Mead and Mead
[2007] FMCAfam 875
•21 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MEAD & MEAD | [2007] FMCAfam 875 |
| FAMILY LAW – Parenting – best interests of the child – capacity and willingness to facilitate relationship with the child. |
| Family Law Act 1975, Part VII, ss.60B (1) and (2), 60CA, 60CC (1), (2), (2)(b), (3), (3)(a), (3)(c), (3)(d) – (h), (3)(j), (4) and (4A), 60CD, 65DAA Australian Journal of Family Law |
| Dylan & Dylan [2007] FamCA 842 Goode v Goode (2007) 37 Fam LR 422 |
| Applicant: | MR MEAD |
| Respondent: | MS MEAD |
| File Number: | CAM 918 of 2006 |
| Judgment of: | Neville FM |
| Hearing dates: | 18 & 19 October 2007 |
| Date of Last Submission: | 19 October 2007 |
| Delivered at: | Canberra |
| Delivered on: | 21 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Brzostowski, SC |
| Solicitors for the Applicant: | Dobinson Davey Clifford Simpson |
| Counsel for the Respondent: | Ms Nash |
| Solicitors for the Respondent: | Campbell & Co |
ORDERS
Both parents will have equal shared parental responsibility for the child, R born in 2000.
For a period of six months from the date of these Orders, R’s day-to-day care arrangements shall be as follows:-
(a)R will live with Mr Mead.
(b)R will spend time and communicate with Ms Mead as follows:-
(i)Each alternate weekend from after school on Friday until before school on Monday;
(ii)In the week following Ms Mead’s weekend with the child, from after school Thursday until before school Friday;
(iii)By telephone at any reasonable time;
(iv)Or as otherwise agreed between the parties.
(c)R will live with each of his parents during each school holiday period on a week about basis, as agreed between the parties, but failing agreement, to commence with Ms Mead to collect R after school on the Friday of the last week of each school term.
Commencing six months after the date of these Orders:-
(a)R will live with each of his parents on a week about basis, with changeover to occur as agreed between the parties, but failing agreement, after school each Friday.
(b)During school terms, R will spend time with the parent with whom he is not otherwise living from after school on Wednesday until before school on Thursday, or as otherwise agreed between the parties.
(c)R will live with each of his parents for half of each school holiday period, as agreed between the parties, or failing agreement, with Ms Mead for the first half of the holidays in even numbered years, and the second half of the holidays in odd numbered years.
(d)Either parent may telephone R when he is living with the other parent at any reasonable time, and must facilitate a telephone call to the other parent when R expresses a wish to do so at any reasonable time.
The parent with whom R is not otherwise living on his birthday and that parent’s birthday is entitled to spend time with R as agreed or failing agreement, as follows:
(a)If R's birthday falls on a school day, for three hours, commencing at the conclusion of school; or
(b)If R's birthday falls on a weekend, for five hours.
Notwithstanding these Orders, R will spend from 10:00am to 5:00pm with Mr Mead on Father’s Day, and from 10:00am to 5:00pm with Ms Mead on Mother’s Day.
The parent with whom R is not otherwise living on Easter Sunday is entitled to spend time with R that day for at least five hours, unless otherwise agreed.
The parent with whom R is not otherwise living on Christmas Day will spend time with R as agreed between the parties, but failing agreement, from 3pm on Christmas Day until 3pm on Boxing Day.
In the event that either parent is unable to care for R, he or she will give the other parent the first option for caring for R during the period of time they are unavailable.
Neither parent shall discuss these proceedings, nor denigrate the other parent, to or in front of the child, nor cause or allow anybody else to do so.
Neither parent shall physically discipline R, nor cause anybody else to do so.
Each parent will notify the other parent of any medical issues, illnesses, appointments and/or emergencies relating to R while he is in the other parent’s care, as soon as is reasonably practicable.
Neither parent will take R to see a counsellor, psychologist or like professional without the written permission of the other parent.
IT IS NOTED that publication of this judgment under the pseudonym Mead & Mead is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAM 918 of 2006
| MR MEAD |
Applicant
And
| MS MEAD |
Respondent
REASONS FOR JUDGMENT
Introduction
The object of legal proceedings is not to resolve inter-personal conflict (short- or long-term) between parents. Rather, to use the language of Part VII Division 1 of the Family Law Act1975 (“the Act”), the principal issue and paramount consideration in this litigation is to determine and make orders that provide for the best care, welfare and development of R, the 7 year old son of Mr Mead and Ms Mead. That said, it is nonetheless a hope that the finalisation of these proceedings and the making of orders that are considered by this Court to be in R’s best interests may bring some closure to, and facilitate some stability and order in, the discordant relationship between his parents. In the course of the hearing, brief evidence was provided of a sensible degree of co-operation between R’s parents, which suggested or hinted that the season of discontent was [hopefully] beginning to pass. That evidence referred to an agreed meeting in a park between R and his parents, with R allegedly saying words to the effect that `Mums and Dads talk once they are separated.’[1] Ms Mead also stated the benefit she had derived from a parenting program, called the ARCK program.
[1] Both matters are set out in Ms Mead evidence, Transcript (19th October 2007) pp.80-81. Mr Mead’s account is to similar effect. Ms Nash (Counsel for Ms Mead): “Well, Mr Mead, Ms Mead said to you on that occasion [in October 2007] that, you know, if that kept going, it would be good for the relationship between you, Ms Mead and Mr MeadR, wouldn’t it?” Mr Mead: “I believe something was said in the line that R sees us interact that it is good, yes.” Transcript (18th October 2007) p.54.
Although there were a number of issues canvassed in the course of the relatively short hearing of one and a half days, a significant number of them are, in my view, either peripheral or tangential to the principal issue. For example, there was some discussion early in the proceedings about the admissibility and relevance of a recording, unbeknown to Ms Mead, made by the Father – allegedly inadvertently – of a number of conversations and incidents between Mr Mead and Ms Mead.[2] This is the subject of further comment below.
[2] See Transcript (18th October 2007) pp.6-10.
Summarily, the following matters may be noted: allegations – vehemently denied – about Mr Mead’s mistreatment of Ms Mead’s older sons (from a previous relationship);[3] discussion about an extra-marital affair (which ended in 2005) that Ms Mead had with a teacher at her school;[4] an alleged suicide note left by Ms Mead on a computer at home (also vehemently denied);[5] allegations by Mr Mead about Ms Mead’s attempt to self-harm or attempted suicide using a plastic, disposable razor (Ms Mead says that she was simply shaving her legs in the shower and strongly challenges Mr Mead’s version of events);[6] and issues relating to counselling of the parties – sometimes involving R – by Ms S.[7]
[3] See Ms Mead’s affidavit of 12th September 2007, pars.14-26; Mr Mead’s affidavit of 4th October 2007, pars.3 & 9-14.
[4] See Transcript (19th October 2007) pp.82-83 & 99.
[5] See, for example, Ms Mead’s affidavit of 12th September 2007, par.85; Transcript (19th October 2007) pp.101-104.
[6] See Mr Mead’s affidavit of 23rd August 2007, pars.100-101; Ms Mead’s reply is set out in her affidavit of 12th September 2007, pars.79-83. See also Transcript (18th October 2007) p.46. I confess that in my view an attempted suicide using a plastic disposable razor, while not inconceivable, is somewhat implausible.
[7] In addition to the matters set out in Ms S’s affidavit, sworn 22nd August 2007, see Transcript (18th October 2007) p.38 and Ms Mead’s affidavit of 12th September 2007, pars.86-106.
While these matters provide both context and other things to the proceedings, and certainly some of them go to `the willingness and ability’ of each party to facilitate and encourage R’s relationship with the other parent, a matter directly relevant to s.60CC(3)(c), they are not per se pivotal to, or formally determinative of, the central issue in this litigation concerning parenting orders that are in R’s best interests.
As just stated, and to put the matter most succinctly, the central issue in these proceedings is: `what parenting orders should be made that are in R’s best interests?’ Mr Mead seeks orders whereby R should live with him and spend time with his Mother. Ms Mead essentially seeks a shared care arrangement. Importantly, both parents gave evidence that each of them wished R to have a good relationship, and or have a good time, with the other parent.[8]
[8] See, for example, Ms Mead’s affidavit of 23rd August 2007, par.107, cf. Mr Mead’s evidence at Transcript (18th October 2007) pp.33-34.
To consider and to resolve this central issue, having regard – where relevant – to any other matter that constitutes evidence before the Court and which is directly germane to it, this judgment proceeds in the following manner:
a)The Relationship and Evidence of R's Parents
b)The Evidence of the Family Consultant
c)The Evidence & Relevance of the Parties’ Consultants
d)Jurisprudential Considerations: Statutory & Judicial
e)Conclusion
A. The Relationship and Evidence of R's Parents
Both parties filed several affidavits in these proceedings. Unsurprisingly, a large part of their content relates to denying, challenging or correcting the other party’s version of a particular event, or describing one party’s talents, capacity and or care for R, and by implication, thereby disputing the alternative or competing view of the other parent.
The basic facts of the relationship are uncontroversial as to when they commenced co-habitation (1999), married (September 2000), and separated (under the one roof) in late 2005 (either November or December). Their son R was born in 2000. Mr Mead describes himself as “casually employed”, while Ms Mead is employed in the Education Industry..
It is patently clear from the affidavit material, and confirmed by the Court-appointed Family Consultant, Ms Dawson, that both parents have very different parenting approaches. Mr Mead is very much the high-involvement, sometimes perhaps micro-manager, parent. On the other hand, Ms Mead acknowledges that she is rather more the “hands-off and let them grow and explore” kind of parent. As I will detail shortly,
Ms Dawson sees a virtue in the two approaches. My description of both parents and their parenting styles should not necessarily be taken as a criticism of either of them.
To say the least, the relationship between R’s parents has been very strained. Fortunately, it is not this Court’s task to determine the various causes or reasons for the breakdown of the relationship, or to ascribe blame therefore. A Court only looks to those matters that are directly relevant to determining what parenting orders are in R’s best interests. In a number of respects, however, in ventilating various facts and issues, there is the prospect that parties will, so to speak, `get some things off their chests’, which in turn may enable them to move on so that the parenting of their child can take centre stage, rather than focussing on retribution or victory over a former partner/friend-turned-foe.
As I have already mentioned, a seminal issue (prescribed by Part VII of the Act) to be determined is the capacity and willingness of each of the parents in this case to facilitate and encourage `a close and continuing relationship between R and the other parent.’ Ms Dawson put the issue simply and starkly. She said:
The main issue is where R should live…
The other issue is the parent’s antagonism and lack of trust in each other.[9]
[9] Second Report of Ms Dawson, 11th September 2007, p.1.
In her first Report, Ms Dawson noted the following:
Both parents showed care and sensibility over R’s welfare. They each expressed the desire to want to meet his needs slightly differently as they have different parenting styles. They both accepted this and agreed it was in the child’s best interests.
While Mr Mead and Ms Mead retain mistrust of each other generally they appeared to relate in a civilised manner for the sake of their child.[10]
Against these observations of Ms Dawson, I note the following about the conduct of the proceedings. To a significant degree, both parties focussed on the cause(s) and degrees of what might be described generically as “the dysfunctionality of the family.” To the degree that this was the focus, it tended to give a certain quality of unreality to the proceedings, as each party sought to present his or her strengths, and the weaknesses of the other. Curiously perhaps, as a matter of logic, it does not necessarily follow that the relational flaws between adults, such as were on display here, translate into parenting flaws so as to inhibit or even prohibit a parent’s capacity to care for the needs of their child. The flaws as between the parents, leaving aside questions of when any incident relied upon occurred and what weight should be ascribed to it, do go to the important statutory consideration, already noted, in s.60CC(3)(c) of the Act regarding 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. For my part, this was and remains one of the crucial issues in the litigation, and in a number of respects, a more critical factor than any of the incidents – individual or collective - recounted or relied on by the parties.
I should state here the very significant fact that R’s parents are clearly capable people who share a genuine, mutual and intense desire to care for their son. Equally significant is the fact that R clearly has a genuine and very close relationship with both parents - a matter to which I will return when dealing with the Reports of the Court-appointed Family Consultant, Ms Dawson. When viewed from this perspective, by focussing on a few [contested] incidents, the accent on the dysfunctional features of the family during the hearing tended to give a disproportionate emphasis to the stresses and strains in the family’s life that was understandably disrupted by the breakdown of the relationship between R’s parents. The reality is, as I have noted, that the parents are genuinely capable and caring of R. Thus, many of the concerns and considerations that impact negatively in other proceedings are fortunately not present here. Both parents place R’s interests at the highest level, and whatever difficulties they have about the other parent, there are sufficient indications that they clearly have the capacity to work together in the longer term for his best interests. This will hopefully also improve over time when the dust of litigation has settled and both of them have continued with post-separation parenting assistance.
Put another way, the various specific or discrete incidents recounted by the parties and put in evidence are directly relevant, in my view, only to the degree that they can establish, or otherwise show or facilitate, what the parenting orders should be that are in R’s best interests. As I have already stated, it is not this Court’s function per se to make determinations about the culpability or otherwise of parents whose once evidently close relationship was brought under great strain, sometimes by virtue of one party’s unfortunate conduct, sometimes because of the conduct of both parties. Still less is it the Court’s role to punish or penalise any parent on account of human failure, frailty, neglect or otherwise, save where such conduct attracts any of the considerations set out in s.60CC(2)(b) and s.60CC(3)(j) – or any other sub-section of s.60CC - and thereby requires the Court to protect the child or children involved.
Let me give a very specific example that was the subject of considerable attention in affidavit and oral evidence.[11] The parties concentrated heavily on an incident that occurred between them on 20th July 2006. They did so, in Mr Mead’s case, to question the accuracy and the veracity of Ms Mead’s account, and to highlight why, in Mr Mead’s view, the family was dysfunctional.[12] In Ms Mead’s case, she raised it seemingly to question Mr Mead’s attitude towards her, and therefore, his willingness and or capacity to promote her relationship with R.
[10] First Report of Ms Dawson, 28th September 2006, p.2.
[11] Ms Mead’s account of the following incident is in her affidavit of 12th September 2007, par.35. Mr Mead’s account is in his affidavit of 23rd August 2007, pars.103-106. It was the subject of extensive cross-examination, particularly of Ms Mead: see Transcript (19th October 2007) pp.86-94. For Mr Mead’s testimony, see Transcript (18th October 2007) p.45ff. I should also perhaps note that because Mr Mead gave evidence by way of affidavit and in oral testimony that effectively, to a major degree, cast the forensic spotlight on the actions of Ms Mead (and conversely, presented himself as invariably being the person who was quiet and collected in almost all situations), much of what follows focuses on an appraisal of Ms Mead’s evidence, more so than on that given by Mr Mead. To state the obvious, however, Mr Mead’s evidence is also appropriately scrutinised.
[12] See, for example, Mr Brzostowski’s submissions, Transcript (19th October 2007) pp.82 & 119.
Mr Mead, he says inadvertently, recorded the conflict (and other things) on a miniature digital recorder that he kept in his shirt pocket.[13] The incident involved a heated contest between Mr Mead and Ms Mead, some of which was overheard by R. It is evident, especially from the recording, that Ms Mead was extremely upset. Mr Mead, perhaps surprisingly in the circumstances, seemed very calm and recollected. Although little was made of the difference between their demeanours, it may be that Mr Mead’s composure reflected a knowledge, which I have noted a number of times he denies, that what was happening was being recorded. It is certainly the case, according to the recording, that Mr Mead very patiently and quietly assured and soothed R after the incident.
[13] In addition to other citations, see also Transcript (18th October 2007) p.6. Mr Mead gave evidence that he always kept the digital recorder in his shirt pocket, wrapped in a handkerchief, and that it had been inadvertently activated on a number of other occasions. See his evidence, Transcript (18th October 2007) p.32. For my part, and having examined the recorder, there remains a degree of scepticism about the inadvertence of its operation for the reason that the “on” button is slightly recessed presumably so as to minimise the chance of accidentally starting to record, and that it would also require something reasonably firm to press against it to activate it. Normal carrying in a shirt pocket, of itself, would be unlikely to start the recording process. In the event, what is recorded about a particular incident that was the subject of significant comment in the proceedings is not, of itself, determinative of the issues to be decided by the Court.
Without condoning the clash, Ms Mead gave credible evidence that her actions were because of her frustration and distress from her fear that she would either lose R totally or at least that he was being alienated from her.[14] What is difficult to explain is that there is nothing on the recording, during the incident in question, that could be said to support her contention that Mr Mead sexually harassed and assaulted her.[15]
[14] See Transcript (19th October 2007) p.88. Ms Mead: “I was distraught over feeling that he was trying to take my son away from me and alienating me from my son. And R is the most … he’s the most important. ”
[15] In addition to her contention that Mr Mead sexually harassed her, Ms Mead also deposed to the relationship between she and Mr Mead as one where she was bullied, harassed and intimidated. See her affidavit of 12th September 2007, pars.8 & 9.
One matter that was not challenged was the contention by Ms Mead that, while separated but living under the one roof, Mr Mead served Ms Mead with “Family Court documents” by mail. The circumstances in which this occurred are set out in Ms Mead’s affidavit of 12th September 2007. She states: “…I received a card from the post office indicating that there was a parcel waiting for me. When the card arrived, Mr MeadMead [ the applicant] commented: “look you have a parcel, go and see what it is.” The documents were the initiating process in these proceedings. To say the least, such a course of conduct was less than delicate, and clearly knowing Ms Mead’s stress and likely reaction, it was perhaps calculated to cause maximum impact and distress. It certainly would not have ameliorated any other tensions in the household at the time.
To a significant degree, the tensions in the Mead household may well be attributed to the disclosure by Ms Mead to Mr Mead in the course of a counselling session, that she had had an extra-marital affair with a person at her place of employment. According to Ms Mead, that relationship ended in 2005.[16] Mr Mead’s angst, and much of his reaction, such as the provocative manner of serving legal process noted in the previous paragraph, in the light of this disclosure is understandable from an emotional point of view. Their calculated effect is another question. As well, to add to the difficulties in the household, Ms Mead confirmed that she was equally distraught about two other, related matters. First, her older son, M found out about her extra-marital relationship. Ms Mead contended that Mr Mead deliberately left information about it around the house for M to find. Secondly, and consequently, M was witnessing the breakdown, for a second time, of a relationship involving his Mother.
Ms Mead was understandably desperate to prevent any flow-on effects to M of her relationship breakdown.[17]
[16] See Transcript (19th October 2007) pp.99-100.
[17] Transcript (19th October 2007) p.83.
I have already noted that Mr Mead confirmed that he bought the miniature recorder to keep in his shirt pocket solely to enable him to record notes of conversations and any other encounters with Ms Mead, but not to record conversations.[18] I need say nothing further on this point. However, it is apposite to note this about his prodigious note-taking that was put in evidence to the Court. In a large exercise book,[19] Mr Mead records all manner of incidents. Curiously, there are a number of matters that are not recorded, or at least that Mr Mead did not recollect as being recorded, such as the number of counselling sessions that he and R had attended with Ms S.[20] It is certainly the case that the diary or journal details extensive information about Mr Mead’s time with R.
[18] See Transcript (18th October 2007) p.13.
[19] Extracts of it are Exhibit “G”.
[20] See Transcript (18th October 2007) p.45.
Perhaps the final thing to note here is that although Mr Mead gave evidence to the effect that he had concerns about Ms Mead’s mental health or stability, nonetheless he did not object to R spending significant time with his Mother.[21] I move now to a consideration of the evidence and recommendations of the Family Consultant, Ms Dawson.
[21] See, for example, Transcript (18th October 2007) p.46.
B. Evidence & Recommendations of Family Consultant
Ms Dawson wrote two Reports for this litigation. The first is dated 28th September 2006, and the second, 11th September 2007. At the time of the first Report, R was six and a half years old. In that Report (p.1), Ms Dawson put the principal issue this way:
The main issue in dispute was whether R should live mainly with his father and visit his mother every second weekend from Friday after school to Monday before school and on one other evening per fortnight or whether the couple should undertake a shared arrangement.
Significantly, she noted that both parents believed the other parent loved the child and was a good parent. Equally relevantly, she observed (p.2) R to be “a sweet little six year old who displayed polite and interested behaviour at the Family Court.” In her later report, she observed him as “friendly and comfortable talking to the interviewer” and that he showed “a relaxed attitude around both of them [his parents] and when they were together with him.”[22] She noted that he displayed a close attachment to his Father, and when viewed with both parents “there was no difference in his relating to either parent.” She recorded also that “[b]oth parents displayed caring and sensitive understanding of a child of R’s age and needs.”[23]
[22] See Ms Dawson’s Report of 11th September 2007, p.2. Ms Dawson’s observations are to be contrasted with those of Mr Mead who says that “R used to be a polite and “happy go lucky” little boy.” Mr Mead’s affidavit of 21st August 2007, par.21.
[23] See also Ms Dawson’s evidence where she praises both parents. Transcript (18th October 2007) pp.22, 25 & 27.
Also in the later Report, Ms Dawson confirmed (p.2) R saying that the nicest person in his family was his Father.[24] She commented: “R, who is only six [sic] considered questions carefully and seemed happy to offer information. It is to both parents [sic] credit that he felt comfortable stating his wishes.” She also specially noted the apparently close relationship between R and his older brother M.[25]
[24] In her testimony, Ms Dawson stated: “…there was never any doubt in my mind that he [R] was close to his mother….” Transcript (18th October 2007) p.19. R displayed a very inclusive if not ecumenical spirit in expressing his view about the members of his family because Ms Dawson helpfully notes that he included the family pets in his deliberations!
[25] Transcript (18th October 2007) p.23.
And so to Ms Dawson’s recommendations. In her second Report (p.3),[26] she recommended that R live with his Father, with significant time with his Mother. In testimony in Court, she confirmed that the ideal would be a shared care arrangement but so as to ensure that it operated in a very simple way, because an earlier shared-care scheme had not worked, seemingly because it was very complicated. She stated this on a number of occasions.[27] Ms Dawson repeated that R indicated his preference to spend more time with his Father,[28] while advocating also that significant time with the other parent was also essential.[29] The consistent views of R, notwithstanding that he is only seven years old, are nonetheless to be considered, according to ss.60CC(3)(a) and 60CD.[30] While not determinative, their weight is not inconsequential, especially since
Ms Dawson confirms on a number of occasions the consistency with which R expressed his opinion, and how comfortable he was in doing so.[31] At the very end of her cross-examination, Ms Dawson said:
Q: Having made the recommendation of the nature that you have, can I take it that are not recommending at this time equal shared time?
A: Well, I’m not not recommending that, your Honour….
Q: Yes?
A: When I did think about it I thought … well I can’t recommend it because, clearly, the parents are saying the way they did it didn’t work; but then I thought, well, it was such a messy one … maybe a simpler one could work. I guess that’s – that was my thinking after the event.[32]
[26] In evidence, Ms Dawson advised that she had inadvertently omitted part of her recommendations. See Transcript (18th October 2007) p.16.
[27] Transcript (18th October 2007) p.23, where she said: “… for the child’s sake – the parents may have difficulties, but if they were prepared to deal with that and, perhaps, seek some help or whatever, because it seems to me that was the issue.”
[28] See, for example, Transcript (18th October 2007) pp.22, 23 & 27.
[29] See Transcript (18th October 2007) pp.23 & 28. Her second Report (11th September 2007) p.25 states: “He [R] still needs a strong connection to his mother and will gain from her parenting as well, especially as a balance if at times his father is overly indulgent.”
[30] Carmody J states in Dylan & Dylan [2007] FamCA 842, at 228:
The weight to be given to a child’s views in any given case is, however, dependent on a range of factors including the child’s age and maturity, any protective needs… and the desirability of maintaining a long term relationship with the parent where the child has negative views about the relationship at that point in time.
He continues at 221:
Leaving aside procedural questions, there is universal acceptance supported by a long and consistent line of judicial authority that children’s views need to carry significant sway in making decisions about parenting arrangements because judges are usually greatly assisted by what children think and say.
[31] Nicola Taylor discusses the benefits of ascertaining children’s views and taking them into account in family law proceedings, in ‘What do we know about involving children and young people in family law decision making – A research update?’ (2006) 20 Australian Journal of Family Law 154. She states, “Children have been found to be articulate and insightful commentators, with their perspectives pointing to the ‘diversity and particularity of children’s experiences of post-divorce family life and their active engagement within it’”.
[32] Transcript (18th October 2007) p.29.
C. Independent Counsellors
In the light of the evidence and recommendations, before presenting the applicable jurisprudential considerations, it remains for me to note the relevance, such as it is, of the two consultants who were retained by the respective parties, only one of whom formally gave evidence (Ms S). Both consultants provided affidavit evidence. Ms S, a counsellor, has counselled all parties in these proceedings; she has also seen R, although neither she, nor Mr Mead, could provide details of dates or the number of times she had seen R. There was also conjecture about when she had commenced to see R, either informally or otherwise. Ms S’s evidence was called by Mr Mead. Ms Mead retained Ms R, a child psychologist, ostensibly to critique the “Report” of Ms S that was annexed to her affidavit. Ms S’s affidavit, as already noted was sworn 22nd August 2007; Ms R’s affidavit was affirmed on 2nd October 2007.
For my part, I did not and do not find the evidence of these consultants of particular assistance. Unsurprisingly, they tended to support the contentions or submissions advanced by the party on whose behalf they were called. That said, it is hardly possible to disagree with Ms S’s observation or recommendation that “R needs to have a stable family environment free from ongoing power struggles between his parents. There needs to be clear boundaries established in the future as to how both parties intercommunicate [sic] with each other in regards to access and change over arrangements in the future.”[33] It is much less compelling, and certainly more problematic, to follow her recommendation, and certainly not, as she described it, “from a child protection perspective,” whereby she advocated that R live with his Father, among other things, so as to avoid “the ongoing cycle of dysfunctional parenting that his [R’s] older siblings have been subjected to.”[34]
[33] See par.56 of Ms S’s affidavit, 22nd August 2007.
[34] Ibidi, par.17.
In any event, I have the benefit of the independent Family Consultant,
Ms Dawson, whose evidence I accept and do so without recourse to the views of either Ms S or Ms R. Ms Dawson does not raise any issues or questions regarding “child protection”, and as I have indicated, quite the reverse is the case given the close relationship that R has with both of his parents, and they with him.
D. Jurisprudential Considerations: Statutory & Judicial
The legislative and judicial pathways in parenting cases are well established. In Goode v Goode, the Full Court of the Family Court stated:
…in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration … and the framework in which best interests are to be determined are the factors in s 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case. [35]
The Full Court (Bryant CJ, Finn and Boland JJ), continued:
… when making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[36]
... it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. …the court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.[37]
[35] (2007) 37 Fam LR 422 at p.428 [10].
[36] Ibid, at p.435 [43]. Emphasis in original text. See also p.438 [56] and p.440 [65]. See Part VII, Division 2 – Parental Responsibility, of the Act. S.61 B defines “parental responsibility”; s.61 C prescribes that each parent has parental responsibility; s.61DA provides for a presumption of equal shared parental responsibility when a court makes parenting orders.
[37] Ibid, at p.443 [72].
Here I seek simply to highlight and to summarise those sections of Part VII of the Act that are most relevant to the factual circumstances of this case. For example, of the objects and the principles underlying them in s.60B(1) and (2), the most central seem to me to be those that ensure that: (i) 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; (ii) children receive adequate and proper parenting to help them achieve their full potential; (iii) parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children; (iv) children have the right to spend time on a regular basis, and communicate, with both of their parents and other people significant to their care, welfare and development; and (v) parents should agree about the future parenting of their children.
In the light of s.60CA, which requires that this Court regard Ryan’s best interests as the paramount consideration in determining what parenting order to make, and the primary considerations set out in s.60CC(2), the following parts of s.60CC(3) seem most in play in this matter: sub-paragraphs (a) (regarding R’s views), (b) R’s good, firm and close relationship with both parents, and with his older brother M, (c) the stated intention of both parents to facilitate and encourage a close relationship between him and the other parent – all the while being cognisant that there has been a major element of distrust coursing through the latter section of Mr Mead’s and Ms Mead’s relationship.[38] For reasons already stated, however, I do not consider their respective capacities to have become so stunted that co-operation is beyond their reach. Indeed, the most recent evidence is to the contrary.
[38] Helpful extra-judicial commentary relating to the best interests of the child is provided by P. Parkinson, “Decision-making about the best interests of the child: The impact of the two tiers,” (2006) 20 Australian Journal of Family Law 179.
I do not consider s.60CC(3)(d) – (h) to be immediately or directly relevant in these proceedings. What is important is sub-paragraph (i), which refers to “the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.” Section 60CC(4) and (4A) are relevant also in this regard. They deal with the extent to which each of the child’s parents has fulfilled, or failed to do, so their responsibilities as a parent, including the time spent and communication with the child. Most importantly, these provisions also require the Court to consider the extent to which each parent has facilitated (or not) the other parent, among other things, spending time, and communicating, with the child, and participating in making decisions about major long-term issues in relation to the child. It is convenient and not otherwise inapt to consider these sub-sections of s.60CC together.
Earlier in these reasons I canvassed the very different parenting approaches of R’s parents. I noted Ms Dawson’s view that these should be seen as plusses, rather than negatives, for R and his welfare and development. I have also remarked on the parties’ lack of trust, which on its face, may impact on the capacities to which s.60CC(4) and (4A) refer. My view on this has already been stated, which is to the effect that (a) the capacities of R’s parents are evident, (b) their very recent willingness to meet together with R, and (c) the laudatory assessment of R by
Ms Dawson which she understandably attributes to his parents. Notwithstanding contentions made by both parties going the other way, these matters and the assessments by Ms Dawson all suggest that the Court may make a positive judgment of Mr Mead’s and Ms Mead’s parental responsibilities in relation to s.60CC(4).
There is one particular cloud on the horizon that may impact, to some degree, on the Court’s consideration of matters under s.60CC(4A). That concerns the events of 20th July 2006, deposed to in Mr Mead’s affidavit of 23rd August 2007, and in Ms Mead’s affidavit of 12th September 2007. I have referred to it earlier in these reasons, and the fact that it was the subject of significant cross-examination in the proceedings. It referred to an incident, part of which was at least over-heard by R, in which
Ms Mead alleged that Mr Mead sexually harassed her. He strongly denied Ms Mead’s account of the matter. It is this incident that was captured on the digital recording. I have already noted that there is little if anything on the recording to support Ms Mead’s account of the events. I mention this here obviously because the parties focussed on it and did so presumably with subsection (4A) in mind.
I have indicated that I do not regard the issue in itself as being determinative of the orders this Court should make having due regard to R’s best interests. However, for the purposes of s.60CC(4A), it is more indicative, it seems to me, of the desperate situation in which both parties found themselves, especially having separated but living under the one roof. The perceptions of people under stress are frequently distorted. In any event, I do not consider that I need to make a final determination of which version of this episode is to be preferred, other than to note the disagreement and what it might say about parents embroiled in the close, heated and troubled aftermath of a marriage break-up.
For the sake of completeness, Mr Mead deposed to a number of incidents which, he says, indicate Ms Mead’s lack of interest in R’s life.[39] Ms Mead contended otherwise and gave a range of ways in which she was/is involved in R’s life.[40]
[39] See, for example, pars.96 & 97 of Mr Mead’s affidavit of 23rd August 2007.
[40] See especially Ms Mead’s affidavit of 12th September 2007, passim.
E. Conclusion & Orders
Mr Mead seeks orders that provide for both parents to have equal shared parental responsibility. Ms Mead implicitly seeks the same. There is nothing, in my view, that would militate against such an order. Accordingly, this order will be made in R’s best interests. Having indicated this course, the singular questions for determination now relate to whether there should be a shared care arrangement – either immediately or in the not too distant future – or if not, whether and if so how the provisions of s.65DAA, which relate to equal time or substantial and significant time with each parent, should apply.
Having regard to the relatively finely balanced arguments of both parties, and especially the recommendations of Ms Dawson and the consistently expressed views of R to spend more time with his Father, the most apt course in R’s best interests is to move towards a shared care and equal time arrangement, but to do so over a period of time. That time-frame will be 6 months. In that event, the sequence of orders will reflect the following: that (a) Subject to the following orders, and subject to any alternative agreement in writing between the parties, R will live with his Father; (b) R is to spend significant and substantial time with his Mother. The other orders will provide that over the course of the calendar year 2008, there will be a gradual move to a simple shared care and shared time arrangement.
Accordingly, I make the following orders:
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 20 December 2007
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