 and 22 February 2011 |
| Date of Last Submission: | 22 February 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 1 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Horvat |
| Solicitors for the Applicant: | Pederick Lawyers |
| Counsel for the Respondent: | Mr Lewis |
| Solicitors for the Respondent: | David Walker & Co. |
| Counsel for the Independent Children’s Lawyer: | Ms Tinning |
| Solicitors for the Independent Children’s Lawyer: | Barr Lawyers |
ORDERS
That the child [X] born [in] 2009 (“[X]”) live with the mother.
Save as set out in these orders that mother have the sole parental responsibility for the child’s education and medical treatment.
That the mother be restrained and an injunction is hereby granted restraining her from causing [X] to be exposed to the teachings or doctrine of the Jehovah’s Witnesses save and except with the express written consent of the father.
That the mother be restrained and an injunction is hereby granted restraining her from refusing blood transfusions for [X] in the event of advice from [X]’s treating medical practitioners that there is no other option to preserve her life or protect her from serious injury or damage to her health.
That the mother shall keep the father informed at all times of any serious or significant illness or accident involving the child and shall authorise any of [X]’s treating medical or health practitioners to provide information to the father regarding medical conditions and treatment concerning the child.
That the mother shall authorise any kindergarten or school at which [X] may attend from time to time to provide information to the father regarding the child’s attendance and progress thereat and such other information including, but not limited to, school reports, parent newsletters and notices and invitations to kindergarten and school functions and events.
That both parties be at liberty to attend any kindergarten or school events and functions to which parents are ordinarily entitled to attend including, but not limited to, school concerts, sports days, excursions and the like.
That the mother do forthwith take all reasonable steps to ensure that [X] sleeps overnight in her own bed and not the mother’s bed.
That the father spend time with [X]:
(a)until such time as the child commences school on a full-time basis:
(i)each alternate weekend from 5.30pm on Friday until 6.30pm on Sunday;
(ii)from 5.30pm on Thursday until 5.30pm on Friday in each intervening week provided that the father is not working on the Friday and provides the mother with seven days notice of his intention to exercise such time
(b)upon the child commencing school:
(i)during school terms:
(1)each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday;
(2)in each intervening week from 5.30pm on Thursday until the commencement of school on Friday with the father to deliver [X] to school
(ii)for one half of each of the short school holidays;
(iii)for one half of the Christmas school holidays in 2014/15 and 2015/16 on a week about basis;
(iv)for one half of the Christmas school holidays from 2016/17:
(1)for the first half in 2016/17 and in each alternate year;
(2)for the second half in 2017/18 and in each alternate year
(c) at such other times as are agreed between the parties.
That the father notify the mother forthwith in the event that the father cannot be present in Tasmania due to employment commitments and is unable to spend time with [X] pursuant to these orders.
That notwithstanding any order to the contrary, [X] shall spend time with the parties on the following occasions:
(a)with the mother on Mother’s Day from 9.00am until 5.00pm;
(b)with the father on Father’s Day from 9.00am until 5.00pm;
(c)at Christmas:
(i)with the mother:
(1)from 12.00 noon on 24 December 2011 until 12 noon on 25 December 2011 and between the same times in each alternate year thereafter;
(2)from 12 noon on 25 December 2012 until 12.00 noon on 26 December 2012 and between the same times in each alternate year thereafter
(ii)with the father:
(1)from 12 noon on 25 December 2011 until 12.00 noon on 26 December 2011 and between the same times in each alternate year thereafter;
(2)from 12.00 noon on 24 December 2012 until 12 noon on 25 December 2012 and between the same times in each alternate year thereafter
(d)on the Easter long weekend each year:
(i)with the mother:
(1)from 5.00pm on Easter Saturday until 5.00pm on Easter Monday in 2012 and between the same times in each alternate year thereafter
(2)from 5.00pm on Maundy Thursday until 5.00pm on Easter Saturday in 2013 and between the same times in each alternate year thereafter;
(ii)with the father:
(1)from 5.00pm on Maundy Thursday until 5.00pm on Easter Saturday in 2012 and between the same times in each alternate year thereafter
(2)from 5.00pm on Easter Saturday until 5.00pm on Easter Monday in 2013 and between the same times in each alternate year thereafter;
(e)on the child’s birthday on [date omitted] each year, [X] shall spend a period of not less than three hours with the parent who does not otherwise have the child in their care on that day.
That the father be at liberty to communicate with the child by telephone on two occasions each week at times to be agreed between the parties.
That the mother be at liberty to communicate with the child by telephone on two occasions each week during school holiday periods when the child is in the father’s care at times to be agreed between the parties.
That the mother shall be restrained and an injunction is hereby granted restraining her from changing the child’s principal place of residence to a distance greater than 50 kilometres from Burnie, Tasmania, without providing the father with sixty days prior written notice of her intention to do so.
That handovers shall occur at the mother’s home at the commencement of the father’s time with [X] with the father to collect the child and at the father’s home at the conclusion of the father’s time with the mother to collect the child, save and except that handovers shall occur at the child’s school upon the child reaching school age and where the handover time coincides with the commencement or conclusion of school.
That the parties attend upon a Family Advisor at the nearest Family Relationship Centre for the purpose of assessment and referral to an appropriate agency in relation to a parenting orders program.
That all Applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym McShane & Tanner (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4912 of 2009
| MR MCSHANE |
Applicant
And
| MS TANNER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a dispute about the parenting arrangements for [X] born [in] 2009.
The proceedings when they began were about whether [X] should live with the father in South Australia, or in Tasmania with her mother. The parents had moved from Tasmania to South Australia in September 2009 with the mother and child returning to Tasmania in November 2009.
On 19 August 2010 being day five of the trial the father conceded that [X] should reside with the mother in Tasmania.
On 2 September 2010 the father’s partner, Ms R, and her two children moved from Adelaide to Tasmania to reside. The Court was advised of this on 5 October 2010.
On 15 November 2010 the father moved to Tasmania to reside.
The proceedings focussed on what time the father should spend with [X]. The father seeking a graduation of time to equal shared care. The mother opposed this.
The circumstances in which the fathers move to Tasmania was undertaken; placed in the context of the evidence provided by the parties to the court, is the subject of some controversy which will be commented on later in these reasons.
Matters agreed
The parties have now agreed that:
a)[X] will reside with the mother in Tasmania;
b)the mother will provide such consents and authorities to any medical practitioner, hospital, medical practice, pre-school, kindergarten or school to enable the father to receive information concerning:
i)medical treatment and medical conditions relating to the child;
ii)school, kindergarten and pre-school reports, newsletters, notices and invitations to functions and sporting events.
c)the parties share travel for the purpose of handovers with the father to collect the child from the mother’s residence at the commencement of time spent and the mother to collect the child from the father’s residence at the conclusion of time spent;
d)in the event that the father’s time falls on Mother’s Day, that time be suspended, the parties’ position for Mother’s and Father’s Day being a difference of 9.00am or 10.00am to 5.00pm;
e)in the event that Father’s Day falls on the day when the father is not spending time with the child he shall have time with her from 9:00 am to 5:00 pm that day;
f)the mother shall not refuse and an injunction is hereby ordered to restrain the mother from refusing permission for the child to have a blood transfusion upon the advice of a qualified medical practitioner that there is no other option to preserve her life or protect her from serious injury or damage to her health; and
g)the party with whom the child is to spend time will collect the child from the other’s residence.
The mother had agreed to an order that she not take [X] to any religious meetings. This position changed when closing addresses were given, the mother’s position being her assurance this would not occur should be sufficient.
The remaining issues for the parties are examined when discussing their respective proposals in the course of these reasons.
History
The parties commenced cohabitation in Tasmania in September 2008. They resided in [omitted] in a granny flat attached to the mother’s parents’ residence.
[X] was born [in] 2009 and the father made arrangements to stay at home to help care for her. There is some dispute whether he had two or three months off work. On his evidence, he then travelled to [omitted] for four days for work commitments before he returned to stay home for one more month to assist with the new baby.
In or about July or August 2009 the father obtained employment in South Australia. The parties moved to South Australia to reside in September 2009.
The mother says this was on a trial basis. The father says it was a permanent move. On 25 November 2009 the mother returned without the father’s consent to Tasmania with [X]. The father, at the time, was working away at [omitted] in South Australia.
On or about 30 November 2009, the mother advised the father that she would not be returning with [X] to Adelaide.
On 1 December 2009, the father instructed solicitors and on
14 December 2009 proceedings were instituted in the Federal Magistrates Court at Adelaide.
Proposals
The parties’ positions changed during the course of the trial.
A summary of their final positions is set out below.
The applicant father seeks, amongst other things:
a)equal shared parental responsibility for [X] with the mother;
b)an order until [X] turns 4 years of age, that he spend time with the child as follows:
i)in each alternate week from 6.00pm on Thursday to 6.00pm on Sunday each week; and
ii)in each alternate week from 6.00pm on Friday until 8.00am on Monday
c)upon [X] turning 4 years of age that he spend time with her:
i)in each alternate week from 6.00pm on Wednesday to 6.00pm on Sunday; and
ii)in each alternate week from 6.00pm on Thursday until 8.00am on Monday
d)a raft of orders to allow for special days.
In addition, the father seeks further orders restraining:
a)the mother from changing the child’s place of residence;
b)the mother from raising the child as a Jehovah’s Witness or taking the child to Witness meetings, amongst other things; and
c)either party enrolling the child at school without the other’s consent.
The mother seeks orders that:
a)she have sole parental responsibility for [X];
b)that [X] live with her; and
c)a graduated set of orders that will, in effect, increase the overnight time that [X] spends with her father being one overnight period up to her commencing school, with the time to be increased to three nights per fortnight and half of the school holidays in one week blocks.
The Independent Children’s Lawyer proposes that orders be made as follows:
a)that the mother have sole parental responsibility;
b)[X] live with the mother;
c)pending [X] commencing school, the father spend time with [X]:
i)each alternate weekend from Friday to Sunday; and
ii)from 5.30pm on Thursday to 5.30pm on Friday in every other week
d)on [X] commencing school, the father’s time be increased to Friday to Monday in each alternate weekend.
Evidence
The father relies on:
a)his Amended Application filed on 3 May 2010;
b)the Trial Affidavit filed on 3 May 2010;
c)the Trial Affidavit of Ms C filed on 5 May 2010;
d)the Trial Affidavit of Mr M filed on 3 May 2010;
e)the Trial Affidavit of Ms R filed on 3 May 2010;
f)the Affidavit of Ms P filed on 14 May 2010;
g)subpoena material from [P] Clinic and South Australian Police; and
h)his further Affidavit filed on 14 October 2010.
The father, Ms C his mother, and his partner Ms R gave evidence and were cross-examined.
In view of the late advice on day six of the trial that the father was relocating to Tasmania, Ms R having moved on 2 September, further evidence was obtained from the father and Ms R. Following the evidence of Ms R, the father had to be recalled to obtain information about his new job.
Ms R is now engaged in proceedings with the father of her child [Y] before Federal Magistrate Lindsay in respect of her move to Tasmania. By agreement, I have been able to examine the evidence filed by Ms R in respect of that matter.
The mother relies on:
a)her Response filed on 22 December 2009;
b)her Affidavit filed on 22 December 2009;
c)her Affidavit filed on 1 April 2010;
d)her Affidavit filed on 30 April 2010;
e)the Affidavit of Ms T sworn on 30 April 2010;
f)the Affidavit of Ms D filed on 3 May 2010;
g)the Affidavit of Ms B filed on 3 May 2010;
h)the Affidavit of Dr H filed on 7 June 2010;
i)the Affidavit of Mr C filed on 5 May 2010; and
j)such material on subpoena from [S] Proprietary Limited, MBF, Medicare, [P] Clinic, South Australian Police and [M] Medical Centre as was tendered to the Court.
The mother and her mother Ms T, Dr H (her G.P), and Mr C (her psychologist) gave evidence and were cross-examined.
The report of Dr C was admitted into evidence and Dr C was cross-examined by all parties.
The father’s change of position
The father started these proceedings seeking orders that [X] reside either with the mother or himself in South Australia. Alternative orders were sought if she was to remain in Tasmania.
It should be noted that the parties used the first day of this hearing for negotiations. Counsel were pressed as to whether the trial should proceed and all three resisted the parties commencing to give evidence in view of the stage that the negotiations had reached.
At 2.25pm on the first day the Independent Children’s Lawyer with the consent of the parties advised the court of the Heads of Agreement which allowed for [X] to remain with her mother and included provision for orders that on the father’s relocation to Tasmania in no less than 18 months, further arrangements were to be put in place in respect of his time with [X]. It should be noted that the parties were that confident of agreement that it was indicated that a minute of consent orders was likely to be provided to the court on Monday morning with the parties possibly meeting over the weekend.
On Monday it was apparent that there was no agreement. Despite having indicated they would be prepared to meet on the weekend, it transpired that the mother’s minute of proposed orders was sent at 2.30pm to the father with the father’s response being delivered at 9.04pm. It also transpired that neither party saw fit to telephone the other to attempt to resolve the matter.
An application was then made that I disqualify myself which was rejected and reasons were given. The matter proceeded. The trial eventually concluded after approximately seven days of hearing which were conducted over the following nine months.
The father over the course of the hearing gave evidence that he was employed as a [omitted], however he was still completing his degree.
He had been requested by his employer to move to South Australia. He took the role because it was a home based role and he negotiated for the parties to move after [X]’s birth. It was the view of his state manager that he needed to be based in Adelaide.
Whilst his evidence was that he had the flexibility to be able to work from home, he was clear that his employer would not pay him to work in Tasmania and allow him to commute to South Australia to service his clients. His evidence was that the large accounts for his employer were in South Australia and he needed to be here to liaise with clients. Whilst he rarely needed to visit clients on sight he was required to visit them in Adelaide.
He submitted he was able to manage his work commitments so they did not impact on his time with [X]. In the course of his employment he had travelled twice to Tasmania in the last six months and did not need to be there as frequently as in the past. It was not possible for him, he said to maintain his current employment and reside in Tasmania. He went on to say that there was no job potential in Tasmania. There were no jobs for someone of his skill set. In addition, he had re-partnered and his partner was employed here and the fathers of her two children from her prior relationships resided in this State.
The evidence of Ms R was that she had just commenced employment with [omitted] on a contract basis. She did not have the capacity or the flexibility to move to Tasmania.
She expected her contract to be extended for [the end of the year].
The fathers of her children both resided in South Australia.
Ms R’s evidence concluded on 17 August. Within approximately two weeks of giving evidence Ms R moved to reside in Tasmania with her two children.
The Court was advised of this after the evidence had concluded on
5 October 2010. The Court was also advised that the father’s employer was re-evaluating whether he would be kept on after 15 November 2010.
Following this information being provided, the father in accordance with the orders of this Court filed an Affidavit on 14 October 2010. The order required him to set out any change in his employment, income, location of his employment and his residence amongst other things. It is fair to say that the Affidavit only addressed some of these issues.
It would now appear that the father of her eldest child consented to the move although when he did so is unclear. The father of [Y] did not and proceedings were instituted in the Federal Magistrates Court and came on before Federal Magistrate Lindsay. From those proceedings, it appeared that steps had been undertaken, possibly whilst or shortly after evidence was given to this court, for the parties to move to Tasmania.
In respect of his employment the father now disclosed (it not having been mentioned in any previous evidence) that on 25 February,
30 March and 11 June 2010 he had received confidential coaching reports from his manager advising him that he was not meeting business goals. On 13 October 2010 he received a termination letter advising that due to his lack of progress in addressing the issues raised, his employment had been terminated with effect from 15 November 2010.
He confirmed he would be moving to Tasmania on 15 November 2010.
He also confirmed that his partner and her two children namely [Z] aged 11 and [Y] aged two and a half had already moved to Tasmania to reside on 2 September 2010.
He deposed that his partner Ms R was currently negotiating a more suitable agreement as to the time spent with [Y] and his father. It later appeared that [Y]’s father had at no stage consented to [Y] moving to Tasmania. Any “negotiations” were after the event.
He advised that he had been actively seeking employment however nothing had been forthcoming as at the date of the swearing of the Affidavit. He did not give any particulars of his residence. He was unable to give any particulars of where he might be employed. He did advise that his income from his previous employment with [S] was $78,000 gross per annum.
It is a matter of some concern that the father did not use the opportunity to explain the exact chain of events that lead to the decision for the parties to move to Tasmania. In view of the sequence of events, the Affidavit gave the father the opportunity to lay all of his cards on the table. He did not. Clearly notice had to be given to Ms R’s employer, arrangements had to be made to transport the family, accommodation had to be organised in Tasmania, and employment needed to be considered. Leave was therefore granted for further evidence to be taken from Mr McShane and Ms R.
Mr McShane gave his evidence first. He was asked about the proceedings in which Ms R was involved. His answers, when cast in the context of what he described as a close relationship with his fiancé, were unsatisfactory. His response in essence was that he ran his case and she ran hers. He did not know the details of her case. I find this hard to accept.
His evidence, which was not canvassed in his Affidavit, was that the parties had now purchased a house in Tasmania. He did not know
Ms R’s income and was not there when she filled out the form for the Application for a housing loan. He objected to having Ms R’s financial information before the Court. His objection was overruled.
He then advised that if Ms R returns to South Australia he would not return with her which seemed at odds with his previous evidence in respect of their relationship.
He could not recall if Ms R had been served after she gave evidence in this court. He could not explain why she said she would not be moving from South Australia. He did not know when the flights were booked for Ms R and her children to move to Tasmania. He confirmed that he went to Tasmania with Ms R on 2 September returning to work on
8 September. It was put to him that Ms R in her Affidavit said that she had been living in Tasmania since 1 May 2010. He agreed that this was in the Affidavit and said that she did not read it correctly.
He agreed that when he applied to borrow funds to purchase the property in Tasmania he did not tell the bank that his employment was in jeopardy. He stated that it was cheaper for him purchasing the property than having to rent. He advised that the purchase of the property was settled before 9 November 2010.
From his evidence, orders were made to produce amongst other things, a copy of the tenancy agreement for the property in Burnie, a copy of his application for finance with the Commonwealth Bank, and a copy of any Affidavits sworn by Ms R in the course of the proceedings currently before Federal Magistrate Lindsay.
Ms R
Ms R was recalled to give evidence on 21 December 2010. She confirmed that [Y] is seeing his father on alternate weekends being flown from Tasmania to Adelaide. She confirmed she pays for every second trip. The contents of her Affidavit of 29 September were put to her. She said everything happened in a very rushed manner and that she filed a further Affidavit correcting the position.
She confirmed she did not move to Tasmania in May as deposed in that Affidavit. She suggested she was muddled up and quite emotional when doing the initial Affidavit. She confirmed that Mr McShane was now working for a [omitted] company on the west coast. She was not sure of the exact details and could not confirm it was [workplace omitted]. She agreed that her evidence to the court had been previously that relocation was not an option. She advised that since May 2010 she had looked into options. She said however that she had not made solid decisions at that time.
She could not recall what notice she had given to her employer being [omitted] in South Australia. She had not produced a copy of the written notice. She indicated that she had made the decision to move fairly soon after she had given evidence in this court. The decision had been made prior to 2 September and had been made after the father had conceded that [X] should remain in Tasmania.
She confirmed they had commenced renting the premises in Tasmania on 16 August 2010. She confirmed that when she gave evidence she had received and signed the agreement. The landlord was a friend of the fathers and she did not think he would enforce the agreement. She went on to say that the father was going to use the property for a place to stay when he came over to Tasmania from South Australia.
A Certificate of Immunity was granted in respect to evidence given by Ms R pursuant to s.128 of the Evidence Act 1995. There was no objection from Counsel. Ms R then advised that she was silent about the application for the tenancy because the father’s position was that he was trying to get [X] to move back to Adelaide. She also said that she did not think that the application to lease the property had been signed by Mr M, the father, and the landlord when she signed. She confirmed that she was served with the proceedings by [Y]’s father after she gave evidence in this court and after she had signed the agreement.
She agreed that she had lied to the solicitor for [Y]’s father. She had already relocated. She also agreed that she had misled the court when her proceedings came on in October. Her excuse was that in her mind she was living in Tasmania as of May 2010. She did not choose to correct her first Affidavit. She confirmed she had received a copy of the Affidavit from her lawyer. The evidence of Ms R in respect of documents that she had sworn before this court and before the court of Federal Magistrate Lindsay was highly unsatisfactory.
As a result of her evidence the father was recalled to give evidence of his new employment, the evidence not having been proffered by Counsel at the commencement of this hearing. He advised that he was employed by [omitted]. His place of employment was [omitted] and it was located some one hour and 15 minutes drive from his current residence. He was employed on an annual income of $138,000 per year. He was paid monthly.
This is information that should have been volunteered and not extracted from the father following the evidence of Ms R. It is notable that the father at this point objected to providing information in respect of his annual income and was informed that he needed to answer the question. He then did so.
Mother’s evidence
The manner in which the father’s move to Tasmania and the contrast between his actions and the evidence provided by him to the Court was significant.
This is not to say however the mother’s evidence was without criticism. Her evidence about her ability to borrow funds, and the answers she supplied to the Legal Services Commission of South Australia and the Legal Aid Commission of Tasmania were unsatisfactory.
Her evidence was that whilst she understood she put the father to considerable expense in defending the Appeal, she did not take up the opportunity the decision provided for Counsel to appear by video link, because it was not the outcome she sought. She subsequently borrowed a significant sum from her parents. There was no evidence to show that this was not an option when she was in receipt of legal assistance.
When questioned about this she said she had advised the Legal Aid Commission that she was able to borrow funds. I have to say, in view of the significant expense that was subsequently incurred, that I find this hard to accept.
In addition, I have concerns about the mother’s conduct once she had returned to Tasmania. She was unrepentant about her return to Tasmania. She did not appear to have thought through the consequences for [X] in placing such a significant barrier of distance between her daughter and the father. Her initial response was to be quite restrictive regarding the father’s time. She conceded that her behaviour on some of the handovers was inappropriate telling the father he was “pathetic” in front of [X] on one occasion. She cannot say she has always acted in her child’s best interests.
Dr C
Dr C gave evidence on the sixth day of trial.
He was cross-examined by the parties and the Independent Children’s Lawyer. His evidence was for there to be a successful shared care arrangement in place the parents would need to demonstrate amongst other things high level of confidence in each other’s parenting capacities and high levels of cooperation and flexibility between the parties in addition to a demonstrated ability to discuss and negotiate issues, amongst other things.
He advised that on his “sense” of the research, when considering this case he would not have expected that before, say the age of four, he would not be considering anything vaguely resembling shared care, even if the parties live nearby and all of the appropriate conditions were in place regarding the parents attitude towards each other, their level of communication and their ability to co-operate.
He made it clear that even then he would not be supporting an immediate move to anything resembling a shared care arrangement within the foreseeable future. The child is spending most of her time with the mother. The mother is going to be the primary attachment and the question is how will the child adapt to gradually being away more and more from mum? [X] may adapt really well; or she may not.
He noted that recent research such as the research recently published in May 2010 by MacIntosh and Others suggests that there should be appropriate caution around expanding the time too fast in the early years. This he said supported his view that in this matter a cautious approach be adopted certainly until [X] turned four.
He did however place a caveat on that. That is, if the parents think that [X] is adapting well and the signs are there that they are getting on much better, then it would be open to them to make their own parental judgment that the child will adapt and that there would unlikely be negative consequences for the child in expanding the time. The underlying principle of that caveat is of course the parents joining in cooperating with the extension of the father’s time with [X].
Dr C advised that children who have to experience large slabs of time away from their primary carer would, the evidence suggests, have an increased irritability and lack of emotional adjustment. An ambitious proposal may be counter productive because it could undermine [X]’s sense of security with the mother.
He stated further when cross-examined by Counsel for the father that having read the report of MacIntosh and Others about the developmental outcomes, it seemed to him that he was more convinced about the attachment needs of a young child being more cautiously preserved. This was consistent with his view that he would be comfortable with [X] spending four nights out of fourteen with her father in the three to four year old age period.
It was not contested during the course of cross-examination with Dr C, that the parties do not communicate well. To paraphrase the Independent Children’s Lawyer’s position the mother considers the father’s communication towards her to be hostile, belligerent, demanding and arrogant and the mother in return is uncommunicative towards the father and responds to the father’s communication by shutting down.
When asked to consider the options in respect of sole or equal shared parental responsibility or the other alternatives, Dr C said it looked as though the child has quite a lot to gain from the active involvement of the father and his family in the child’s life. For all of those reasons he would be comfortable with there being a substantial arena of shared parental responsibility about important issues. He did say however he did not think it would be helpful for the parties to be invited into daily debates about things that are really the providence of the mother in their everyday life in Tasmania.[1]
[1] Transcript 19 August 2010 p 25
In respect of this matter he thought it was a good idea to review things at say, the age of four to see how matters were going. At the same time, he acknowledged that the parties needed some finality and to be able to get on with their lives with some certainty.
When cross-examined by Mr Lewis for the mother, Dr C responded that he did not actually have evidence before him of anything that he would consider to be violence in this particular case. He went on to say that he could imagine that the mother regarded the father’s denigration of her as a form of emotional abuse and that she experienced the father as controlling of her and particularly in the latter part of their conflict when it became clear that the relationship was not going to work.
A number of matters were put to Dr C seeking his agreement that if they were found to be correct then they would either amount to emotional abuse or controlling behaviour. Dr C in summary said that in many of the cases in this jurisdiction if we were to apply the same rigorous conditions that the questions applied to the parties’ Affidavits before the court then there would be nobody cooperating subsequent to trials when in fact they do.
He was willing to give both parties the benefit of the doubt that the process of the trial has inadvertently encouraged them to highlight and perhaps even exaggerate and give one sided presentations of incidents. He went on to say that that was quite a normal part of these proceedings and that he thought that both parties will be able to transcend that over time.
He did acknowledge that the pattern of events highlighted did emphasise certain character traits of the father which the mother found to be difficult to handle and may have exacerbated any distress she was feeling. That the mother, with the assistance of the framework provided by the counsellor may have enabled her to identify this perhaps in an empowering way as a form of emotional abuse that she was not willing to put up with. In that sense the same framework she applied to that to describe it as abuse seems to be somewhat analogous to the framework that the father was grappling with in trying to understand the mother’s different behaviours.
Each party would appear to have ended up resorting to what in his view was reasonably crude interpretive frameworks to try and come to terms with the complex dynamics and conflict they are engaging in and he did not see either of the parties in a particularly negative light as a result of what was largely a product of the conflict they were in. The real test would be what the parties do in respect of their child from hereon in.[2]
[2] Transcript 19 August 2010 p 34
In the context of a post separation parenting course he considered that if inquiries could be made to find the right sought of intervention that would combine both a focus on parenting and also on communication – and they each gave the professional the opportunity to intervene with them individually on issues that came up then it could provide a constructive forum for addressing any difficulties the father may have in that regard.
Having regard to his evidence in respect of attachment and [X]’s age he agreed that the proposals he had been discussing in the course of his evidence were not inconsistent with those of the mother, namely that when she is two she could have two nights consecutively, three, three nights consecutively and four, four nights consecutively with her father. By the time she gets to school age and starts to have and form relationships independent of the mother then it can go to larger blocks of time.
When asked if he would err on the side of caution and stay at one night with the father until [X] reaches the age of two he responded that whilst he thought there was some value in a few months of continuing with the one night to see if the parties could actually find a way of dealing with the child’s constipation he would be quite comfortable for two nights to be introduced a bit earlier than two years old particularly given the fact that they know the father is apparently coping well with the child already in respect of one night and he is going to be coming so far.
Dr C’s evidence was the subject of criticism by counsel for the mother.
It is submitted he gave evidence that he was a supporter of shared care arrangements. This ignores the fact that the support was heavily caveated, being subject to the parties’ ability to co-operate and communicate, amongst other things.
He was criticised for not being aware of the work of Dr P Watts namely “Shared Care or Private Lives”. There was no explanation proffered as to why this work had not been put to him previously. I do not accept without further expert evidence that a failure to acknowledge this text put to him in cross-examination, detracts from his evidence.
He was criticised for not exploring the father’s behaviour in a meaningful way. He was cross-examined at length about this and I found his answers appropriate and helpful. I do not accept the criticism.
It is suggested that he gave the work of McIntosh and Others “Post-Separation parenting arrangements and developmental outcomes for infants and children – Collected Reports” begrudging authority.I do not accept that.
Furthermore, I would note that in addition to a cautious approach being urged, his recommendations were in the context of the father remaining in South Australia. In the event of the father moving to Tasmania, Dr C accepted [3](p.8 para.35 of transcript) that there were too many unknowns, including but not limited to the parties’ communication and level of trust, that spoke against orders that presumed a move to shared care. In other words, the cautious approach should be maintained.
[3] Transcript 19 August 2010 p 8
The Law
The relevant legislation is contained in Part VII of the Family Law Act 1975 (“the Act”).
Section 60B sets out the objects of Part VII and the principles which underlie those objects. The objects are addressed in the considerations the Court must have regard to in s.60CC.
Section 60B(2) of the Act provides that:
The principles underlying those objects are that (except when it is or would be contrary to a child’s best interest):
(a)children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)the parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act states that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC sets out how a court determines what is in the child’s best interests and points to a consideration of the matters set out in sub-ss.(2) and (3) (per s.60CC(1)).
The primary considerations are contained in s.60CC(2) and are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) sets out additional considerations, which are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child, with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child),
to provide for the needs of the child including emotional and intellectual needs;
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
h)if the child is an Aboriginal child or a Torres Strait Island child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
j)any family violence involving the child or a member of the child’s family;
k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
m)any other fact or circumstance that the court thinks is relevant.
The father seeks equal shared parental responsibility for the children whilst the mother seeks sole parental responsibility. This will be discussed in due course.
Should I decide that there be equal shared parental responsibility then I must, pursuant to the provisions of s.65DAA of the Act, consider whether in these circumstances these children should spend “equal time” or “substantial and significant time” with each of their parents. These considerations include whether such an order would be:
a)in the best interests of the children; and
b)whether the children spending that time with each of their parents is reasonably practicable (see s.65DAA(1)(a) and (b)).
I will refer to these matters later in these Reasons.
The Children’s Best Interests
I will turn now to a consideration of the factors set out in s.60CC of the Act in determining the best interests of the children.
SECTION 60CC(2)(a) - the benefit of the child of having a meaningful relationship with both of the child’s parents
A meaningful relationship is one which is important, significant and valuable to the child. It is a qualitative objective, not a strictly quantitative one.[4] The Court should consider the prospective benefit to the child of a meaningful relationship with her parent.[5]
[4] Mazorski v Albright (2007) 37 FLR 518
[5] McCall v Clark [2009] FLC 93-405
Neither party contends that there is no benefit in the child having a meaningful relationship with the other parent. The issue is about the terms and conditions upon which that relationship should be conducted.
Counsel for the mother argues that the father’s behaviour toward the mother was coercive, controlling and abusive. His conduct in the course of this case, it is submitted, reveals he has no understanding of the impact of his behaviour on the mother and the child, is unlikely to modify that behaviour and is likely to continue in the same manner. I do not share that view.
Whilst I have previously discussed and criticised the father’s evidence and behaviour (and revisit those matters later in these reasons), I do not consider that it is such that the child will not benefit from a meaningful relationship with him. It does however impact on how a meaningful relationship can be achieved and would, I consider, support a cautious approach.
SECTION 60CC(2)(b) - the need to protect the child from physical or psychological harm being subjected to, or exposed to, abuse, neglect or family violence
The mother argues the father’s controlling nature and past emotional and verbal abuse towards the mother including his jealousy and his actions in following the mother to keep a check on her are factors that should be brought to account.
She relies on the definition of family violence contained in section 4 of the Act namely:
Family violence means conduct, whether actual or threatened by a person towards, or towards the property of a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about his or her personal well-being or safety.
These issues were put to Dr C in the course of being cross-examined by Counsel for the mother which included, (and I paraphrase), if the Court found the following matters to be substantiated then this was indicative of control and could be characterised under the extended definition of family violence, the matters referred to being:
a)the father had isolated the mother by bringing her to South Australia;
b)the father attempted to control her life by telling her which art classes to attend;
c)when the mother was depressed and wanted to return to Tasmania the father told her he had taken legal advice and she could not leave with [X].
Dr C conceded that if those behaviours were found to have occurred, then the interpretation placed upon them by the mother and her counsellor (who did not give evidence) were one option available to explain the behaviours, however went on to explain that this area was the subject of a great deal of controversy.
Dr C at the conclusion of the line of questioning by Counsel for the mother stated that:
…my experience of many of these cases is that if we were to sort of apply the same rigors that your questions apply to the affidavits that we have before us we would have nobody ever cooperating subsequent to trials, but in fact they do. So I guess I am willing to give the parties the benefit of the doubt that the process of the trial sort of has inadvertently encouraged them to sort of highlight, perhaps even exaggerate and give one sided presentations of incidents and so forth, and that is quite a normal part of these proceedings, and someone like myself is prepared to give both of them more benefit of the doubt that they will be able to transcend that over time.
…however, I do acknowledge that the pattern of things you have highlighted does emphasise, certain–probably character traits of the father which the mother found to be very difficult to handle and may have exacerbated any distress she was feeling and that, with the assistance of the interpretive frame work provided by her – the counsellor, and they would help to identify this, perhaps in an empowering way, as forms of emotional abuse that she was not willing to put up with. So in that sense, that same framework that she applied to that to describe it as abuse seems to be somewhat analogous to the framework that the father was trying to sort of grapple with in trying to understand the mother’s, all be it different behaviours. So each of these people sort of have ended up resorting to, you know, what from my point of view appears to be reasonably crude interpretive frame works to try to come to terms with the complex dynamics and conflict they were engaging in and so I don’t - see either of the parties in a particularly negative light as a result of that. I think that it is largely a product of the conflict they were in. It is not particularly abnormal amongst many of the people who go through marriage conflicts, and the real test is what these people do with – in relation to their child from hereon in. That is what I am more interested in. [6]
[6] Transcript 19 August 2010 p.34
I have had regard to the allegations of the mother which include, but are not limited to the father completing the baby bonus form and taking the baby bonus funds, returning them only after being confronted by the maternal grandmother, the father setting up a joint account but not providing access to the account for the mother, and the father not providing the mother with sufficient funds to have some independence while she was in South Australia.
In addition, there are allegations and counter allegations in respect of an alleged assault that occurred against the father whilst the mother was in South Australia and there are allegations in respect of the emotional abuse she alleges was perpetrated by the father.
I have no doubt that the mother was unhappy to find herself residing in South Australia. She may have indicated that she wished to come here to live however the impact of living so far away from her family support with a new baby in a strange state no doubt affected her.
In the course of that unhappiness, the relationship started to fracture. In the course of the fracturing of the relationship, the parties’ communication became more and more difficult and no doubt each party said and did things that they cannot be proud of.
I am unable however, on the evidence before me to make any specific finding that there has been family violence or that the father’s alleged controlling behaviour and emotional abuse was of such a level as to be characterised as such. Whilst the behaviour of the parties could be characterised as dysfunctional, I have difficulty saying it was such that a person reasonably feared for their personal well-being or safety.
I note that whilst the Independent Children’s Lawyer submits in support of her submission that the mother should have sole parental responsibility, should there be a finding of family violence. She concedes however, the allegations in respect of family violence are at the lower end of the scale.
Both parties concede they have extreme difficulties in communicating and I will address that later.
On the evidence before me however I do not see the need to protect the child from physical of psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
SECTION 60CC(3)(a) - any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
[X] was born [in] 2009.
She was two years old [in] 2011. This section is not relevant in these proceedings.
SECTION 60CC(3)(b) - the nature of the relationship of the child with:
(a) each of the child’s parents, and
The Father
Dr C notes at paragraph 2.2 of his report that the father was well prepared for his period of time with [X] coming with toys and a rug and setting up a play area on the floor. [X] unfortunately was difficult to settle and not easily consoled. Eventually with persistence and some agitation from the father, [X] calmed down and settled into play with the father on the rug.
There is no adverse comment in respect of the observations of the child’s relationship with her father. Furthermore, Dr C considered it clearly in the child’s best interest to have adequate opportunity to remain connected with and attached securely to both parents for the next period of the child’s young life. There is nothing in the evidence to suggest that the child did not have a good relationship with her father.
The Mother
Dr C notes at paragraph 2.3 that [X] also cried for the mother. He commented that she was relaxed and confident in managing her daughter and the child was observed to mirror the head movements and facial movements of the mother in advance of comfortable interaction.
He noted in his conclusions that it would not be in the child’s best interest to be separated from the mother, either by distance or through lack of time with the child.
The mother’s evidence was that since she returned to Tasmania she has not been able to achieve [X] sleeping independently. She has made small attempts at controlled crying and independent sleeping which have been unsuccessful.
This contrasted with the father’s evidence that [X] slept in her own cot when with him. Whilst this was something that needed to be remedied, it was also something that could be seen as an indicator as to how the child was adapting to time away from the mother.
There was nothing in the evidence to contradict his opinion.
(b) other persons (including any grandparent or other relative of the child)
The father is engaged to Ms R. They are now residing together in Tasmania, a short distance from the mother and [X].
Save for some matters which will be addressed at the conclusion of this judgment, no adverse comment was made in respect of Ms R’s parenting skills or her relationship with [X].
The father is also supported by his mother, Ms C. Again there was no evidence to suggest any adverse comment should be made in respect of this relationship.
The mother is supported by her mother, Ms T. There was no evidence from which adverse comment could be made in respect of her relationship as maternal grandmother with her granddaughter.
SECTION 60CC(3)(c) - the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing close relationship between the child and the parent
There are issues arising from the conduct of both parties that suggest that further work needs to be done to redirect their focus from each other towards their daughter. Whilst they might not like each other, they are charged with an obligation to their daughter to ensure that she is able to move freely between their households for the rest of their lives. It is not open to them to engage in self indulgent behaviour because they do not like the other parent. [X] is stuck with them and they have an obligation to be civil, to promote the relationship for their daughter with the other parent and to facilitate easy transitions for their daughter between their homes.
The actions of the mother in returning to Tasmania without the consent of the father reflect on her. I have difficulty accepting her explanation that she went there for a break with her family and decided to stay. She saw the opportunity to return and she took it.
The failure of the parties to facilitate time between the father and [X] when the father travelled to Tasmania in June 2010 reflects on each of them. It is the mother’s position that [X] was unwell and needed to return to sleep in her own bed that night. The father says that she was at the tail end of a cold, however at the same time was not prepared to concede a night so that he could at least spend some time with his daughter. As a consequence, [X] did not get to spend any time with her father at all. That was not a satisfactory solution to that problem.
The Independent Children’s Lawyer submits the parties continue to have a highly dysfunctional relationship with no effective or constructive communication. Their capacity to adopt a collaborative approach to decision making and dispute resolution has been undermined by the complete absence of trust and ongoing high levels of hostility between them. The recent events of how the father arranged and disclosed his return to Tasmania have not helped.
At the same time Dr C is optimistic about their capacity to move on. He saw their communication in the context of the breakdown of the relationship and subsequent litigation. Once the litigation concluded, there was, he thought, scope for improvement.
Part of the obligation to encourage a close and continuing relationship between the child and the parent is to show the child that the parents, despite their differences are able to communicate. The Independent Children’s Lawyer accurately summarised the perceptions and actions of the parties when attempting to communicate, the mother perceiving the father as being controlling and arrogant and shutting down when the father attempted to communicate with her.
I accept the submissions of Counsel for the Independent Children’s Lawyer that evidence would support a finding that the parties’ capacity to collaborate in making decisions and resolving disputes about their child has been undermined by a lack of trust and ongoing levels of hostility. This impacts on their willingness and ability to encourage a close relationship between [X] and the other parent.
Both parties conceded that work needed to be done to improve the situation. Matters cannot be left as they currently stand and at the very least the parties’ attendance at a parenting course would assist.
SECTION 60CC(3)(d) - the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(a) either of his or her parents; or
The evidence of Dr C is clear. Whilst the father assisted following the birth of [X], it was clear that the primary attachment lay with the mother. He considered it important that the primary attachment not be disrupted at this stage of [X]’s growth.
In the circumstances, he recommended a cautious and graduated approach to increasing the father’s time with [X]. He certainly did not propose any radical changes before [X] was four and even then, was not prepared to presume a progression to shared care.
The father through his counsel sought a rapid increase in time with [X]. He did not concede that this would impact on [X]’s well-being. In fact he considered that it would promote it.
He did not however produce evidence to contradict that of Dr C.
In the circumstances, it is open to me and I would find that the likely effect of the changes sought by the father would be significant on [X] and would favour instead a gradual increase in time that was structured on an age appropriate basis.
(b) any other child, or other person
[X] is fortunate to have the support of her maternal and paternal grandparents. In the context of these proceedings however, the likely impact of any separation from them is unlikely to be significant.
SECTION 60CC(3)(e) - the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
At the commencement of this trial this was a significant factor. It is now, by virtue of the father’s relocation to Tasmania, significantly reduced.
The evidence of the father is that he has now obtained employment in Tasmania. It is likely that employment will be ongoing, once his probation period has expired. The practical difficulty is that he now has a work commitment that will occupy his attention from Monday to Friday from approximately 7.00am to 5.00pm.
It would therefore be appropriate to ensure that his time with [X] allows for this factor.
Save for his work commitments, he is now residing in close proximity to the mother (some 20 minutes drive). Any practical difficulty is now minimal.
SECTION 60CC(3)(f) - the capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
The father raised a number of issues in respect of the mother’s health. He alleges amongst other things that the mother was not coping with motherhood, often being teary and emotionally drained after the child’s birth. He had concerns about her mental health which affected her parenting of [X].
The evidence did not support any of those concerns as being currently relevant.
Mother’s mental health
The mother suffered from depression during her relationship with the father. On returning to Tasmania she sought assistance from her General Practitioner, Dr H, who referred her to Mr C, a psychologist. The evidence of Mr C was that “the mother had engaged well in her sessions with him and that there is no evidence of any psychological or psychiatric condition, mental disorder or mental illness”.
The mother was not receiving any treatment and did not require any further psychological intervention.
Whilst the factors that led to the depression remain open, (and I have already commented on the fact that the mother had shifted to a new State, away from the support of her immediate family), there was nothing in the evidence to suggest anything other than the mother had addressed the problem and was managing well.
The mother in return raises concerns about the father’s attitude towards her and how that impacts upon her daughter. She does however, not appear to make any allowance for the impact her decision to return to Tasmania without the father’s consent would have on the father.
Whilst it is clear the parties were unhappy, I cannot go so far as to accept the mother’s submission that this was because of the father’s behaviour. Nor can I accept the evidence of Dr H and Mr C, who had not had the opportunity to meet with the father and discuss matters with him, that her depression was as a result of his alleged coercive and controlling behaviour. In respect of these matters, I prefer and accept the evidence of Dr C.
It is a matter of some concern that each party here seems to lack perception of the effect of their actions. The mother in taking [X] back to Tasmania, did not appear to recognise that this placed upon her a heavy obligation to support and encourage her daughter’s relationship with her father in South Australia.
[X]’s constipation
The father is subject to fair criticism when whilst dealing with [X] he had to take her to hospital for a suppository in respect of some severe constipation the child was suffering from. Prior to that he had on advice received from persons other than the mother, attempted to ease the constipation using a Vaseline smeared cotton tip bud.
He did not appear to appreciate that these actions were invasive and that his taking of the child to hospital was something that the mother should have been notified about. In fact, his answer when questioned on this was he did not see why she would be upset as he was taking appropriate action in respect of their child. It is extraordinary that he could not understand that the fact that the child had to attend hospital in respect of constipation is something that the mother should know, at the earliest opportunity, rather than in due course.
The needs of the child require each parent to communicate with the other at times such as these. That is not to say they have to advise them of every minor ailment a child may suffer in the course of their lives however, one would have thought that a visit to a hospital is certainly something that the other parent should be made aware of, particularly when that parent was at that stage the primary care giver. Prompt communication of any significant issues at the very least shows respect for the other party in their role as a parent who clearly cares for their child.
The parties’ employment commitments
The father is employed at [omitted], leaving for work at 6.30 or 7.00am and returning home at 5.30pm. He works a nine day fortnight having every second Friday off.
The mother does some part-time casual work. Her evidence is that the income received does not affect her benefit and the minimal hours worked do not impact on her obligations to her daughter.
SECTION 60CC(3)(g) - the maturity, sex, lifestyle and background of the child
I have already commented on Dr C’s conclusion that the mother had the primary attachment with [X].
It is also open to me to draw from his evidence that a cautious approach should be taken to increasing [X]’s time with her father. To move immediately to a shared care arrangement as sought by the father or structure orders so that will occur at some future point, would not be in the best interest of the child, taking into account her young age, amongst other things.
The evidence supports a conclusion that the factors that would allow a shared care arrangement to work are currently not in place.
Dr C’s evidence would be that conservatively it would be appropriate to review the arrangements in [X]’s fourth year.
That review however was based upon a premise that the parties may well be able to make arrangements between themselves that would either allow for greater time or greater flexibility in the arrangements.
On the evidence before me of the ability of the parties to either communicate or be flexible I am not optimistic at this stage. A lot of work would need to be done and significant improvements would need to be made before that could occur. At this stage, [X] is a young girl who has just achieved the age of two. She has been in the care of her mother since birth albeit with significant assistance from the father.
In view of the studies referred to by Dr C and in view of his evidence and the evidence of the parties, it would be appropriate to adopt a cautious approach that would allow for the father to have significant interaction on appropriate terms and conditions.
SECTION 60CC(3)(h) – if the child is an Aboriginal child …
This section is not relevant.
SECTION 60CC(3)(i) – the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
Each party has since the date of separation had moments when they have lost focus on their child. The father on his evidence has taken the attitude that he is to follow the orders of the court strictly which does not allow for the fact that sometimes flexibility is required particularly when his daughter may be unwell.
I have already commented on the fact that he has been less than forthcoming in respect of his arrangements to move to Tasmania.
The fact that notice of his recent employment came through the evidence of his partner Ms R is I consider an unacceptable error on his part. This is a matter in respect of which he should have given immediate notice to the solicitors for the mother particularly in view of the protracted history of this litigation.
The father concedes that there is little communication between him and the mother. At the same time he does not concede that this is any fault of his.
The mother on the other hand does not appear to have taken steps to address her concerns about the relationship with the father. When he attempts to communicate, her reaction is to shut down. There appears to be little understanding by either party that [X] needs a mother and a father. She is now, as a result of the father’s move to Tasmania, in the position where she can enjoy a relationship with each of them. It is up to the parties to acknowledge that and to take appropriate steps.
SECTION 60CC(3)(j) – any family violence involving the child or a member of the child’s family
I have discussed at length the allegations in respect of family violence previously in these reasons.
I have difficulty with the evidence of each party in respect of this issue. Each has attempted to characterise the behaviour of the other in a manner that they feel will enhance their case.
The mother’s criticism of the father suggesting she attend art classes in the evening as coercive and controlling (when his response was this would enable her to meet people her own age who were working during the day) is an example of this.
The father’s evidence in respect of the alleged assault, when compared with his report to the Police (made two days after the event) is another example.
I have accepted the evidence of Dr C when asked to comment on these matters and would find that whilst there was obvious conflict, the conduct complained of did not fit within the definition of family violence.
SECTION 60CC(3)(k) - any family violence order that applies to the child or a member of that child’s family
This section is not relevant.
SECTION 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings
I have indicated in these reasons that I consider it appropriate that [X] remain with the mother and spend time with the father.
I am required to apply a presumption of equal shared parental responsibility unless, interalia, I am satisfied it would not be in the child’s best interests (s.61DA(4)). I do not consider that an order for equal shared parental responsibility would be in the best interests of the child.
An order for equal shared parental responsibility requires decisions about major or long term issues for the child to be made jointly by the parents (s.65DAC(2)).
The order is taken to require each of the parents to make a genuine effort to consult the other and come to a joint decision about the issue (s.65DAC(3)).
I have commented on the parties’ inability to communicate, amongst other things. I have noted in particular the inability of parties to agree on which school the child should attend and the father’s issues with [X]’s health care.
I am concerned that an order for equal shared parental responsibility at this time will exacerbate matters rather than settle them.
I accept the submission of the Independent Children’s Lawyer that the father does not consider the mother has a valid point of view about [X]’s schooling. His concerns that the mother would not have an appropriate view about the value of education to [X] because she did not achieve a high level herself was not borne out by the mother’s evidence. He justifies his approach by his achievement of a higher level of education and yet his evidence in respect of this is vague and unsatisfactory.
In respect of health issues, the father submits that the mother neglects conventional medicine in favour of homeopathic treatment putting the child at risk. There is nothing in his evidence to provide concrete support for this. Furthermore, I note the evidence of Dr H, the child’s General Practitioner that there are no concerns about [X]’s medical care.
At the same time, the mother’s actions in this matter are not without criticism. I am concerned that an order for sole parental responsibility in all matters could be seen as approval of her behaviour, not all of which has been in the best interests of [X].
The main disputes between the parties have been focused on the issues of schooling and health and I consider it appropriate in the light of that evidence, and the orders I will make, that she have sole parental responsibility for those matters.
For the reasons set out previously including the parties’ lack of trust, communication or ability to resolve even minor issues, I would not make an order for equal shared parental responsibility leaving each party with parental responsibility pursuant to s.61C of the Family Law Act.
Injunctions
Orders were sought that:
a)the mother be restrained from raising [X] in the Jehovah Witness faith; and
b)the mother be restrained from changing the child’s principle place of residence.
In respect of the second injunction, the mother, without notice to the father, moved to Tasmania. It is not appropriate that such action occur again without the agreement of the father or, at the very least, the father being provided with sufficient prior written notice that would enable him, should he not agree, to seek urgent relief from the Court. In the circumstances, I would make an order that gave him sixty days prior written notice.
The mother opposes any injunction about [X] and the Jehovah’s Witness faith. Counsel submits that there is no evidence to suggest this will occur. He refers me to the Full Court decision of Johnson v Paige (2007) FamCA 1235 and in particular to paragraph 109 of the decision which is as follows:
109. The principles to be applied in considering whether it is appropriate to grant an injunction are well known. There is little guidance however to be found in the case law referring specifically to general principles to be applied under section 68B (of section 114). The power to be exercised is a discretionary power only to be exercised in an appropriate case.
It is not disputed that:
a)this issue is a matter of concern to the parties;
b)the mother was raised as a Jehovah’s Witness but is no longer practising; and
c)the maternal grandmother is an active member of the church, (and had difficulty in her evidence, with any suggestion that [X] not be permitted to participate in activities with her church) however, the maternal grandfather is “what they call inactive”. [7]
[7] Transcript 18 August 2010 p.97
The mother through her Counsel submits that she has no intention of rejoining the faith, there is no evidence that she will and a notation to the orders should suffice. I do not accept this. [X] will be raised with the love and support of an extended family who have strong links to the Church. The mother’s reassurances in the context of her move to Tasmania and the low levels of trust between the parties is not enough.
If there is not to be an order for equal shared parental responsibility, then it is appropriate that the issue of religion, which is identified by the Independent Children’s Lawyer as the third disputed area of parental responsibility between the parties, must be dealt with in an effort to minimise the risk of ongoing litigation. I would therefore make the order sought by the Independent Children’s Lawyer and supported by the father.
[X]’s sleeping arrangements
An order is sought by the Independent Children’s Lawyer to ensure the mother takes steps to have [X] sleep in her own bed. The mother’s Counsel says this is not required as the matter is in hand. The evidence does not support this – the mother saying this is something she would work on once the litigation is concluded. The purpose of the order is to ease any transition to sleeping at the father’s (although his evidence is she sleeps well). On the basis of the mother’s evidence, I consider the order is warranted, the purpose of the order being to ensure [X] sleeps primarily in her own bed.
Section 60CC(4) - Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent
I have commented in these reasons on the failure of the parties to move their focus from each other to [X]. As a consequence they have failed in their prime responsibility as parents to join in making decisions that are in their daughter’s best interests.
Having said that, the fact remains that each of them in their own way are devoted to their daughter (and I must note here the decision of the father to return to Tasmania to reside in close proximity to her).
Section 61DA presumption of equal shared parental responsibility when making parenting orders
For the reasons previously set out, I do not consider it is in the best interests of the child to apply the presumption of equal shared parental responsibility. I therefore do not propose to consider the provisions of s.65DAA.
Father’s time
I have commented on the father’s proposal for equal shared care and reject his submission for the reasons set out.
I do not accept the submission of the mother that the father should spend one night per fortnight with his daughter.
I accept the submission of the Independent Children’s Lawyer that:
There exists a very poor level of communication between the parties. The father’s continued anger at the mother’s removal of [X] to Tasmania continues to inform and overlay the parties’ interaction. The parties’ capacity to communicate appropriately and effectively is also impacted by their personalities. The mother complains that the father is domineering, overbearing, arrogant, combative and inflexible. The mother’s evidence is supported by the father’s presentation in the witness box. The father appears to be oblivious to the manner in which he presents and the impact of his behaviour on the mother. The mother concedes that she reacts to the father’s behaviour by limiting their communication to minimal levels. The mother appears to be unaware as to the impact this has on the father, namely that it intensifies his feelings that the mother is attempting to ‘cut him out’ of [X]’s life.
I also accept the Independent Children’s Lawyer’s submission that [X] is a young infant whose primary attachment is with the mother and that the child has a good attachment with the father.
The father, albeit, has taken the significant step of moving to reside in close proximity to [X].
Dr C in his evidence submitted that [X] could stay two consecutive nights with the father, enabling the child to adjust to being in the father’s care and settle into a routine.
At the time of his giving evidence, the discussion centred around the father travelling from South Australia to spend a period of approximately nine days in Tasmania. He did not oppose the concept of [X] spending overnight periods with the father at the commencement and the conclusion of that period. It is open to consider an overnight period in the alternating week. This however must be subject to the father’s work commitments.
In addition, it is appropriate to continue the arrangement whereby the father can telephone [X] (noting of course her age and ability to hold a conversation).
Relocation
The parties have been involved in extensive litigation arising from the unilateral decision of the mother to return to Tasmania to minimise the prospect of this occurring again. I consider it appropriate the parties be restrained from changing [X]’s principle place of residence without providing the other with fifty-six days prior written notice of their intention to do so.
Conclusion
This is a matter that started from a position of poor communication and little or no trust.
The mother’s decision to return to Tasmania without the father’s consent left him with a sense of anger and injury from what he saw as the loss of his parenting relationship with his daughter and the mother reneging on an agreement to stay in South Australia
This in turn affected his communication with the mother where he was seen as overbearing, belligerent and demanding. The mother’s response to this was to shut down creating a cyclical effect which undermined any communication.
The protracted litigation and the way in which the trial changed did not assist. There remain serious concerns about the mother’s application for legal aid, the subsequent Appeal and expense associated with that, and the mother subsequently borrowing sufficient funds to enable her to fly counsel from Tasmania to represent her in this State. Those concerns remain unresolved.
In addition, the father’s return to Tasmania, his employment and the manner in which his evidence and that of his partner was presented to the Court has been the subject of adverse comment. At its very best, the father and Ms R could be said to have been considering options in the event of a move to Tasmania. The alternative is that they were not truthful when they gave evidence about their plans to stay in South Australia.
Each party clearly has a lot to learn to successfully work with each other as parents.
It all reduces down to the best interests of a two year old girl who, for the reasons set out above, I have found should remain with her mother and spend regular time with her father.
I therefore make the orders as set out at the commencement of these reasons.
I certify that the preceding two hundred and twenty-three (223) paragraphs are a true copy of the reasons for judgment of Cole FM
Date: 1 June 2011
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