Naylor and Tauchert
[2008] FMCAfam 455
•13 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAYLOR & TAUCHERT | [2008] FMCAfam 455 |
| FAMILY LAW – Child aged five years – final arrangements for care – presumption of equal shared parental responsibility – equal time – substantial and significant time – parties separated when child of tender years – assessment of child’s relationship with each of her parents – cultural considerations – father Nigerian by birth – mother Australian by birth – overseas travel – best interests – considerations of practicality – whether review of orders appropriate. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA; 65DAC; 69ZN |
| Goode & Goode (2006) FLC 92-286 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 B & R & The Separate Representative (1995) FLC 92-636 |
| Applicant: | DR NAYLOR |
| Respondent: | MS TAUCHERT |
| File Number: | ADC3086 of 2007 |
| Judgment of: | Brown FM |
| Hearing date: | 05 May 2008 |
| Date of Last Submission: | 05 May 2008 |
| Delivered at: | Adelaide |
| Delivered on: | 13 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Dr Naylor |
| Counsel for the Respondent: | Ms O’Keefe |
| Solicitors for the Respondent: | Polly Dixon & Co |
ORDERS
The parties have equal shared parental responsibility for the child of the marriage K born in 2003 hereinafter referred to as “the child”.
The child live with the mother.
The father spend time with the child as follows:
(a)During school terms, on alternate weeks, from the conclusion of school on Friday until the commencement of school the following Monday (or Tuesday in the event that Monday is a public holiday).
(b)For half of each school holiday period the halves to be agreed between the parties and failing agreement to be the first half in 2008 and each alternate year thereafter and the second half in 2009 and each alternate year thereafter.
(c)For a period of four (4) hours on the child’s birthday at times to be agreed between the parties and in default of agreement between the parties to be between 3:00pm and 7:00pm.
(d)For a period of four (4) hours on the father’s birthday at times to be agreed between the parties and failing agreement between the parties to be between 3:00pm and 7:00pm.
(e)At any other times as may be agreed between the parties.
The operation of these orders is suspended in respect of the Christmas period of each year so that the child spends from 9:00am on Christmas Eve until 9:00am on Christmas Day in each year with the mother and from 9:00am on Christmas Day until 9:00am Boxing Day each year with the father.
In the event that Mother’s Day falls on a day when the child is in the care of the father, the father shall spend time with the child on the preceding weekend in lieu thereof.
In the event that Father’s Day falls on a day when the child is in the care of the mother, the father will be entitled to spend time with the child on Father’s Day from 9:00am until 6:00pm.
The father’s wife Ms N is authorised to collect the child from her school and return her to her school in respect of any of the periods of time she spends with her father referred to in order 3(a) hereof.
Each party has the right to attend at the child’s school for all events that parents are normally entitled to attend.
Each parent shall have the right to obtain copies of the child’s school academic records, report cards, progress cards, school magazines and newsletters, school photographs (at their own costs), fee and enrolment information and all other information pertaining to the child’s schooling and school related activities.
The father and mother shall do all reasonable things to ensure that the other is kept informed in a timely manner of any issues related to the well being, health, education and care of the said child whilst she is with that respective parent.
The father and mother shall provide to the other party from time to time the following information within four (4) days of that parties written request to the other party having such information:
(a)The name of the general practitioner attending to the said child’s health requirement and the names of any medical specialists, psychologists, psychiatrists and social worker so attending to the child; and
(b)The names of any hospitals, clinics and health institutions that the child attend and the dates of such attendances.
Should a medical emergency arise in relation to the said child whilst the said child is in the care of a parent, then that parent shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and address of any treating medical practitioners and hospital and the location of the child.
The father and mother shall have the right to communicate with and obtain any information concerning the child’s physical and mental health and welfare direct from any general medical practitioner, specialist medical practitioner, psychologist, psychiatrist, other health professional, counsel and/or social worker.
Neither party is to travel outside of the Commonwealth of Australia without the written consent of the other or an order of this court and it is directed that the passport of the child be lodged with the Registrar of this court.
The mother is granted a certificate pursuant to s 10(3) of the Federal Proceedings (Costs) Act 1981 and in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 to her for her costs incurred in relation to these proceedings as a result of the hearing wasted on 16 November 2007 because of the death of the late Morcombe FM.
The contravention application filed 4 March 2008 is dismissed but the father spend one additional weekend, pursuant to order 3(a) hereof, at his nomination, during term 3 of 2008, in lieu of time lost to him with K on the weekend of 1 March 2008.
All other applications herein are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Naylor & Tauchert is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC3086 of 2007
| DR NAYLOR |
Applicant
And
| MS TAUCHERT |
Respondent
REASONS FOR JUDGMENT
Introduction
Dr Naylor “the father” and Ms Tauchert “the mother” are the parents of K born in 2003. Accordingly, K has recently turned five years of age.
The parties met in Adelaide in 2001 and married in December 2001. They separated in May of 2004, when K was about fifteen months old. Since the parties separated, K has lived predominantly with the mother. The marriage between the parties was dissolved in July 2005.
After the parties separated, neither of them saw any necessity to obtain final orders in respect of arrangements for K’s care. It is the mother’s case that the father was content to come and see K on an ad hoc basis. In the main, she says that Dr Naylor saw K on one occasion each fortnight from around 10:00am on Saturday morning until around lunch time the following Sunday.
The father commenced proceedings in the Family Court at Adelaide on 23 November 2006. At that time he was concerned that the mother had taken K to the United States of America without telling him. He was worried that the mother might not return K to South Australia and so he might lose his relationship with her.
At this stage, Dr Naylor wished to formalise arrangements for him to spend time with K and, on an interim basis, he sought orders that would see her spending time with him on each alternate weekend from 9:00am Saturday until 5:00pm the following Sunday, as well as overnight, on Tuesday evenings, in the intervening week.
On a final basis, the father sought orders that would provide for K to live with each of her parents, on a week about basis. Formally, this remains his position. Presumably, he wishes the court to apply the presumption of equal shared parental responsibility [Family Law Act section 61DA].[1]
[1] All references in square brackets are references to the Family Law Act 1975(Commonwealth)
The mother responded to these applications on 15 January 2007. On an interim basis, she proposed that K spend time with her father on alternate weekends from 5:00pm Friday until 5:00pm the following Sunday. She also proposed that she spend Wednesday evenings, with her father, between 4:00pm and 7:00pm.
She sought similar orders on a final basis, with the addition of some proposals in respect of special occasions such as K’s birthday; Father’s day; Christmas; and Easter. Ms Tauchert proposed that the parties should “share the joint parenting responsibilities for the infant child”[2]
[2] See mother’s response filed 15 January 2007
The mother acknowledges that she took a holiday, in the United States, between September and November of 2006. She also acknowledges that she did not tell the father about this trip, fearing he would not agree to it. She now regrets her actions. She is apprehensive about any proposals the father may have to take K to Nigeria, the place of his birth.
On 25 January 2006, Senior Registrar Kelly (as she then was) made some interim orders regarding K’s care, with the consent of each of her parents. It was agreed that:
“1. That the said child K born on the in 2003 do live with the mother.
2. That the child spends time with the father as follows:
(a) Each alternate weekend from 10.00am on Saturdays until 5.00pm on Sundays.
(b) In the intervening week, on Wednesdays from 6.00pm to 9.00pm or as agreed between the parties.
(c) On Father’s Day as agreed between the parties.
(d) On the child’s birthday as agreed between the parties.
(e) On the Father’s birthday as agreed between the parties.
3. That if the child’s time with the Father happens to fall on Mother’s Day or on the Mother’s birthday, that the child spend time with the Mother by agreement between the parties.
4. That the child spend two days of the Easter long weekend with the father and two days with the mother, as agreed between the parties.
5. That the child spend the 24th of December each year with the Mother and the 25th of December each year with the Father with handover to take place as agreed between the parties.
6. That the Mother provides the father with 28 days notice, in writing, of any plans to travel with the child interstate or overseas.
7. That in the event that the Mother travels interstate or overseas with the child, the father is provided with make up time on their return, by agreement between the parties.
8. That the father provides the Mother with 28 days written notice in the event that he plans to travel interstate with the child.
BY CONSENT IT IS FURTHER ORDERED:
9. That the mother is at liberty to travel with the child K to the United States of America for approximately 8 weeks in December 2007 to 2008 subject to the following conditions:
(a) The mother provides the father with written notice of the travel plans and itinerary at least 28 days prior to departure; and
(b) The mother ensure the child communicate with the father by telephone on a weekly basis whilst overseas.
10. That K’s time with the father pursuant to these orders is suspended with make up time to take place by agreement between the parties upon K’s return.
11. That the child K’s passport is delivered up to the Adelaide Registry of the Family Court within 7 days.
12. That the child K’s passport be released to the mother in November 2007and returned by her to the Registry on or before 15 February 2008.
13. Thereafter, the child K’s passport may be released to either parent upon both parents attending the Registry to confirm their consent in writing.
14. Final applications and the issue of the Father travelling overseas with the child referred to the Trial Notice List Pool.”
These orders have remained in place until the present time.
On 7 June 2007, the proceedings were transferred to this court. Subsequently, the parties’ competing applications were fixed for a final hearing on 16 November 2007 and it was ordered that a family assessment be prepared.
The family assessment was prepared by a psychologist Dr Garry Childs and was released to the parties in September of 2007. Dr Childs was not in favour of a shared care regime for K, given her age and what he considered was a lack of bonding with her father. He believed that K was not “still not ready developmental nor emotionally to spend more than overnight or weekend stays with her father…”.[3]
[3] See Family Assessment report at page 3
The hearing of the parties’ final applications took place on 16 November 2007 before the late Morcombe FM. He died on 26 November 2007 before delivering judgment. A transcript of the evidence led before the court on 16 November 2007 was subsequently prepared.
Initially, after the parties had been advised of the situation concerning the outstanding judgment, they agreed that another Federal Magistrate could read this transcript and the other documentary evidence led before the court and deliver a judgment, after considering all the papers concerned. I was nominated to be that Federal Magistrate.
After reading the transcript, I came to the conclusion that it would not be appropriate for the matter to be concluded in this way. Although Dr Naylor speaks English well, it was not particularly easy to discern what he meant from reading the transcript. Accordingly, I determined that there should be a re-hearing and each party should be given the opportunity to present their cases orally before the court.
In the intervening period, the father commenced contravention proceedings in respect of the earlier orders made by Registrar Kelly on 25 January 2007. In particular he alleged that that mother had not made K available to him on the weekend of 1 March 2008.[4] The father filed an affidavit in support of his contravention application.
[4] The father’s contravention application filed 4 March 2008 alleges that “the respondent [Ms Tauchert] did not allow me to see and spend time with K (daughter) being my weekend with K on 1 March 2007 at 10:00am.” The date alleged is obviously a typographical error.
It became apparent to me that the parties had initially agreed to change that particular weekend on which K was due to spend time with her father because she had been invited to a party, which clashed with it. The negotiations between the parties, as to an alternative arrangement, for K to spend time with her father, had broken down. Dr Naylor does not otherwise allege that he has not spent regular weekends with K, pursuant to the orders of January 2007.
The mother has been represented throughout these proceedings. The father has largely represented himself and prepared his own affidavit documents. The re-hearing of the matter was scheduled for 5 May 2008. I determined that it was appropriate to hear the father’s contravention application at the same time.
At the first hearing, the parties themselves and Dr Childs were the only witnesses who gave evidence. At the second hearing it was only the parties themselves who gave evidence. I relied on Dr Childs’ family assessment and the transcript of his evidence before the late Morcombe FM in respect of the expert evidence required to properly determine the case.
The mother, through her counsel, seeks a certificate pursuant to section 10(3) of the Federal Proceedings (Costs) Act1981 in respect of her costs wasted arising from the hearing of 16 November 2007.
Background
The mother was born in Adelaide, South Australia in 1972. The father was born in Nigeria in 1970.
The parties met shortly after the father arrived in Australia from Nigeria. He holds a bachelor and masters qualification in chemistry, which he obtained from a university in Nigeria. He also holds a PhD in administration, which he obtained from a university in South Australia. He is currently employed, by a firm in the Adelaide CBD.
The mother is not currently working. She has another child from an earlier relationship. This is J, who is aged around ten years of age. The mother, K and J live with the mother’s parents at [G].
In the past, the mother has been employed in casual retail work at and has done some cleaning work. She has not been in the paid workforce since 2004. Next year, when K has made the transition to primary school, she proposes studying part-time to become an enrolled nurse.
The father has re-married since the parties separated. His current wife is also Nigerian by birth. She is Ms N. She has a seven year old son, from an earlier relationship. He lives in Nigeria with Ms N’s parents.
Ms N is currently pregnant with her and the father’s first child. This child, who will of course be a half-sibling to K, is due to be born shortly. Thus clearly, K is part of a complex and diverse family.
Ms N has qualifications as a registered nurse in Nigeria. These qualifications are not recognised in Australia. Presently she is working as an aged-care assistant but hopes to return to nursing in the future.
Dr Naylor has obtained Australian citizenship. His wife has not as yet. Dr Naylor has deposed that he has no plans to return permanently to Nigeria. However, depending on his financial position, he returns to Nigeria every two years or so to visit family. He wishes to visit Nigeria at some time in 2010. It would be his wish to take K with him.
Dr Naylor deposed that English is his first language. He confirmed that many languages are spoken in Nigeria and, as a result, English has become the lingua franca of the country. He identifies himself as from the Eastern part of Nigeria. He is a Christian by upbringing but presently does not attend religious services with any degree of regularity.
Dr Naylor places great emphasis on scholarship and is very proud of his tertiary qualifications. He aspires to K achieving similar academic excellence and attaining her full scholarly potential in future. Although my impression is that Ms Tauchert also wants K to do well at school, she does not place the same degree of emphasis on K’s education at this stage, particularly whilst she is still very young.
It is clear to me that both parties love K very much indeed and both want the very best for her, both in life and from these proceedings. To their mutual credit, both acknowledged that the other was a good parent, who had much to offer K in future.
However, it is my impression that the parties’ respective households are very different indeed. The parties’ backgrounds are obviously quite different. K is a child who inherits a rich cultural tradition from both her father and her mother.
In addition, although the parties have sought to be able to communicate freely and openly with one another, they still do not fully trust one another and, as a result, they do not parent K in an empathetic manner. In particular, neither knows what goes on in the other’s household, apart from what K herself says to each of them.
The reasons for the blocks in trust and communication, between the parties, are many and complex. The mother believes that the father married her only for his convenience in order to remain within Australia.
The father remains suspicious of the mother for travelling with K to the United States in 2006, without first obtaining his permission. The respective backgrounds and levels of education of each of the parties are quite different.
In addition, K has recently been enrolled by her mother at [G] School. She did not tell the father about her decision in this regard. The father was disappointed that the mother had not told him about or involved him in this important decision concerning K.
It is against this background that the court must make final orders for K. When parents, who no longer live together, to ask the court to determine how and where their child should live, it is the best interests of the child concerned that are paramount [section 60CA].
The issues
Having embarked upon hearing evidence from each of the parties, it became apparent to me that the differences between their respective cases might not be as extreme as first appeared. Although both were conscious of the past difficulties between them, both were obviously focused on K’s best interests.
The father was prepared to concede that a shared care arrangement, at this stage, would not be appropriate for K, given her age and close attachment to her mother. In lieu thereof, his position became that he wanted to spend more time with K now and build up his relationship with her preparatory to exploring the possibility of having a shared parenting arrangement with the mother, when K was older.
Initially, it was the mother’s position that K could only cope with spending one night per fortnight, in her father’s care. However, she was later able to concede that K should spend from 5:00pm Friday until 5:00pm the following Sunday, in alternate weekends, with her father.
In contrast, Dr Naylor proposed that he should spend alternate weekends, with K, from after school on Friday until the commencement of school the following Monday. He deposed that he believed that he would be able to get away from his work, on Friday afternoons, in order to collect K for this to occur. Failing this, he proposed that Ms N could collect K from her school.
Both parties agreed that the current arrangement, in respect of Wednesday afternoons, was not working. From the father’s perspective, the period with K was too short. From the mother’s perspective, it was disruptive for her, particularly as K had begun primary school.
In their respective applications and in the previous proceedings, neither party had made any proposals as to how K should spend the school holidays. From the mother’s perspective, she was content for K to spend half of each school holiday with her father, provided that he took time off work. The father believed that this latter requirement was to proscriptive, pointing to the fact that his wife would be available to care for K in school holidays.
The parties agreed that they should have equal shared parental responsibility for K in future. The mother conceded that she had been remiss in not including the father in her decision about K’s enrolment at [G] School.
The parties are also in general agreement about how K should spend special occasions, particularly at Christmas time. The mother celebrates Christmas Eve in the European fashion, the father celebrates Christmas Day. This distinction leads to an obvious demarcation as to how K should spend Christmas with each of her parents.
In his family assessment, Dr Childs recommended a possible review of care arrangements for K in eighteen months to two years time. The parties agree that there should be such a review, particularly from the father’s perspective, regarding the possible implementation of a shared care arrangement at sometime in the future.
The mother’s position is that the review should be later rather than sooner. She proposes at some time in mid-2009. On the other hand, it is the father’s position that such a review should take place in eight months time.
The parties agree that they should exchange information between them regarding K’s educational and medical needs. They also agree that
Dr Naylor should be able to attend at K’s school for parent teacher interviews and to meet her teachers.
The vexed issue of overseas travel for K remains. Currently, after having visited the United States, with K, late last year, the mother has no firm proposals to travel overseas with K.
As previously indicated, it is the father’s fervent wish to travel with K, to Nigeria, at some time in the future, possibly in 2010.
This proposal fills the mother with foreboding, as she fears at a deep visceral level that the father may not return K to Australia, although he has strong connections to this country and is an Australian citizen.
The family assessment and the evidence of Dr Childs
It was Dr Childs’ opinion that K has a close and loving relationship with her mother. There appears to be no great dispute between the parties that both before and after their separation, the mother was K’s main care provider. During the parties’ short marriage, the father was engaged in the paid workforce. He worked full-time as an accountant and had a part-time job as a security guard on weekends.
It is also not greatly in dispute between the parties that, following their separation, the father saw K irregularly and not for particularly extended periods of time. This situation led to Dr Childs forming the view that the level of “bonding/attachment”, which had developed between the father and K was “limited”.
It was also apparent to Dr Childs that the opportunity for K to develop a relationship with Ms N had been limited. Both the father and Ms N wish for this situation to improve. I agree with this assessment. I also agree with Dr Childs’ assessment of the father as an “intelligent, ambitious and assertive man”.
I am concerned that, at times, Dr Naylor may lose sight of what is likely to be in K’s best interests because he is focussed on what he perceives to be his “rights” in the case. Certainly, Dr Childs was of the view that the father was “not really attuned to the subtleties of children or parenting”. Although I know Dr Naylor deeply loves K, I am concerned that there is some truth in this assessment.
In his report, Dr Childs described K as an “articulate, well raised and friendly child [who was] able to express her feelings effectively.” She indicated to Dr Childs that she wished to visit her father and Ms N for “overnight stays and for other shorter visits on a regular basis.”
As a result of his observations of the parties and K and his interviews with each of them, Dr Childs recommended as follows:
“I recommend that shared parenting on a week about basis is not yet a viable option given the child’s age, lack of bonding, and general history of the situation.
I recommend that K is still not ready developmentally nor emotionally to spend more than overnight or weekend stays with her father, and that to force the matter is not in the best interest of the child nor in the longer term development of a better relationship between daughter and father and stepmother. More frequent and brief stays may well be an option later at the discretion of the court. This will need to recognise however the demands imposed by K beginning school in term II 2008. Extended holiday stays once K commences schooling should reflect K’s reaction later.”[5]
[5] See Family Assessment at page 3
In regards to the father’s wish to travel overseas, with K, to Nigeria,
Dr Childs noted that Dr Naylor had effectively developed a life for himself in Australia and by implication was unlikely, in his view, to wish to return to live permanently in Nigeria. However, Dr Childs also acknowledged the mother’s fears about such travel and noted that her concerns needed to be acknowledged by the court.
As previously indicated, I did not have the benefit of hearing
Dr Childs’ evidence directly. I have however read the transcript of his evidence, given on 16 November 2007.
In his oral evidence, Dr Childs acknowledged that the father “wanted to be and are [sic] trying to be a good dad”, who looked after K well. However, he also thought one of the major difficulties in the case was that K had exhibited some hesitancy in respect of her father. In
Dr Child’s view this was a “sticking point” before K spending more time with her father could be considered. Dr Childs also alluded to the mother’s natural and understandable caution in respect of changing arrangements for K’s care to precipitately.
In the transcript of his evidence, I found the following passage, which in my view is a telling one:
“…the proviso is that I would like to see the little girl increase her weekend time with her dad and his new wife. That’s my preferred option. What I was trying to convey to Dr Naylor was that if he pushes things too fast that it will not actually lead to the outcome of improving the bonding. We want the little girl to spend more time with them, which is good for the little girl and also enables the mum to re-establish her career, which is another factor, but if we push it too fast the little girl will – it would not be in the little girl’s best interests. She is, as I have indicated, a very bright, articulate, well-raised little girl. She is a credit to her mother. She is a gorgeous little girl. I think she’s going to make those changes and call those shots herself, fairly soon, and I was trying to get across to Ms Tauchert, who is just being a normal mum and being normally protective, to try and realise that she should calm down a bit and, with a bit of flexibility, gradually allow the little girl to spend a bit more time with her dad. That’s the only issue – is Ms Tauchert’s normal, maternal concerns and listening to what her little girl says – that’s the sticking point here.”[6]
[6] See transcript of proceedings of 16 November 2007 at pages 16-17
From what I have observed of each of the parties in these proceedings, I have no reason to disbelieve or discount Dr Childs’ opinion of the parties and his assessment of K’s needs. The mother is an excellent parent, who is likely to be highly protective of K. The father is an assertive person, who wants to develop his relationship with K as quickly as possible.
For obvious understandable reasons, the mother wishes the court to adopt a cautious approach to extending any time K spends with her father. For equally understandable reasons, the father sees the early years of K’s life as precious and he wants to be as fully involved in her life and care as possible.
In practical terms, the central issue for the court is whether the father should have an extended weekend, with K, each fortnight or whether the mother’s more conservative proposal should be adopted.
Other issues arise regarding whether or not a regime should be established, at this stage regarding any future travel, for K, overseas. Another issue arises regarding whether or not there should be any strictures placed on how the father should spend time with K, during school holidays. Finally, the court must determine whether it is appropriate that any orders it makes at this stage be subject to a further review and when this review should occur.
The evidence
Both parties seem to me to be honest and credible witnesses. I was also impressed with the acknowledgement each made as to the abilities of the other as a parent. Importantly, I accept the mother’s assertion that she wants K to have a close and loving relationship with her father. I was also struck by the father’s acknowledgement that Ms Tauchert is an excellent mother.
However, in my view, the most important aspect of this case is the gulf between the parties in respect of their background and cultural orientation. K must regularly negotiate this gulf. However, I was also impressed by the mother’s level of recognition of the fact that K is a child with a rich ethnic heritage, who is part of a complex family dynamic.
It is also a credit to the parties that, in spite of the great difficulties between them, they maintain a cordial and functioning level of communication with one another. They are able to communicate directly with one another and via the telephone and text messages. However, from time to time, their communications miscarry, as is most evident in the father’s recent contravention application.
When the evidence is boiled down, it is my view that there are few, if any, factual disputes between the parties. Rather, for the reasons already outlined, they disagree as to the appropriate arrangements for K’s care. These differences are informed by their different backgrounds and experiences and the unsatisfactory circumstances of their fairly brief marriage and separation.
The mother relies on the following documents:
·her affidavit of evidence filed on 18 October 2007.[7]
The father relies on the following documents:
·his contravention application filed 4 March 2008;
·two affidavits of himself filed 18 October 2007 and 4 March 2008 respectively.
[7] Dr Childs’ family assessment report is annexed to this affidavit
In the overall context of this case, I can see no utility in making any finding in respect of the father’s contravention application. It is common ground between the parties that, if the orders of 25 January 2007 were strictly followed, the father would have been entitled to have K with him on the weekend commencing Saturday 1 March 2008.
The father confirms that the mother contacted him on 25 February 2008 and informed him that K had a party on the 1st of March 2008, which she wanted K to attend. As a result, the father proposed that he would have K on the following weekend, commencing 8 March 2008.
Before this arrangement could be formally confirmed, the mother advised the father of a further party, which K wished to attend scheduled for the weekend of 22 March 2008. Again, the father proposed having K on the following weekend starting 29 March 2008.
None of these proposed alterations seems to have been definitively agreed between the parties. Rather, the issue of K attending these various parties seems to have been a matter of minor irritation between the parties, particularly so far as the father was concerned, who resented his weekends, with K, being disrupted in this way. The parties do not appear to have had sufficiently good communication skills and trust in one another to resolve the issue properly between them.
Against this background, the father arrived at the mother’s home, as scheduled, on 1 March 2008 to collect K. She was not there. The following Tuesday, without any proposal for mediation, the father commenced his contravention application. In my view it was premature and precipitate to take this extreme step, which is clearly not likely to be helpful in regards to improving the parties’ relationship with one another.
The mother acknowledges that K has missed one weekend with her father. She is amenable to the father having a “make up” weekend, in lieu of the weekend lost. In my view, this should largely be the end of the matter, particularly given that the court is currently adjudicating the major issues of dispute between the parties.
In addition, in my view, the issue is emblematic of the difficulties in this case. Although the parties have some capacity to communicate with one another, in respect of issues to do with K, from time to time this capacity fails. The father is quick to assert what he perceives are his “rights” in regards to K. I accept that the mother is prepared to be conciliatory, so far as these rights are concerned but she remains highly protective of K and what she perceives as being her superior parenting role in respect of her.
This attitude is most clearly demonstrated in her unilateral enrolment of K at the [G] School. This school is close to her home and the one which is attended by J. I can understand why it would be the natural choice of school for K.
However, at the very least, it would have been courteous of the mother to discuss the issue with the father and for her to have involved him in the decision making process. This sort of action leads the father to believe that the mother holds a dismissive view of him, both as a person and a parent. Similar considerations arise in respect of the mother’s unilateral decision to take K to the USA in 2006.
Although I accept that the father is vitally interested in all aspects to do with K’s education, he has not as yet attended her school or introduced himself to K’s teachers. It is only recently that he has learnt of the school which K is attending.
Overall, this tends to suggest to me that Dr Naylor is very closely involved in his professional duties and has a busy work schedule. Dr Childs noted that the father is ambitious, so far as his career is concerned. This accords with my own view of him.
In these reasons for judgment, findings of fact are made on the balance of probabilities following my observation of each of the witnesses concerned. In what has preceded and what follows, statements of fact constitute findings of fact.
The legal principles applicable
Part VII is the part of the Family Law Act which deals with orders relating to children. The service of K’s best interests is the most important consideration in this case [Family Law Act s.60CA].
The aims and principles Part VII [section 60B] emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm arising from the child being subjected to abuse, neglect or family violence.
These principles also speak of the entitlement of children to spend regular periods of time with those who are significant to them. Obviously these people include parents but also other relatives, including grandparents and half siblings [section 60B(2)(b)].
Given the importance of both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
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)]. In this case, neither party raises any issues to do with neglect, abuse or family violence.
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 [section 61DA(4)].
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time, provided this outcome is both likely to be in the child’s best interest and reasonably practical.
If the court rejects equal time, it is then required to consider the child living with each of his or her parents for “substantial and significant” periods of time. Again this outcome is subject to considerations of the child’s best interests and practicality.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the child concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the child’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the child concerned have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the child concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[8]
[8] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
The legal principles to do with a child travelling outside Australia, with one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex. Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors.
Difficult considerations arise in cases involving children of mixed racial background and where the child concerned has close relatives living overseas, whom very often the child does not know. For obvious and understandable reasons, these overseas relative (and the parent concerned) often wish the child to meet their blood relative, within the cultural setting of the relatives involved. This is seen as leading to the child developing a sense of cultural identity. In this context, the court is required to have regard to the child’s background including relevant aspects of the child’s lifestyle, culture and traditions [section 60CC(3)(g)].
Cultural background is important to children. It provides them with a sense of identity. Identity very often comes from a child knowing relatives, on both the paternal and maternal aspects of his or her family and placing those relatives within a cultural context. In addition, overseas travel, particularly to meet family, can be a rich experience for children, the memory of which can last a life time.
K is a child who has a Nigerian background. Her father has many close relatives, who live in Nigeria and who have no real likelihood of ever being able to visit Australia. Within the Australian cultural context, Nigerians (and others from sub-equatorial Africa) form a distinct minority.
The only way K is likely to ever be completely immersed, into a Nigerian cultural context, is if she visits the country. Obviously, the father’s upbringing in Nigeria and his familiarity with its culture is central to the father’s sense of identity and so, in turn, is likely to be important to K herself.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the child concerned’s ability to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)]. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[9]
[9] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205
Fundamentally, the court must make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·In fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·The degree of risk that the departing parent will not return to Australia.
·Whether the country of travel is a signatory to the Hague Convention on Child Abduction and the likelihood of deviation to a non-convention country.
·The financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[10]
[10] See Line & Line (1997) FLC 92-729
Determining K’s best interests – section 60CC
a) The primary considerations
The applicable legislation places two considerations in a position of pre-eminence, the need to protect the child concerned from harm, as a result of exposure to abuse and family violence; and the benefits of the child having a meaningful relationship with both of his or her parents.
There are no concerns, raised by either of the parties, concerning neglect, abuse or family violence. Accordingly, considerations of K pursuing a meaningful relationship, with both her parents, must be given pre-eminent consideration in this case.
Clearly K has a meaningful relationship with her mother, who has been the consistent feature of her life for many years. The mother has been K’s principle source of both emotional and physical succour for all of her life to date.
K knows and loves her father well. He too has been a consistent feature of K’s life, particularly since the orders were made in January of 2007. However, for reasons relating to the parties’ separation, which occurred when K was an infant, she is somewhat reserved, so far as her father is concerned. Undoubtedly, however, she has the potential to have a very meaningful relationship indeed with her father.
Accordingly, in my view, it is likely to be in K’s best interests for her paternal relationship to be developed and extended. To her great credit, the mother acknowledges this to be so.
However, in my view, there needs to be a balance struck between K’s reserve towards her father and the difficulties this creates, with the desirability of extending her relationship with him. In this context, regard must be had for the mother’s feelings for K and her understandable concern that K may be pushed too far at this stage which, as Dr Childs points out, may be counter productive.
Additional considerations
a) K’s views
K is a child of tender years. Accordingly, I must be cautious about giving undue weight to anything she has said to either of her parents or to Dr Childs. However, I accept that she is somewhat tentative, so far as her father and Ms N are concerned. I accept that she told Dr Childs that she did not want to be away from her mother for extended periods of time and was comfortable to have shorter visits with her father, on a regular basis.
b) The nature of the child’s relationship with each of her parents and significant others
As I have already indicated, K has a close and loving relationship with each of her parents. However, there is no doubt that the mother has provided more of the day to day parenting of K, over the whole of her life to date. As a result, the relationship between the two is a warm and loving one. The fact that K is such a “gorgeous” child is largely due to the mother’s care of her.
I can well understand why the father wants to be more involved with K, than he currently is, and that he feels frustrated at the perception that he has been excluded from K’s life, up to this stage, as a result of a combination of circumstances and the mother’s attitude towards him.
However, in my view, the fact remains that he is not as closely bonded to K, as the mother is and so his relationship with K is still a growing and developing one. In my view, this factor militates in favour of the court adopting a cautious attitude in regards to extending K’s relationship with her father, at this stage.
It would be artificial in the extreme and potentially detrimental to the development of this relationship, if the court was to force the relationship along. In this regard, I agree with Dr Childs’ assessment of the situation.
K lives with the mother and her half-sister J, in close proximity to her maternal grandparents. Obviously, this is an environment with which she is very familiar. In such circumstances, her relationships with her maternal grandparents and J are likely to be highly significant to K.
I have not heard any direct evidence from Ms N. I accept Dr Childs’ assessment that she has been endeavouring to extend her relationship with K. As the father’s wife and the mother of K’s soon to be born half-sibling, she is obviously likely to be a very important person, in K’s life, in future. In addition, the father proposes that she discharge many important parental duties in respect of K, including collecting her from school and supervising her during school holidays, in his absence.
I take these matters into account. I acknowledge that the relationship between siblings is one of the most important of all human relationships. As I have already indicated, K is part of a complex familial constellation. It is likely to be in her best interests that she knows her soon to be born brother or sister, from the earliest opportunity. In my view, this is a factor in favour of the court extending the time K spends with her father. However, given the reserve K has for Ms N, the issue must be approached with some caution.
c) The willingness and the ability of the parties to encourage a close and continuing relationship between the child and the other parent
Notwithstanding the criticisms each party has of the other, K has been able to maintain her relationship with each of her parents. In somewhat difficult circumstances, she has regularly spent time with her father. In this context, I accept the mother’s evidence that she realise how important it is likely to be for K to develop a close and loving relationship with her father and to see him regularly.
Although the issue was not particularly well handled, I do not think there is anything overly sinister in the mother’s decision to enrol K at the [G] School, without prior consultation with the father. Certainly, I do not believe that the mother is intent on excluding the father from K’s life in future and being involved in making significant decisions regarding her. To her credit, the mother acknowledged that the father and K love each other very much indeed.
d) The likely effect on the child in any change in her circumstances
In my view, the matters which fall for consideration under this heading are important in the case. I accept that K is well settled in her mother’s care and home environment. She is somewhat reserved regarding her relationship with her father and Ms N. Accordingly, I accept
Dr Childs’ assessment that to unduly change K’s current circumstances has the potential to be counter-productive, particularly in terms of her developing or extending her relationship with her father.
e) The practical difficulties and expense in the child sending time and communicating with each of her parents.
The mother lives in [G]. Both parties live close together in the northern suburbs of Adelaide. There are few practical impediments to the father being able to spend regular periods of time with K.
He does however work full-time. He is committed to his professional career and, in the longer term, wishes to open his own accountancy practice. As with many parents, he faces the difficulty of balancing work and family commitments. In these circumstances, it may not always be easy for him to be able to come and collect K from her school or be directly available to her during all of her school holidays. In common with the vast majority of the Australian working population, the father is entitled to four weeks annual leave each year.
Many parents, following separation, are compelled to deputise others to collect a child, from time to time, from school or child care, because of work commitments. In my view, there is nothing unusual in such an occurrence. The difficultly of balancing work and family commitments is one of the mantras of the age.
Dr Naylor’s employment provides some level of financial support for K. Ms Tauchert receives $442.00 child support per month for K. She is not currently working and depends on the payment. Accordingly,
Dr Naylor is not in a position to give up his employment, which would have detrimental consequences for K.
Although Dr Naylor has deposed that he believes his employers will provide him with the flexibility to get off early on Friday afternoons, I take this evidence with caution. In all the circumstances of this case, it does not appear to me to be unreasonable that Ms N should not be able to stand in for her husband, from time to time, in respect of collecting K.
In addition, I discount the mother’s assertion that Ms N’s responsibility to parent her soon to be born child are likely to compromise her in this regard. Again, it is a common phenomenon, within families, that parents are called to balance responsibilities for older children with those of the newly born.
f) The capacity of the parties to provide for the child’s needs, including emotional and intellectual needs; and
g) The attitude that each party has demonstrated to the responsibilities of being a parent
These matters are closely related. Accordingly, it is convenient to consider them together.
I am satisfied that the mother takes her responsibilities as a parent very seriously indeed. K is described by Dr Childs as being a “well raised little girl”. The mother must claim the credit for this assessment.
I also accept Dr Childs’ assessment that the father is a “good Dad”. He is obviously devoted to K and wants her to achieve well academically. As I have previously indicated, neither party is aware of what is going on in the other’s home. At best, the mother and Ms N are on nodding terms. At this stage, the mother does not feel she is ready emotionally to extend her relationship with Ms N.
In these circumstances, K is the only source of information, to whom the parties have regard, as to what actually occurs in the other’s home. As I have already observed, there is likely to be a gulf between the two homes, so far as K is concerned.
This situation has the potential to lead to miscommunication between the parties and for K herself to be able to play her parents off against each other. The mother conceded that K may, from time to time, tell her parents what she thinks they may want to hear.
In the past, K has apparently exhibited great anxiety at leaving her mother’s home, with her father and has had to be carried crying to
Dr Naylor’s car. The mother conceded that K may very well “pick up” on her mother’s anxiety and this distress may not properly reflect how K feels once she is in her father’s household.
In addition, the mother has deposed that K has complained to her that she does nothing other than work on the computer, when she is with her father and is fed nothing but rice by him. Again, the mother acknowledged that she must be cautious about what K says in this regard. I agree. As I say, K’s experience, in the two households, is likely to be quite different. The father is likely to have higher educational expectations than the mother; and his and his wife’s dietary practices are likely to be different to those of the mother.
However, in my expectation, K has much to gain from exposure to both her parents. This is particularly so given her mixed racial origins. I am satisfied that the father is committed to providing for K’s needs. However, the mother is likely to be more sensitive to how K is travelling emotionally, from time to time, albeit that the father is likely to perceive that she is unduly protective of K.
Considerations of the dynamic of the parties’ current relationship persuades me that I must be cautious about too precipitately changing arrangements for K’s care, particularly any radical change towards a shared care regime. However, the mother is likely to find any change in K’s care arrangements to be challenging for her to accommodate because of her protective regards for K.
h) The child’s maturity, sex, lifestyle and background
K is heir to a rich cultural tradition, on both her mother and father’s side. The experience of a child growing to maturity in Nigeria is likely to be vastly different to that of a child growing to maturity in Australia. The mother herself has no direct knowledge or experience of Nigeria, never having visited there. Accordingly the father can be the only source, for K, of information about her Nigerian background.
In addition, K is likely to be an obviously African child and, as such, part of a visible minority, within the Australian mainstream. In such circumstances, it will be difficult for the mother to maintain K’s sense of identity, as a part-African child. Inevitably it would seem inevitable that more of this responsibility will devolve upon the father and Ms N, who share K’s Nigerian orientation.
It is frequently said that children of mixed racial inheritance require strong role models, within their cultural orientation, to protect them from the corrosive consequences of exposure to racism, which sadly, even in these more enlightened times, is often said to remain endemic.[11] The best such role models are most usually the child concerned’s parents.
[11] See B & R & The Separate Representative (1995) FLC 92-636 at 82,398
In this regard, the father is a very satisfactory role model for K. He is a highly successful person, who wishes to provide K with information and knowledge about her Nigerian heritage. However, it also seems to me that he realises that K is likely to become assimilated into the norms of mainstream Australia. I do not think the father would want anything less, provided K also has a sense that she is a child with a Nigerian background.
In this regard, K has expressed a desire to play soccer. As is well known, Nigeria has produced many gifted soccer players and soccer is a passion of many Nigerians. The father is delighted that K wishes to play soccer. K’s soccer playing is something which, in a small way, bridges cultures.
It is inevitable that K will become assimilated into multi-cultural Australia. She will attend a suburban Australian school. She will watch Australian television and so assume the mores of contemporary Australian society. But these considerations should not cause the court to discount the importance, for K, of her Nigerian origins.
Dr Naylor has made a successful adaptation to life in Australia. It seems unlikely, in the short to medium term, that he will consider returning to live permanently in Nigeria. I accept that he sees his future and the future of his family in Australia. However, for understandable reasons, he maintains his connection to his motherland and wishes K to receive some knowledge and affection for Nigeria, from him.
These are considerations which favour the time K spends with her father being extended. In addition, they favour some consideration being given to the appropriateness of K travelling to Nigeria, with her father, in the future and how this may be best achieved. However, at this stage of her development, K is likely to have only a hazy understanding of where her father comes from. It is however essential that she forms a positive view of her father and his overall identity. The best means of achieving this end is that the two have a close and happy relationship with one another.
On the other hand, K is just five years of age. Accordingly, she is not presently of an age when her concepts regarding time are fully developed. It is likely to be difficult for her to gauge how long a week is and to have any strong concept of how time passes and is measured by the calendar.
Accordingly, in my view, it is likely to be of assistance to K, given her age, that she has a firm sense of where her home is and that she ventures from this base, from time to time, to extend her relationship with her father. These are considerations which temper any rapid acceleration in the process by which K spends time with her father.
g) Aboriginality
j) Family violence
k) Any family violence order
These are not relevant considerations in the present case.
l) Whether it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings
Finality is generally preferable in children’s cases. Litigation is expensive, in both financial and emotional terms, and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant.
Although he has temporarily abandoned his ambition to have a shared care arrangement, in respect of K, Dr Naylor aspires to such a regime in the long term. Dr Childs believes, in future that K may be able “to call the shots” about changing arrangements for her care, as she feels comfortable. However, in my estimation, that is likely to be many years away, particularly in respect of any transition to a shared care arrangement.
In addition, it would be my assessment that Ms Tauchert is likely to be very cautious about such an arrangement, particularly if she thinks it is being forced by the father, for his own ulterior motives. It is against this background that the father greets Dr Childs’ recommendation that there be a review of K’s care arrangements with enthusiasm.
Undoubtedly his enthusiasm for the review centres on his hope that it will lead to a shared care arrangement for K, sooner rather than later. The mother too, with much greater reluctance, is prepared to consider such a review. However, it would seem to me that her motivation is different to that of the father. She seeks the review to implement a gradual increase in the father’s time with K rather than to inaugurate any wholesale changes to the current regime. In addition, it would seem to be her view that Dr Childs, or some other suitably qualified expert, should give the imprimatur for any change in arrangements.
In this setting, I am concerned about the proposal for a review because of my perception that it may perpetuate, rather than contain, the possibility of there being further litigation between the parties. Although the current proceedings between the parties have been relatively respectful and cordial, it cannot be good for K’s future sense of security and stability that her parents are able to return to court to litigate about arrangements for her care, particularly, on the father’s side, in as little as eight months time.
As such, I am concerned that the proposed view represents for the father the first step in a concerted campaign to achieve a shared care regime, for K, by a series of incremental steps. I do not think that this would promote the parties having a cooperative and child focused approach to parenting K. As such, it would appear to be contrary to the principles for conducting “child-relating proceedings” as mandated by Division 12A of the Family Law Act [section 69ZN].
These considerations militate against a further review of arrangements for K’s care, particularly in the short to medium term. In my view, the best chances of a shared care arrangement coming into place is if the parties improve their relationship and trust in one another and K, as she grows to maturity, expresses a desire to have such an arrangement for her care. In short, such arrangements are likely to come into place organically or naturally rather than through court compulsion, particularly where young children are concerned and the relevant parents have a dysfunctional relationship with one another.
Conclusions
Before I make any parenting order, I am required to consider whether the presumption of equal shared parental responsibility applies. In this case, there are no issues of abuse or family violence. In addition, up to this stage, both parties have been involved in caring for K, although undoubtedly the mother has performed the pre-eminent role in this regard thus far.
In addition K is a child who has a rich and complicated ethnic heritage. As such, it is likely to be important to her that she has a sense of connection to her father. It is also the case, and I regard it to be of fundamental importance, that both parties love K and are vitally interested in her future.
Accordingly, it is my view that it would be in K’s best interests that her parents have equal shared parental responsibility for her and one should not think that he or she has pre-eminence, over the other, in respect of the exercise of parental responsibility for K.
In my view, for the reasons I have already provided, it was remiss of the mother to enrol K at [G] School, without prior consultation with the father. The exercise of parental responsibility, in this way, is contrary to the ethos of the Family Law Act.
An order which provides for shared parental responsibility requires that the parties to it consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
The next part of the exercise is to consider what should follow from the presumption. In my view, a proper consideration of the various section 60CC factors indicates that it would not be in K’s best interests for her parents to have a shared care arrangement for her at this stage or indeed in the foreseeable future.
At this stage, the father does not specifically seek this outcome, although it remains his long term aspiration. As previously indicated, this appears to be the main motivation for his support of a court mandated review of arrangements for K’s care.
I do not think that a shared care arrangement would be in K’s best interests or reasonably practicable for the following reasons. Firstly, K’s primary attachment is to her mother. She has some feelings of reticence towards her father and Ms N. As such, she has expressed to Dr Childs a reluctance to radically change arrangements for her care.
Secondly, given the very different nature of the two households concerned, I hold grave doubts that the parties currently or in future will have the required level of capacity to implement an arrangement whereby K spends equal periods of time in each of her parent’s homes. Most importantly, I am concerned about the potential impact, upon K herself, of such an arrangement, particularly given Dr Childs’ view that there are deficits in her current level of bonding to her father.
In this regard, I believe that K’s current age and level of development are highly relevant considerations. I must not lose sight of the fact that K has recently turned five years of age and does not as yet have a fully developed relationship with her father or indeed with Ms N.
Accordingly, it is my view that I should take a cautious approach to changing arrangements for K’s care. I accept Dr Childs’ evidence that, both for K herself and also in terms of her relationship with her father, it is likely to be counter-productive if arrangements for K to spend additional time with her father are too hastily inaugurated. In addition, the mother is unlikely to be supportive of an unduly ambitious regime and this of itself is likely to lead to more tensions between the parties, with possibly adverse implications for K.
In this regard, I view what was said by Professors McIntosh and Chisholm, in a recent article,[12] to be apposite, particularly given K’s age at present:
“Part of the development conundrum posed for young children of divorce is this: their attachment formation is likely to be poorly affected (or to become ‘disorganised’ in theoretical terms) when that infant does not have a continuous experience of reliable care with either parent. Shared care arrangements that involve frequent moves from one parent to another can, inadvertently, bring about this experience. Frequent transitions of care and absences from each parent necessarily interrupt the infant’s experience of care with each parent, especially their relationship with a primary carer when there has been one. This brings about potential development difficulties for infants, particularly those with parents who remain acrimonious and struggle to facilitate a smooth transition for the infant. It is well documented that conflict between parents has an adverse impact on their ability to parent sensitively, and inter-parental conflict brings a higher likelihood of harsh styles of discipline and diminished emotional responses, which are parenting behaviours associated ultimately with the child’s emotional insecurity and social withdrawal.
For older children, and particularly adolescents, the primacy of attachment diminishes with advancing years, enabling the older child to tolerate longer periods of time away from a caregiver, and to consolidate and make good use of bonds of dependence with others. Yet when children of any age make frequent transitions between warring parents who are unable to conceal their feelings in the presence of the child, children then begin to use considerable energy to ensure their own comfort and emotional safety in each environment, actively and constantly monitoring the ‘emotional weather’ they encounter in each parent’s home.” (footnotes omitted)
[12] McIntosh J and Chisholm R (2007) Shared Care and Children’s Best Interests in Conflicted Separation – A Cautionary Tale From Current Research, Australian Family Lawyer Volume 20 No. 1 at page 4-5
In all the circumstances of this case, I consider it premature to consider a shared care arrangement, either at this stage or within the context of some later review. Overall, I think it likely to be potentially disadvantageous for K if her parents have a sense that the litigation between her parents is continuing. I think it preferable to finalise arrangements for K, as much as possible, at this stage.
Accordingly, the next question is whether it is appropriate for the time Dr Naylor presently spends with K, to be extended and particularly whether it should be extended to encompass a substantial and significant time arrangement.
Substantial and significant time is defined as time that allows a child to be with a parent on week days; weekends; holidays; occasions that are important to the child; and importantly days that allow a parent to be involved in the child’s daily routine [section 65DAA(3)]. I am satisfied that this definitive definition is provided in the context of the legislatively mandated premise that children are entitled to have a meaningful relationship with both their parents.
The rationale of the amended provisions of Part VII of the Family Law Act is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care [Goode & Goode (2006) FLC 93-286 at 80,901].
The practical underpinning in the legislation of how a relationship for a child with one or either of his or her parents is to be rendered “meaningful”, in the context of a parenting order, is provided by section 65DAA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned.
Given the importance of K’s relationship with her father, particularly in the context of her Nigerian heritage, I have come to the conclusion that there should be an extension of the time she spends with her father, from now on.
I also think it likely to be important for K that she is able to develop her relationship with her soon to be born sibling from the earliest possible stages. The central question is how that time should be extended and whether such extension should amount to a substantial and significant time arrangement.
To their great credit, the parties are able to recognise that the current Wednesday evening arrangement is not workable. However, for understandable reasons, Dr Naylor wishes to interact with K on both a school evening as well as on weekends. Because of his interest in academic matters pertaining to K, he has no desire to be a “weekend Dad”.
In the context of this case, I think the best means of achieving such an outcome, which I consider likely to be in K’s best interests, is if she spends alternate weekends, during school term time, with her father, from after school on Friday until the commencement of school the following Monday morning, as well as half of each school holiday period. During school terms, this will amount to three nights per fortnight.
I think it would be unreasonable to require Dr Naylor to take leave from his employment during each such holiday period with K or for Ms N to be unable to deputise for him in either collecting or delivering K to and from school. Although K’s relationship with Ms N is not as yet fully developed, given her relationship with both K’s father and her soon to be born half sibling, Ms N has the potential to have a very important quasi parental role with K, in future.
I will also make orders which will enable K to be able to spend time, with her father, on occasions and events that are likely to be of significance to K. As such, I am satisfied that the orders I propose will enable K to spend substantial and significant time with her father and are in keeping with the ethos of the applicable legislation. I am also satisfied that such an arrangement is likely to be in K’s best interests and to be reasonably practicable.
For the reasons already provided, I am not persuaded that there should be any mechanism by which these orders are to be reviewed. K has made the significant transition to primary school. Dr Naylor wishes to be involved in K’s education. The orders I envisage will enable such involvement. I think it retrograde, for K that these proceedings be perpetuated by any review and think it unlikely there will be any significant change in K’s circumstances within the period envisaged by such a review, which will outweigh the potential deleterious consequences caused by it.
Finally, there remains the issue of overseas travel for K. At this stage, neither party has any clearly defined proposals for such travel. In such circumstances, I am concerned about the utility of making any potentially open ended orders in respect of such travel.
I acknowledge the potential benefits K may derive from travelling to Nigeria and meeting her paternal relatives there. However, as I have already indicated, I think it overwhelmingly likely that K will become assimilated into mainstream Australian life. She will attend school in an Australian suburban setting, where English is the predominant if not the only language spoken in the playground. As such, travel to Nigeria will potentially be deeply unsettling for her, particularly at a tender age. As such, it is my view, that the issue needs to be delicately handled.
In this regard, I think it likely to be in K’s best interests that, before any order is made for her to travel to Nigeria, the father provide firm details of what he proposes, particularly how long he will be away and the environment to which K will be travelling.
At the present time, the Australian Government, through the Department of Foreign Affairs and Trade, recommends Australian citizens reconsider their need to travel to Nigeria due to concerns regarding the political situation in Nigeria, particularly in respect of the risk of terrorist attack.
In raising these matters, I mean no disrespect to the father or the country of his birth. I also appreciate that he may perceive that the concerns of the Australian Government are overstated. However, in my view, these are also factors which work against any specific orders for K to travel overseas, particularly to Nigeria, being made at this stage.
Finally, Ms Tauchert is unlikely to be accepting of an order, which will allow K to travel overseas at some unspecified time in the future. She has no personal experience of Nigeria and is likely to be deeply suspicious of the father’s proposals to travel there, although on balance, it seems to me that Dr Naylor is unlikely to wish to return permanently to live in Nigeria. He is an Australian citizen and sees his long-term future in this country.
Finally and most importantly, Nigeria is not a signatory to the Hague Convention. In such circumstances, the mother is unlikely to be comfortable with K travelling to Nigeria, without specific details of the proposed travel involved and some consideration being given to the imposition of some form of security, notwithstanding the father’s strong connections with Australia. Accordingly, at this stage, I think it premature to make any orders dealing with K travelling overseas.
Given the circumstances, which give rise to this rehearing, which arise through no fault of the mother or her legal advisers, it is appropriate that the mother be granted a certificate pursuant to the provisions of the Federal Proceedings (Costs) Act for her costs wasted in the hearing of 16 November 2007.
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 ninety-three (193) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: P Smith
Date: 13 May 2008
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