Moysey and Withers
[2009] FMCAfam 33
•23 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MOYSEY & WITHERS | [2009] FMCAfam 33 |
| FAMILY LAW – Parenting – separated siblings – protecting children from harm – children’s views – nature of the children’s relationship with each other, their parents and other significant persons in their lives – willingness and ability of parents to facilitate and encourage a close and continuing relationship – likely effect of changes on the children – practical difficulty and expense – capacity of parents to provide for needs of the children – substantial and significant time – best interests of the children. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3. |
| Applicant: | MR MOYSEY |
| Respondent: | MS WITHERS |
| File Number: | WOC 144 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 17 & 18 November 2008 |
| Date of Last Submission: | 1 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 23 January 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Alexander |
| Solicitors for the Applicant: | Verekers |
| Counsel for the Respondent: | Mr Moss |
| Solicitors for the Respondent: | Heard McEwan Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr McPherson |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
That the Mother and Father are to have equal shared parental responsibility for the children [X] born in 1998 and [Y] born in 2001 in relation to the care, welfare and development of a long-term nature involving the children to include, but not be limited to, issues about:-
(a)the education of the children – both current and future;
(b)the religion of the children;
(c)the health of the children;
(d)the names of the children; and
(e)any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with the other parent.
That the Mother shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children are living with or spending time with the Mother.
That the Father shall have sole responsibility for making decisions about the children’s day to day care, welfare and development during times the children are living with or spending time with the Father.
That the Mother and Father shall each refrain from making critical or derogatory remarks about the other parent or the parent’s partner or members of the other parent’s family in the presence or within the hearing of the children and each parent shall do all things reasonably necessary to ensure no other person makes any critical or derogatory remarks about the other parent or the parent’s partner or members of the other parent’s family in the presence of the children or within the hearing of the children.
That each parent shall ensure the other parent is kept informed as soon as is reasonably practicable of:-
(a)Any medical problems or illnesses suffered by any of the children whilst in their respective care;
(b)Any occasion that the children are due to be hospitalised or have been hospitalised;
(c)Any medication that has been prescribed for the children whilst in each parent’s care;
(d)Any specialist medical appointments that the children are due to attend with any medical doctor, psychiatrist, psychologist, counsellor or therapist so that the other parent has sufficient notice to attend any scheduled appointment;
(e)Any significant social, school or religious function which the children are to attend;
(f)Their residential address and particulars of others who may reside with the children from time to time;
(g)Their telephone contact numbers both landline and mobile (whichever applies).
That each parent is entitled to attend all events involving the children including but not limited to:-
(a)sporting fixtures;
(b)extra curricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation – AND the parent who has the children in their care on the day of such activity will be responsible for the day to day care of the children at such event including the children’s transportation to and from the event unless otherwise agreed upon between the parents.
That when the children are living with or spending time with either parent, the children are to have liberal telephone communication with the other parent, and each parent is to facilitate this, and to ensure that the children have privacy during telephone conversations with the other parent.
That the children are to live with their Father.
That the children are to spend time with their Mother:-
(a)From 5.30pm Friday until 5.30pm Sunday each alternate weekend during Eastern Standard Time; and from 6.30pm Friday until 6.30pm Sunday each alternate weekend during Eastern Daylight Savings Time;
(b)For the second half of the 2009/2010 Christmas school holiday period and thereafter each alternate year;
(c)For the first half of the 2010/2011 Christmas school holiday period and thereafter each alternate year;
(d)For one half of all NSW school holiday periods at the end of terms one, two and three of each year; and
(e)Any additional time as may be agreed between the Mother and Father from time to time and as the children may request.
That the Mother shall use her best endeavours to arrange to spend time with the children pursuant to Order 9(a) in the [P] area for the first three occasions.
To facilitate these Orders, changeover is to take place at McDonalds at [omitted], unless the parents otherwise agree in advance.
That Order 9 (a) shall be suspended during all school holiday periods and Orders 9 (a) is to recommence on the first weekend after the children return to school in terms two, three and four and after the Christmas school holiday period if the children spent time with their Mother in the first half of the school holiday period and on the second weekend after the children return to school in terms two, three and four and after the Christmas school holiday period if the children spent time with their Mother in the second half of the Christmas school holiday period.
That Order 8 in relation to [Y] is to take effect from 2pm Sunday 25 January 2009.
That the Father shall within 7 days of the making of these Orders make contact with the Sydney Developmental Clinic to arrange an appointment as soon as is reasonably practicable for a detailed assessment of [X]’s possible condition of ADD and possible need for medication and the father is to follow any reasonable recommendations or treatment as proposed by the Sydney Developmental Clinic.
That the parents continue to participate in counselling, mediation or any program as recommended by Relationships Australia in order to gain more insights into their children’s needs, the effect of conflict on the children and to improve their communication.
That the Independent Children’s Lawyer forward a copy of the Family Report prepared in this matter by Ms Maree Keating on the 13 November 2008 to Relationships Australia.
That in the event that the parents are unable to reach a shared decision in relation to any long-term issue as set out in Order 1, the parents are to participate in Mediation in an attempt to reach a shared decision.
That the parent with whom the children are living, shall within 3 days of the making of these Orders make an appointment for the children to see the Independent Children’s Lawyer to enable the Independent Children’s Lawyer to explain the Orders to the children.
IT IS NOTED that publication of this judgment under the pseudonym Moysey & Withers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MACKAY |
WOC 144 of 2008
| MR MOYSEY |
Applicant
And
| MS WITHERS |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons relate to parenting proceedings concerning two children, [X] aged 10, and [Y] aged seven. At the moment, and indeed since January 2008, [X] has resided with her father, and [Y] with his mother. The father lives in [P], south west of Sydney, and the mother lives at [F], a country town near [B] in southern New South Wales. In very simple terms, the father's proposal is that the children live with him and spend what amounts to less than substantial and significant time with their mother. The mother's proposal is that the children live with her, but spend substantial and significant time with their father.
Background
The matter was heard by me in the Wollongong circuit of the Federal Magistrates Court on 17 and 18 November 2008. The applicant father was represented by Mr Alexander, the respondent mother by Mr Moss, and the Independent Children's Lawyer by Mr McPherson. Regrettably, workload pressures prevented me from making orders, and issuing reasons for judgment, before the present date. I was greatly assisted by the written submissions that were provided in a timely fashion by each of Mr Alexander, Mr Moss, and Mr McPherson. I have drawn from those written submissions in this particular section of my reasons.
The mother is 47 years old. [X] and [Y] are her two youngest children. Her oldest daughter is 29 years old and lives in Queensland. Her oldest son, [Z], is 19 years old and lives with his father.
The father is 43 years old. He lives with his partner, Ms M, and her children [R] aged 17 and [T] aged 13. In addition, [Z], the oldest son of the parents in these proceedings, also lives with the father.
As indicated above, the mother lives in [F]. She has been there since January 2008, and lives there with [Y] who attends [B] School. The father lives at [P]. [X] attends [P] School. It seems common ground between the parties that the distance between [P] and [F] is about
300 kilometres and that it takes about three hours to drive from one town to another.
There are significant areas of agreement between the parents and I'm grateful to Mr Alexander, counsel for the father for articulating these so clearly in his written submissions. I note that both Mr McPherson and Mr Moss either explicitly agreed with the areas of agreement or have not cavilled with the same. Accordingly, the areas of agreement between the parents are as follows:-
1. That the children should live in the same household.
2. That the parents have equal shared parental responsibility.
3. That the children have half the school holidays with each parent.
4. That communication by telephone or email occur at any reasonable time.
5. That the parties keep each other informed about medical issues.
6. That the parent with whom the children are living authorise the other parent to receive all relevant school notices, reports and newsletters.
7. That the parents both feel free to attend school and extra-curricular activities.
8. That the other parent be named as the first emergency contact for each child.
9. That the parties keep each other informed of any change to contact details.
10. That the parents will do their best to ensure that the children attend family events of significance.
11. That, subject to the mother’s proposal, changeover be at McDonald’s at [omitted].
Despite this sizable list of agreed matters, the remaining issues were quite problematic. In very simple terms the remaining issues could be expressed as with whom the children would live and what time they would spend with the other parent during term time? Of course this relatively simple statement of the issues masks quite significant complexity in this case.
I record that I agree that the parents should have equal shared parental responsibility and there is no reason not to make that order, in effect by consent. I also agree with the submissions made by each of the three counsel, that even though I’m required to consider whether equal time is appropriate for these children, it clearly is not. As Mr Alexander indicated in his submissions, neither parent sought it, and the geographical and communication issues confronting the parents make it completely impractical, and not in their best interests.
The evidence before me consisted of the affidavits of the parents and Ms M, the father's partner. There was also the family report prepared by family consultant Keating. Each of these witnesses was cross-examined.
By way of further background, the parents commenced cohabitation either in 1987, or in 1988 and nothing turns on this difference.
In the early 1990's the father was involved with the police namely through a number of drink driving offences but also false dealings. He does not appear to have been jailed for these offences but did have his license cancelled. The parties were living in Queensland when they separated in about 2001. Either that year, or possibly in 2002, they both moved to [P] though continuing to be separated. Later in 2002 the mother returned to Queensland with [Y] and [X] and remained there for about eight months. In 2003 she returned to Goulburn in New South Wales. There is a dispute between the parents about whether, to what extent, and for what reasons, the father did not spend time with the children during these periods. I am satisfied, however, that having regard to the evidence before me, these are not issues in respect of which I need to make findings.
In 2005 [X] appeared to experience some behavioural and learning issues at school and as a result of that she was assessed at the Sydney Developmental Clinic as suffering from ADHD. In October 2005 the mother purchased what is her current property at [F], a small country town consisting of about 30 homes, but servicing a broader rural area.
The mother has at all relevant times worked as a [omitted], often working shifts. The father has not worked since at least July 2004 as a result of a permanent back injury and he continues to received workers compensation payments. His partner Ms M is in receipt of a carer's allowance to assist in the father's care.
In 2006, the mother and the children moved back to [P] and the oldest son [Z] moved in with her for a period of time. [Z] then went to live with his father. For reasons that are not entirely clear to me, and are in any event not relevant in the present context, [Z]’s relationship with his mother appears to have broken down in about 2006. There is some evidence before me to indicate that both [Z] and the mother are working on the restoration of that relationship.
The present litigation has its genesis in proceedings commenced in Campbelltown Local Court by way of an application filed in November 2007. The following months were obviously difficult times for this family. Even the mother admits in her affidavit that in December 2007, both children had returned from spending time with their father and expressed to her the view that they wanted to live with him. This appears to have coincided with a period when the mother was under intense stress and ill health. Both parents make accusations of the other relating to the events that occurred at about this time.
It will neither assist me in determining this case, nor will it help the parents, for me to make findings about what was said, and what was done, during this obviously difficult period for them. The fact is that towards the end of December 2007, both children went to live with their father and, regrettably, there was no contact between the children and their mother until January 2008. The police were involved during the period from December to January and it is common evidence between the parents that [Y] was distressed during this period of not spending time with his mother. On or about 28 January 2008 [Y] returned to the mother's care and has remained so since that time.
On 29 January 2008, the parents entered into consent orders the effect of which was that [X] would live with the father, and [Y] with the mother, as well as spending time with each other each alternate weekend. The matter was transferred to the Federal Magistrates Court at Wollongong. On 25 June 2008 I made interim orders that provided for both parents to have equal shared parental responsibility for [X] and [Y]; for [X] to live with the father and for [Y] to live with the mother, and for the children to spend time with each other each third weekend as well as half the school holidays. An independent children's lawyer had already been appointed and, on the date aforesaid I ordered that a family report be prepared. Regrettably, throughout most of 2008 there have been difficulties between these parents, in terms of actually implementing the orders made. It is neither necessary, nor helpful to the parents, for me to make specific findings about these incidents. Suffice it to say that, just like the period December 2007-January 2008, the events are most unflattering for both the mother and the father. Even they agreed in cross-examination that they share a very poor relationship which is characterised by mistrust, high conflict, and the inability to communicate. These were matters that are clearly confirmed by the family consultant in her family report that was released on 13 November 2008. The family consultant added further insights about these parents namely that there appeared to be many unresolved issues as between the two of them, that both lacked insight about the impact of the parental conflict on their children though the father had marginally greater insight than the mother in this regard.
The evidence of the family consultant in the form of her report did confirm, however, that both [X] and [Y] have a secure relationship with both parents and, under the circumstances, appear to have been quite resilient in the face of the intense conflict between their parents. The family consultant expressed concerns about the impact of change on either of the children and yet, of course, recognised the unsatisfactory nature of separating siblings, and advocated for a change in the current parenting arrangements to the effect that [Y] would live with his father and thus be reunited with his sister [X], and older brother [Z]. I will refer to the family consultant's report, as well as her oral evidence, in due course.
Issues
Having regard to the above a number of specific issues require determination in this case. The issues are primarily, though not exclusively, drawn from s.60CC of the Family Law Act. If I do not refer to a particular paragraph in s.60CC below, it is because I have formed the view that it is not an issue that requires determination on the evidence before.
The issues that need to be determined in this case are as follows:-
i)Are there any matters in respect of which the need exists for the children to be protected from some form of harm?
ii)Have the children expressed views and, if so, what weight should be given to them?
iii)What is the nature of the children's relationship with their parents, each other, and the other significant persons in their lives?
iv)Are there any issues about the willingness and ability of each parent to facilitate and encourage an ongoing relationship between the children and the other parent?
v)What is the likely effect of changes on the children of any order that I might make?
vi)Are there any matters of practical difficulty and expense in the children spending time with the other parent?
vii)Are there any issues about the capacity of either parent to meet the needs of the children?
viii)Is an order for substantial and significant time reasonably practical and otherwise in the best interests of the children?
ix)What order is in the best interests of the children, having regard to all of the evidence?
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, 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) 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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations 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 Islander 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;
(m) any other fact or circumstance that the court thinks is relevant.
Parental Conflict and Shared Parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[1]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[1] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[2] and the containment of acrimony may prove to be central benchmarks.
[2] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[3]
[3] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Protecting the children from harm
Neither counsel for the independent children's lawyer nor counsel for the father submitted that there were any issues arising under this primary consideration. However, they both conceded that it had been asserted by counsel for the mother that there was an important issue arising out of the evidence from both the father and his partner, Ms M in relation to the consumption of alcohol in their household, and the extent of conflict that seemed to be linked with this consumption of alcohol. In short, on behalf of the mother it was submitted that not only had [X] raised the issue of Ms M consuming "lots of wine" and "dad and Ms M fight all the time when dad's been drinking", but the evidence of both the father and Ms M confirmed this and would give rise to real concerns for the Court about the welfare of the children in the father's household. The father was cross-examined about his consumption of alcohol and as a result of this I'm satisfied that he has minimised his past consumption of alcohol and that, in the 1990s in particular, he was a heavy consumer of alcohol. I am satisfied, however, that there is no evidence that would lead me to conclude that he is currently a heavy drinker though he has probably sought to minimise to the Court his current actual level of consumption. I do not accept, for example, his evidence in cross-examination that he has not drunk alcohol in the last 14 months. Notwithstanding this, there is no evidence before me to lead me to conclude on the balance of probabilities that the father's consumption of alcohol is at such a level that it would present any risk of harm to the children. As for Ms M, however, I am satisfied that she has sought to minimise her actual consumption of alcohol as well as sought to minimise the consequences of the same, namely fairly frequent arguments between the father and herself. Indeed, I formed the strong impression that the household constituted by the father and Ms M was, occasionally, quite a volatile one with not infrequent arguments that were probably contributed to as a result of Ms M's consumption of alcohol. The arguments seem to occur as much as once per week and the police have been called on occasion though nothing has arisen out of their attendances.
But does the fact that the father as a parent consumes a level of alcohol, and the fact that his household might be characterised as a volatile one, necessarily lead me to find that there is the need to protect the children from any form of harm or risk of harm? I conclude not. All of this evidence was put to the family consultant when she was
cross-examined by counsel for the mother. Ms Keating steadfastly refused to accept that the evidence necessarily presented issues of concern for the children. She pointed out that neither of the children expressed concerns to her about the conflict between the father and
Ms M and indeed [X], who may well have reported about Ms M's drinking nonetheless described life in that household in positive terms. Ms Keating also would not accept in cross-examination that the well known adverse impacts of parental conflict on children also arose in the context of conflict between one parent and his new partner. Indeed, Ms Keating gave evidence to the effect the children reacted differently to conflict which is not parental conflict. Whilst I am not sure whether her answer in cross-examination was based on research or her own experience, her answer was not challenged in cross-examination and I am prepared to accept the same. However, in having regard to the matters I have set out above, I find that there are no issues about protecting the children from harm in their father's household.
Children's views
Have the children expressed any views that are relevant in the present context, and if so what weight should I attribute to those views? The only probative evidence about views is contained in the family report. In the report the family consultant records that [X] could not decide which parent she wanted to live with and would be happy to live with either parent though she was concerned that the parent with whom she would not be living would be sad. The family consultant reports that [Y] made no comment about which parent he wished to live with.
It is apparent from the family consultant's evidence and the family report, that [X] is caught up in the conflict between her parents. In these circumstances I believe it would be entirely inappropriate to place any weight whatsoever on any views that [X] might have expressed. I certainly cannot accept the submissions made by
Mr Alexander, on behalf of the father that anything [X] said might be construed as "representing a view, albeit coded, that [X] prefers to live in her current circumstances".
Accordingly, in this case, there are no relevant views to which I would place any weight in determining this case.
The nature of the children's relationship with each other, their parents, and other significant persons in their lives
All of the evidence in this case indicates that both [X] and [Y] have a good relationship with each parent, with each other, and with their older brother [Z]. I accept the family consultant's evidence that [Y]'s primary attachment is with his mother. The evidence indicates that the relationship between [Z] and his mother is, at the very least, strained.
The family consultant observed there to be a positive interaction between [Y] and the father's partner, Ms M. Ms M and her daughter were also reported as having an appropriate relationship with [X] and [Y], and the family consultant noted that if both children were in their father's care, Ms M would play a significant role in their care. On this scenario, of course, [Y] would be living with his father and the family consultant reports that the protective factor for [Y] in this regard would be his close relationship with [X] and [Z].
The family consultant recognised that for both [X] and [Y] to have a good relationship with [Z], the mother must have been involved in a positive and affirming way.
In short, having regard to this additional consideration, the nature of the relationship enjoyed by the children with each other significant person in their lives is a positive one. [X] seems to enjoy a good relationship with her mother and [Y], even though separated from them. [Y] enjoys a good relationship with his father and [Z] and [X] even though he is separated from them. Now on one view, therefore, these relationships would continue even if the siblings were living together, though geographical considerations mean that the relationships most under threat would be the ones that depend upon frequent communication and interaction.
Whilst this additional consideration is an important one, I find that the nature of the relevant relationships between the children, their parents, and other persons is not such as to prefer one parent's proposal over the other. It is more a consideration to be taken into account together with all the other considerations referred to in these reasons.
Willingness and ability of parents to facilitate and encourage a close and continuing relationship
The children's relationships discussed above stand in stark contrast to the relationship between their parents which is described in the family report as very poor and negative. This was confirmed in the oral evidence given by the mother, the father, and Ms M. Despite the very poor parental relationship, therefore, each has demonstrated a capacity not to permit that to undermine the positive relationship that exists between the children and each other parent. Insofar as the parental relationship is an indicator about willingness and ability of each parent to facilitate ongoing relationships, the family consultant assessed the father as the one most likely to promote the children's relationship with their mother, primarily based on the family consultant's concern that the mother's views were clouded by resentment. Notwithstanding that, I record the fact that I did not discern this resentment in the evidence given by the mother and indeed the priority she accorded to the children spending time with their father, over their weekend commitments, is also consistent with her willingness and ability to facilitate that ongoing relationship. Indeed I wonder whether counsel misunderstood the evidence given by the family consultant, particularly at paragraph 48 of her report:-
48. On balance it is assessed that Mr Moysey is the parent most likely to promote the children’s relationship with the other parent. Ms Withers’s ability to support the children and ensure that they experience her as emotionally available to them, should they live with the father, is assessed to be limited. On this basis, therefore, living with their father might result in the children losing their present positive relationship with their mother. It seems that this has been the situation for [Z]. Recommendations are thus problematic including recommendations regarding equal shared parental responsibility.
I believe what the family consultant is saying here is that the real concern is the impact on the mother of both children residing with their father in the sense that the mother might not have the capacity to support this arrangement because of her emotional availability. The family consultant expresses the legitimate concern that the children might lose their present positive relationship with their mother if they live with their father. And yet the family consultant still concludes that it is the father who is most likely to promote the children's relationship with the other parent. In other words if, tragically, the mother lost her relationship with her children once they went to live with the father, this would be attributable to the mother, and not to the father. Indeed, I think this is one of the most difficult issues in this case, but I think it goes more to issues of parental capacity rather than willingness and ability to facilitate ongoing relationships.
I find, therefore, that the evidence does not indicate that there are any significant issues about either parent's willingness to facilitate an ongoing relationship. I note the family consultant's concerns, particularly about the mother's resentment, but I believe that there are contra-indicators in the evidence favouring the finding I have made.
The likely effect of changes on the children
Having regard to the way in which this case was conducted by both parents, a change in the current parenting arrangements is inevitable. This additional consideration requires the Court, therefore, to consider "the likely effect of any changes" including the likely effect of separation from a parent or other significant person. In reality, therefore, this additional consideration acknowledges the inevitability of change but seeks to assess it in terms of advantages and disadvantages as well as impacts on relationships. Indeed, these children have experienced significant changes in both their living arrangements and schooling since their parents separated. In cross-examination whilst the mother denied that she had been the architect of an unsettled life for the children she did acknowledge that they had changed schools four times since separation, when they had been primarily in her care. The changes in school have been matched by changes in residence as well.
Both [X] and [Y] are settled in the schools they attend and I am prepared to accept that they are involved in their schools and have friends there. Each child expressed to the family consultant a reservation about the change of school that would be an inevitable consequence of a change of residence. The family consultant assessed each child as being settled in the care of their respective parent, but that [X] would probably cope better with the change than [Y] would.
At paragraph 44 of the family report, the family consultant notes that a move to his father's care would be emotionally unsettling for [Y].[X] appears to be progressing very well at school, despite suffering (in the past, and possibly on an ongoing basis) from ADHD, as well as having experienced a disruptive academic life. Her good progress at school is notwithstanding the fact that she is not taking medication. She has access to the support services in [P] which I am not satisfied, on the evidence given by the mother, would be as available to her in [B].
A change of residence for [X] takes her away from her father, her brother [Z], as well as the relationships that she has formed with Ms M's children. However, it brings her into greater contact with [Y] and, of course, her mother. For [Y], a move to his father's residence brings him closer to his sister, brother, father, as well as Ms M and her children.
The family consultant frankly acknowledged the difficulties if [Y] is ordered to live with his father and suggested that the adjustment might be ameliorated if the mother were to spend some initial weekends with the children close to the [P] area, so that they would not need to travel. There was no real evidence before me, however, to indicate whether the mother would be prepared to do so.
In short, change is highly problematic for both children, though less so for [X]. This additional consideration will not, on its own, determine the outcome of this case. I will need to consider the benefits to the children of that change, particularly for [Y] in a move away from his mother's household. These matters are better dealt with by reference to issues of parental capacity, to which I will shortly refer.
Issues of practical difficulty and expense
It is common ground that the parents live about three hours apart when travelling by car and that there are significant costs associated with travel for each of them. They have agreed, however, that the most practical changeover venue is McDonalds at [omitted]. There are some minor issues about time that I can deal with in the orders and that do not require specific comment on my part.
The capacity of the parents to provide for the needs of the children
In a case such as the present one where considerations are so finely balanced it is this consideration that, I find, tips the balance in favour of the father's proposal, modified in terms of how frequently the children will spend time with their mother. I have significant concerns about the mother's capacity to provide for the needs of the children, including their emotional and intellectual needs. The father is certainly not free from criticism about his capacity to meet the children's needs in the past. He demonstrated lack of insight, at times, during his
cross-examination about, for example, his attempts to remain involved in the lives of the children before 2007, his actions in December 2007-January 2008, some of his communications with the mother and his very negative perceptions about her, and also about his handling of [X]'s treatment for ADHD. All of these matters clearly demonstrate, to my mind, lack of insight about what the children needed and how he could contribute to meeting those needs. Some of these matters can be understood in the context of the high conflict between the parents and the intense emotion that surrounded the events of Christmas 2007. The father's failure to continue [X]'s medication for ADHD seems to have been based on his concern about the adverse impacts on [X]'s demeanour and behaviour of Ritalin, but seems to have been validated by her good progress at school. Parental lack of insight is a common feature of parenting cases that require adjudication and do not necessarily amount to findings of lack of capacity on the part of the parent involved. This case is one example of that phenomena.The mother must accept the consequences of her move so far away from where the father and [X] and [Z] are living. I accept that she moved to [F] for both affordability and lifestyle reasons. It provides her with her own home, in a rural setting and, no doubt, a country lifestyle including animals that would be attractive to both [Y] and herself.
But, however, she agreed in cross-examination that by placing
300 kilometres between the father and [X] on the one hand, and [Y] and herself on the other she was creating a logistical difficulty. She agreed that by moving to the country, and indeed 26 kilometres from the nearest town where there is a school she would eventually confront difficulties with the children participating in extra curricular activities not just after school, but on weekends. She agreed that in a few years [X] would be wanting to do things on her own on weekends. She agreed about the numerous changes to the children's schooling.Some of the most concerning evidence in this case relates to the children's poor attendance record at school both when [X] was in the mother's care, and more recently when [Y] was in the mother's care.
In [X]'s semester 2 report from [U] School, she was absent for 15 days, or three weeks. In semester 1 at [B] School for [Y] this year he was absent for 14 days. On 7 June 2008 [B] School wrote to the mother expressing concern and dissatisfaction about [Y]'s absences from school. It was put to her that the school records indicate that there were about 40 events of either lateness or non attendance, 19 of which were unjustified. I found the mother's explanation for his absences from school, and [X]'s earlier absences from school, totally unconvincing and unacceptable. She sought to explain some of [Y]'s absences by reference to his suffering from asthma. But I think a more telling indication of what was happening is apparent in an answer put to her by Mr McPherson, counsel for the independent children's lawyer. Her response was, in effect, that usually on a Monday morning she was exhausted, as was [Y], especially after a contact weekend. When it was put to her that this problem would continue on her own proposal her only response was it would, but the father would need to get [Y] to bed on time so it wouldn't happen.She was further cross-examined about the comments on [Y]'s 2008 report card about him only sometimes completing homework. When asked to explain why that was the case in my opinion she sought to minimise, indeed trivialise, the significance of it and provided no real explanation that would explain why [Y] could not complete homework during the week, even if his inability to complete weekend homework might be explained by reference to contact visits.
The evidence about the mother's working arrangements also causes me concern. I am not sure that she presented a complete picture about her working commitments but even if she did, it makes it even harder to understand why [Y] is not attending school more often and completing his homework. For example, in cross-examination she agreed that on Christmas night 2007 even though she had refused to allow the children to spend any time with the father (because it was her Christmas) she took the children with her to work that night. She gave evidence that she worked three nights that week, commencing at 10.45 pm. I can only assume that she had found suitable sleeping arrangements for the children at where she was working. She agreed that the weekend before in Christmas 2007 the children had returned home from time with their father and were hostile towards her and asking why she has to work? The evidence she gave in
Mr McPherson's cross-examination of her indicates that she works on a casual basis as a nurse and that in the fortnight prior to the hearing she had worked two shifts the week before. She said she could have worked more but that's all she took having regard to her care commitments. She said that she tries to arrange her shifts so that if both children are with her she is not working, but when neither child is with her, she works that weekend. She gave evidence that in the last three months prior to the hearing she had worked perhaps three or four weekends. Her normal shifts, however, start at 7 am and finish at 3.30 pm, or start at 1 pm and finish at 9.30 pm. She also occasionally works a nightshift perhaps four times every three months. When she is working her neighbour, takes [Y] to school, or picks him up, depending on which shift she is working on. Clearly the mother is dependent on others, including her neighbour, to assist her with the care of [Y] when she has to work.By contrast, the evidence given by the father, by his partner Ms M, and by the family consultant presents a picture of a household that is more ordered, and where the care provided by the father and Ms M, neither of whom work, is consistent and ongoing. I accept the submission by Mr Alexander on behalf of the father that "the mother's capacity to provide for the emotional needs of the children is compromised by the isolation of her domestic arrangements, her intense resentment in relation to the father and her inability to provide a household with the same vibrancy as that of the father and Ms M". I do not accept the submission by Mr Moss, on behalf of the mother, that the mother should not be penalised because she is working to support the children and herself. In a closely contested parenting dispute all of the considerations need to be weighed in the balance, critically assessed, compared and contrasted with a view to ascertaining what is in the best interests of a child. The evidence in this case leads me to conclude that the mother's household is disorganised and indeed sometimes chaotic and that the arrangements she has herself created lead to the Court having concerns about her capacity to meet the needs of the children. [X]'s absences from school whilst in the mother's care have all but disappeared when in the father's care. I believe it is highly likely that [Y] will experience the same thing, when he moves to his father's household.
Accordingly, I find that I have far greater concerns about the mother's capacity to provide for the needs of the children than I do the father. This then informs and influences the likely effect of changes in the children's circumstances because it means that even though there might be adverse consequences of [Y]'s move to his father's household there will also be tangible benefits to him in having more consistent and stable care. Provided the frequency and duration of contact with the mother can be satisfactorily established and maintained, the change should not impact on his relationship with the mother.
Substantial and significant time
I am required to consider whether substantial and significant time is reasonably practicable and in the best interests of the children? I accept the submissions of the independent children's lawyer that the orders proposed by him are in the children's best interests and are reasonably practicable, particularly in contrast to the father's proposal that would not have amounted to substantial and significant time as defined in the legislation. To be fair to the father, my impression of his evidence in cross-examination is that he eventually came round to the idea of the children spending each alternate weekend with their mother, even though he was clearly concerned about the impact of travel on them. On the father's proposal, of course, the children would only have spent two weekends each term with their mother and I agree with the family consultant and the independent children's lawyer that this was completely inappropriate. The evidence indicates that [X] expressed to the family consultant the view that she'd like to spend more time with her mother. The evidence also indicates that [Y] is primarily attached to his mother and, given the changes that I deem to be in his best interests, it becomes essential that he have substantial and significant time with his mother. Accordingly, notwithstanding the distance which, in any event, the parents seem to have managed reasonably well hitherto, I find that the proposal of the independent children's lawyer gives to the mother substantial and significant time and is certainly in the children's best interests as well as being reasonably practicable.
Which order is in the best interests of the children?
I find the totality of the evidence leads to the conclusion that it is in the best interest of [X] and [Y] that they live with their father and have substantial and significant time with their mother. As I indicated above I have concerns about the mother's capacity to provide for the needs of the children and, because of this, the benefits to [Y] in particular of moving to his father's household exceed the disadvantages to him of moving away from his mother's household, provided of course substantial and significant time can be implemented and satisfactorily maintained. I recognise that there are difficulties inherent in this proposal, even though it is consistent with the recommendations of the family consultant in the family report. In particular, [Y] will need the support of his mother when he moves to his father's household, even though this is a proposal which is completely contrary to that which the mother proposed herself. The family consultant recognised that if [Y] does not settle in his father's household, and yearns for his mother, than the frequency of his time with his mother becomes in itself problematic. One can only trust that the support that [Y] receives from his sister, brother, and father will suffice, even if the mother is not emotionally available to provide the support he needs. The Court trusts that the mother will support the change for her son's sake, even if she does not personally agree with it. She herself conducted her case on the basis that separating [Y] and [X] was not in their best interests.
I conclude that [X] living in the mother's household is clearly not in her best interests because of the concerns that I have about the mother's inability to meet her needs, particularly as she gets older and becomes more independent, as well as seeking out the company of her peers. [X] seems to be doing very well, under the circumstances, at school and in the father's household and to disrupt it could not possibly be in her best interests. Accordingly the only alternative, and the one that is informed by the evidence and the findings I have made is that [Y] is to live with his father.
The family consultant recommended that the mother might be able to tangibly support [Y]'s move to his father's household if she would use her best endeavours to arrange to spend time with the children in the [P] area for the first three occasions. I believe this is worthwhile trying and I will make an order to that effect, as proposed by the independent children's lawyer.
With the forthcoming commencement of a new school year, I will order that these new parenting arrangements take place within 48 hours of these orders being made. [Y] will need to settle into a new household before he settles into a new school.
The independent children's lawyer seeks ancillary orders about the father having [X] assessed at the Sydney Developmental Clinic for any attention deficit disorder and I think is very much in her best interests even though she does seem to be progressing very well, and even though the father does seem to have concerns about the advice that was previously given. The independent children's lawyer has further suggested orders about the parents continuing to receive therapeutic assistance to gain more insight into the children's needs and especially the impact of the parental conflict on them. I will make those orders.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 23 January 2009
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