MUSSEN & DREW
[2013] FCCA 876
•2 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUSSEN & DREW | [2013] FCCA 876 |
| Catchwords: FAMILY LAW – Parenting – equal shared parental responsibility – finding appropriate and in the best interests of the child – consideration of section 65DAA requirements – determination that equal time or alternatively substantial and significant time were impracticable due to lack of proximity between Victoria and Queensland – consideration of objects and principles relating to parenting – application to circumstances existing in the matter – evenly balanced factors favouring both parties – recognition of importance of existing and future sibling bonds relating to the child the subject of the application and children of each parent of other relationships. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 65DAA, 65DAC, 65DAE |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 Chappell & Chappell (2008) FLC 93-382 U v U (2002) 211 CLR 238 |
| Applicant: | MR MUSSEN |
| Respondent: | MS DREW |
| File Number: | TVC 395 of 2012 |
| Judgment of: | Judge Coker |
| Hearing dates: | 4 & 5 April and 8 May 2013 |
| Date of Last Submission: | 8 May 2013 |
| Delivered at: | Townsville |
| Delivered on: | 2 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mayes |
| Solicitors for the Applicant: | Purcell Taylor Lawyers |
| Counsel for the Respondent: | Mr Fellows |
| Solicitors for the Respondent: | MacDonnells Law |
ORDERS
That the Mother and the Father have equal shared parental responsibility for the major long term issues of the child, [X] born [in] 2007, including but not limited to:
(a)the child’s education (both current and future);
(b)the child’s religious and cultural upbringing;
(c)the child’s health;
(d)the child’s name.
That the parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding Order 1 herein:
(a)The Mother shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with her; and
(b)The Father shall be responsible for the day-to-day care, welfare and development of the child whilst he is living with or spending time with him.
That in the event both parents are residing in the same locality, that the parents spend equal time with the Child on a week about basis, to continue through the school holidays except the Christmas school holidays whereupon the parents are to spend half the Christmas school holidays with the child as detailed in paragraph 6(c) of this Order.
That the Child live with the Mother in Townsville.
That the child spend time with the Father at all times as may be agreed and failing agreement as follows:
(a)For the whole of the Easter school holidays each year;
(b)For the whole of either the June/July school holidays or the October school holidays each year;
(c)For half of the Christmas school holidays each year, with the child spending the first half of the Christmas school holidays with the Mother and the second half with the Father in each even numbered year, and the child to spend the first half of the Christmas school holidays with the Father and the second half with the Mother in each odd numbered year;
(d)In the event the Father travels to Townsville and provided he gives the Mother no less than four (4) week’s notice, the Father is to spend no less than 48 hours with the child as agreed.
(e)In the event the Mother travels to Victoria with the child, the Mother is to make the child available to spend reasonable time with the Father as agreed.
That the costs of travel be equally shared between the parties as follows:
(a)The parent with whom the child is to spend time to book and pay for the child’s travel to that parent. That parent to also book and pay for his or her own travel to accompany the child whilst the child is not allowed to travel unaccompanied;
(b)That whilst the child is unable to travel unaccompanied, changeover to be at the airport in the city from which the child is being collected, ie changeover to be at Melbourne airport when the child is coming into the mother’s care and the Townsville airport when the child is coming into the father’s care;
(c)Upon the child being able to travel unaccompanied, the Father to deliver and collect the child from the Melbourne airport and the Mother to deliver and collect the child from the Townsville airport;
(d)That each parent provide the other parent with no less than fourteen (14) days’ notice of the travel arrangements for the child for that holiday period;
(e)That this paragraph only refers to travel specified at paragraphs 6(a) to (c) of this Order. Any other travel for either parent to spend time with the child shall be at that parent’s cost.
That each parent have reasonable unlimited telephone and Skype communication with the Child.
That neither parent denigrate the other parent or members of the other parent’s family in the child’s presence nor allow any other person to do so in front of the child.
That neither parent consume any illicit substances whilst the child is in his or her care.
That neither parent drink to excess whilst the child is in his or her care.
IT IS NOTED that publication of this judgment under the pseudonym Mussen & Drew is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
TVC 395 of 2012
| MR MUSSEN |
Applicant
And
| MS DREW |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 10 April 2012, Mr Mussen filed an application seeking orders on a final basis, in relation to the parenting of the child, [X]. [X] was born [in] 2007. The respondent to the application is Ms Drew. For convenience, I shall refer to the applicant and the respondent as “the mother” and “the father”.
The father’s application sought orders which could be summarised as follows:
· that the parties have equal shared parental responsibility for the child;
· that the father have leave to relocate to [W], Victoria, within three months of any order or on or before January 2013, whichever comes first;
· that, whilst the father is resident in Victoria and the mother is resident in Townsville or any other location not in the general region of [W], Victoria, then that the child spend time with the mother at all reasonable times and in particular for significant periods during school holidays;
· that the mother have telephone communication with the child;
· that, if the parties reside in the same locality, then that the parents spend equal time with the child on a week-about basis;
· that Christmas Day or the first half of school holiday periods be shared between the parties such that the mother have the first half of school holiday periods in even numbered years and the father the first half in odd numbered years;
· that, in the event of the mother being in Victoria and providing information to the father no less than four weeks prior to her arrival, then she have the opportunity to spend time with the child.
The father more specifically particularised the orders that he proposed in relation to the matter in his outline of case filed on 4 April 2013. In that outline of case, he, in fact, detailed an alternative to the position proposed in relation to the child relocating with him to [W] and that alternative was included as a fallback position, in relation to the orders proposed with respect to the proceedings. The orders sought by the father at the final hearing were as follows:
1.That the parties have equal shared parental responsibility for the Child, [X], born [in] 2007 and will consult with one another about all major decisions including but not limited to:
(a) Any serious medical or health matter concerning the Child;
(b) Any medical or health matter affecting either parent that may affect the ability of that parent to care for the Child;
(c) Matters relating to the education of the child including but not limited to the choice of school and curriculum; and
(d) Disciplinary matters other than of a trivial nature.
2.That each parent has sole responsibility for the day to day decisions concerning the Child and the Child’s care and welfare whilst in their respective care.
3.That in the event both parents are residing in the same locality, that the parents spend equal time with the Child on a week about basis, to continue through the school holidays except the Christmas school holidays whereupon the parents are to spend half the Christmas school holidays with the child as detailed in paragraph 5(c) of this Order.
4.That upon the father’s relocation to [W], Victoria that the Child reside with the father in [W].
5.That whilst the Father is resident in [W] and the Mother is not living in the [W] locality, the child to spend time with the mother at all times as agreed and failing agreement as follows:
(a) For the whole of the Easter school holidays each year;
(b) For the whole of either the June/July school holidays or the October school holidays each year;
(c) For half of the Christmas school holidays each year, with the child spending the first half of the Christmas school holidays with the Mother and the second half with the father in each even numbered year, and the child to spend the first half of the Christmas school holidays with the father and the second half with the mother in each odd numbered year;
(d) In the event the mother travels to Victoria and provided she gives the father no less than four (4) week’s notice, the mother is to spend no less than 48 hours with the child as agreed;
(e) In the event the father travels to Townsville with the child, the father is to make the child available to spend reasonable time with the mother as agreed.
6.In the alternative, if the Court determines that the child remain in Townsville with the mother, the child to spend time with the father at all times as agreed and failing agreement as follows:
(a) For the whole of the Easter school holidays each year;
(b) For the whole of either the June/July school holidays or the October school holidays each year;
(c) For half of the Christmas school holidays each year, with the child spending the first half of the Christmas school holidays with the Mother and the second half with the father in each even numbered year, and the child to spend the first half of the Christmas school holidays with the father and the second half with the mother in each odd numbered year;
(d) In the event the father travels to Townsville and provided he gives the mother no less than four (4) week’s notice, the father is to spend no less than 48 hours with the child as agreed.
(e) In the event the mother travels to Victoria with the child, the mother is to make the child available to spend reasonable time with the father as agreed.
7.That the costs of travel be equally shared between the parties as follows:
(a) The parent with whom the child is to spend time to book and pay for the child’s travel to that parent. That parent to also book and pay for his or her own travel to accompany the child whilst the child is not allowed to travel unaccompanied;
(b) That whilst the child is unable to travel unaccompanied, changeover to be at the airport in the city from which the child is being collected, ie changeover to be at Melbourne airport when the child is coming into the mother’s care and the Townsville airport when the child is coming into the father’s care;
(c) Upon the child being able to travel unaccompanied, the father to deliver and collect the child from the Melbourne airport and the mother to deliver and collect the child from the Townsville airport;
(d) That each parent provide the other parent with no less than fourteen (14) days’ notice of the travel arrangements for the child for that holiday period;
(e) That this paragraph only refers to travel specified at paragraphs 5(a) to (c) and 6(a) to (c) of this Order. Any other travel for either parent to spend time with the child shall be at that parent’s cost.
8.That each parent have reasonable unlimited telephone and Skype communication with the Child.
9.That neither parent denigrate the other parent or members of the other parent’s family in the child’s presence nor allow any other person to do so in front of the child.
10.That neither parent consume any illicit substances whilst the child is in his or her care.
11.That neither parent drink to excess whilst the child is in his or her care.
12.That the mother pay the father’s costs of and incidental to these proceedings.
13.All other Orders as determined by this Honourable Court.
The mother’s response was filed on 11 May 2012. In that response she also sought orders with regard to equal shared parental responsibility but rather than proposing that the child should live with the father and relocate to [W], sought orders in respect of an injunction issuing, restraining the father from any moves which would lead to the relocation of the child, outside of the Townsville area and further proposed that the child using the old terminology contained within the Family Law Act reside with the mother and spend time with the father as agreed. She then went on to particularise the proposals in relation to such time.
At the commencement of the hearing the mother filed a case outline in which the final orders that were proposed by her in relation to the matter were detailed. Orders 1, 2 and 3 of those orders were in the following terms:
1.That the parties have equal shared parental responsibility for the child, [X], (“The child”) born [in] 2007, and consult with one another about major long term decisions about the child, including but not limited to:
a. Any serious medical or health matter concerning the child
b. Any medical or health matter effecting either parent that may affect the ability of that parent to care for the child;
c. Matters relating to the education of the child including but not limited to the choice of school and curriculum;
d. Disciplinary matters other than of a trivial nature.
2.That each parent have sole responsibility for the day-to-day decisions concerning the child and the child’s care and welfare while in their respective care.
3.That the child reside with the mother in Townsville and spend time with the father as agreed, and failing agreement as follows:
a. For the whole of the Easter School Holiday period and the June/July School Holiday period.
b. For the first half of the October School Holiday period and Christmas School Holiday period in even numbered years and the second half of the October School Holiday period and Christmas School Holiday period in odd numbered years.
c. That the father have unlimited telephone and other communication with the child as agreed between the parties.
d. In the event that the Applicant travels to Townsville, and provided he gives no less than one (1) week’s notice of his intended travel, the Applicant shall have contact with the child for no less than forty-eight (48) hours.
THE ISSUES
The issue in relation to this particular matter was considered, at least to some degree, in terms of what might be called a relocation case. In reality, however, it is not a relocation case but rather a case involving competing proposals with regard to with whom the child, [X], should live.
The father was not seeking an order which provided for him to be granted leave to relocate with the child and for there to be a fallback position that, if such leave were not granted, that there be a continuation of the arrangements which had been in place for a significant time since separation, that the parents live in the same locality, Townsville, and share responsibility in relation to the care of the child. The father’s position rather was to say that he would still move to [W] in Victoria and that, therefore, the child would obviously be required to live with one parent or the other.
I have struggled with the decision to be made in relation to the proceedings. One of the particular reasons for that can be easily summarised as the fact that both parents are capable, caring and loving parents for this little boy, that they have with the difficulties that are generally seen to arise in respect of separations, been able to work jointly to effect suitable arrangements in relation to the parenting of the child and that each would certainly be capable of providing for the child.
Those factors make the decision difficult and the difficulties are exacerbated by the fact that both parents have significant concerns in relation to the other parent, and with some justification, those concerns give rise to perceptions on the part of both parents that they are unable to fully trust or rely upon the care and supervision of the other parent, particularly in circumstances where they would not be in the same locality and, therefore, would not be spending equal or even substantial and significant time with the child.
THE EVIDENCE
The difficulties that arise from those issues of trust will be addressed more fully in the reasons that I give with regard to the evidence of the parties. Before turning to that evidence however it is necessary for me to also consider the evidence of other witnesses called in relation to these proceedings. On the part of the father, he called the paternal grandfather, Mr M. Initially, it was also intended to rely upon evidence given by Ms M, the father’s sister, and, therefore, paternal aunt of the child, [X]. However, after the commencement of her evidence, a determination was made on the part of the father that that evidence would not be relied upon.
I do not intend to specifically comment about that particular aspect of the matter, but note that in the circumstances, there is no evidence called from the father’s siblings who it was certainly suggested would be supportive of the father in relation to arrangements, particularly with respect to the care of the child as and when such assistance might be required. It is also noteworthy, that with the withdrawal of the evidence of Ms M, there is no response to the concerns expressed by the mother that she felt in some way overborne or harassed by members of the father’s extended family and that it was a factor which was of influence upon her, in not considering any return to the [W] locality.
Called on behalf of the mother was her partner, Mr H, and each party also sought to rely upon and to cross-examine the report writer, Ms P, in relation to a family report which was dated 5 October 2012 and released 8 October 2012. I shall come to Ms P’s evidence in relation to the matter later in these reasons but intend first to refer to the evidence of the two witnesses referred to previously, being the paternal grandfather and the mother’s new partner.
Insofar as the paternal grandfather was concerned, I note his affidavit filed 8 March 2013 details particularly the fact that the father’s child of an earlier relationship, [Y], was, from only three months of age, a significant part of the grandfather’s household, in that the father came to reside with [Y] at the grandfather’s home pursuant to the terms of orders which were made that required that to occur, at least for an initial period.
Mr M senior refers to the close and loving relationship that he has with [Y] and I have no doubt that that relationship is a significant one. Mr M also in his affidavit addresses an issue of concern that was raised by the mother in respect of the child, [Y], seeing her grandfather naked. The grandfather responds to that particular concern in paragraph 21, where he acknowledges that when the child was about four or five years of age she would hop into he and his then wife’s bed and stories would be read and that, as he had not worn pyjamas to bed previously. Subsequent to that, it had been decided that he would wear pyjamas when the child was in his care.
The issue was a factor raised by the mother, in relation to concerns with respect to the father’s proper care of the child and issues with regard to the safety or well-being of [X], if coming into contact with the paternal grandfather. I find however that there are no such concerns in relation to the child’s well-being, at least insofar as that particular aspect of the matter is concerned.
What was a further concern and was addressed in both the affidavit material and the oral evidence that was given, was an issue that arose the paternal grandfather says at or around the time when [Y] was about five years of age and the mother and the father sought to discuss with him issues, in relation to the disciplining of [Y]. At paragraph 36 the grandfather says:
They were most insistent that [Y] should be present during this discussion and I felt strongly adamant that it was inappropriate that [Y] should be present given her young age. Eventually the Applicant, the Respondent and [Y] left the discussion.
The issues related to disciplinary matters in relation to [Y] and the paternal grandfather noted in relation to the issues that were discussed the following:
39. I did not believe, based on my many years of parenting that this would be a positive way to discipline [Y].
40. As indicated previously, I was a sole parent to five young children for over six years and felt that my discipline was quite strict on some occasions, but always appropriate and fair.
41. I stated clearly to the Applicant and Respondent that I did not agree with their disciplinary proposals which were not good parenting and this caused issues, particularly with the Respondent.
42. In not agreeing to the request, there was some angst between the Applicant, the Respondent and I and the discussion became quite heated and resulted in [first name omitted] and I being told that if we did not agree with their request, we may not have [Y] come and stay with us.
The grandfather put his position in relation to this matter very firmly and, in fact, in his oral evidence reinforced the position that he took in relation to that particular aspect of the matter. There the grandfather took exception to the evidence of both the applicant father and the mother in relation to what was said to have occurred in the exchange between the mother, the father and the grandfather.
The father, in his material, indicated that he had not been manhandled by his father out of the home, but had been “approached forcefully” and therefore forced out of the home by that means. The grandfather did not agree that that had occurred, but I must say my overall impression in relation to the grandfather is that he was a man who would not easily deal with challenges to his authority, particularly within his own home and I am more inclined to the view that the exchange between the mother, the father and the paternal grandfather was more in keeping with that described by the mother and the father, than the minimisation which was given by the grandfather.
More particularly, I was troubled by the grandfather’s attitudes in relation to this matter. His behaviour on the following day, attending at the home of the mother and father, calling out and raising concerns that the child, [Y], was in the care of a stranger was over the top, dictatorial, and bullying.
The grandfather’s attitudes in that regard were further emphasised when the grandfather was questioned about the circumstances that led to his views. He indicated that in 2007 he acknowledged that [Y] was living with the father and mother who was, to all intents and purposes, a significant person in her life, as her step-mother. He acknowledged that the mother was pregnant at that time with the child, [X], and that it would have been appropriate for the mother and the father to make decisions in relation to [Y].
His response was telling. He said that it would be okay with the father but, “she was very young”. When asked if she was, therefore, too young to be an appropriate decision-maker the grandfather, I thought, realised that he had overstepped the mark and suggested that that was not the case but did acknowledge that the mother was, as was put to him, too inexperienced to be making decisions in relation to the child.
When asked if the father was supported by the mother or the mother was supported by the father in decisions that were made, it would then be appropriate for their wishes to be considered, he did not suggest that was the case and answered that he did not think that that was appropriate or acceptable, and that his views, in light of the particular relationship that he had with [Y], which was acknowledged to be close, should have been considered.
The grandfather indicated, that after that particular incident, the mother appeared, as he put it, “more distant and aloof” and suggested that there were occasions where she would not say hello to him or acknowledge him. He then suggests in paragraph 40 of his affidavit that he found her behaviour disappointing, particularly as her attitude and behaviour impacted on her relationship with the applicant and his extended family. I could not disagree more with the paternal grandfather in that regard.
The paternal grandfather was a mature man, he had bullied and overborne a 20 year old woman, seven months pregnant with her first child. His behaviour outside the residence on the day following the exchange between the mother, the father and he was nothing short of bullying and it was interesting that he should suggest that he was disappointed with the mother’s behaviours and attitudes, without any consideration whatsoever of the impact of his behaviours, not only upon the mother, but apparently it would seem directly upon the child, [Y], when in the care of the mother, recognising that the mother had significance in the life of [Y].
I was troubled by the attitude of the grandfather, not only because of what I would consider to be nothing short of bullying behaviours, but also because of the continued difficulties that would arise in relation to interaction between the grandfather and the mother. In my assessment, the grandfather’s attitude to the mother remained generally unchanged. Her views were of little consequence and the concerns that she had expressed in relation to [X] and his interaction with the grandfather were totally disregarded.
It may be, as I would think is the case, that there is no concern whatsoever in relation to the grandfather’s interaction with the child, but the total disregard of the mother’s legitimate and I think genuine concerns is an issue of far greater importance in relation to the determination of these proceedings.
The fact that the grandfather is significant in the life of [Y] is unquestioned. The fact that the grandfather is a significant support, in fact, in time perhaps the only real support available to the father if he were to return to [W] is significant, but the disregard of the mother and her concerns as well as, I think, a generally contemptuous attitude to the mother, her wishes and expectations is a matter which is of great significant in relation to future arrangements with regard to the parenting of the child, [X].
Insofar as the mother’s partner, Mr H, is concerned, the position was entirely different to that of the grandfather, and recognising the age of Mr H, does him very great credit. Mr H is 24 years of age, he is the fiancé of the mother, though perhaps more accurately should be described as her defacto partner, they already having one child of their relationship, [Z], and the mother is pregnant with their second child.
Mr H gave me the distinct impression that he was a genuinely committed partner to the mother and committed father to his child, [Z]. More significantly, however, he was a most supportive and appropriate step-parent to [X] and, whilst not directly the subject of these proceedings, it was significant that [X]’s older sister, [Y], described
Mr H as “awesome”. Mr H gave me the distinct impression, that whilst he was supportive of the mother, he recognised the distinction to be drawn between his role as a step-parent and the importance and significance of the role of the father as the biological parent of [X] and was prepared properly, to step back in situations where decisions were required to be made, in relation to the child.
It was to the father’s credit as well as Mr H, that their interaction was of a civil and courteous nature and, in fact, the general impression that was given in relation to the interaction between the father and step-father as that their exchanges were far more courteous, civil and appropriate than were the exchanges, on occasions between the mother and the father.
Mr H genuinely impressed as a man much in love with his partner and willing to act appropriately and supportively, in relation to such arrangements. There was little that gave rise to concern in relation to Mr H, other than concerns that arose as a result of the mother’s evidence in relation to these proceedings and statements that she had made to him, which give rise to concern as to whether the relationship between the mother and Mr H is as firmly entrenched and established as one would think, when there have been significant elements of untruthfulness or omission in the mother’s exchanges with Mr H.
Quite simply, Mr H was of the view that the relationship with the mother was of a mutually exclusive nature from the latter part of 2010. He believed that the relationship between the mother and the father had broken down and, whilst he was unaware as to whether they might have been sleeping in separate beds he was certainly aware of the fact that they were not having a continued sexual relationship. The evidence is to the contrary and it is also clear that the mother was also at that time continuing an open sexual relationship with a person known as Mr R, whom it would appear she had met in the context of studies toward her [omitted] qualifications.
The future of the relationship between the mother and Mr H, therefore, must at least be seen in light of that lack of honesty and forthrightness on the part of the mother at the commencement of their relationship but it is also noteworthy that the mother indicated that since commencing to reside permanently with Mr H, that her attitudes in relation to an open relationship, which existed between she and the father had changed and that she did not seek relationships with others and was perfectly satisfied and happy with the relationship that existed solely with Mr H.
I shall obviously come to those aspects of the matter when considering the evidence of the mother herself, but must say that Mr H was, I think, perhaps the most impressive of the lay witnesses called, in relation to these proceedings.
Before turning to the evidence of the report writer, it is in my assessment appropriate that I should firstly consider the evidence of the parties, in light of the fact that many of the issues that fell in their evidence were relevant, in relation to the consideration of the opinions and assessments of Ms P.
As I indicated at the commencement of these reasons, both of the parents are more than capable of providing for this little boy. They have worked jointly, though with the obvious difficulties that arise following a separation, since about June of 2011 and, therefore, for nearly two years at the time of trial, to parent the child. Whilst there have been certain problems that have arisen, particularly it would seem in relation to the issue of [X]’s school, they have been able to overcome those difficulties, to work together and to ensure that [X]’s opportunity for a meaningful relationship with both parents has been able to be fostered and developed.
Both of the parents to that extent, therefore, have put the child to the fore and it is to their credit that they have done so. However, both parents have also fallen short in a number of respects in relation to the decisions that they have made with regard to the parenting of the child.
Insofar as the father is concerned, his belief was that [X]’s relationship was closer with him and his daughter, [Y], than was the relationship between [X] and his mother. The father was challenged in relation to that belief, however, and his explanation or reasons for that belief fell, I think, somewhat short of anything that could be seen as truly indicative of that being the case.
The father seemed to think that, because [X] told him certain things, such as that he did more with the father than he did with the mother, it was such an indicator of a closer relationship. When challenged, the father, I think, finally realised that such a perception on his part was more perhaps a reflection of the child telling him what he wanted to hear, than any genuine basis upon which such could be believed.
The father had had issues in the past with drug use, but I accept on the evidence that is available in relation to the matter, he has not used what might be called harder drugs for a period of at least two years and had abstained from the use of marijuana for a number of months, prior to this matter coming before the court. The father also has had some issues with anger management and they have, to the father’s credit, been confronted by him, indicating that he had taken up with the family mediation centre issues in relation to anger management and counselling in that regard.
The father indicated that his attitudes and responses had, following those courses, changed and it is to his credit but it is also clear that the father’s approach to issues, with regard to dealing with confrontation between he and the mother is a different approach to the mother’s. The father, for example, seems to wish to determinedly negotiate and talk out issues that might be in dispute between he and the mother, whilst the mother’s position seems to be to wish to step away and to therefore avoid confrontation, rather than to deal with the issues. It leads, no doubt, to frustration and concern on the part of both parents that their positions have not been considered by the other parent.
The father’s determination to move or, from his perspective, to return to [W], where he had grown up and first met the mother, seems to have taken great significance in relation to these proceedings. However, the father’s decision to return the child [Y] to [W], prior to the determination of these proceedings, is one that has caused me considerable concern in relation to the determination of this matter.
Quite simply, the report writer in preparation of her report in respect of the matter, noted the extremely close relationship between the child, [Y], and [X] and commented that the severing of the relationship would be, as she put it, “devastating for [Y]”. Notwithstanding that, however, and not knowing what might be the outcome of the proceedings, the father determined for no doubt reasons that he considered appropriate, that [Y] should be sent to [W] to commence grade 7 in 2013, thus leading to a separation of she and [X].
The father indicated in his evidence that the children have been able to maintain their relationship through Skype and other electronic communication as well as, of course, opportunities to see each other during school holiday times and the like, but the decision to make that move, when the expert evidence would appear to indicate that there were serious consequences and concerns for [Y] as well as for [X] give rise to distinct issues in relation to the father’s determination to achieve what he wishes, notwithstanding the possible consequences for either [X] or [Y].
I gained the impression unfortunately, that at least to some extent, the father’s decision in that regard was designed, not only to be a decision in relation to [Y] but also an attempt to, in some respects, influence the court. It was the father’s hope that it would be seen as unreasonable to further facilitate separation of the children, though the father had already done so, but the court should not continue that separation. I was troubled by what I would consider to have been a somewhat manipulative action on the part of the father.
Most concerning, however, was the father’s answer to questions directed to him in cross-examination, with regard to that move when he was asked what he had done, in relation to the report writer’s suggestion that he should reconsider issues of relocation, without the child, [X]. His response was to the following effect:
I did reconsider the decision for a bit, but I was certain that it was right for myself.
The concern, of course, there was that the father’s position articulated in that answer was that the move and the decision to relocate even if it were to be without [X], was one that was designed more to accommodate his wishes and needs, than to recognise the needs and attachments of [X], not only to his mother but also to the father and his sister. It struck me as a self-serving action on his part and one that lacked insight.
The father was also challenged about the approach that he had taken in relation to his material prepared in support of his application. Simply, the father was asked to find a single complimentary statement in his affidavit with regard to any of the behaviours of the mother and he was given an opportunity to do so during the luncheon adjournment. Notwithstanding the significant length of the affidavit prepared by the father in relation to the matter, the only comment that he was able to find of even a passingly complimentary nature within the affidavit was a reference in paragraph 88 of his affidavit to the fact that he respected the different disciplinary styles that were utilised by the parents.
The father was determined to achieve his goal in this matter, but he, unfortunately, overstepped the mark in a number of ways, in seeking to emphasise the significance of his role in [X]’s life and perhaps, unfortunately, minimising the significance of the relationship that existed between the mother and [X]. When commenting, for example, that his relationship in conjunction with [Y]’s, was more significant to [X] than was the relationship between the mother and perhaps others in her family unit and [X], he was asked how he could suggest that it was closer when he did not see them all together, but he indicated that he was able to make that assessment because of what he saw at the time of drop off of the child passing between either the mother or the father.
The inconsistency in that, of course, was not recognised by the father when he did acknowledge that the child did say things to him that were no doubt said for the purposes of satisfying the father’s need to hear positive things and yet he could draw conclusions in relation to what he observed at handovers, without recognising that it was no doubt a difficult situation for the child and that he would have been trying to walk a fine line between satisfying any wishes that he might perceive the mother had as well as satisfying any wishes that he may perceive that the father had.
Quite simply, the father saw what he wished to see to justify his position in relation to arrangements with regard to the parenting of the child. I was troubled by that aspect of the father’s evidence in relation to this matter and was also generally troubled by the determination, at least at the time of filing his affidavit, though not so strongly pursued at trial, to criticise any opinions or assessments of Ms P that did not accord with the father’s wishes, in relation to the future parenting of [X].
The father was clearly determined to achieve his goals in relation to this matter and placed significant reliance upon aspects of the mother’s behaviour which were no doubt troubling. What was interesting, however, was that, whilst the mother had certainly been dishonest and less than frank in relation to many things that had been suggested by her to the father over time, for example the death of a twin when a twin had never existed, or the termination of a pregnancy without consultation with the father, and they must have been disturbing issues for him, he was not willing to recognise that there were faults on his part as well.
To suggest, as he did, that communications between he and the mother particularly by way of text were without rancour flies in the face of the somewhat disparaging and overbearing or accusatory nature of communications, particularly relating to the possible sexualised behaviour of [X] when spending time with a friend of the father’s on [location omitted].
The father was a capable parent. To suggest as he did that his relationship was far more significant to the child, however, did him no credit and failed to in any way allay concerns that might arise with regard to the father’s lack of appreciation of the importance to [X] of the relationship with the mother and, therefore, the need to act in a manner which fully recognised and fostered that important relationship.
Certainly, the father had taken steps on occasion, to act in a most child-focused and appropriate way and the circumstances where he brought [X] to visit the mother following the birth of the child, [Z], as well as taking [X] to the billy cart races that were organised and involved the billy cart that [X] had built with Mr H did him credit, but there were also clearly instances where the father had put his own wishes or expectations to the fore and had failed to recognise not only the mother’s wishes but the importance to the child of having his relationship with his mother encouraged.
There was much of a positive nature that could be said in relation to the father but there were also issues that arose with regard to some concern, in relation to the behaviours and attitudes of the father.
Insofar as the mother was concerned, similar positives and negatives arose. Ms P noted that both parents were more than capable of meeting the needs of the child on a day-to-day basis and that they both loved the child dearly and that [X] loved each of them. The mother also clearly appreciated the importance of the father in [X]’s life and I thought more genuinely attempted to encourage that relationship with the father, than was the case from the part of the father.
Having said that, however, there were a number of very serious concerns that arose in relation to the mother, all stemming from issues with regard to her honesty and character. The issue with regard to whether she had a twin sister who had died and communicating that to the father was troubling. What became far more troubling, however, was that statement was made in 2006 when, as the mother said, she was “a young and silly thing”. But what was of greater significance was that the mother had the opportunity to clarify the inaccuracy with the father on a number of occasions and did not do so.
It may certainly have been the case that the lie had become too big to be able to explain away to the father, but the fact is that it has given rise, as have other behaviours, to a lack of trust or respect on the part of the father toward the mother and it is an issue that the mother is entirely responsible for.
Similarly, the mother’s pregnancy in the latter part of 2010 is an issue of concern. The mother says that the father was the parent of the terminated child. The father was not aware of the mother’s pregnancy. More troubling, however, was the fact that the mother denied any relationship with another person, Mr R, whom she had met in her [omitted] studies, until it became clear in subpoenaed documentation that she and only she, could have been the person who told the note taker at the fertility control clinic in [W], that Mr R was the biological father of the child.
The mother says that she does not recall making that statement, but no other possible inference could be drawn than that she did make the statement and it raises a question as to her honesty and the truthfulness of evidence given, in relation to that aspect and other aspects of the mother’s evidence. Quite simply, the mother cannot have it both ways. She cannot deny the relationship with Mr R or the paternity of the child in the court and suggest that it was the father, but then acknowledge that she gave no consideration to the father’s wishes in relation to the matter, he not even being aware of the pregnancy and, yet, to have advised the fertility control clinic that Mr R was the father of the child.
The mother’s honesty and credibility is stretched in relation to that particular issue and is further the subject of concern when it is clear that the mother has not been full and frank in her discussions and disclosures with any of the father, Mr H, or Mr R. Whilst the relationship between the mother and the father was described as “open” by the mother, it was distinguished by the father as being “open and honest” and the concern was, at least on the father’s part, that the mother was not honest in what she disclosed to him or to her other sexual partners.
It is clear in that respect that in the latter part of 2010 the mother was involved in a relationship of some sort with the father, with Mr R and with Mr H, and that none were fully apprised of the exact relationship that existed with the others. It gives rise to the ongoing concerns that the father understandably expresses, in relation to the honesty of the mother and, as was emphasised in final addresses in relation to the matter, gives rise to the obvious concern as to whether the mother would be able to fully apprise the father of issues in relation to [X], if [X] were in her care and the father lived elsewhere. But, more particularly, even if the mother were able and willing do so, whether the father in all the circumstances, would be able to believe the mother in light of the concerns that were expressed in relation to the mother’s truthfulness in the past.
It is a difficult issue but there is some comfort in the fact, that whilst the parties have had those difficulties in the past, in the last two years they have been able to work through such issues and to rely upon each other, in relation to the care and supervision of [X]. The mother and the father have shared parenting since about June of 2011, following their final separation and during that time have been able, without orders, to ensure that the best interests of the child have been to the fore.
Certainly there have been difficulties in relation to [X]’s commencement of school, and there was dispute between the parents as to what might or might not have been appropriate or more convenient for one or the other, in relation to such schooling, but in the end they were able to reach an agreement which satisfied the needs of both, in relation to the education, not only of [X] but of [Y].
It is interesting, that when the debate over the school to be attended by [X] was being conducted, the mother was challenged as to whether she had factored [Y] into the decision that she made or pressed for, in relation to [X] attending the [C] School. She indicated that she had done so, but that her primary concern was for [X], though she did continue to have concerns in relation to [Y], but they were secondary to the decisions that she thought were appropriate to be made, in relation to [X].
I say that it is noteworthy and interesting that the mother should be challenged in relation to such an attitude shown by her, because the stance taken by her in relation to [X] attending [C] School and not the school previously attended by [Y] is similar to the changes in relation to [Y]’s school, subsequent to the commencement of these proceedings. It is especially so when, notwithstanding that his preference was for one particular school in [W] which did not have a vacancy, the father has made the move, expecting that in time if a vacancy becomes available, another move would be made.
To challenge the attitude of the mother, in relation to decisions that she considered appropriate in relation to [X], when the father has acted in such a manner as described regarding [Y] is surprising and certainly smacks of hypocrisy.
The mother had, I find, genuine concerns in relation to the attitudes and behaviours of the grandfather, though there is nothing to suggest to me that there are any bona fide concerns which might arise, in relation to [X] and his interaction with the grandfather. As I indicated earlier in these reasons, my assessment would be that the grandfather made an unwise choice in not ensuring that he had pyjamas on in [Y]’s early years when she would come into he and his wife’s bed, but that has been dealt with appropriately and that there is no risk to [Y] or to [X], in any interaction with the grandfather.
The mother’s genuine beliefs, therefore, were troubling, though perhaps understandable, when she sought undertakings in relation to [X]. It was, I thought at least to some degree able to be explained by the attitude shown by the grandfather and also the father toward the mother, in disregarding her concerns and there may certainly be a basis upon which there was an element of control being sought to be exercised by both parents.
In any event, I do not think that the issue of seeking an undertaking or suggesting that there had been a breach of the undertaking by the father is an issue of great significance in relation to the determination of this matter.
Suffice it to say, both parents have aspects of their behaviours and their personalities which are troubling. The mother at least until recent times has had a great deal of difficulty in telling the truth and has not been adverse to the use of lies to either obtain attention or to gain some goal, for example in developing the relationship with Mr H at the same time as her relationship with the father still continued.
However, the father’s position has also been compromised to some extent. The actions of the father in relation to his communication with the mother has certainly on occasion been overbearing and dictatorial. His suggestions that his words might be more precisely chosen, failed to recognise that what was said by him could certainly be hurtful, if not seen as directly accusing the mother of being the parent responsible for any failings, in relation to the behaviours of the child, [X].
Additionally, the father has been quick in my assessment to act in a manner which sought to achieve his own goals, without fully recognising or appreciating the obligations that all parents have in relation to ensuring that the best interests and the welfare of their child or children was to the fore.
The splitting of the siblings, [X] and [Y], was in my assessment unwarranted at this time and carried with it far greater risks for both [X] and [Y] than any suggested benefit that might come from having [Y] commence school at a school chosen by the father. Such concerns are exacerbated, when it is clear that the child in any event, did not commence school at the school that the father indicated that he wished to have the child attend.
I was troubled in part therefore by the evidence of both parties in relation to the matter, at least insofar as their attitude to parenting and their recognition of the importance of communication of an open, honest and frank manner with each other was concerned. Both parents could and should do better when it comes to issues with regard to the parenting of the child.
THE FAMILY REPORT
I turn now to the evidence of the report writer, Ms P. Ms P’s report identified issues for consideration including the parental relationship and their capability to co-parent, as well as the issue of relocation and future living arrangements for [X]. Ms P identified other issues including the use of illicit substances by the father and finally, the allegations regarding the paternal grandfather and inappropriate behaviours. As I have already indicated, I do not consider that that issue holds any real significance, in relation to this matter.
Ms P in her report indicated that equal time and equal parental responsibility had been in place for a considerable period of time and saw that as a significant issue, in relation to the determination of this matter. Interestingly and perhaps understandably in all the circumstances, Ms P does not make any strong recommendation one way or the other in relation to the proceedings. She does suggest that it might have been appropriate to give consideration to [X] being separately represented in the proceedings by an independent children's lawyer but that does not seem to have been pursued and, in light of the assessment that I have made as to there being no risk to the child from the paternal grandfather, it was not a course that should have been followed.
Ms P goes on to note that she does not have sufficient information to make a final recommendation but suggests that, in the interim, she does not support the father’s proposal to relocate to [W] with [X]. She then goes on to recommend, as the parents seek, that there should be equal shared parental responsibility and that there should be a continuation of the shared parenting arrangements in relation to the matter.
She does note that, if the father opts to relocate without [X], and by inference it might be suggested that that therefore means that she suggests that it is not appropriate for there to be a move to live with the father, then there should be opportunities for significant holiday time to be spent by [X] with the father. When cross-examined in relation to her report, Ms P’s position was generally the same.
She was asked about [X]’s close relationship with both his parents, as well as others significant in his life, including siblings, step-parents and grandparents, and noted that there were no concerns as to [X]’s attachments with his parents and those others significant in his life.
Ms P indicated that she did not have any concerns as to the father’s capacity to raise [X] in [W] but I thought answered the question that was directed to her by counsel for the father in a most appropriate way in that, whilst she acknowledged that she was impressed with the father’s parenting style, she went on to acknowledge that both parents were most capable, and that, whilst each parent had raised issues with regard to the other parent’s caring, they had been, as she put it, “able to get over the tensions that existed”.
Ms P was asked about the father’s concerns in relation to the mother’s honesty and what stemmed from that, the father’s lack of trust in the mother and what she told him. Ms P emphasised the need for there to be open communication between the parents and acknowledged that, if the mother were not communicating fully and frankly with the father, then there would be an exacerbation of the difficulties between the parents and that that would have consequences for [X].
She was asked particularly, if it would put [X] in what might be termed a “loyalty bind”, and she acknowledged that that would be the case if the child was living one way with the mother but the father was, for some reason, advised that different circumstances existed, because when the child was then with the father he would be in a situation where he would have to modify what was said about his lifestyle to reflect what the mother had told the father.
Of course that situation arises at the present time, not from such statements being made, the parties having been able to generally work together for the last two years, but rather as a result of the concerns that have been expressed by the father.
The report writer, Ms P, acknowledged that the father was very focused on [X] and that he was concerned to foster a relationship with the mother. However, Ms P indicated that, whilst she thought that the father would certainly do so, she also noted that the father was focused on occasions on his wishes, for example his determination to move to [W] no matter what, and the sending of [Y] to [W] prior to a determination in these proceedings, notwithstanding the concerns as to such a separation having a “devastating effect upon [Y]”.
Ms P I think quite properly would not be drawn into suggestions that the mother’s storytelling and general untruthfulness gave rise to a question or concern as to the mother’s psychological stability. She emphasised more, that at the moment it simply related to a concern as to her truthfulness and that flowed into an issue about the mother’s ability to provide correct information to the father, in the event of the child being with her. Ms P said that she did not have enough information to suggest that the mother’s untruthfulness was designed to be manipulative, but rather that it was simply a question of the mother being a highly dishonest person.
Ms P emphasised the fact that the mother and Mr H were still in what might be called, “the honeymoon phase of their relationship” and noted that that was a factor that needed to be considered, particularly in light of the fact that, if the mother were to have [X] living primarily with her, there would be certain stressors within the relationship with Mr H, arising from the fact that there was a six year old child, a one year old child, and another child soon to arrive. Ms P saw that as a concern but not one that would be unable to be dealt with by the mother and Mr H.
Interestingly, Ms P was asked specifically about the significance of siblings in the relationship with [X]. She noted that at the present time, [X] had a very significant relationship with [Y] and also had a relationship, though it was different, with his younger sister, [Z]. Ms P indicated that those relationships were very important and that, in her assessment, she was, in fact, concerned about any separation of [X] from either of his siblings and, of course, there is another soon to arrive, but noted particularly, that at least insofar as [X] and [Y] were concerned, they could communicate and would be able, therefore, to maintain the relationship.
In answer to questions that were raised by me at the conclusion of her evidence, I asked her to comment further in relation to the importance of the sibling relationship and the best ways to foster and maintain that relationship. She emphasised the importance of sibling relationships in a child’s life, because it provided them with the foundations that taught them about peer behaviours and sharing. Ms P also emphasised, that it gave a basis, as children get older, for discussion and guidance to be obtained from those with whom there are such close relationships. She said, for example,
We learn from role modelling. [X] already learns from [Y] and with the younger siblings he would be the role model which is also important.
She then significantly noted:
I'm concerned re [Z] and [X], that their memories will be adult-dependent and there is a need for regular information and exchange between the children.
She noted that Skype, exchange of DVDs, telephone communication and the like can be helpful and is important, in relation to establishing and developing the sibling relationship. Most particularly, however, she noted that, from [X]’s perspective, the relationship with [Z] is not fully established and that needs to be properly dealt with. She also noted particularly, that the relationship with [Y] was already more established and could therefore be more easily fostered and developed with electronic means, than would be the case with [X] and his younger sibling or siblings in time to come.
Ms P’s position in relation to the matter was understandable. She indicated that she was simply unable to comment upon the effects upon [X] and, of course, other siblings if the child left with the father or remained with the mother and the father and [Y] departed. She said that there were simply too many unknowns, but interestingly noted that she thought [X] had a strong character and, in fact, was, as she suggested, “more resilient than [Y]”. She thought that [X] would be able to cope with change, whatever that change would be, and that he would do well living in either of the parents’ homes but noted that it would be best if there was time in both parents’ home, such as equal time which had existed prior to this time.
Ms P’s evidence was of particular assistance in relation to this matter. It emphasised the difficulties that each parent had as a result of their own character and personality and also addressed the differences in the relationships between [X] and his older sister, [Y], and younger sister, [Z], and the ways that those relationships can be fostered and developed.
The impression I gained from Ms P in relation to this matter, was that the parents, though having issues in relation to each other and particularly from the father’s perspective in relation to the mother’s honesty, were able to work through such issues and had at least a degree of respect for the other, that they could work together. Ms P noted and was complimentary of the parties that they had been able for two years since separation, to effect an arrangement in relation to the parenting of [X] which was not based on orders but rather on arrangements that had been made between them. She also indicated that the parents had “the runs on the board”, in that they have managed parental responsibility well, notwithstanding there being those elements of respect and trust that needed to be overcome.
Ms P also emphasised and acknowledged that the positive relationship between the father and Mr H was one that assisted decisions being made in relation to [X] because there was, as she put it, “a level of trust between the two of them” and both recognised that the other was working in [X]’s best interest.
I was assisted by the evidence of Ms P in relation to the matter and accept of course that there were difficulties from her perspective in making any strong or specific recommendations in relation to with whom the child should live, noting that both of the parents were capable and able to meet the day-to-day needs of the child.
THE LAW
I turn then to the law and to the application of the evidence in relation to this matter. I am mindful, of course, that the paramount consideration is as set out in section 60CA of the Family Law Act, that the paramount consideration is the welfare of the children. I am also mindful of one of the central issues in relation to this matter, being the determination of parental responsibility and time to be spent with the child. In Lansa & Clovelly, a decision of Murphy J being [2010] FamCA of 80, a decision handed down on 11 February 2010, his Honour there, under the heading, “Parental Responsibility” set out at length issues in respect of the determination of parental responsibility, and commented through from paragraphs 136 to 152 about the issues to be looked at. They express clearly the position in relation to this matter and were as follows:
PARENTAL RESPONSIBILITY
[136] The parents of children each have, by the fact of parenthood alone, parental responsibility for each of those children. (s 61C). That means that each parent has, in respect of each child, “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” (s 61B). That situation is not affected by any change in the nature of the parent’s relationship, for example by them separating or re-marrying (s 61C(2)).
[137] Parental responsibility can, though, be altered by the making of a parenting order by the court but only to the extent that the order confers duties, rights, responsibilities or authority in relation to the particular child or children the subject of the order. However, a parenting order does not per se remove or diminish any aspect of parental responsibility; the order must expressly do so or doing so must be necessary to give effect to the order. (s 61D(1) and (2)).
[138] But, when a court is to make a parenting order, it must apply a presumption that it is in the best interests of the subject children for their parents to have “equal shared parental responsibility” for those children. The latter expression is not defined, but reference to s 61B would seem to render a meaning that all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children are to be shared, and shared equally.
[139] The statutory presumption just referred to is rebuttable in circumstances where the court has reasonable grounds to believe that there exists abuse or family violence as defined (s 61DA(2) or where the court considers that it is in the bests interests of the children for the presumption to be rebutted. (s 61DA(4)).
[140] No statutory provision other than s 60CC governs how best interests is to be determined in that context. Section 60CC, it has been noted, is headed “how a court determines what is in a child’s best interests”. It is, then, again called into use in this context.
[141] The ambit of the legislative provisions referred to thus far is narrowed by reference to s 65DAE and the Note to s 65DAC. The latter section makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a “major long-term issue” – an expression that is defined.
[142] Section 65DAE and its Note underline the last point by providing that there is no necessity to consult a person who has or shares parental responsibility about decisions that are made in relation to the child during the time that the child is spending with that person, that are not decisions about “major long-term issues”. It is to be noted that the section is made subject to any provision to the contrary in a parenting order. (s 65DAE(2)).
[143] “Major long-term issues” is defined in s 4:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future);
(b) the child’s religious and cultural upbringing; and
(c) the child’s health
(d) the child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
[144] Thus, if the presumption of equal shared parental responsibility is not rebutted, then, absent specific provision in the parenting orders, the consultation and genuine effort to reach a decision required by s 65DAC applies, but (subject to specific provision in the Orders) only in respect of “major long-term issues”.
[145] Equally, the application of the presumption will mean that decisions during time spent between parent and child that are not about “major long-term issues”, can be made by the parent exercising the time without the necessity for the consultation and joint effort otherwise required in respect of “major long-term issues”. (s 65DAE(1) and (2)).
[146] Each of these matters has relevance, as it seems to me, to a decision as to whether the children’s best interests require the rebuttal of the presumption. A particular aspect of that is the role that entrenched and apparently intractable conflict might play in any such decision.
[147] A further issue arises by reference to the use of the expression “sole parental responsibility” which is in wide use in orders sought by parties and, indeed, in orders made by this court (and which has been in use for many years, including prior to the passing of the Reform Act which introduced into the Act the sections just referred to). The expression is neither now, nor was then, defined or used in the Act. A question arises as to what might be meant by the expression “sole parental responsibility” in the context of the current legislation.
[148] The definition of “parental responsibility” in s 61B refers to “all of” the powers, duties etc of parents. It is strongly arguable, then, that the expression “sole parental responsibility” means, or is intended to mean, that the specified parent has “all of” the powers, duties etc in relation to the specified children. If so, it seems to me equally strongly arguable that the expression means, or is intended to mean, that the other parent has no parental responsibility – that is none of the duties, powers, responsibilities and authority over their child otherwise conferred by law.
[149] If that is the meaning of the expression, then, in my view, a court should take account of a particular additional consideration (see s 60CC(3)(m)): the exercise of discretion in favour of excluding one parent from the decision making and responsibilities for their children in respect of “major long-term issues” in the manner just outlined - particularly where, as here, there are many years until the children turn 18 – is, it seems to me, a very significant interference with the fundamental rights of a person. There is no doubt that those rights must give way in favour of an outcome which is found to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
[150] The expression “sole parental responsibility” is frequently used without otherwise distinguishing between “major long-term issues” and decisions made during periods of time with the children. Or, it is used in conjunction with expressions used in now-repealed legislation such as, for example, “long-term care, welfare and development”.
[151] An order that simply provides, without more, for one party to have “sole parental responsibility” is, at least arguably, an order making provision contrary to s 65DAE(2) and, arguably, an order expressly providing for the diminution or “taking away” of parental responsibility within the meaning of s 61D(2).
[152] Those matters too, have relevance as it seems to me in assessing whether the best interests of children require the rebuttal of the statutory presumption and, if so, the form of the orders that might be made in respect of parental responsibility. In Chappell and Chappell (2008) FLC 93-382, the Full Court said:
75.In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two. [emphasis in original]
76.We can also envisage circumstances in which the Court, in the proper exercise of discretion, might make very specific orders in relation to issues which could be loosely described as relating to the “management” of particular aspects of a child’s welfare. Thus, for example, in the present matter his Honour might appropriately have made an order that the wife have responsibility for making of appointments with the speech therapist, as this has been a point of contention. However, where the Court proposes (as his Honour did in this case), to give one of the parents a form of responsibility for issues as broad as “health” and “education”, we consider this should ordinarily be done by use of the concepts prescribed by the legislation itself.
DISCUSSION
Obviously the issue of parental responsibility is one of great significance, but here it is a matter which does not loom so large because the position of the parties is to both recognise the benefits to this child of equal shared parental responsibility and of the fact that such an arrangement can work effectively.
I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.” That is not the situation that arises here. The parties here have had their differences but they have been more superficial than substantive. They have been able, generally, to put the best interests of the child to the fore and ensure that they have worked together to make decisions which are in [X]’s best interest.
Section 61DA provides that there is the presumption of equal shared parental responsibility, and pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the child for the presumption to be rebutted.
Section 61DA is in these terms:
(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 interest of the child for the child’s parents to have equal shared parental responsibility for the child.
The issue of family violence was one that arose in relation to this matter but is not one that would rebut the initial presumption. The behaviours of both parents at different times and in different circumstances could easily be connoted as family violence, but in my assessment, and it would appear, the parties’ assessment, in light of the fact that they both suggest orders for equal shared parental responsibility, such behaviours were reactions to circumstances that the parties found themselves in at the time and were not of a determined or continued nature. Most significantly, they do not continue at this time and one would expect into the future.
I am satisfied that an order as sought by the parties for equal shared parental responsibility is appropriate and reflects arrangements which would be in the best interest of this child.
Having made that determination, it is necessary to consider the situation in light of the direction contained within section 65DAA(1) to (5) of the Family Law Act. Section 65DAA(1) to (5) is in these terms:
SECTION 65DAA COURT TO CONSIDER CHILD SPENDING EQUAL TIME OR SUBSTANTIAL AND SIGNIFICANT TIME WITH EACH PARENT IN CERTAIN CIRCUMSTANCES
Equal time
65DAA(1) Subject to subsection (6), 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 interest 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
65DAA(2) Subject to subsection (6), 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.
65DAA(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are or particular significant 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.
65DAA(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
65DAA(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.
Clearly, the court must consider equal time with each parent and if found not to be in the best interests of the child or to be reasonably practicable, then to consider substantial and significant time as defined in subsection (3). Reasonable practicability and what constitutes reasonable practicability is set out in section 65DAA(5). Those considerations are significant here because the father’s position is to say that he intends to relocate to [W] in Victoria, and the mother indicates her intention of remaining in Townsville in Queensland. The geography is obvious. There are thousands of kilometres between the proposed residences of the mother and the father and it is therefore impracticable in the extreme to consider arrangements for equal time or substantial and significant time, other than equal time upon a basis of significant blocks of months, or even terms or semesters, with each parent.
Such an arrangement has obvious difficulties including not only the financial aspects arising from the travel which would be inherent in such an arrangement, but far more significantly the different educational systems, and social impacts upon this little boy of having two residences, two schools, two sets of friends and peers, and two sets of carers. It is in every respect impracticable but far more significant than that, it is not child-focused and in no way could be considered as reflecting arrangements which are in the best interests of the child.
Here, the decisions made by both parents in relation to their future, is the factor which clearly indicates that equal time or significant and substantial time is not practicable. What is required therefore, is to return to the objects and principles underlying the objects detailed in section 60B and the considerations set out in section 60CC, which are a reflection of those objects and principles.
Section 60B, as far as is relevant here, is contained within sections 60B(1) and (2), and is in these terms:
SECTION 60B OBJECTS OF PART AND PRINCIPLES UNDERLYING IT
60B(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.
60B(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).
Section 60CC, headed “HOW A COURT DETERMINES WHAT IS IN A CHILD’S BEST INTERESTS”, again insofar as is relevant here, is set out in sections 60CC(1), (2) and (3), which are in these terms:
SECTION 60CC HOW A COURT DETERMINES WHAT IS IN A CHILD’S BEST INTERESTS
Determining child's best interests
60CC(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
60CC(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.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
60CC(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 extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(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) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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.
The first of the primary considerations relates to the benefit to the child of having a meaningful relationship with both of his parents. That already exists and the overwhelming impression from all evidence, but particularly that of Ms P, the report writer, was that the child’s attachment to both parents, in other words, the existence of a meaningful relationship is well-established and fixed. Clearly, the circumstances that will exist following this determination will alter arrangements in relation to the parenting of the child and the time to be spent with one parent or the other, but I am not of the view that it would affect the quality of the meaningful relationship that is already in place.
The counter-balance to the consideration of a meaningful relationship with both parents is reflected in section 60CC(2) and (2A). A child has a right to a meaningful relationship with both parents but the child must be protected from physical or psychological harm by exposure to abuse, neglect or family violence. Each party touches upon such issues in relation to their justification of why the orders they propose are most appropriate for the future care of the child.
However, as I have indicated earlier in these reasons, I am much more of the view that such behaviours, as may have been considered abusive or neglectful of the child, were more a reflection of the hurt each party experienced at the time of separation and, to at least some extent, reflective of their personal immaturity. It is not a continuing or pervading factor to be considered in relation to this matter and, in all the circumstances, the benefit to the child of having a continuing and developing meaningful relationship with both parents, is not overborne by those factors relating to protection of the child.
This is, like so many of the contested matters that come before this court, an example of the difficult considerations that must be balanced from the perspective of one party or the other, so as to in the end achieve a balance which reflects the best interests and the welfare of the child.
There are a multitude of additional considerations and any list, including those detailed in section 60CC(3), cannot be exhaustive such that there is, understandably, a catch-all detailed in section 60CC(3)(m). It is appropriate that those which loom large in this matter be commented upon.
There is no real indication of views expressed by the child. He is only 6 years of age, and it is understandable that there would not be a close interviewing of the child, though Ms P notes that assistance was provided to [X] by the use of “Bear cards” to speak about his parents and step-father. The report, however, reflects more collective assessments by [X] and [Y], of the parents and step-father, rather than any specific indications of a view. The best indication of the child’s wishes is reflected in the notation by Ms P of a “close, loving relationship” between [X] and his father as well as [X] and [Y], and a similarly “close, loving relationship” between [X] and his mother and between [X] and his step-father.
[X]’s wishes were not specifically sought, but if any assessment were to be drawn from the evidence, the child’s wish would be to continue a relationship between the parents such that he could interact with both regularly, thus gaining the maximum benefits from those two relationships.
The nature of the relationship between the child and his parents, as well as others significant in his life, his step-father, his paternal grandfather, and his siblings, is a positive one and, as I indicated earlier in these reasons, Ms P noted that she had no concerns whatsoever as to [X]’s attachments with his parents and others significant in his life.
Despite the occasional difficulties, particularly following shortly after separation, both parents have taken the opportunity to participate in the decision-making process associated with the long-term and short-term arrangements in respect of [X]’s life, and have spent time appropriately with the child. Each has also properly fulfilled their obligations in relation to maintaining the child, not only financially but emotionally and intellectually.
Of particular significance in relation to the determination of this matter are factors relating to the possible effects on [X] of separation from one parent or the other and from others significant in his life. In that respect, it is noteworthy that section 60CC(3)(d)(ii) makes reference to the effect of change arising from separation from a child or other person….. with whom he or she has been living. The significance of that factor is clear when it is noted that there has been a shared care arrangement in place and until January of 2013 there was a similarity in the households of the mother and the father, insofar as there being other significant persons living with the child.
When living with the mother, [X] also lived with his step-father and since her birth, with his sister, [Z]. When living with the father, he also lived with his sister, [Y]. Since the beginning of the academic year in 2013, however, [X] has no longer lived with his sister, [Y], she having commenced school in [W], and maintains interaction with her through telephone and Skype communications, as well as weekend and holiday opportunities as may arise.
The change is significant, but has occurred. The child is no doubt settled with such an arrangement at this time and, as the father indicated, [X] and [Y] maintain their close ties this way. Ms P however, emphasised the importance of those sibling relationships and noted the distinction between [X]’s relationships with [Y] and [Z]. Simply put, [X] and [Y]’s relationship is established and is able to be fostered and developed at a distance. The relationship between [X] and [Z] is new and as Ms P noted, “not fully established”.
[Z], and in due course, another sibling, form part of the established household of the mother, Mr H and [X]. The relationship between [Z] and [X] is one that needs to be fostered or there is a real prospect of it faltering. That concern looms large in this matter because of the need to foster the relationship of [X] with all siblings and the specific need to recognise that a change in the child’s circumstances, in this instance a significant limiting of time with [Z] and any new-born sibling, will be likely to detrimentally effect the relationship between [X] and his younger siblings.
That is not the case with regard to [Y] and, in fact, it was acknowledged by the father that [X] and [Y] maintain their relationship, notwithstanding their separation. Accordingly, the recognition of possible negative consequences for the relationship between [X] and his younger siblings, if there is a change in circumstances reflected in [X] living with his father in [W] and only spending limited time with the younger siblings, is a significant consideration.
It would also be appropriate at this point to recognise that [X] has a close and positive relationship with his paternal grandfather and other family members on the father’s side, but that those relationships are all established and continue on a basis of the child not living in the household of those other persons. They are obviously, therefore, positive relationships but different to those which exist within the household of the mother.
Each parent proposes in their draft orders that the costs associated with travel be in some way shared, though the mother’s proposals were certainly less specific and were dependent upon her future family circumstances. There is a practical difficulty involved with each parent spending time with the child, no matter with whom he might live, but each parent also emphasised the importance of that interaction occurring and their determination to facilitate it both physically and financially.
I am not of the view that the different locations that each parent will reside at would significantly influence the child’s right to maintain personal relations and direct contact with both parents. It is also noteworthy that both parents recognise the importance of that continued interaction and that it is a factor that must be faced in light of the determined stance taken by each party to live so significantly apart from one another.
Both of these parents have the capacity to provide for the needs of the child, including his emotional and intellectual needs. Ms P specifically noted that in her report, as well as in her oral evidence, and emphasised the significance of the fact that the parties had been able to generally work together to make decisions in relation to [X]. That is not to say that both parents could not have done better and, of course, I have identified already concerns in relation to each of the parents and their interaction with each other.
The behaviours of both parents have given rise to some of the difficulties now being experienced, including the lack of trust, particularly on the part of the father and of the need of the mother to properly address that in relation to further communication between the parties. I am heartened to some degree however, by the fact that the parties have been able to address and resolve many of the issues that have arisen over time and that they will be able to do so in the future. They anticipate that in the orders that they seek for equal shared parental responsibility and the report writer also sees that as workable and appropriate.
It would be remiss of me not to mention a concern here that I do have with regard to the father and his capacity to provide for the emotional needs of [X]. I am mindful of the fact that the report writer expressed real concerns for the emotional wellbeing of [X] and [Y] if they were separated, certainly prior to any final determination, but the father in any event effected a separation, he says, for appropriate reasons relating to [Y]’s education, but when fully examined appears more to be directed toward the father’s own wants, particularly when the child is not even attending the school that the father ultimately proposes.
The father says that no harm or hurt of a long-term nature has occurred with regard to either [X] or [Y], but the fact that he acted in such a manner does give rise to a concern that the father puts his own wants and needs ahead of the children, justifying it to himself as being an appropriate parental decision, rather than waiting for the determination of the matter.
Other than those issues that I have identified however, both parents are in terms of psychological assessment, “good enough” and are able to meet the physical and emotional needs of this child. Similarly, the parents have generally shown a responsible attitude to parenting and to ensuring that the child’s needs are to the fore.
I have previously addressed in these reasons issues of family violence, as well as concerns arising relating to abuse or neglect. In my assessment, they are not matters of such significance as to be determinative in this matter and it is similarly the case with regard to those issues that arise pursuant to the provision of section 60CC(3)(g) and (h).
I am mindful of the requirements of a court making orders which would be least likely to lead to the institution of further proceedings in relation to this child. Unfortunately, there is no better or more appropriate order in that regard proposed by either the mother or the father. The mother is in a new relationship, still in the “honeymoon period”, as described by Ms P, and has a young child and is pregnant with another. What the next year or five or ten years might hold for this family is unknown, but that to some extent is the same for every family unit. Just as significant however, is the fact that the father’s circumstances in [W] are not certain. Supportive siblings of his are moving on, the paternal grandfather’s relationship has recently broken down and what might be the consequences, longer-term, for the grandfather are unknown, as well as future circumstances in relation to his employment or that of the father are hoped to be settled but are not certain.
All that can be sought in relation to the orders to be made here is that they provide a flexible structure for future parenting of [X], and a recognition by both parents of the need to be able to change with whatever might be the circumstances that exist for each of them so as to continue to place to the fore the welfare and best interests of the child.
Finally, as I indicated earlier in these reasons, there is a need to consider any other factor that the court thinks is relevant. One matter looms large in that regard and has already been commented upon by me. It relates to the importance of sibling relationships and the long-term need to ensure that those relationships are strong and enduring. Here, the relationship with [Y] is established and is able to be fostered from afar, recognising of course that there will be numerous opportunities for time to be spent by [X] with his older sister.
The relationship, however, with [Z] and the yet to be born sibling is different. Ms P noted the need for regular information and exchange between the children, and the fact that the relationship with [Z] was not fully established, and the need for that to be properly dealt with. The fact that the relationship is not fully established, that it cannot be properly fostered at this stage from afar, and that a consequence of a change in the living arrangements for [X], if living primarily with the father, would be to quite possibly damage that relationship forever, is a matter of particular significance and when taken in conjunction with the other matters referred to in these reasons, leads me to the decision that the appropriate orders are those generally proposed by the mother in respect of the child living with her and spending time with the father, [Y] and other family members, as may be able to be arranged, even over and above that which is ordered.
For the reasons given herein, I intend therefore to make orders in terms of those detailed at the commencement of these reasons.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 2 August 2013
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