MORROW & STEELE
[2014] FCCA 1738
•13 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORROW & STEELE | [2014] FCCA 1738 |
| Catchwords: FAMILY LAW – Property and parenting dispute – parenting issues being determined as discrete issue at specific request of the parties – mother being primary carer of two young children and clearly excellent mother – mother’s reluctance for time with father to expand – father seeking immediate shared care – father’s lack of insight into proposed changes – recommendations of family report – recommendations challenged by mother – orders made largely, but not wholly, as recommended by family report. |
| Legislation: Family Law Act 1975, ss.60B, 60CC, 61C, 61DA, 65DAA |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS MORROW |
| Respondent: | MR STEELE |
| File Number: | MLC 4205 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 16 & 17 June 2014 |
| Date of Last Submission: | 17 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 13 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Solicitors for the Applicant: | Pearsons Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Robinson |
| Solicitors for the Respondent: | Blackwood Family Lawyers |
BY CONSENT IT IS ORDERED
That the parties have equal shared parental responsibility for the children X born on (omitted) 2007 (“X”) and Y born on (omitted) 2010 (“Y”) (“the children”).
That the children live with the Wife.
That the children live with the Husband as follows:
(a)Until the start of the first school term in 2015:
(i)Each alternate weekend from 5:00 pm on Friday to the following Sunday at 5:30pm.
(ii)Each Tuesday from after school (or crèche) to 7:00 pm.
(b)From the start of the first school term in 2015:
(i)Each alternate weekend from 5:00 pm Friday to the following Monday before school.
(ii)Each Wednesday from after school (or crèche) to 7:00 pm.
(c)From the start of the first school term in 2016:
(i)Each alternate weekend from 5:00 pm on Friday to the following Monday before school.
(ii)Each Wednesday in week 1 from after school (or crèche) overnight to Thursday before school.
(iii)Each Wednesday in week 2 from after school to 7:00 pm.
(d)In Term 3 school holidays in 2014:
(i)From 5:00 pm on Friday 19 September 2014 until 5:30pm on Sunday 21 September 2014.
(ii)From 10:00 am on Tuesday 23 September 2014 until 10:00 am Wednesday 24 September 2014.
(iii)From 10:00 am on Tuesday 30 September 2014 until 10:00 am Wednesday 1 October 2014.
(iv)From 5:00 pm on Friday 3 October 2014 until 3:30 pm Sunday 5 October 2014.
(e)During the 2014/2015 long summer school vacation in addition to the Christmas celebration period:
(i)(i) From 5:00 pm Friday 12 December 2014 until 12 noon on Monday 15 December 2014.
(ii)
(ii) From 5:00 pm 29 December 2014 until 12 noon on
1 January 2015.
(iii)
From 5:00 pm 16 January 2015 until 12 noon on
19 January 2015.
(iv)
From 5:00 pm 23 January 2015 until 12 noon on
26 January 2015.
(f)From the Term 1 School holidays in 2015 onwards, for half of each school term holidays:
(i)As agreed between the parties.
(ii)Failing agreement, for 4 days in the first week and 3 days in the second week.
(g)From the 2015 to 2016 summer holidays onwards, for half of each summer holidays:
(i)As agreed between the parties.
(ii)Failing agreement, on a week about alternating basis between the parties with the children to spend the first week of the holidays with the Husband in even-numbered years and with the Wife on odd numbered years.
(h)As otherwise agreed between the parties.
That notwithstanding paragraphs 2 and 3 of these orders, during each Christmas celebration period:
(a)In 2014 and each alternate year the children spend time with:
(i)The Wife from Christmas Eve at 5:00 pm to Christmas Day at 2:00 pm.
(ii)The Husband from Christmas Day at 2:00 pm to Boxing Day at 5:00 pm.
(b)In 2015 and each alternate year the children spend time with:
(i)The Husband from Christmas Eve at 5:00 pm to Christmas Day at 2:00 pm.
(ii)The Wife from Christmas Day at 2:00 pm to Boxing Day at 5:00 pm.
That notwithstanding paragraphs 2 and 3 of these orders, during each Easter period:
(a)In 2015 and each alternate year the children spend time with:
(i)The Husband from Good Friday at 10:00 am to Easter Saturday at 7:00 pm.
(ii)The Wife from Easter Saturday at 7:00 pm to Easter Sunday at 7:00 pm.
(b)In 2016 and each alternate year the children spend time with:
(i)The Wife from Good Friday at 10:00 am to Easter Saturday at 7:00 pm.
(ii)The Husband from Easter Saturday at 7:00 pm to Easter Sunday at 7:00 pm.
That in relation to Mother’s Day and Father’s Day:
(a)The children will spend time with the Wife from the day before Mother’s Day at 5:00 pm to Mother’s Day at 7:00 pm if not otherwise in her care.
(b)The children will spend time with the Husband from the day before Father’s Day at 5:00 pm to Father’s Day at 7:00 pm if not otherwise in his care.
That in relation to each party’s birthday:
(a)The children will spend time with the Wife from 4:00 pm to 8:00 pm on the Wife’s birthday if not otherwise in her care.
(b)The children will spend time with the Husband from 4:00 pm to 8:00 pm on the Husband’s birthday if not otherwise in his care.
That on the children’s birthdays, the children will spend time with the party who does not normally have care of the children on that day at times to be agreed:
(a)For a minimum of 2 hours if the birthday falls on a school day.
(b)For a minimum of 4 hours if the birthday falls on a non-school day.
That all changeovers which do not occur to or from school will occur:
(a)From the Wife’s home, with the Husband to collect the children at the beginning of the children’s time with him and return the children at the end.
(b)As otherwise agreed between the parties.
That each party shall ensure that the children attend any extra-curricular activities in which the children currently participate and any other extra-curricular activities agreed between the parties.
That each party may telephone the children at all reasonable times and facilitate reasonable telephone communication for the children with the other party.
That each party will advise the other as soon as possible if either of the children require medical treatment when they are with that party’s care.
That to the extent that such authority may be required, each party will provide written authority to each of the children’s crèche, school and health professionals to provide information to the other party about the children including:
(a)Notification of all medical, psychological, speech therapy and any other health professional or education professional appointments and parent-teacher interviews.
(b)Copies of reports, notices and any other written information relating to the children’s health or education.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THE COURT NOTES:
A.The children are currently involved in gymnastics, swimming and tennis and it is agreed that the children will also be enrolled in Auskick and Little Athletics.
IT IS NOTED that publication of this judgment under the pseudonym Morrow & Steele is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLC 4205 of 2013
| MS MORROW |
Applicant
And
| MR STEELE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting and property dispute between two parties who have all the appearance, at least for present purposes, of being well financially resourced. The property pool is asserted to be in excess of $10 million.
The property dispute will take some time to come to fruition owing to valuation and other interrelated issues. The parties have stressed, however, that the parenting issues are urgent and the respondent father in particular has pressed for an early determination of that aspect of the matter. The applicant mother has not challenged that assertion.
At the earnest entreaty of the parties I have therefore overcome my inherent doubts about the desirability of split trials and agreed to hear the parenting issues as a discrete matter notwithstanding the complications to which this may ultimately give rise.
In broad terms the parenting dispute can be put shortly. The mother seeks that the two children, X born (omitted) 2007 and Y (Y) born (omitted) 2010, spend time with the father each alternate weekend from Friday until Sunday and each Tuesday from the conclusion of school until 7 pm with restricted time in school holidays. She proposes that this time increase only very slowly over time.
The father’s position is the children should spend equal time with him or at the very least as close to equal time as can be obtained, forthwith.
For the reasons that follow I am going to adopt a spend time regime more accelerated than that proposed by the mother and less accelerated than that proposed by the father and in most respects as recommended by the family report writer Dr M.
Agreed Facts
The father was born on (omitted) 1959 and the mother on
(omitted) 1972. Cohabitation commenced in January 2003 and the parties married on (omitted) 2007. As indicated X was born on (omitted) 2007 and Y on (omitted) 2010.
The parties separated on 21 April 2013.
The mother worked as a (occupation omitted) until X was born in 2007 but has not worked since. The father has asserted without material contradiction that the mother’s earnings were, at least in today’s terms, in excess of $100,000 per year.
The husband has worked throughout the relationship as a (occupation omitted) and has involvement, albeit it would seem in partnership or some other form of joint venture, in properties worth many millions of dollars.
The evidence of the parties
I should make it clear at the outset that I do not propose to traverse the parties’ affidavit material at all save to the extent that it consists of objective material (i.e. professional reports) or significant concessions against interest. It will become clear I trust that given the nature of the parties’ positions and the nature of the matters disputed between them this is a case that is more properly determined by an examination of independent expert evidence than by detailed forensic examination of the parties’ evidence given in affidavit or in court.
Although it will be necessary to traverse the parties’ evidence in broad outline, the resolution of this dispute will turn substantially upon the objective evidence. It should be noted that the substantive dispute is the timetable for and the quantum of any increase in the time that the father spends with the children. The amounts of time involved are not, viewed objectively, so very great. The intensity of the battle reflects the intensity of the parties’ emotions rather than any developed understanding of the children’s best interests.
The affidavit evidence of the mother
The affidavit evidence of the mother in the main constitutes a lengthy series of complaints about various aspects of the father’s conduct. She asserts, putting the matter admittedly broadly, that the father worked long hours and was but little involved with or indeed concerned with the children until at least separation.
The mother complains that the father was controlling, abusive and violent towards to her, to an extent in the presence of the children. It is her firm belief that the father is not genuine in his desire to have the children for equal or substantial amounts of time but rather this is an endeavour to continue to control her or to take revenge and/or hurt her in some fashion.
The mother also puts it that the father has had an inappropriate and insouciant attitude towards the children’s health and most particularly this is expressed in relation to the possible autism of Y. Interrelated with this is a dispute, yet to be determined during the property proceedings, between the parties about alleged non-payment of child support, school fees and related matters.
The oral evidence of the mother
It is not necessary to traverse the mother’s affidavit material further although I have had careful regard to it. It is in my view, sufficiently paraphrased above.
It should be noted that additionally to complaints about the father’s conduct, already detailed, the mother took issue with various aspects of the family report of Dr M.
The mother’s oral evidence-in-chief traversed the steps taken to seek to ascertain the extent if any of Y’s disability and reiterated a complaint made about non-payment of child support and school fees or extra-curricular activities.
Under cross-examination the mother made it clear that she did not really believe the father wants to see the children but thinks rather that he wants to punish her. She then said however that the father did want to see the children and that he thinks that would be good for them. She denied Dr M’s assertion that she wanted less time to be spent with the father because of a fear it would diminish the quality of her own relationship with the children.
She said she was concerned about increasing time spent with the father. She said she thought Dr M failed to consider the affidavit materials filed while she was compiling her report and said that if she had done so she would be satisfied. She said she relied upon experts to guide her.
She was opposed to the commencement of weekend time at the moment because of logistical issues. She pointed out that overnight visits with the father had only started in March 2014. The general tenor of her evidence was that the father had not been a figure in the children’s lives during the marriage and that the children’s relationship with him is only just beginning. The tenor of her evidence is well revealed in her comment that it was not a race and did not understand why there was such a rush.
She was concerned to limit time in the long summer holidays to three days. She said this was only six months away and the onus was on the father to show improvement.
The mother was extensively cross-examined about her assertions of violence on the husband’s part. I should say that I found her evidence in this regard convincing and I note also that the mother was clear that she did not think that the father would hit the children even though he was volatile.
It is sufficient for present purposes if I say that having heard and seen the mother give her evidence it is clear that she is genuine in the sense that she really believes what she says about the children and the timeline for their seeing their father. She impressed me as being somewhat over-protective and on some occasions she was unresponsive to the questions put to her. Her criticisms of the father attending a picnic at (omitted) Grammar School were most unfair and the mother’s ongoing dissatisfaction with the father as a parent and as indeed as a former partner was palpable.
What I do accept, having heard the mother give her evidence, is that the husband yelled at her on occasions throughout the marriage and I accept that there must have been some element of physical violence, although I think that the mother has exaggerated.
The evidence of the father
It should be noted that counsel made it clear that the father was not abandoning the position expressed in his outline of case document that there should be equal time straight away. Nonetheless in the alternative he accepted the family report recommendations.
Once again I do not propose to deal with the oral evidence given in any great detail. The father roundly denied the allegations made against him. He provided explanations for his alleged non-involvement in Y’s health appointments about which he was extensively cross-examined.
I found the answers given by the father about his attendances, or lack thereof, at various medical reviews were somewhat unresponsive to the questions put and an answer to the effect that X might have needed him on one of the days had all the appearance of being made up on the run.
The father denied having health issues in 2010 to 2013 but it emerged he had very substantial consultations with medical practitioners during that period.
In respect of the allegations of violence the father denied ever pushing his wife and said she might have stumbled. As I have already indicated in relation to the mother’s evidence, I think the position is somewhere between that of the two parties. There must have been some physical assault but it was neither as bad as the mother now suggests nor as nonexistent as the father puts it.
Although the father disagreed that alcohol had been an issue in his relationship with the mother he accepted that he had suffered liver damage from alcohol. His descriptions of his alcohol use in the past were in my view unconvincing and somewhat self-serving in style.
The endeavours made by the father to qualify the content of emails sent by him to the mother (annexure O to the mother’s affidavit filed
4 March 2014) were in my view unconvincing.
The father roundly denied having the motive of punishing the mother in bringing his case and I found his assertion that he just wanted quality time with his children convincing.
Nonetheless his assertion that he was seeking time guided by
Dr M’s recommendations led to him being challenged about his application for equal time. The father’s response was unconvincing. He conceded that he had never challenged the proposition that the mother was the primary carer and said, in my view with a lack of insight, that his application for equal time would not have come as a surprise to the mother because it was in his application previously filed.
Some time was spent upon financial issues to do with child support and the like but these in my view can await the property hearing.
Overall findings about the parties’ evidence
In a broad sense, and I concede it is very broad, these are already indicated. There is no doubt in my mind that the relationship between the parties was not a happy one for a considerable time and that the father shouted at the mother from time to time and assaulted her to an extent less than she said but not non-existent.
The father was working long hours in his business at which he was extremely successful and I think it is entirely obvious that the mother was the primary carer. Whether the father has only become engaged with the children, so to speak, since separation is not possible for me to say, however it is conformable with experience and common sense that his opinion may have changed with the collapse of his marriage. There is no reason to suppose that he is bringing this application simply to punish or humiliate the mother.
The objective evidence – the father’s emails
The father sent a number of emails to the mother in 2013 (annexure O to the mother’s affidavit filed 4 March 2014). On 30 April 2013 he wrote:
“I had a very difficult time accepting the responsibility of being a new father at age fifty yo (please let me explain this further below), a horrible 18 months with Ms C, and stress induced health issues for over 2 years that included (in order) severe liver illness, discovery of permanent tinnitus, bladder urinary problems, bowel/gut problems, menieres/vertigo disease, extreme anxiety causing tremors for months (originally causing me to leave our bed so you could sleep), extreme body cramps for months and the ever present back pain, all of which I have been convinced in my mind are possible cancer/terminal and are going to kill me leaving a young family without a Dad. Seriously I have been that obsessed! IF not terminal it has all made me horribly moody and snappy, nearly constantly. I am sure Im depressed.”
The father went on to say that he proposed to get on top of these difficulties and still wished the family to continue.
He also explained that his concerns about becoming a father at 50 did not arise from rejection of Y but rather from his concern that he would die before Y had grown up.
On 10 May 2013 the father wrote to the mother:
“July 2010 I am diagnosed with bad liver from excess alcohol (from not coping) needing immediate addressing or specialist intervention and face alcoholism.”
These excerpts in my view show that the father has had a very troubled time of it (a matter requiring sympathy rather than criticism), but on any view it suggests that his health has been problematic and his mental health has been disturbed over a relatively lengthy period of time.
The report of Dr M
Dr M’s family report dated 24 April 2014 runs to some 30 pages. She initially noted the differing positions of the parents and summarised the history of the marriage and the present living arrangements.
I note that when discussing Y the father “reported that he knows that boys can be a little slower at times and they can be a bit impatient and distracted; but he reports that Y still clearly needs some work, and this is consistent with what his early learning teacher reportedly said, whereby there is a need to work on methods to focus him more so he is less easily distracted” (at paragraph 18 on page 13 of 20).
At paragraph 19 of the report the father confirmed that the mother was an excellent mother but complained that her focus on the children was such that it might be detrimental because the father was excluded from the family and the mother’s personal life.
The interview with the mother is recorded at pages 14-17 of the report, and I note at paragraph 26 Dr M reported:
“26. Ms Morrow reported that she doesn’t see the benefit of the children having more and more time away from her either, and possibly breaking her bond with them as a result, in order to spend more time with him, when she truly does not believe his reasons are genuine. She stated that she has been so focused on steering the children through this breakup in order to minimise the impact on them, and they are allegedly doing really well; and she reported that she thinks what the father is asking for is for selfish reasons, and to punish her, and to hurt and control her, and she thinks it’s his last ditch effort for control. She stated that the father is angry with her for getting up the courage to leave him, and she also thinks he’s angry for financial reasons too.”
Having traversed her concerns about the father’s health and alcoholism/depression the mother went on to deal with the way in which she had to do everything to look after the children and her view that the children and her view that the children were doing very well as they are.
X was interviewed by Dr M who recorded at paragraph 34, page 18:
“34. X presented as being a very happy and well-adjusted and intelligent girl, who seemed very aligned to, and strongly and securely attached to her mother, even though she was positively bonded to the father too, and she seemed sensitive to her mother’s views and opinions, and in a lot of ways she appeared to have taken them on as her own; although it was clear that she would also genuinely miss her mother if she were to spend too much additional time with her father too.”
Y was not interviewed given his age and reluctance to be interviewed.
The observation of the children with their parents concluded at paragraph 42, page 19:
“42. However, whilst the father’s interactions were very positive, and I could not fault him; at the same time, the mother was exceptional with the children, and the children clearly see her as their primary care giver and attachment figure, and they look to her for feedback, support, comfort, soothing, and positive reassurance, and they totally trusted her and expected to get everything they needed from her, and did; and they were very strongly and securely bonded to her, and much more so than with the father, and this is to be expected given that she has always been their primary care giver.”
Having noted the parties positions and concerns Dr M went on to say at paragraph 54, page 22:
“54. With respect to the children’s capacity to spend additional overnight time with their father; I would say that whilst I recognise that the mother has some significant concerns about this occurring, and especially on any school nights, it is important that she understands that a child’s capacity to love is not finite, and they can love and bond with more than one parent or adult in their lives, without this impacting their love and bond with an existing parent (in this case the mother); and whilst their capacity to securely bond and attach, and particularly at Y’s age, but even at X’s age, is somewhat dependent upon the amount of time they spend with their primary attachment figure, it is also dependent on the quality and consistency of this caregiving, and certainly the father’s proposal for what basically equates to 2 extra overnights on his weekend, and converting the mid-week dinners to overnights, in my opinion is not likely to significantly diminish the mother’s own bond with the children, and their attachment to her if this time were to be introduced in a developmentally appropriate manner, because certainly they are at an age and stage whereby they can manage overnights and blocks of time away from their mother, and particularly if this is managed well; although as already mentioned, I would say that any additional time needs to be gradually but still reasonably quickly introduced in order for the children to effectively manage the change.”
Dr M went on to say that a 5/9 arrangement over a fortnight would often work well and further noted that while Y has some developmental issues there was no reason why the parents could not cooperate to address them.
Dr M was inclined to accept the mother’s description of the father yelling and swearing at her and denigrating her and so on but
Dr M also noted at paragraph 63, page 26 that:
“63. Similarly, she also presented as being very fixed and focused on her view that the father was only wanting additional time with the children to get back at her, and there seemed to be no room for any other possibility at all; and she also seem very fixed on the fact that because she had always spent significant time with the children, that this should not change, even though circumstances had indeed changed, and she seemed overly anxious herself about losing time with the children, and about how this might impact on her own relationship with them; and possibly about the children learning to like their father, and possibly liking her less, which in my view is coming from her own anxieties and insecurities and is emotionally driven as opposed to logic and reality driven…”
In the ultimate Dr M recommended that the children remain living with their mother and spend time with their father every second weekend from after crèche or school Friday until 6 pm Sunday as well as every night Wednesday for dinner from after crèche or school until
7 pm.
The report went on to recommend an additional night on the father’s weekend at the beginning of the third school term after the June 2014 school holidays and further increases once Y starts school.
Ancillary recommendations were also made for assistance to each of the parents in relation to some of their ongoing difficulties.
Dr M’s report was the subject of detailed criticism in the mother’s affidavit filed 7 May 2014.
The oral evidence of Dr M
Dr M was called and under questioning by counsel for the mother, and confirmed that she had seen the criticisms advanced by the mother in her affidavit. She confirmed that the mother had made allegations against the father relating to his anger management difficulties, anxiety and alcohol abuse.
When it was put to her that she had not looked at the emails contained in the mother’s trial affidavit she disagreed. She did agree however that she did not read these materials before the interviews for her report. She said she preferred to look at the affidavits briefly but to conduct her own assessment and then read the materials. Dr M pointed out, correctly enough, that she is not the trier of fact.
She said that the mother had made a lot of allegations but when she had questioned her the mother became upset and angry and rigid. She said this was the way she did her reports and that it had worked okay so far. She said she contacted the parties further if it was necessary once she had read the materials.
Dr M noted that the father had not said he had totally disagreed with what the mother said or that none of what she said was true. She said that the mother had a different slant on matters. She confirmed that she had read the report of Dr F and the father’s treating psychologist neither of whom had expressed any concerns about the father’s mental health, and she further confirmed that on her own observation she saw nothing of concern in this regard herself.
Dr M said that what she saw was not inconsistent with the medical reports. She said it often happens that parties suffer mental ill health when a relationship breaks down but it does not necessarily continue. She was looking at what happens now. She noted that the mother was proposing blocks of two nights and she was commencing with three. She said the issues were really about the mother’s own anxiety and not wanting the father to have overnight time during the week.
Dr M was clear that the mother did not want any midweek contact at all between the father and the children and that she thought that any time spent with the father would detract from her role as the primary carer. It was not a question of the speed of the introduction of time.
Dr M conceded that the father’s emails were significant but she said she had to take everything into consideration. She noted that the father needed to address why it was that he had not attended hospital and she would be concerned if the father was using financial issues as duress of the mother.
Dr M confirmed that a five/nine arrangement should be introduced next year adding a Friday to start with. Holidays should commence three nights at a time starting on Friday and returning on Monday afternoons.
Dr M was aware that no time had been spent with the father until March 2014 and suggested that two nights should be commenced straight away moving to three nights after a couple of months followed by three nights in the school holidays.
Dr M said she understood the mother’s position but this was a separated family. If there was not enough time spent with the father the relationship between him and the children could not improve. She said she had considered the effects on the mother of this view.
The issues to be determined
Nobody suggests that it is anything other than in the children’s best interest to have a meaningful relationship with both parents. Both sides propose that the children live with the mother and spend time with the father. The only argument is about how much and when.
While I am clear that there must have been some measure of family violence the preceding paragraph makes it clear that neither party ultimately sees this as an insuperable barrier to a spend time regime. Likewise there must be some force in the fact that in the past the father has yelled and shouted at the mother, very possibly in the presence of the children. However, the independent evidence of Dr M is that the father is in a position now properly to spend time with his children and I accept that evidence. Her evaluation is consistent with the admittedly somewhat terse and inadequate evidence of Dr F and the father’s treating psychologist in any event.
The Statutory Pathway
The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental responsibility
The Court’s first task is to decide whether there should be an order for equal shared parental responsibility. Notwithstanding the reservations I will express below about the father’s participation in the decision-making processes involving his children, Dr M has recommended equal shared parental responsibility and I agree. Notwithstanding his historically lesser role, there is nothing in the materials that suggest that at least now the father is an inappropriate person to be properly involved in the exercise of parental responsibility. I am conscious of the findings that I have made about family violence but in the overall circumstances of this case they do not displace the presumption. It is in the children’s best interests in my view that the presumption be applied.
Equal time and substantial significant time
Nobody now seeks equal time. It is a measure of the father’s lack of insight that he sought it at least nominally until final submissions. It would clearly be contraindicated and the fact that he has pressed for it so hard is worrying because it shows his lack of insight. It would plainly not be in the children’s best interests, whether it would be practicable or not, for equal time to obtain. I make no finding as to whether it would be practicable because it is so clearly contraindicated.
The argument is really all about the extent of time which may or may not fit within the definition of substantial and significant time depending on how much time is ultimately ordered.
Section 60CC(3)(a)
The children are not of an age to express views to which any great weight should be given. Like Dr M, I am concerned that X’s views are so closely and clearly aligned with her mother’s. Whether wittingly or otherwise it would appear the mother has been allowing her feelings to become all too apparent to her child. That in part at least may explain the views expressed by X to Dr M.
Section 60CC(3)(b)
The children have an extremely close and bonded relationship with their mother who has been their primary carer throughout their lives and who is clearly a quite outstanding mother. They also however have a bonded relationship with their father which is, given the history of the marriage and the roles that the parents have played, not as strong as that with their mother. Dr M has recommended that that relationship be strengthened by the expansion of time with the father.
Section 60CC(3)(c)
I think that the mother’s criticisms of the father in relation to Y’s health are at least in part made out. For whatever reason, whether his distress at the breakup of the relationship, his historical commitment to his work or otherwise I find that he has been insufficiently proactive about Y’s health. He has tended to and continues in my view to downplay the problems that Y has albeit that as I have indicated the mother somewhat exaggerates them. Dr M says and I believe that he is in the process at the very least of addressing this matter.
The fact that the father has pressed his case to judgment in my view does not spring solely as the mother asserts from a desire to control or punish her. I have no reason to doubt that he loves his children and wishes to spend time with them.
Section 60CC(3)(ca)
The mother has plainly fulfilled her obligations as a parent and the father’s conduct in this regard has been somewhat wanting. It is not necessary to say more for these purposes than that.
Section 60CC(3)(d)
The orders proposed by Dr M and the father would necessarily have the effect that the children would spend more time with their father and less time with their mother. The evidence of Dr M is that this is desirable in the children’s best interests although it seems to me that the tenor of her report suggests that X at least might struggle with some of the emotional sequelae to this bearing in mind that the child is so well aware of her mother’s anxieties. It is entirely possible that X may to an extent be upset at more time with her father not because of the more time per se but because of her perception of her mother’s reaction.
Section 60CC(3)(e)
Despite what the mother had to say about the disruption to Y’s routine, I am not persuaded on the evidence as a whole and in particular the evidence of Dr M that there is significant practical difficulty or expense associated with the children’s time with their father being expanded.
Subsection 60CC(3)(f)
There is no question that the mother is capable of providing for the day-to-day needs of the children and in the light of Dr M’s findings I am prepared to accept that the father is capable of providing for the needs of the children in a material sense while they are with him. Indeed I repeat yet again it is implicit in the mother’s position itself that the father has the capacity to look after the children at least some of the time. Both these parents may struggle to an extent to provide for the emotional and intellectual needs of the children in the sense that on the mother’s side there is this overprotective desire to continue to control the children’s time and to withhold it from the father. On the father’s side there is the somewhat over assertive pressure for equal time or very substantial time introduced almost at once, which suggests a concentration on his own needs to the exclusion of those of the children.
Section 60CC(3)(g)
It is not necessary to repeat the difficulties the mother has with letting go, so to speak, of the children. It is an important matter but does not require further repetition. The father’s lifestyle has in the past been self-destructive. He has obviously grossly abused alcohol and has suffered, unfortunately for him, with significant mental ill health and numerous other health problems as detailed in his emails if nowhere else. Nonetheless the Court is faced with a man who everybody agrees can look after children to an extent and Dr M feels can look after them more than the mother proposes.
Section 60CC(3)(h)
Irrelevant.
Subsection 60CC(3)(i)
In the circumstances of this case this subsection, while important, adds nothing to the remarks already made.
Subsection 60CC(3)(j)
As with subsection (i) while important this matter has already been dealt with.
Subsection 60CC(3)(k)
Irrelevant.
Subsection 60CC(3)(l)
Here the mother seeks that interim orders only be made and be reviewed later. In this regard I think the father’s submission is the preferable one. These parents are still working through their emotions about one another and this is palpable in their affidavit material and their demeanour while giving evidence. It is clearly in the childrens’ best interests that proceedings be brought to an end and that parties' move forward in the pathway that the Court decides is appropriate. To build in the certainty of further litigation is highly undesirable. The parties would be far better served, and the children’s interests far more clearly met, by concentrating their energies on making the orders that the Court makes work rather than coming back to argue them over again.
Section 60CC(3)(m)
Although perhaps it may have been emphasised enough already, this is a case in which the mother while excellent in almost every respect simply cannot disaggregate her perceptions of the father from the best interests of her children. The father cannot disaggregate his own needs from the best interests of the children either. In the main I am going to make orders as proposed by Dr M but there is one facet of Dr M’s evidence that I feel I cannot accept. While I fully accept that the mother cannot let go properly of the children and I fully accept Dr M’s view that the children can spend more time with the mother without their relationship with their mother diminishing, I think that Dr M has underestimated the effects upon the mother that making the orders as she proposes will have. In a sense of course this rewards the mother for her own unreasonable mindset. However in my view it is not appropriate that the children move by next year to a 9/5 arrangement. The children are young, one of them appears to have at least a measure of disability, and the anxiety, bordering perhaps on hysteria, that a 9/5 arrangement would provoke in the mother is simply not in the children’s best interests.
Conclusion
The orders that I have decided on represent in my view an appropriate balance of the need to increase the father’s time and the mother’s understandable difficulties with that increase. They are the orders in my view that will best promote the best interests of the children.
The regime ultimately in place will contemplate a 10/4 arrangement which, in my view, will give the children frequency with their father but not involve such an excessive amount of time during the school term as to be overly disruptive to the childrens’ routine. I note that this would produce a 10/4 rather than a 9/5 outcome but as Dr M acknowledged, there is not an exact science to these matters. I further note that Dr M was of the view that blocks of time are probably more desirable where the parents do not get on. I accept the force of that proposition, and would be prepared to consider ordering a block from mid-2015 from Friday to Tuesday or Thursday to Monday if that was pressed.
As with most family law matters there are a number of loose ends arising from this hearing (little mention has been made of special days for example) and I will give the parties an opportunity to consider these reasons for judgment and to make any further submissions.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 13 August 2014