NASLUND & OBERLIN
[2020] FCCA 2295
•19 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NASLUND & OBERLIN | [2020] FCCA 2295 |
| Catchwords: FAMILY LAW – Interim arrangements for care of child aged 5 years – parents have poor and mistrustful relationship – mother wishes to relocate child away from father – relocation not supported by court appointed expert until child attains eight years of age – expert recommends incremental increases in father’s time with child to support child’s paternal relationship in conjunction with attachment therapy – mother asserts child not coping with current arrangements and opposes any increase in time – trial of parties’ competing applications delayed by COVID19 pandemic crisis – father seeks implementation of first tranches of time recommended by expert – recommended therapy not as yet implemented – best interests – nature of interim hearing. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Mazorski v Albright (2007) 37 FamLR 518 |
| Applicant: | MS NASLUND |
| Respondent: | MR OBERLIN |
| File Number: | ADC 1037 of 2019 |
| Judgment of: | Judge Brown |
| Hearing date: | 5 August 2020 |
| Date of Last Submission: | 5 August 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 19 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dillon |
| Solicitors for the Applicant: | Douglas Hoskins Legal |
| Counsel for the Respondent: | Ms Tinning |
| Solicitors for the Respondent: | Cardone & Associates |
ORDERS
The current time spending arrangements pursuant to the orders made on 31 July 2019 do continue until further or other order.
Further consideration of the matter is adjourned to 11 December 2020 at 9.30am for directions to allow for the implementation of the parent-child attachment based therapy as envisaged by the recommendations of the Family Assessment Report dated 18 December 2019.
IT IS NOTED that publication of this judgment under the pseudonym Naslund & Oberlin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1037 of 2019
| MS NASLUND |
Applicant
And
| MR OBERLIN |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Naslund “the mother” and Mr Oberlin “the father” are the parents of X born in 2015. These reasons for judgment are directed at resolving interim arrangements for X’s care, pending final hearing, particularly what time he should spend with his father.
A final hearing was originally listed, in the matter, on 28 & 29 May 2020. That hearing had to be postponed due to the pandemic emergency, which resulted in restrictions on the number of persons who could enter court premises, and so rendered many face to face hearings impracticable, including the one scheduled in this matter.
In these circumstances, the court must determine issues regarding X’s care, particularly what time he should spend with his father, in circumstances in which the parties concerned have a very poor co-parenting relationship and X himself is a child of tender years.
These issues were explored by a court appointed expert, Dr B, who made some extensive recommendations. The parties disagree about the viability of those recommendations, particularly whether they are likely to be in X’s best interests within the matrix of matters delineated in section 60CC of the Family Law Act 1975.[1]
[1] Hereinafter referred to as “the Act”
Given the deferral of the final hearing, neither Dr B’s recommendations nor the methodology adopted by her in preparing her report have been subject to any extensive scrutiny through any process of cross-examination. As can be readily anticipated, the parties have fundamentally different views on how the court should approach the report.
From the father’s perspective, however, her recommendations should be given full effect, given the report itself presents as being extensive and well-considered and Dr B’s expertise is extensive. On the other hand, the mother urges the court to adopt a cautious approach, given X’s sensitivities and the fact that the contentious evidence in the case has not been closely examined by the court.
The main parenting issue to be determined at trial concerns what lawyers characterise as a relocation. The mother’s case is that she is X’s primary carer and has been since the child’s birth. She wishes to live, with X, in Town C, where she asserts she has family support and will be happier and more settled and so better able to discharge her parental obligations towards X.
Mr Oberlin opposes the move away from Adelaide on the basis that it will deprive the child of having an active father figure in his life, which will be particularly significant, for X, given his tender years.
Ultimately, on a final basis, he wishes X to be parented in what is commonly called an equal time regime, moving between his parents’ respective homes on a weekly basis. Necessarily, such a regime would entail Ms Naslund living in Adelaide.
In tandem with these applications are proceedings relating to the division of property. This aspect of the proceedings has been contentious because the relationship between the parties was comparatively short and Ms Naslund concedes that Mr Oberlin brought with him the greater proportion of the relevant property into the relationship.
The issue for relocation is not up for consideration at the present time. Although Ms Naslund would want to be able to live in Town C as soon as possible, she concedes that must be an issue for final hearing, given its complexity both in human and legal terms.
Background
The parties began to live together in 2012. They have never been married. They separated in February 2018. Since separation X has lived with his mother. She commenced the proceedings on 18 March 2019, seeking orders for property settlement and to relocate.
At the outset of the proceedings, it was Ms Naslund’s position that she had provided the majority of X’s care during the parties’ relationship, as the father was self-employed and had many calls on his time. More significantly, she alleged that the father was not able to provide a satisfactory level of care for X.
The father responded to this application on 16 May 2019, a few days prior to the case’s first mention in court. On this occasion (20 May 2019), it was agreed that the father would spend regular periods of time (three times per week), during daylight hours, with X. This was no doubt a reflection of X’s tender years at the time and Ms Naslund’s apprehension about Mr Oberlin’s parenting capacity.
In addition, wherever possible, it was agreed between the parties that X should be exchanged between them at his child care centre or failing that, at a D Store. This was a reflection of a significant level of mistrust between the parties.
At the outset, it was the mother’s position that she found the father to be abusive and intimidating. She alleged that he had assaulted her in April of 2019, resulting in an intervention order being made against the father.
For his part, the father alleged that the mother had issues with the over consumption of alcohol and significant mental health issues. It was his position that the parties had communicated relatively well, until the incident of April 2019, which from his perspective had been exaggerated by the mother, in order to gain an advantage in the proceedings before the court.
I am not in a position to resolve these significant evidentiary disputes, in the context of this truncated interim hearing. If necessary (and if it is possible) these issues will be resolved at final hearing, when each of the parties will give oral evidence, from the witness box and be subject to cross-examination.
Notwithstanding the significant conflict and mistrust between the parties, on 31 July 2019, X’s time with his father was extended to include overnight time on alternate weeks from 5:00pm Thursday until 5:00pm (or the end of childcare) the following Friday. This was in addition to the time earlier agreed, which was as follows:
·Each Monday from 3:00pm (or the conclusion of child care) until 7:00pm;
·Each Sunday from 9:00am until 5:00pm.
This agreement was notwithstanding the mother’s position that X was suffering emotional stress as a consequence of the agreed parenting regime. She asserted that X had broken out in hives, which she attributed to this stress.
On 31 July 2019, the mother pressed the difficulty of her situation, which she characterised as being financially uncertain and emotionally isolated. She pressed for the case to be fixed for hearing as a matter of urgency. As a consequence, a family report was ordered pursuant to section 62G of the Family Law Act 1975 and the case was fixed for final hearing on 28 & 29 May 2020.
As indicated above, the report was prepared by Dr B and released to the parties in mid-December 2019. Dr B had earlier met with the parties, in July of 2019, on which occasion she had reported as follows, pursuant to the provisions of section 11F of the Act:
·The conflict between the parties over X, is likely to be emotionally stressful for X. The issue of relocation has implications for the ongoing relationship between X and his father.
·A family assessment is likely to be warranted in this matter. Relocating with a young child will have implications for the child’s relationship with the non-relocating parent. An assessment of the allegations, and of the nature of X’s relationship with each of his parents may assist the court to determine X’s best interests.
Obviously Dr B’s recommendation, made on 24 July 2019 was actioned. In the report, which she subsequently prepared, Dr B was able to make a number of clear recommendations, which can be summarised as follows:
·The issue of X’s relocation to Town C be deferred until X was at least eight years of age (in 2023) or was about to commence year 4 at primary school. On my calculations, this would be the start of 2024;
·In the meantime, X live with his mother in Adelaide.
Thereafter, Dr B recommended a graduated increase in the time X spent with his father, along the following lines:
·From July 2020 each Monday and Tuesday from 3:00pm until 7:00pm, as well as each Sunday from 9:00am until 5:00pm;
·From the commencement of term 3 2020 on each Monday from after school until the commencement of school Wednesday, as well as each alternate Sunday from 9:00am until 5:00pm;
·From the commencement of term 1 in 2021 each Monday from after school until the commencement of school the following Wednesday, as well as each alternate weekend from after school Friday until 5:00pm Saturday;
·From term 1 in 2022 each alternate week from after school Friday until the commencement of school the following Tuesday;
·From term 1 in 2023 on each alternate week from after school Friday until the commencement of school the following Wednesday.
In respect of holiday time, Dr B recommended that the term time arrangements continue during school holidays until 2023, when X should spend one week of each of the school holidays with his father and week about during the end of year school holiday.
Dr B recommended that special occasions, such as Christmas, Easter and the child’s birthday be shared and that each parent should avoid excess alcohol consumption when X was in their respective care.
In addition, Dr B recommended that the parties engage in a parent-child attachment based therapy or other therapeutic parenting support. This was to be directed towards providing X with a more secure attachment to his father and reduce the mother’s over involvement with the child.
The father wishes the court to adopt the recommendations of Dr B and move to a regime of extended weekly time, from after school on Monday until the commencement of school on Wednesday forthwith, whilst keeping the existing Sunday arrangement.
He proposes a slightly different arrangement for the start of 2021 to that proposed by Dr B as a consequence of his work arrangements. He seeks that the weekend time be on an alternate fortnightly basis from 3.00pm Saturday until 5.00pm the following Sunday.
In respect of special occasions, Mr Oberlin seeks the following:
·Christmas 2020 – form 4.00pm on 24 December until 12.00pm on 25 December;
·New Year’s Day 2021 – from 12.00pm on 1 January until 9.00am on 2 January;
·Easter 2021 – from after school on Maundy Thursday until the commencement of school on Easter Tuesday;
·X’s birthday (in 2021) – from 2.00pm until 7.00pm;
·The father’s birthday (in 2021) – from 3.00pm until 9.00am the following day.
The mother seeks to retain the existing arrangements. She has deposed that the increase from one overnight per fortnight to four nights per fortnight is too dramatic for X. It is her evidence that X is currently displaying unsettled behaviour, which she associates with his current level of interaction with his father. This behaviour can be summarised as follows:
·After returning from his father, he requires a lot of cuddles and reassurance to settle down:
·He is excessively boisterous;
·After spending time with his father overnight, he has difficulty falling asleep and he has been crying in his sleep;
·X is anxious prior to handover and says he does not want to go to his father;
·This last behaviour was particularly extreme on 19 July. X was screaming and refused to dress or eat his breakfast. He hid under a table.
Ms Naslund is also critical that Mr Oberlin has not been more pro-active in embarking upon the therapy recommended by Dr B and failing to inform her of its nature when he did belatedly begin it. It remains her position that the parties’ capacity to communicate with one another remains significantly compromised.
The mother agrees with the father’s proposals for Christmas and Father’s Day (so long as it is reciprocated for Mother’s Day); and rejects his proposals for New Year’s Day and Easter. She does not wish to remain living in Adelaide until 2023/4. Hence a trial seems inevitable.
It is the father’s evidence that X enjoys the time he spends with his father, which is taken up with a variety of activities, including family visits, bike riding and tending to the father’s caged birds. He has a regular evening meal with his paternal grandparents.
He disputes the mother’s characterisation of their co-parenting relationship. In particular, he points to the fact that the parties had regular discussions about how to respond to the COVID19 pandemic. It is also his position that the delay in him seeking the therapy recommended by Dr B has been due to logistical issues related to the pandemic emergency.
However, he has now begun consulting with one of the therapists recommended by Dr B, Ms E. In this context, he has deposed as follows:
“I have consulted Ms E, psychologist for parent/child attachment therapy and any other therapeutic parental support that she might recommend. My first appointment was on Wednesday 1 July 2020. My first appointment would have taken place earlier than this had it not been for the COVID restrictions. Ms E has requested that she meet with me and X together. Our aim is for her to assist with the bonding between X and myself.”[2]
[2] See father’s affidavit filed 10 July 2020 at [21]
It remains Ms Naslund’s position that X’s bond with his father remains weak and, as yet, the therapy recommended by Dr B cannot have been effective in its implementation. It is also her case that she herself needs to take part in the process of therapy recommended and therefore it is premature to be what she regards as the dramatic increase in the amount of time X spends with his father.
In this context, she has deposed as follows:
“For all of the above reasons but particularly noting X’s continued unsettled behaviour, the lack of communication between the father and I and the fact that until earlier this month the father had not taken any steps to improve his bond with X, I consider that it is premature to vary the existing interim arrangements until such time that the attachment therapy between X and his father has been able to progress and I have been afforded an opportunity to participate in that process.”[3]
[3] See mother’s affidavit filed 31 July 2020 at [9]
The Family Report
In her report, Dr B noted that each of the parties asserted that the other had issues to do with alcohol abuse. From the mother’ perspective, the most significant issue which Dr B was required to address was her view that X became distressed and anxious after spending time with his father. From the father’s perspective, the most significant issue for Dr B was the mother’s mental health, which caused her to overreact.
The mother described X as returning home in a state of extreme distress, resulting in him having anxiety attacks, shutting down and being clingy. In this context, as with most family assessments, particularly those involving young children, the evidence Dr B gained from observing X interacting with each of his parents was crucial.
Whilst with his father, X was described as compliant and quiet. Mr Oberlin was described as gentle and patient in his engagement with X whilst the two played with Lego. Dr B reported as follows:
“The father gave appropriate guidance to the task on which they settled (Lego) and was gentle and patient. He used good verbal guidance and the pace of play was appropriate for X’s age. He did not ‘take over’ the task, but waited and offered support when brick placement became tricky. He used a kindly tone of voice, and praised X’s efforts appropriately.
X’s quietness could suggest that he was not accustomed to interacting/playing with the father in this way. However, the father’s patient guidance and his use of verbal scaffolding for the task was noteworthy, suggesting that he has some of the skills needed to support X’s development, and to further build this relationship.”[4]
[4] See Family Report dated 18 December 2019 at [47]–[48]
Whilst observing X with his mother, Dr B noted affection and emotional engagement between the two. She was however concerned that the mother was over-involved and infantilising of X, which she did not consider was commensurate with his level of development. In this context, she reported as follows:
“This mother-son relationship appears to be, on the whole, positive and supportive of X’s development, although, Ms Naslund may be inclined towards benign intrusiveness and this could have an impact on X’s developing sense of psychological and physical autonomy.”[5]
[5] Ibid at [56]
Dr B was loathe to comment on issues relating to the mutual allegations of alcohol abuse and the mother’s mental health, regarding these as matters for the court’s determination in its fact finding role. It was, however, readily apparent to Dr B, that the parties’ relationship was one marked by a significant lack of trust and respect.
Some of these issues could be traced to the difficult circumstances arising at the end of the parties’ relationship with one another. In this context, Dr B conjectured as follows:
“It is speculated that the mother’s feelings of betrayal and hurt in the relationship, which may or may not be related to personality issues or mental health issues, could be impeding her ability to view Mr Oberlin as having an integral role in X’s life.”[6]
[6] Ibid at [62]
It appeared probable to Dr B that X was experiencing difficulties transitioning between his parents. She considered that this might be attributable to the fact that X had been separated, from his mother, at an earlier stage of his life, for longer periods than were developmentally appropriate but in addition it was likely:
“X has been exposed tension and conflict between his parents, which may also impact on his ability to comfortably transition between the parents’ homes, especially when tension and conflict occurs at handovers.”[7]
[7] Ibid at [63]
Dr B described the relationship between X and his father as emergent and developing. In this context, whilst the child might not currently be as comfortable with his father, as he was with his mother, she considered that Mr Oberlin had demonstrated some of the skills required to assist him to build his relationship with X.
These observations caused Dr B to opine as follows:
“As the father-son relationship is considered to be ‘developing’ at this point in time, interruption to the process of relationship-building is likely to negatively impact on that process, and X is likely to experience ongoing difficulties settling into his father’s care. To assist in further developing his relationship with X, this father-son dyad would benefit from therapeutic time together which is focused on relationship-building.”[8]
[8] Ibid at [64]
In all these circumstances, Dr B did not favour the mother’s relocation to Town C, given the move’s obvious implications for the father’s developing relationship with X. Nor did she favour a proposal for increased overnight time on the basis of her observations of X when he returned to his mother’s care following the observed interaction with his father. She reported as follows:
“X was notably tearful when reunified with his mother for the observation session, and he stated to the family consultant that he missed his mother and felt scared when he was at his father’s house for overnight time.”[9]
[9] Ibid at [65]
Why X experienced anxiety on separation and return to his mother was likely to be attributable to many factors, which included the following:
·Premature separation from his mother;
·The mother’s benign intrusiveness attributable to her own anxiety; and
·Conflict and tension between the parties at handover, to which X was exposed.
Dr B was of the opinion that the mother’s intrusiveness might retard X developing the emotional resilience and autonomy necessary to ensure he progressed at an appropriate pace. As such, X needed to spend regular periods of time, with his father, which took into account the child’s emotional sensitivity.
Underpinning this recommendation was Dr B’s view that X’s relationship with his father was significant to him and Mr Oberlin himself had:
“Some skills which, if applied, would further develop his relationship with X, however, to build the emotional connection between X and his father, skills training in the area of emotional availability will potentially speed the process of emotional connection.”[10]
[10] Ibid at [66]
However, at the same time, Dr B did not reject the mother’s accounts regarding the difficulty the child was experiencing in separating from her. In this context, she conjectured that the mother herself, because of her hostility for Mr Oberlin, might be emotionally over-involved in X’s life. This caused Dr B to query:
“[W]hether the mother was emotionally over-involved in X inner-world and whether she has unresolved issues regarding her relationship with her father that could be clouding her judgment in terms of X’s relationship with his father.”[11]
[11] Ibid at [69]
Although I appreciate Dr B has not as yet given evidence and therefore her various opinions have, as yet, not been subject to any degree of scrutiny, in summary, it would appear to be her view that this case presents with a significant level of complexity, which is intensified by the relocation aspect of the case.
Given the fragility of X’s relationship with his father, Dr B does not favour the relocation at the present juncture and recommends that it be deferred until X is aged around nine and his relationship with his father has been strengthened.
The reasons why X’s relationship, with his father, is not as durable as could be hoped for are multi-faceted and include the following:
·He spent too lengthy periods separated from his mother when he was an infant and this has caused him to experience separation anxiety;
·His mother is over-involved with him emotionally and has a distorted view of Mr Oberlin because of her own emotional development and her mistrust of him;
·X himself has been exposed to conflict, particularly at handover.
What is clear from the report is that Dr B does not reject the evidence that X is experiencing anxiety as a consequence of the current arrangements. In this context, Dr B conjectures as to mechanisms to inculcate greater resilience into X himself, which was significant given the issue of his relocation away from his father remained a live issue.
As I understand her recommendations, Dr B approached this central issue of building a greater level of emotional resilience in X from a number of directions. Firstly, given her acceptance of the prospective importance of X’s paternal relationship for him and given her view that Mr Oberlin had some of the skills to support X’s relationship with him, she recommended incremental increases in the time the two spent together, including extending the level of overnight time.
However, in tandem with this, Dr B also recommended that each of the parties engage in a parent-child attachment based therapy or other therapeutic parenting support. With the greatest respect to Dr B, her recommendation, in this regard, is not particularly clearly expressed as to whether the parents should consult the same therapist with X – I assume so (as it would appear so did the mother) – and what were to be the logistics of it.
It is also clear from the evidence of each of the parties that, although Dr B’s report was released in December 2019, the involvement of Ms E, with the family, is in its nascent stages and has not, as yet, included Ms Naslund.
The legal principles to be applied
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [see the Act at section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
“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.”
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[12] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[12] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (b); (d); (f); (g); (i); (j) and (k) of section 60CC(3) are relevant. These subparagraphs deal with the following issues:
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The effects of any change in the child’s circumstances;
·The capacity of each of the parents to provide for the child’s emotional needs;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned – one of which responsibilities is to encourage and support a relationship between the other parent and the child concerned;
·The age of the child concerned;
·Any family violence involving the child or a member of the child’s family;
·Any family violence order applicable;
·The subparagraph relevant to family violence orders, subparagraph (k) directs that the court can take into account the following matters arising from any applicable family violence order:
oThe nature of the order;
oThe circumstances in which the order was made;
oAny evidence admitted in proceedings for the order;
oAny findings made by the court in the relevant proceedings;
oAny other relevant matter.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply the presumption only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode, can be summarised as follows:
·consider the section 60CC matters that are relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
The nature of an interim hearing
The legal principles to be applied at the interim and final hearing stage are the same. However, the format of the two types of hearing is fundamentally different. Interim hearings take place in a truncated form, without cross-examination.
Often the evidence, particularly of an expert nature, is limited. As such, the court is not able to make conclusive findings of fact or make an accurate appraisal of the credit or parenting aptitude of the parties concerned.
At the final hearing stage, the evidence is much more extensive and more thoroughly canvassed. The parents concerned are subject to scrutiny through cross-examination and perhaps asked questions, about their past conduct or future motivation, which they may find difficult or uncomfortable to answer. Necessarily, it is a more emotionally bruising experience.
The sole object of any parenting case is on the pursuit and safeguard of the best interests of the children affected, not on the perceived rights of the parents concerned. Because of this focus, it is invariably the case that the court obtains some form of expert appraisal of the family involved, which includes an observation of the child or children concerned, which, depending on the age of those children, will include some form of interview with them by the relevant expert.
In such reports, it is frequently the case that the expert commissioned will provide a series of recommendations for the consideration of not only the court, but also the parents involved in the case. For reasons of practicality, it is preferable that such reports be released to the parties well in advance of the final hearing, so that any recommendations and the basis on which such recommendations have been made, can be closely considered and, if appropriate, alternative means of resolving the dispute, other than litigation, be applied.
It is frequently the case that recommendations made by a family report writer are highly controversial between the parents concerned, particularly if the recommendations made favour a significant change to existing provisional parenting regimes, implemented at an earlier interim hearing stage.
In this context, one parent may seek to re-agitate parenting arrangements in advance of the scheduled final hearing, for which the family report was ordered in the first place, on the basis of recommendations made. This scenario has the potential to create its own dilemmas, which include the following:
·It is the court, not the expert, no matter how well qualified, who is charged with the determination of the case concerned;
·This is because it is the court which is best placed to make findings of fact, regarding issues of credit, based on how witnesses, including expert ones, perform under cross-examination;
·However, any such expert has a significant advantage, over the court, because he/she has had the opportunity to have a face to face interaction with the child or children concerned, which the court will never have;
·On the other hand, the expert does not have the advantage of seeing witnesses, particularly parents, subjected to the forensic scrutiny, which cross-examination provides;
·In addition, as with any interim hearing, at this stage, the methodology of the expert concerned, including whether his/her recommendations are based on some misconception or misunderstanding of the evidence, cannot be subject to scrutiny.
For these reasons, at the interim hearing stage, the court must be careful in how it approaches the recommendations provided by a family report. On the one hand, the court should avoid an excessive number of interim hearings.
On the other, such reports are highly influential in shaping the court’s view as to the outcome best suited to serve the interests of any child affected by the proceedings before it. In addition, it is invariably the case that a child’s best interests will be served if a final hearing can be avoided.
Conclusions
I have not found this an easy case to resolve at the interim stage. From my perspective, the most significant issues arising in the case, at this stage, centre on X’s tender years; the fact that it is more likely than not that he is subject to some level of anxiety at this stage, particularly in the context of being separated from his mother; and the poor and mistrustful relationship between the parties.
At this stage, I am not in a position to determine, in any definitive way, whether or not X has been exposed to family violence, given that each party accuses the other of behaving in a coercive and controlling manner towards them. In addition, the earlier family violence proceedings were concluded without any definitive findings being made. Clearly, however, the parties’ relationship was a deeply unhappy and unsatisfactory one, which is currently ill-suited to the shared parenting of X.
Over-lying these difficulties is the mother’s highly controversial desire to move X to live in Town C. For obvious reasons, such a prospect is only going to intensify rather than reduce the tensions between the parties. It would therefore appear to be improbable that X has not been subject, in some deleterious way, to this conflict.
In these circumstances, in my view, it would be imprudent of me to discount Dr B’s opinion that X is suffering some level of emotional dysregulation as a consequence of being separated from his mother, given the undisputed evidence is that she has been his primary provider of care up to this stage.
It is also likely to be the case that X will derive innumerable benefits from having a meaningful level of relationship with his father. The tenor of the family report is that X knows his father and, in the extremely difficult circumstances currently prevailing, Mr Oberlin has some of the skills to assist the child to bond more closely and meaningfully to him. However, at this stage, father and child need some further professional assistance in this regard.
In my view, the central issue at this stage, should be on the likely effects of any change in X’s circumstances [section 60CC(3)(d)] at this stage given his tender years [section 60CC(3)(g)] and given his probable emotional susceptibility, as identified by Dr B, to being separated from his mother, whether this be because he was subject to too early a separation from her or because of the mother’s over intense emotional interaction with him.
The solution to this problem, as identified by the family report writer, was not merely the gradual increase of X’s time with his father, rather, in my view, the central aspect of this recommendation was that it occur in tandem with the family therapy outlined by her, which was also to include Ms Naslund. Essentially, one should not occur without the other.
In my view, this is the central difficulty in the position as advocated by the father. I accept, through no fault of his own, his and X’s engagement with Ms E has only recently begun and has, not as yet, included Ms Naslund. In my assessment, it would not be in X’s best interests, at this provisional stage, to action one aspect of Dr B’s recommendations but not the others.
Ms Naslund also has her obligations towards X, one of which is to support and encourage an appropriate level of relationship between the child and his father, given the centrality the relevant legislation gives to children having a meaningful level of relationship with not one but both of their parents.
In addition, the evidence is clear that Mr Oberlin aspires to having a significant level of involvement in X’s life. It would also seem to be the case that X interacts regularly with his paternal grandparents. These relationships are likely to be very important for X as he grows up, as is being able to engage with his father and paternal family in a variety of settings and contexts.
The viability of X maintaining a strong sense of connection to his father, over distance, is likely to be one of the more important issues if and when the matter comes to a final hearing. Somewhat counter-intuitively to the thinking of many parents who wish to relocate, the strength of such relationships may be a factor militating towards such a move rather than against it.
Whether Ms Naslund is currently doing enough to support X’s relationship with his father or has exaggerated the difficulties experienced by the child is likely to be the subject of intense scrutiny at the final hearing stage as is the issue of whether she is emotionally over-involved with X.
In practical terms, Dr B’s report was released to the parties in mid-December of 2019. She did not recommend any increase in the father’s time at that stage. The first tranche of increases in time was to be in mid-2020, after the recommended therapy had occurred. It seems to be that the progress recommended by Dr B has regrettably been delayed by about six months.
As yet, Ms Naslund has not had the opportunity to deal with any of the issues arising for her and her parenting of X in the context of an increase in time and nor has Mr Oberlin been able to follow through with the therapy recommended for him and X.
In these circumstances, I do not consider that it would be in X’s best interests to change the current arrangements, which, although not ideal from the father’s perspective, do enable him to maintain a meaningful level of relationship with X.
In my view, it will be appropriate for the court to re-visit the current regime once Ms E has become more advanced in her therapy with the whole of the family concerned, including Ms Naslund.
At the end of the day, I have to be satisfied that it would be in X’s best interests for the increase in time sought by Mr Oberlin to be actioned. X is not responsible for the conflict between his parents but it would appear he is adversely impacted by it.
It would also appear to be the case that he is an emotionally sensitive and vulnerable child. As such, as Dr B recognised, the mechanics of how his time with his father is increased needs to be carefully managed and occur in a way which involves each of his parents learning new skills and ways of responding to X’s special susceptibilities.
For no fault attributable to X, the careful management envisaged by Dr B has not yet occurred. In my view, for the child to successfully accommodate the change in circumstances envisaged by Mr Oberlin, it needs to occur. I am not persuaded that the effluxion of time alone is sufficient in this regard.
In these circumstances, I do not propose to change the current regime but will adjourn the proceedings for approximately six months to enable the therapy recently begun with Ms E to take its course. I hope that Ms E will also be able to engage with Ms Naslund and provide me with a report in respect of her engagement with X and his family.
Finally, given the conflict between the parties, I do not consider that it would be appropriate for the presumption of equal shared parental responsibility to be applied at this interim stage of proceedings.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 19 August 2020
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Expert Evidence
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Procedural Fairness
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Remedies