Nouhra and Clements
[2010] FMCAfam 342
•9 April 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NOUHRA & CLEMENTS | [2010] FMCAfam 342 |
| FAMILY LAW – Parenting – very poor communication between the parents – impact of father’s paraplegia on parenting orders – whether shared care or substantial and significant time is appropriate. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65 DAA, 65DAC |
| Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3. |
| Applicant: | MR NOUHRA |
| Respondent: | MS CLEMENTS |
| File Number: | SYC 1979 of 2009 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 3-4 March 2010 |
| Date of Last Submission: | 4 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Battley |
| Solicitors for the Applicant: | Shad Partners |
| Counsel for the Respondent: | Mr Juhasz |
| Solicitors for the Respondent: | Warren McKeon Dickson |
ORDERS
The parents have equal shared parental responsibility for the Child [X] born [in] 2007 (“the Child”).
The parents have sole parental responsibility for decisions regarding the day to day care and welfare of the child when they are in that parent’s care.
The Child live with the Mother.
The Child spend time with the Father as follows:
(a)Commencing immediately, each Saturday from 10am to 5pm.
(b)Commencing six months from today’s date:
(i)From 10am Saturday to 5pm Sunday each alternate weekend; and
(ii)From 10am to 5pm on the alternate Saturday.
(c)Commencing 12 months from today’s date:
(i)From 10am Saturday to 5pm Sunday each weekend.
(d)Commencing 24 months from today’s date:
(i)From after school (or 3pm) on Friday to before school (or 9am) Monday in Week One; and
(ii)From after school (or 3pm) on Wednesday to before school (or 9am) on Thursday in Week Two.
The Child spend school holiday time with the Father as follows:
(a)Commencing 12 months from today’s date:
(i)During the shorter school holidays, for one block period consisting of four days and three nights, such time to commence at 10am on the first day and conclude at 4pm on the fourth day, such period to be nominated by the father in writing not less than six (6) weeks in advance; and
(ii)During the December/January school holidays, for two block periods consisting of four days and three nights, such time to commence at 10am on the first day and conclude at 4pm on the fourth day such period to be nominated by the father in writing not less than six (6) weeks in advance.
(b)Upon the Child commencing school:
(i)For half of all short school holidays, to be the first half in even-numbered years and the second half in odd-numbered years; and
(ii)For three blocks of five days and four nights in the December/January school holidays.
(c)Upon the Child turning eight (8) years of age:
(i)For half of all short school holidays, to be the first half in even-numbered years and the second half in odd-numbered years; and
(ii)For half of the December/January school holidays, such time to be in alternating week periods with such periods to be nominated by the father in writing not less than six (6) weeks in advance.
(d)Upon the Child turning 10 years of age:
(i)For half of all school holidays, to be the first half in even-numbered years and the second half in odd-numbered years.
(e)Order (4) is suspended during school holiday time.
The Child is to spend time with the father from the eve of Eid at 6pm to 2pm on Eid, and shall then spend time with the mother from 2pm on Eid.
The Child is to spend from 9am to 4pm with the mother on Mother’s Day where the Child would otherwise be spending time with the father.
The Child is to spend from 9am to 4pm with the father on Father’s Day where the Child would otherwise be spending time with the mother.
The Child is to spend time on her birthday with whichever parent she is not living with between 1pm and 4pm when she is not attending school, or from after school to 6pm when she is attending school.
For the purpose of all changeovers which do not take place at the Child’s school, the mother is to deliver the Child to the [omitted] McDonald’s Restaurant at the commencement of contact, with the father to deliver the Child to the [omitted] McDonalds at the conclusion of contact.
The parents authorise any preschool or school the Child attends to provide each parent with any reports, newsletters, extra-curricular school activities, school photographs and any other documents requested by the parties.
The parents authorise any medical or treating practitioner to provide both parties, upon request, with any reports, records and consultation notes in relation to the treatment of the child.
Both parents are hereby restrained from:
a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Child’s hearing.
(a)Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
The parties must within 14 days contact Relationships Australia on (02) 8874 8010 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for a parenting orders program.
In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.
Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
Both parties to share equally the costs of the program.
IT IS NOTED that publication of this judgment under the pseudonym Nouhra & Clements is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1979 of 2009
| MR NOUHRA |
Applicant
And
| MS CLEMENTS |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X] who will be three years old next month. Her parents cannot agree about how much time she should be spending with each of them. [X]’s father is the applicant. He is a 32 year old paraplegic. [X]’s mother is the respondent. She is 26 years old, and is engaged fulltime in [X]’s care.
Background
[X]’s parents met in 2004, commenced a relationship in 2006 and planned to marry on [date omitted] 2007. Tragically, a week before the wedding, the father was involved in a terrible motor vehicle accident that led him to become a paraplegic. The father was in hospital for many months after the accident, and then received several years of outpatient treatment and rehabilitation. He is now almost completely independent though confined to a wheelchair. The relationship between [X]’s parents finally ended in July 2008.
[X] was born in [omitted] 2007, four months after her father’s accident. She has remained in her mother’s fulltime care since then. [X] has enjoyed contact with her father since she was born, but the genesis of these proceedings seems to be the father’s dissatisfaction with the frequency, consistency, and circumstances of contact. In short, he says the mother has unnecessarily restricted his time with [X]. She says, in response, that there were many periods when the father was either not available or not interested. All contact to date has been supervised.
Proposals
The competing proposals of each parent evolved during the course of the proceedings, and indeed during the course of the evidence. This was appropriate in the circumstances of this case.
The father’s proposal was, nearing the end of the case, that [X] should live with him as follows:
a)Between 6.3.2010 – 15.5.2010 12noon Saturday – 5pm Sunday weekly;
b)Between 21.5.2010 – 18.7.2010 Each alternate weekend from 4pm Friday to 5pm Sunday;
c)Between 21.7.2010 – 19.12.2010 each alternate weekend from 4pm Friday to 5pm Monday, and each alternate Tuesday 4pm to Wednesday 4pm commencing 3.8.2010;
d)From 31.5.2011, from 4pm Friday (or after school Friday) to 10am on the second Sunday thereafter.
Thus, in effect, the father’s proposal was that within a period of just over a year, contact would evolve from the current level of once each week for five hours supervised, to one overnight per week, to two overnights per fortnight, to four overnights per fortnight, to eight overnights per fortnight.
The father also sought orders for equal shared parental responsibility, half the school holidays, special days, enrolment in schools geographically proximate to where both parents were living, and orders about [X] being raised in the Islamic faith.
The mother’s proposal was that [X] live with her and spend time with the father as follows:
a)Between 6.3.2010 – 10.4.2010 from 10am to 5pm each Saturday;
b)Between 10.4.2010 – 10.4.2011 from 12 noon Saturday to 5pm Sunday each alternate week;
c)Between 10.4.2011 – 10.4.2012 from 12 noon Saturday to 5pm Sunday in one week, and from 12 noon Tuesday to 5pm Wednesday in the other week;
d)Thereafter, from 10.4.2012, from after school on Friday to before school on Monday in one week, and from after school on Wednesday to before school on Thursday in the other week.
Thus, in effect, the mother’s proposal was that within a period of just over two years, [X]’s contact would evolve from its present level to a longer day-time contact, to one overnight each fortnight, to two overnights each fortnight, to four overnights each fortnight in 2012 when it was anticipated [X] would start school.
Significantly, the mother dropped any claim for supervision, and also agreed in cross examination about equal shared parental responsibility.
Issues
As may be perceived from the description above of the competing proposals, the main issue is about [X]’s time with each parent. Whilst it is true that the father sought orders about religion, as I indicated to both counsel in closing submissions, the evidence going to this was plainly insufficient and thus I was unable to make an order. In any event, both parents gave evidence about their adherence to the Islamic faith. The court is not even sure that there is a live dispute between the parents about this issue.
The main issue will need to be determined by reference to the law and the evidence. The considerations set out in s.60CC(2) and (3) will provide a useful framework to explore and discuss the evidence in this regard.
Evidence
Both parents gave evidence and were cross examined. A Family Report was prepared by a Family Consultant, who was not required for cross examination. I propose to deal with this evidence separate to the evidence of the parents.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental Conflict and Shared Parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Family Report
The report follows the standard format. The parents, maternal grandparents and paternal grandparents were all interviewed and then observed with [X]. Ms F, the father’s caseworker was interviewed, as well as Dr J, the mother and child’s general practitioner.
Ms F is an Occupational Therapist and the father’s caseworker. The report records that she was clearly impressed by the father’s emotional and physical improvement. One wonders whether the information provided by Ms F contributed to the mother’s decision to no longer press for supervision of the father’s time with [X]. The father’s own evidence about his physical capacity to provide for [X], as well as the Family Consultant’s own observations in this regard, lead the court to conclude that there is no need for supervision. Indeed the father’s physical capacity to meet the needs of [X] arising from his being a paraplegic is, on the evidence, not an issue.
The Family Report concludes that [X] is attached to all members of the extended family observed, though the strongest attachment was to the mother.
The relevant parts of the evaluation are contained in paragraphs 30-38:
30. Ms Clements has been [X]’s primary attachment figure since birth. [X] appears most strongly attached to her mother than to any other person. She does however clearly show a preference to her father and to her paternal grandparents over strangers, which indicates that she is developing relationships with them. [X] will feel more secure with her father over time if she is able to spend more time with him and if he continues to provide hands on care for her. It is not detrimental for [X] to also receive carte from her paternal grandparents, particularly if that care relates to a task that Mr Nouhra cannot perform.
31. Ms Clements appears to find it difficult to separate her own need to have [X] close to her and continue to be the most important person in [X]’s life, from [X]’s need to grow up feeling loved and cared for by a range of extended family members.
32. Mr Nouhra appears physically capable of caring for [X]. He acknowledges that he may require assistance occasionally in the short term and has a number of family members who are prepared to assist him if needed.
33. Ms F said that Mr Nouhra should be independent in most domestic care and that he will continue to develop skills if he remains motivated to do so. From Ms F’s description, it would appear that Mr Nouhra’s desire to spend more time with [X] has been a highly motivating factor.
34. While in her early childhood [X] will require more hands on care however, as she develops she will need less and less hands on care. Mr Nouhra will have more difficulty in ‘chasing’ a toddler and will have to plan ahead for any environment that he and [X] are in while she is more prone to place herself in danger by, for example running off.
35. Children who spend time with a parent who has a disability can develop skills and qualities that other children may not. For example they may develop a deeper understanding of difficulties and hardship, learn to give and take pleasure in helping others and develop a deeper understanding of responsibility.
36. Although Ms Clements has identified as Muslim and has a number of close friends in the Lebanese community, she and
Mr Nouhra were raised in very different cultures and at times their differences appear to prevent them from accepting one another’s perspective. What each parent does have in common however is their desire to achieve what is best for their child. If Ms Clements and Mr Nouhra are able to celebrate the positive aspects of one another’s differences and learn to accept other their other differences, [X] will have the opportunity to grow up with a rich sense of identity and pride in her ethnic background.
37. The proposals by each parent do not fully address [X]’s needs now or in the future. [X] should have the opportunity to develop close relationships with both her mother and father and their extended families. At two years of age however, [X] needs stability and consistency in her care and so an equal time parenting arrangement would not be in her best interests at this stage. There appears to be no evidence however that [X] will not be well cared for overnight at her father’s home and as her relationship with her father develops, she will feel more secure in spending longer periods of time with him.
38. The conflict between Ms Clements and Mr Nouhra makes it difficult for them to agree on a range of care issues for [X]. Decisions like what school [X] attends will need to be made and Ms Clements and Mr Nouhra will have to improve their parenting relationship in order for this to happen. A Parenting Orders Program may assist the parents.
The recommendations made are:
· It is recommended that supervision is no longer required for Mr Nouhra while caring for [X].
· It is recommended that the time that [X] spends with her father should be gradually increased to include overnight.
· It is recommended that the parents be ordered to participate in a Parenting Orders Program.
The court, of course, has had the benefit of closely observing the evidence of the parents after the report was available to them. With that benefit the most important points emerging from the Family Report are as follows:
a)The criticism of the mother at paragraph 31 gives insufficient recognition to the context of the post-separation period during which, the court finds, there was much uncertainty about the father’s recovery and rehabilitation and there was very poor communication between the parents. Certainly the mother’s proposals to the court indicate now a much greater ability to separate her own needs from that of the child.
b)Notwithstanding what I have just said, the criticism at paragraph 37 remains valid. Neither proposal advanced by the parents is entirely child-focussed or developmentally appropriate. The court will find, for reasons set out below, that the father’s proposal is unrealistic. Likewise there are aspects of the mother’s proposal that lack child-focus.
c)The conflict that is referred to in paragraph 38 remains a big problem for the parents. In evidence they were both optimistic about their capacity to improve their communication. Indeed time, education, and the resolution of the issues before the court, may well assist. In the meanwhile, however, there are good intentions but poor communication.
The Court otherwise accepts the evidence of the Family Consultant contained in the Family Report.
Meaningful Relationship
There is no issue in this case about a meaningful relationship under s.60CC(2)(a). [X] will have a meaningful relationship with both parents under either proposal.
Protection from harm
There are no issues in this case about this consideration under s.60CC(2)(b).
Views of the Child
There are no relevant views for the purposes of s.60CC(3)(a).
Nature of relationships
[X] is blessed with good relationships with both parents and their extended families. The court is satisfied that this will continue on either proposal made by the parents. The expert evidence does indicate that [X]’s main attachment is to her mother who has been her undisputed principal carer since birth. The father’s proposal effectively involves him becoming [X]’s primary carer (8 out of 14 nights per fortnight) within a period of just over one year. This is an example of what is referred to in paragraph 37 of the Family Report. It is a proposal that does not reflect [X]’s needs, and the strength of her existing relationship with her mother, and the developing nature of her relationship with her father. This part of the father’s proposal is unrealistic. To a lesser extent the same criticism can be made of the mother’s proposals about [X]’s time with her father. It is very conservative, and not reflective of the developing nature of [X]’s relationship with her father, to limit contact to once per fortnight (even including an overnight) until April 2011.
Willingness to facilitate ongoing relationships
Section 60CC(3)(c) looks at the past in order to provide some guidance to the court as to what is likely to occur in the future. In this case, however, I am satisfied that the past is no guide to the future, insofar as it relates to this consideration.
Both parents gave evidence, and were cross examined, about the nature and frequency of contact before these proceedings commenced. It is unhelpful to trawl over these events in detail. My overall impression is that there were times when the father was unable to have contact with [X] because he was involved in his treatment and rehabilitation. There were times when he may have been distracted with other things. There were times when, perhaps, the mother allowed herself to be distracted by other things as well. Whatever may have occurred in the past I am satisfied that the final proposals they each put to the court evidence a genuine willingness and commitment to facilitate and encourage a close and continuing relationship between [X] and each parent. There is nothing in the evidence that they gave which detracts from this finding.
Likely effects of changes for [X]
Section 60CC(3)(d) focuses on changes for [X] that would result from her parent’s proposals, but particularly in terms of separation from a parent on the facts of this case.
In short the father’s proposal involves the greatest change for [X] in the shortest period, and effects the most separation from her mother who has been her primary carer to date.
The mother’s proposals involve modest changes for [X] – perhaps indeed too modest in the circumstances at one level. Again the validity of the family consultant’s criticism of both parents at paragraph 37 of her report is evident. A much more nuanced approach is called for in this case.
Issues of practical difficulty and expense
The focus of s.60 CC(3)(e) is not practical difficulty and expense per se, but difficulty and expense that relates to spending time with a parent and which will “substantially affect” [X]’s right to maintain relationships and contact.
There have been few issues in this regard to date, even though the father lives in [suburb omitted], and the mother in [suburb omitted]. Moreover neither parent is in fulltime employment. Circumstances will probably change into the future. It is very difficult for the court to predict what those changes will be and to then, in effect, legislate for them by way of orders.
In evidence both parents raised issues about [X]’s future schooling. At one point, for example, the mother wanted sole parental responsibility in this regard but she, very wisely I think, changed her view in evidence. The father asks the court to make specific orders about daycare and schooling and that it by midway between the parents’ homes. It is not appropriate for the court to be making these orders at this stage in [X]’s life, and in a context where both parents propose equal shared parental responsibility. The court will make an order in the best interests of [X] based on the evidence available to the court today. It is then the responsibility of parents to implement that order. If their personal circumstances change in the future, it is primarily their responsibility to either agree to vary the court orders, or to accommodate their changes around the court orders.
There are presently no issues of practical difficult and expense pursuant to s.60CC(3)(e). Future unspecified changes might raise such issues, but the court cannot anticipate this. At present, neither proposal raises issues under this consideration.
Parental Capacity
Section 60CC(3)(f) looks at the capacity of parents to meet the needs of children – physical, emotional, intellectual, financial etc. There is no issue in this case about meeting [X]’s physical needs. In particular the fact that the father is a paraplegic and confined to a wheelchair is largely irrelevant. That the mother no longer requires that he be supervised, and that she herself proposes overnight time within a year, reflects the absence of concern on her part. In cross examination the mother seemed to concede that there was “no magic” in the dates she proposed as the thresholds for increasing [X]’s contact with her father. She was clearly concerned about how [X] would cope, but the context suggests that it was a concern about absence from her mother, and not the father’s physical capacity to provide for [X] supervised, and overnight.
The question of [X]’s emotional needs is more complex and, as indicated above, neither parent’s proposal seems to be entirely attuned to meeting [X]’s emotional needs, particularly relating to her parental relationships. The father demonstrates either lack of understanding, or insensitivity, about [X]’s emotional needs in proposing that he, in effect, became her primary carer in a relatively short period of time. His proposal in this regard seems to prioritise his needs over that of [X]. To a lesser extent the mother’s conservative approach to [X]’s time with her father may well demonstrate the same phenomena.
As indicated above, a more nuanced, sensitive approach is needed.
Maturity, lifestyle and background
The father is of Lebanese background and follows the Muslim faith. The mother is of Scottish background and also follows the Muslim faith having converted during her adolescence. This diverse cultural and religious background together with her father’s disability, offers to [X] many of the opportunities referred to in paragraph 35 and 36 of the Family Report. Despite the orders sought by the father about the Islamic faith, these background issues of the parents do no feature prominently as consideration in this case.
Attitudes and responsibilities of parenthood
Section 60CC(3)(i) invites a close consideration of parental attitudes which are, more often than not, manifested by their actions and inactions. The most significant issue here is the parents inability to communicate at an effective level. This was adverted to in paragraph 38 of the Family Report. It is referred to in that context as conflict, but for present purposes the court is satisfied that the genesis of the conflict is the inability to communicate. The evidence of the parents is full on examples of their inability to communicate about contact in the post-separation period. In cross examination the father conceded that almost all communication with the mother was by text message. In cross examination the mother conceded distrust of the father and of members of his family. True it is that both parents expressed a hope and optimism that they can move forward for the sake of their daughter. The court hopes that this is true, but experience indicates that it is very difficult for poorly communicating, conflicted parents to change quickly. Both parents had good forensic reasons for wanting to demonstrate to the court a renewed commitment to work together. The court remains very concerned about this.
The father’s proposal for equal time, or indeed for primary care, is simply unrealistic and impracticable in circumstances where even he concedes the parents only communicate by text message. One does not need research to establish this – it is common sense. The father clearly blames the mother for their communication problems – this was the thrust of his counsel’s cross-examination of the mother – presumably on instructions. The court does not accept this on the evidence. The conflict and communication in this case is clearly a bilateral issue.
Considering equal time or substantial and significant time
As the parents both now seek an order for equal shared parental responsibility, and as the court considers this appropriate, particularly because but not limited to the fact that there is no evidence to the contrary, then s.65DAA requires me to consider equal time.
Equal time is not in the best interests of [X]. As indicated above the father’s proposal, which most closely equates equal time, is too much change too quickly for [X] (s.60CC(3)(d)). It ignores [X]’s emotional needs and dependence on her mother as historical primary carer (s.60CC(3)(f)). Moreover, the conflict and inability to communicate of the parents contra-indicates this (s.60CC(3)(i)). All of the evidence indicates that it is not reasonably practicable under s.65DAA(5)(b),(c) and (d).
However, an order that will increase to substantial and significant time is in the best interests of [X], and is reasonably practicable. Having regard to her age and developmental stage, it is not appropriate to implement this immediately.
Orders in [X]’s best interests
For the reasons that I have set out above, equal time is not in [X]’s best interests, nor is primary care with her father. In the fullness of time this may be a viable option, however.
Even the mother concedes that once [X] commences school four nights each fortnight is appropriate. I agree. This is developmentally appropriate, as well as being in her best interests.
The parents are at odds about the introduction of overnight time. The father wants this to occur immediately. The mother proposes this in one years’ time. The Family Report recommends that contact should be gradually increased to overnight. The mother agrees that [X]’s time can be increased to 10am to 5pm each Saturday. If that is implemented immediately, then I am satisfied from all the available evidence that [X] will cope with overnight time once a fortnight within six months, and extending to once weekly in 12 months’ time. Having regard to [X]’s age and developmental stage, the frequency of contact is as important as its duration. Hence, [X] should be able to spend time with her father at least once weekly.
Thus the progression of time should be as follows:
a)From the date of these orders every Saturday from 10am to 5pm.
b)From six months after the date of these orders, each alternate Saturday from 10am to Sunday at 5pm, and each other Saturday from 10am to 5pm.
c)From 12 months after the date of these orders, each Saturday from 10am to Sunday at 5pm.
d)From 24 months after the date of these orders, from after school (or 3pm) on Fridays to before school (or 9am) on Mondays in week one, and from after school (or 3pm) on Wednesdays to before school (or 9am) on Thursdays in week two.
The father proposes half of each school holiday period. This is clearly inappropriate at this developmental stage of [X]’s life, based on the evidence before me. The mother appears to make no proposal for school holidays. These orders provide for weekly overnights within
12 months. From that time it will be appropriate to suspend contact during school holidays, and introduce a separate regime for school holidays. The orders will provide that [X] can spend time with her father for one block consisting of four days and three nights in each of the mid-year school holidays, and two blocks of four days and three nights in the December/January school holidays. If the parents are unable to agree, contact is to commence at 10am on day one, and conclude at 4pm on day four. Once [X] commences school, holiday contact will be half of the mid-year school holidays, and three blocks of five days and four nights in the December/January school holidays. In the December/January school holidays of the year in which [X] turns eight, her contact in these school holidays will be half of the same, but in one week blocks. Once [X] turns 10, this contact can become half of these longer school holidays.
The mother does not oppose order 16 proposed by the father in his case outline document, dealing with Eid.
The parties have competing but rather vague proposals in relation to other special days. There was little or no evidence going to these issues. Any submissions on these issues were unhelpful. The orders will provide for [X]’s time to be shared on these special days.
The father sought orders the effect of which were that each parents give the other the first option to care for [X] if they were unable to do so. In a case where [X] has such a wonderfully supportive extended family, but where her parents still struggle in relation to communication, the orders he proposes are not in her best interests.
I accept the mother’s proposals about changeovers at McDonald’s.
The Family Report recommends each parent attend a Parenting Orders Program. I agree that this is a good idea and certainly in [X]’s best interests.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 9 April 2010
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