Parker and Brown
[2010] FMCAfam 911
•23 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PARKER & BROWN | [2010] FMCAfam 911 |
| FAMILY LAW – Parenting – children – reliability and stability of Mother’s actions in issue – significant geographical distance between parental homes – admissibility of previous judgment of Court – principles of admissibility of report not ordered by the Court. |
| Evidence Act 1995, ss.91, 157 and 190 Family Law Act 1975, Part VII, ss.60B(1) (a), (c), (d), (2), (a), (b), (c), (d), (e), 60CA, 60CC(1), (a), (2), (b) (3) (b) (i), (ii), (c), (i), (j), (k), (4), (4A), 61DA (1), 65AA, 65DAA(1) (a) & (b) (2), (3), (5) (b), (c), 69ZT |
| Goode v Goode (2007) 36 Fam LR 422 Keach & Keach (2007) FLC ¶93-353 McCall & Clark (2009) 41 Fam LR 483 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶ 93-375 MRR v GR (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC¶93-424 SPS v PLS (2008) FLC ¶93 363 Cross on Evidence (Eighth Australian Edition) (J.D. Heydon) (Sydney: Lexis Nexis Butterworths, 2010) |
| Applicant: | MR PARKER |
| Respondent: | MS BROWN |
| File Number: | CAC 443 of 2009 |
| Judgment of: | Neville FM |
| Hearing dates: | 4 & 5 February 2010 |
| Date of Last Submission: | 24 February 2010 |
| Delivered at: | Canberra |
| Delivered on: | 23 March 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr I Nash SC |
| Solicitors for the Applicant: | Phelps Reid, Canberra |
| Counsel for the Respondent: | Mr P Davies |
| Solicitors for the Respondent: Independent Children’s Lawyer | Byrnes & Cox, Port Macquarie Mr D Ridge |
ORDERS
The mother and the father have equal shared parental responsibility for the children, [X] (born in 2004), [Y] (born in 2005) and [Z] (born in 2007) (“the children”).
The children reside with the Father.
Unless otherwise agreed by the parties in writing, if the Mother remains living outside of the Canberra region, the children spend time with the Mother as follows:
(a)In Canberra for one period each month from Wednesday after school/childcare at 3:00pm until the commencement of school/childcare the following Monday. If the weekend is a long weekend, then the children shall spend time with the Mother until the Tuesday;
(b)For one half of all ACT school holiday periods commencing in 2010 for the first half of all school holiday periods and each alternate year thereafter and commencing in 2011 for the second half of all school holiday periods and each alternate year thereafter;
(c)School holiday time will commence at 12 noon on the Saturday after the last day of the school term and will cease on the Saturday prior to the new school term at 12 noon and will be for the period in each school term holiday for a seven day period until Saturday at 12 noon and in respect of the December/January school holiday period for a three week period commencing at 12noon on the first Saturday of the school holidays and conclude on the Saturday three weeks later.
(d)That in the event that the Mother is in Canberra then such times as may be agreed, providing the Mother gives the Father seven days notice of her intention to spend time with the children during this time.
Unless otherwise agreed by the parties in writing, if the Mother resides in the Canberra region, the children will live with the Mother and the Father on an equal shared care basis.
Notwithstanding any other Orders the children shall spend from 9.00am to 5.00pm with the Father on Father’s Day and from 9.00am to 5.00pm on Mother’s Day with the Mother in Canberra.
The parent with whom the children are not residing shall have telephone time with the children each Wednesday, Friday and Sunday between 6.00pm and 7.00pm.
All handovers in respect of the children are to occur at an agreed location approximately halfway between each parties’ residence, except when the Mother spends time with the children in Canberra, in which case she will collect the children from the Father’s residence and return the children to the Father’s residence or otherwise in accordance with these Orders.
The parties are to take all steps necessary to enrol in a post-separation parenting course within 28 days of the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Parker & Brown is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 443 of 2009
| MR PARKER |
Applicant
And
| MS BROWN |
Respondent
REASONS FOR JUDGMENT
A. Introduction[1]
[1] The following oral judgment has been revised from the Transcript.
Rather more so than in a great many cases, a genuinely Solomon-like decision is required in these proceedings which concern parenting orders for three young children:[2] [X] who is currently five years old and who turns six in June; [Y] who is four and who turns five later in the year; and [Z] who is two, but who will turn three in early May this year. For the purposes of these reasons I will refer to [X], [Y] and [Z] - more often than not, and unless otherwise required - as “the children”.
[2] The famous account of Solomon’s judgment is located in the First Book of Kings 3,16-28.
I readily accept the experienced Family Consultant's observation that all parties and the respective grandparents are well intentioned. However, the situation would strongly appear to be that ‘the parents of the children were not meant to be together,’ as Ms Lang (the Family Consultant) observed. While undoubtedly true, nevertheless, the Court is fixed with the responsibility of making a decision in the light of the history of a relatively short relationship and to do so having regard, above all else, to what is in the children's best interests.[3]
[3] Cf. c.60CA Family Law Act 1975 (“the Act”).
In saying this I should not be taken as implying, let alone asserting, that the Court is not also acutely mindful of the sincere and genuine love that both parents have for their children, and the grandparents likewise, and that to the degree that I can, and which does not detract from the paramount interests of the children, I will be seeking to take account of the needs and wishes of the parents. I will come back to these matters later in these reasons when I deal with what is described as the statutory pathway and the children's relationship with their parents.
B. Background
The respondent Mother, Ms Brown, has an eight year old child, [E], from a previous relationship. [E] lives with her Father in Canberra. Ms Brown sees her when she visits Canberra or pursuant to such arrangements that are made with [E’s] Father from time to time.
Although no finding need or should be made - as the independent children's lawyer, Mr Ridge, noted in his written submissions - it is concerning that the record of Ms Brown maintaining a regular relationship with her older daughter [E] is not good. In his written reasons the independent children's lawyer said that it was "poor".
Ms Brown lives in [C Town] on the central coast of New South Wales. It is approximately [omitted] kilometres from Port Macquarie. Mr Parker lives in Canberra. At the commencement of the short period of cohabitation, which began in approximately mid-2003 and ended in early 2006 - although there is some debate about when it actually ended - both parties lived in Canberra. Later in 2003 they moved to the central coast area of [C Town] before purchasing a property at [H Town], also in the same general area.
In 2004 Ms Brown moved to Canberra for approximately five months; newly born [X] accompanied her. In April 2005 the parties moved into a relocatable home on the [H Town] property. In early 2006 Mr Parker moved out of the relocatable house. As previously indicated, the relationship should be taken as being ended at this time, and this is so notwithstanding the later conception and birth of [Z] in May 2007.
There have been occasional AVO proceedings against the Father, Mr Parker. It may be taken that they were confined to the period of the relationship between the parties. For reasons explained in more detail later, due to a perceived potentially adverse health issue in her life in late 2008, Ms Brown moved to Sydney and suggested that the children live with Mr Parker on a shared care basis. Between September 2008 and July 2009 the older two children lived in a shared care arrangement between the parents, and in fact spent longer periods of time with their Father, while the youngest child [Z] understandably lived with his Mother and spent time with his Father.
In early 2009, and without notice to the Father, Ms Brown took the children from Canberra and returned to live in [C Town].
On the basis of this very brief, if not sketchy, narrative, given the geographical locations of the parents, it will be readily seen that a critical issue concerns the logistical matters of transport and time that impact on these young children because of the significant, if not cruel, distance that separates their parents. I use the word "cruel" deliberately because the family consultant made plain the fact that if the parents lived closer together a shared care regime would most likely be recommended and would be in the children's best interests.[4]
[4] See, for example, par.54 of Ms Lang’s Report, dated 9th October 2009. Parenthetically I note here that, for the purposes of these proceedings, on the principles articulated by Warnick J in the Full Court judgment in SPS v PLS, Ms Lang's two Family Reports, dated 25th May and 9th October 2009, should be taken to be admitted into evidence in these proceedings. See SPS v PLS (2008) FLC ¶93 363 at [7] - [22]. The independent children’s lawyer seemed also to accept such a proposition. See the Submissions, dated 11th February 2010, p.2.
Unfortunately, neither parent proposed or felt capable of moving to live closer to the other parent. For reasons explained in more detail later, for his part, Mr Parker said that he was unable to return to the [C Town]/[H Town] area because of limited employment opportunities there, whereas there was significant work in the Canberra region. He also confirmed that there were not insignificant difficulties not only with Ms Brown but also with her Father.
For her part, Ms Brown said she could not and would not move because she needed the support of her parents and others in her local church community.
Another cruelty in this case is the emotional and communicative distance between the parties and the impact it has on the children. Ms Lang described the situation that presented itself to her and equally so to the Court in the following, brief, terms:[5]
The history of the children's care arrangement is a complex one. What is of concern is the instability of arrangements over the past two years.
[5] For ease of reference I will refer to the two Reports as either “the May Report” or “the October Report.” Ms Lang’s description just mentioned is at par.5 of the October Report.
Respectfully, I agree with Ms Lang's comment. I will address these matters and others in due course. Fortunately, it did not seem to be in issue that the children have a good and close relationship with both parents. At paragraph 50 of her October report Ms Lang stated:
It is apparent that the children have a close emotional relationship with both parents and feel secure in the care of each of them.
Subject to what is said later it might be taken that the current arrangements reflect the best arrangements for the children, and that there are no concerns of any major moment with them being with either parent, having regard to the geography involved, which involves a one way drive of approximately seven hours between the parents' residences. Currently the children live with their Mother and spend one week each month with their Father in Canberra. Ms Brown works part time for two days each week as a [professional].
Mr Parker works full-time as [a tradesman]. He finishes work around 3.30 pm. Mr Parker has some family in Canberra who are actively involved in the care of the children. Ms Brown is strongly supported by her parents. She currently lives in a separate residence on their property. She is dependent on them in a number of respects. For example, in evidence she confirmed, as did Dr GB in his evidence, that her Father funded the current litigation on her behalf. I note these matters in no way critically.
As identified by Ms Lang, the issues to be resolved concern: (a) the parents' capacity to care for the children; (b) the need to establish care arrangements that best meet the developmental needs of the children; (c) the children's relationship with each of their parents and other significant adults; and (d) the impact of the recent instability in care arrangements on the children. Essentially I agree with these as the basic issues to be resolved.
The Court was assisted by having Mr Ridge, who appeared as the independent children's lawyer. In his written submissions he identified some further issues. Perhaps most relevantly, he identified the issue of [Z]'s primary attachment to his Mother and its relevance to the respective parenting orders sought.
To the issues already noted I would add the following: (i) the relevance of any influence of Dr GB, the maternal Grandfather (this was also noted by Mr Ridge as an issue to consider); (ii) allegations regarding the Father's alcohol use; and (iii) the availability of Mr Parker to care for the children given that he works full time.
These reasons proceed now in the following order: (i) proposals of the parties; (ii) the parties’ evidence; (iii) the evidence of Ms Lang; and (iv) the prescribed legislative pathway.[6]
[6] This prescribed pathway, and related matters, is set out in Goode v Goode (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82]; Keach & Keach (2007) FLC ¶93-353 at [24] ff. See also the more summary discussion, to which I refer later in these reasons, by Brown J, in Mazorski v Albright (2008) 37 Fam LR 518 at [3] – [6].
C. Proposals of the parties
Minute of Orders Sought by the Applicant Father
1. That the Mother and the Father have equal shared parental responsibility for the children [X] (born in 2004), [Y] (born in 2005) and [Z] (born in 2007) (“the children”).
2. That the children reside with the Father.
3. That the children spend time with the Mother as follows:
3.1 Until [X] commences primary school in February 2010:
3.1.1 For one week in each month as follows:
3.1.1.1 12 noon Saturday 31 October 20009 until 12 noon Saturday 7 November 2009.
3.1.1.2 12 noon Saturday 28 November 2009 until 12 noon Saturday 5 December 2009;
3.1.1.3 12 noon Saturday 26 December 2009 until 12 noon Saturday 2 January 2010; and
3.1.1.4 12 noon Saturday 28 January 2010 until 12 noon Saturday 30 January 2010.
3.2 That once [X] commences Primary School in 2010:
3.2.1 Provided the Mother spends time with the children in Canberra for one period each month from Tuesday after school/child care at 3:00PM until the commencement of school/childcare the following Monday, provided that if the Monday is long weekend then until the Tuesday, such period to coincide with the full weekend period of each calendar month;
3.2.2 School holiday time will commence at 12noon on the Saturday and after the last day of the school term and will cease on the Saturday prior to the new school term at 12noon and will be for the period until Saturday at 12noon and in respect of the December/January school holiday period for the first Saturday of the school holidays and concluded on the Saturday three weeks later.
3.3 That once [X] has commenced Primary School in February 2010:
3.3.1 For one half of all ACT school holiday periods commencing in 2010 for the first half of all school periods and each alternate year thereafter and commencing in 2011 for the second half of all school holiday periods and each alternate year thereafter;
3.3.2 That in the event the Mother is in Canberra then such times as may be agreed, providing the Mother gives the Father seven days notice of her intention to spend time with the children during this time.
4. Notwithstanding any other Orders, the children shall spend from 9:00am to 5:00pm with the Father on Father’s day and from 9:00am to 5:00pm on Mother’s Day with the Mother in Canberra.
5. The parent with whom the children are not residing shall have telephone time with the children each Wednesday, Friday and Sunday between 6:00pm and 7:00pm.
6. All handover in respect of the children is to occur at [omitted], except when the Mother spends time with the children in Canberra, in which case she will collect the children from the Father’s residence and return the children to the Father’s residence or otherwise in accordance with these Orders.
Minute of Orders Sought by the Respondent Mother
1. The Mother have sole parental responsibility for the children:
1.1 [X] born in 2004;
1.2 [Y] born in 2005;
1.3 [Z] born in 2007
(“the children”)
2. The children reside with the Mother.
3. The children spend time with the Father as agreed between the parties or failing agreement from 9:00am Saturday to 6:00pm Sunday on the first weekend in each calendar month with such time spent to occur at the Father’s parent’s residence in [P Town] and be supervised by the Father’s parents.
4. The Applicant pay the Respondent’s costs of and incidental to these proceedings.
I should note that after the evidence was concluded, Counsel for both parties, and Mr Ridge, made written submissions. Although not in the form of “orders sought”, Mr Ridge submitted that the children should live with their Father in Canberra and spend time with their Mother.
D. The evidence
Unless otherwise specified, I note the following more by way of observation rather than formal findings in relation to the evidence.
Evidence of Mr Parker: Mr Parker impressed me (as he did Ms Lang – noted below) as a very straight-forward man. He gave his evidence in a thoughtful, candid manner. I had no reason to doubt, in any respect, both his genuine concerns for the children, and the accuracy and truthfulness of his evidence. For reasons noted later, to the extent that there is any inconsistency between them, I prefer the evidence of Mr Parker to that of Ms Brown.
The focus of Mr Parker's evidence in cross-examination might conveniently be considered broadly under three aspects: (i) alcohol consumption; (ii) the frequency of time he spent with the children after he moved to Canberra; (iii) his relationship with Ms Brown and her family – her Father in particular.
Mr Parker acknowledged that in the course of the relatively brief relationship with Ms Brown he drank. He disputed that he drank to excess. He acknowledged that he had two convictions for PCA offences; the first was in May 2004, the second was in December 2006. Following the second conviction he lost his licence for two and a half years. He readily acknowledged that he had made a couple of very poor decisions in this regard.[7]
[7] Transcript (4th February 2010) p.21.
He said that he drank at the time of the break-up of the relationship with Ms Brown. He said he did so because he was unsure what the break-up would mean for his access to the children and because he had discovered that Ms Brown was involved with another man. Mr Parker said that he only drank now occasionally and did so socially. Certainly, there was no evidence of any other drink driving offences since December 2006.[8]
[8] Transcript (4th February 2010) pp.23-24.
It might also be remarked that no orders were sought by Ms Brown against Mr Parker relating to alcohol consumption or testing. Ms Lang also noted that she had no concerns in relation to Mr Parker's alcohol consumption. In written submissions, the independent children’s lawyer contended that the evidence does not suggest that Mr Parker misuses alcohol, including using it to excess. The ICL was not concerned about the allegations of alcohol misuse by Mr Parker.
Regarding time with the children, Mr Parker said that upon him moving to Canberra for work in 2006 initially the plan with Ms Brown was for the move to be for a relatively short time. Later he said the plan was to look for accommodation for all the family on a longer term basis. Mr Parker also said that during his early time in Canberra, and up to the end of the relationship in August 2007, Ms Brown travelled to Canberra with the children on four occasions and that he would rent a hotel room for the family. None of these basic facts were disputed.
The third area of cross-examination related to what Mr Parker described as his inability to co‑parent with Ms Brown and her Father. It is important to note that Mr Parker acknowledged and praised the maternal Grandmother, Mrs MB, with whom (he said) the children have a good and close relationship.[9] Mr Parker said that he could not co‑parent with Ms Brown because of, amongst other things, her impulsiveness and unpredictability, and because she was so strongly influenced by her Father.[10]
[9] See Transcript (4th February 2010) p.59.
[10] Transcript (4th February 2010) pp.26 & 57.
He also said that Ms Brown was overly protective of the children, while he was of the view that each child - in my words – ‘would blossom in their own time.’[11] Mr Parker said that the children had a good relationship with their older sibling [E], although he acknowledged that they did not see her that often, perhaps once a month.[12] I had the impression that there might be some significant time in between when they did not see her.
[11] Transcript (4th February 2010) p.32.
[12] Transcript (4th February 2010) p.36.
He also said that the children had a good and close relationship with their cousins in Canberra, being his sister's children: Mr Parker lives very close to his sister. He deposed to his sister’s daughter [A] attending the same class at the same pre-school as [X], and his sister’s son [B] attending the same day-care centre as [Y].[13]
[13] See, for example, Mr Parker’s affidavit, filed 17th April 2009, par.41. Annexures E and F to that affidavit provide enrolment and attendance records for the respective day-care centre and pre-school. It seemed not disputed that the pre-school and day-care centre are a relatively short walk from Mr Parker’s residence, and also in close proximity to Mr Parker’s sister’s residence. Generally, see Mr Parker’s affidavit, filed on 14th July 2009, par.19. In his affidavit filed on 2nd February 2010, at par.15, Mr Parker confirmed that he had kept in touch with [S School]. The School had confirmed with him that places for all three children remained. See also the brief discussion at Transcript (4th February 2010) p.43.
Other matters that were touched on relatively briefly in the course of cross-examination included dealings with Mr Parker's brother (which I need not elaborate), and an issue in relation to an ear infection [Y] had some little time ago and its treatment. Mr Parker denied quite strenuously that he had ever sought to discourage Ms Brown continuing the pregnancy with [Z]. As I have said, I accept Mr Parker’s evidence, and, as noted below and for the reasons given, prefer it to that of Ms Brown (and Dr GB) where-ever there is any conflict in relation to it.
Evidence of Ms Brown: First, Ms Brown struck me as a somewhat fretful witness. She was clearly anxious about a range of matters. It may have been the case, and likely is to a significant degree, that she is still carrying the wounds of a relationship that was at times somewhat testing, as most relationships are at some stage. She may also still be dealing with what might be described as the trauma of the end of the relationship with Mr Parker. All such matters are perfectly understandable and should not be taken as any criticism.
Secondly, Ms Brown had not insignificant difficulty in recalling details in relation to a number of matters, and not infrequently in the course of cross-examination, she confirmed that what was in her affidavit was incorrect or at least inaccurate. I readily accept too, indeed it was not denied or an issue, that Ms Brown is quite an anxious person who is on medication, now at a low dose, to help her deal with her anxiety disorder.[14] Her anxiety was the subject of some comment by Ms Lang, to which I will refer in due course.
[14] Transcript (5th February 2010) p.115.
Whilst it is not infrequently the case and understandable that witnesses have difficulty in recalling events and facts, Ms Brown's inability to recollect certain matters seemed on occasion to be more a selective inability to recollect. This was unfortunate. Her poor and surprisingly selective recollection of previous proceedings in this Court, including lack of recollection of her legal representation on that occasion, is a good and simple example of what was encountered in the course of her evidence. Her poor and or selective recollection at least suggested that she was seeking to colour her evidence somewhat in order to strengthen her case.
Thirdly, Ms Brown claimed that Consent Orders that were entered into in April 2009 with Mr Parker had been signed, in effect, under duress. She claimed that she had been bullied into signing them. This was claimed, notwithstanding that they were negotiated with an experienced family consultant and while she was legally represented by the same firm which continues to act for her.[15] It was also the first time that any claim of bullying had been raised in the proceedings.
[15] Transcript (5th February 2010) pp.108-113.
Accepting, at its highest, other matters noted below in relation to Ms Brown's propensity to be less than clear and less than assertive in her dealings with dominant male characters, it is clear that there had not been any assertion of bullying until the hearing. From her evidence and other matters referred to presently, for the purposes of these proceedings, all three males mentioned in them, namely Mr Parker, Mr M - Ms Brown's previous partner and Father of her daughter [E] - and Dr GB, might or should be seen, from Ms Brown's perspective, as dominant male characters.
For my part I do not accept that bullying is an apt description of any of the negotiations that resulted in the Consent Orders of April 2009.
I will come back to such claims and related matters shortly.
Fourthly, a matter of very significant moment concerns Ms Brown's assertions regarding certain advice that she received in the course of these proceedings. That advice on her evidence related to two matters.
The first aspect of the advice arose in the context of an interim hearing that was held in July 2009 following which certain orders were made. In an affidavit filed on 13 July 2009 (par. 98), Ms Brown deposed that if the Court granted the interim orders she sought, she would not work as a [professional] and would devote her ‘full time and energies to looking after the children.’
Contrary to what she asserted, Ms Brown did return to work, albeit on a somewhat limited basis, immediately after the orders were made. However, my concern is that Ms Brown testified that notwithstanding what was contained in her affidavit about not returning to work, she in fact did so, and she said that she acted on the advice of her lawyer.[16]
[16] Transcript (5th February 2010) p.123.
The second aspect of concern about the legal advice that Ms Brown claimed to have received arose this way. Again in the course of cross-examination, she was asked whether she had considered what she would do, or how she would cope, if the Court ordered the children to live with their Father in Canberra and to spend time, even significant time, with their Mother. Her response was two-fold.
In the first instance, Ms Brown said that her solicitor assured her that the Court would not make such an order.[17] How any lawyer can or could give such an unequivocal assurance, if this is in fact what was advised, would be astonishing. It would also be deeply worrying, particularly in family law proceedings, where there are invariably so many diverse factors to consider.
[17] Transcript (5th February 2010) pp.139-140.
When asked to consider such a situation, or such a scenario, even in the limited time and the circumscribed occasion of the witness box, Ms Brown said that she was unable to contemplate it.[18] As with much of her evidence, in my view, allowing for difficulties and tensions which almost all witnesses encounter, Ms Brown’s refusal or inability to provide any helpful response was unfortunate.
[18] Transcript (5th February 2010) pp.140-141.
The next and fifth matter I wish to note is that Ms Brown confirmed that in order to ensure that she could see her daughter [E], her parents agreed in writing with [E’s] Father, Mr M, to be responsible for supervising [E] while she spent time with Ms Brown during a week long visit to Coffs Harbour during the last Christmas holidays. It is perhaps best not to comment on this aspect as it seems to speak for itself.
Sixthly, in March 2009, Ms Brown confirmed that she travelled to Canberra from Sydney, where she was then living, and picked up the children. She did so she said on advice from the Department of Community Services (“DoCS”). She did so without any notification to Mr Parker and without telling the children that she was taking them back to live in the Port Macquarie area. Leaving aside what DoCS did or not advise Ms Brown, and also leaving aside whether she in fact spoke with DoCS at all (it may be that her Father's later discussion with the Department - to which I will refer shortly - has become somehow conflated with slightly earlier events), in my view, her actions were peremptory and devoid of ordinary expectation of discussion and/or information about her proposed course of action. Mr Parker and the children were oblivious to what was transpiring until the “recovery” of the children was a fait accompli.
Seventhly, Ms Brown sought to justify her actions on this occasion by saying that there was "no contract in place" to prevent her from taking the children, and that she had every right to take them away from what she described as "an unsavoury situation."[19] Yet the reality is that only a matter of some weeks later, pursuant to Consent Orders, the older two children were returned to Mr Parker's care to a significant degree as a result of Ms Brown attending to some health issues that were diagnosed at the time.
[19] Transcript (5th February 2010) p.125.
Eighthly, Ms Brown confirmed, on the one hand, that she was not seeing a psychologist (Dr J) professionally, but on the other hand, she said that she had had counselling in relation to the breakdown of her previous relationship (including a self-psychology program) and that she had seen Dr J in relation to a range of issues concerning her Father.[20]
[20] Transcript (5th February 2010) pp.133 & 134.
Indeed, in answer to a series of questions from Mr Ridge based on Dr J's clinical notes, Ms Brown acknowledged that she had told Dr J that she felt controlled by her Father. She also said that he, Dr GB, had gone into a rage upon learning that Ms Brown was pregnant with Mr Parker's child ([Z]).[21]
[21] Transcript (5th February 2010) pp.134-135.
Given the strengths and weaknesses that are part and parcel of the litigious process, not least being the oral evidence of parties given over a period of time in the witness box, I note the following.
To the degree that there are any issues of fact in dispute between the parties, and that is not otherwise supported or challenged by independent or other credible evidence before the Court, I prefer the evidence of Mr Parker to that of Ms Brown. This is of course not to suggest that I found Ms Brown to be an untruthful witness; not at all. Rather, as I have noted, she was an especially fretful witness and seemed on occasions to be somewhat selective in her recollection of events. It may also have been that to some degree her anxious demeanour was not assisted because, unfortunately, her solicitor was not present during the hearing. Indeed, Mr Davies, of Counsel conducted the proceedings uninstructed. On the other hand I found Mr Parker's evidence to have been given in a straightforward and candid manner. Put another way, I have a significantly greater confidence in the reliability of Mr Parker’s evidence than I do of Ms Brown’s evidence.
My observations of both parties accord also with observations noted by Ms Lang over a longer period of time in her two reports, to which I will refer shortly after dealing with the evidence of Mrs H and Dr GB.
For reasons previously noted, and those to which I will come shortly, I accept Mr Parker's assessment that, even leaving to one side issues of his greater employment opportunities in Canberra, it is untenable for him to move back to the Port Macquarie region and to seek to co‑parent the children.
Finally, in relation to the evidence of the parties themselves, I should also note one other matter. At the end of her cross-examination I asked Ms Brown whether she would consider moving to the Canberra area so that she could be closer to the children. She said that she could not. I took her answer to be predicated on the fact that she needed the support of her family and others in that area. Put another way, this also confirmed again that she was very significantly dependent on her family and remains so. I do not say this critically. It is not a reflection on her love for and commitment to her children. Rather, it is essentially a basic fact of her life and her dependency on her family.[22]
[22] In his written submissions, dated 11th February 2010, the ICL, Mr Ridge, also noted, with concern, Ms Brown’s evidence and her inability to consider a situation should the children reside with their Father.
Mrs H's evidence: Mrs H is the children’s paternal Grandmother. I need only note here two things: first, notwithstanding its limited nature, I have no reason to doubt her evidence and indeed I accept it. Secondly, that evidence was to the effect that she too had had some personal difficulties in her relationship with Dr GB, and that from her dealings with him she had formed the view that Dr GB was exercising a very significant parental role in relation to the children.
Evidence of Dr GB: Dr GB said on a number of occasions that his daughter was an independent person.[23] I recall that in the clinical notes of Dr J, and as recorded in Ms Lang's reports to which I will refer shortly, Ms Brown described herself as being ‘controlled by her Father.’ Thus, at the outset, there was a patent difference or dissonance between the evidence of Father and daughter.
[23] Transcript (5th February 2010) pp.144 & 160.
As I have said, Dr GB confirmed - and I do not say this in any way critically - that he was paying his daughter's legal fees in relation to the current proceedings and that he was giving instructions directly to his daughter’s solicitor. At one stage in cross-examination he described it as "a means by which there can be better regulation of traffic that goes to Kevin" - “Kevin” being Ms Brown's lawyer, Mr Byrnes.[24]
[24] Transcript (5th February 2010) p.145.
The Transcript records, amongst many exchanges between Dr GB and Counsel, one particular discussion with Mr Nash SC (for Mr Parker) in relation to a notification or an inquiry made by Dr GB quite late at night (i.e. around 10 pm) on 23rd March 2009, to DoCS. It concerned what Dr GB described as his granddaughter, [Y]'s, sexualised behaviour shortly after Ms Brown had removed the children from Canberra.[25]
[25] Generally, see Transcript (5th February 2010) pp.148-149.
No notice to or discussion with Mr Parker - then or since - in relation to this notification to the Department was ever undertaken. The first that Mr Parker knew of this was it being set out in paragraph 30 of Dr GB's affidavit that was filed on 14th April 2009.
I readily accept a parent's concern about their child's behaviour. It might be said that a usual course regarding such concerns would be to speak with an appropriate counsellor or one's doctor in the first instance. In the absence of an absolute emergency that would warrant departmental involvement, it is difficult to see how or why DoCS would be the first ‘port of call’, so to speak, in a matter of this kind.
I also have quite some difficulty in accepting that a Grandparent, and notably not a parent, would, in the circumstances of this case, make the Department their first point of contact, and do so late at night rather than first consult with either their local GP or even some experienced counsellor.
In short, I do not accept Dr GB's actions in this instance to have been appropriate, both in contacting the Department in the first instance, as well as in giving no notice to, or seeking any information from, a medical practitioner or other appropriate health professional. It is no less concerning that Ms Brown (so it would seem) did not take some more active or basic step in this issue, such as at least discussing it with Mr Parker.
I took Dr GB through one aspect of this issue in the context of endeavouring to have him see or appreciate to some degree how or why Mr Parker would feel aggrieved by, if not even more alienated from, Dr GB because of his actions in contacting the Department. It took not a little time for Dr GB to acknowledge, and unfortunately with some qualification, how, and or why, Mr Parker would feel aggrieved and further alienated.[26]
[26] Transcript (5th February 2010) pp.153-154.
Dr GB was a very discursive witness. Often his answers were more in the nature of exhortation, or at such a level of generality or even abstraction or basic principle as to be of little use to the Court in dealing with the issues to be determined. For example, he opined that either the Court and or the parties could or should focus on the best interests of the children, and that those interests would or should be promoted by all, and that all should ‘foster love and respect for both parents.’ Few could disagree with these basic precepts he articulated, but they were rarely responsive to the questions he was being asked in the context of this case.
Given the nature of some of Dr GB's general statements of principle it may have been the case that he was not apprised, or not sufficiently so, of the statutory responsibilities of the Court and the wide range of matters to which the Court must have regard in reaching its decisions. It often took a significant number of attempts to get Dr GB to answer a question directly; and when he did answer, it was not often in the most helpful or direct way.
I do not suggest that he was seeking either to prevaricate or to obstruct. Rather, he sought almost invariably to answer every question on his terms and to put his answer into a particular context.[27] For example, in the course of being asked to answer one particular question a number of times over, and that it could and should be answered on a ‘yes or no’ basis, Dr GB replied that he would "respond in his own way."
[27] The exchanges at Transcript (5th February 2010) pp. 154 to 158 provide a sufficient number of examples of the difficulties encountered.
His approach to questions was unfortunate and unhelpful. As well there were some questions, as I have already indicated, that he steadfastly refused to answer.
In answer to questions from Mr Ridge, he confirmed that he went into a rage upon learning that his daughter was pregnant to Mr Parker for the third time.[28]
[28] Transcript (5th February 2010) p.161.
Dr GB's description of Mr Parker as being subject to alcoholism, even if used in an obviously non-professional sense, cannot but be a most severe judgment, and which could only (and inevitably) have caused needless and further distance between the two men.
I agree with the independent children's lawyer's comments that Ms Brown's relationship with her parents is complex. I also agree, up to a point, with Mr Ridge's further comment that it has:[29]
… features of dependence for some forms of assistance from them which has some positive and some negative implications.
[29] ICL Written Submissions, 11th February 2010, p.3.
Mr Ridge further submitted that while Dr GB is "undoubtedly a significant person in the Mother's life" he did not see his involvement "as being a factor that strongly tips the balance one way or the other.”
In my view, respectfully, I beg to differ somewhat. In the light of his evidence, the clinical notes of Dr J which, although not in evidence,[30] were the basis for a number of questions from Mr Ridge, and in the light of Ms Lang's evidence, I took Dr GB to be a quite forceful man who would, according to the strong principles which he clearly has and to which he referred in his evidence, express. In doing so - and doing so very forcefully - he would more likely than not seek to influence the actions of his daughter. He would seek to do so with the best of intentions, of that I have no doubt. However, the result would not necessarily be for the best including the best interests of the children. The late night call to DoCS is a good example. In my view, it is clear that he remains a significant and highly influential figure in his daughter's life and in her decision-making.
[30] The clinical notes of Dr J were simply ‘marked for identification – 2.’
I do not suggest at all that he is a puppeteer, and still less a Svengali character in relation to Ms Brown. As I have said, there is no question that he is well intentioned. However, the imperfections that attend all human endeavour and behaviour, particularly in circumstances where, as they have been and continue to be here, significant stressors and strains, often cloud better or appropriate prudential judgment. Indeed, as an elder in his local Anglican Church he would be well familiar with the biblical text from Proverbs 24,16 which speaks about ‘even the just man falling seven times each day.’
Thus so here, where there have been many tensions impacting upon all involved and judgments made that, in my view, have not been in the children's best interests, and which have also impacted adversely upon the parental relationship.
As I have said, I consider Dr GB's influence in the past in relation to his daughter to have been quite significant. In my view, his influence in the future on her is likely to remain quite significant. Indeed, on the second day of the trial Ms Brown said that she would defer to his - that is Dr GB's - opinion on certain [unspecified] things. And earlier, in relation to significant events in March 2009, Ms Brown said that in taking the children from Canberra to [C Town], she had done so "because we had had a family discussion" and "we needed to talk as a family about what we were going to do."[31] All such matters clearly indicate the close and ongoing involvement of the maternal Grandparents, and I infer Dr GB in particular, in decision making in relation to the children.
[31] Transcript (5th February 2010) p.103.
Such a dominant force in Ms Brown's life is also relevant, in my view, to Mr Parker's comment, both to Ms Lang and in Court, that he cannot co‑parent with Dr GB. For the children to continue to live with Ms Brown in the Port Macquarie area, or for Mr Parker to move back to the same general locality, would inevitably require such a three-way parenting relationship to continue. I accept that that is not viable and it is not, in my view, in the children's best interests.
Evidence of the Family Consultant, Ms Lang: I have had particular regard to the following paragraphs from Ms Lang's first Family Report from May 2009.
2. In accordance with an agreement reached between Mr Parker and Ms Brown during the family conference on 23/4/09, [X] and [Y] currently live primarily with their father in Canberra and spend time with their mother and [Z] from Thursday evening to Sunday evening once each month in addition to a Sunday afternoon. At present, [Z] lives primarily with his mother in Sydney and spends a week per month in Canberra with his father and siblings. The children communicate with the absent parent by phone each Wednesday.
3. Since the family conference, Ms Brown has reassessed the agreement and proposes some arrangement whereby she has greater input concerning the children’s day–to-day care. She expresses concern that [X] and [Y] are not coping with the current arrangement and that they are experiencing separation anxiety in relation to her. Further, Ms Brown expresses concern that [Y] might have been sexually molested or has witnessed inappropriate sexual behaviour. Her concern stems from a comment [Y] allegedly had made to one of her maternal grandparents. I understand Ms Brown has reported her concerns to a Child Protection agency. She continues to express concern regarding Mr Parker’s alleged alcohol misuse and regarding the children being in contact with Mr Parker’s brother, [S], who, she believes, is a heroin addict.
4. Ms Brown offers two proposals. One proposal is for [X] and [Y] to live in a two-week about shared care arrangement and for [Z] to remain primarily in her care. Her second proposal is for [X] and [Y] to live with their father and to spend a week with her each month in addition to a weekend from Saturday to Sunday and for [Z] to live with her and spend time with his father for a four day block on a monthly basis. Ms Brown informs that her intention is to apply for the primary care of all three children and to relocate to the Port Macquarie area, where she will have the support of her parents, if Mr Parker is not agreeable to either of her proposals.
5. Mr Parker’s preference is to continue with the agreement reached in the family conference with the view that arrangements for [Z] will gradually coincide with that of [X] and [Y] and with the view that the children’s overall schedule be reviewed once [X] begins primary school next year. Mr Parker maintains that he is in the better position to provide the children with a stable home-life and routine. He expresses concern regarding Ms Brown’s emotional stability and the impact on the children.
…
11. [X] and [Y] were seen on a second occasion in response to Ms Brown’s concerns expressed during the follow-up telephone interview. On this occasion, [X] and [Y] again presented as strong-willed, lively, albeit, tired children given the appointment was late during the afternoon at the end of the week. Mr Parker was instrumental in re-establishing harmony between the children over a dispute concerning biscuits. In general, [X] and [Y] appeared content in their father’s care. In relation to Ms Brown’s concerns that the children are having difficulties moving between their parents, it would, in fact, be unusual for them not to experience some insecurity/separation anxiety given their history of care. The children have not, yet, had the opportunity of experiencing a consistent and, therefore, predictable routine of care. They are, therefore, not yet at the stage when they can trust their routine sufficiently to be certain of the next occasion when they will see their absent parent.
Parents’ Capacity to Understand and Respond to the Needs of the Children
12. As part of the family conference process, Mr Parker and Ms Brown agreed to a joint feedback session and discussion concerning the three children. I was impressed with the manner in which the parents co-operated to work out an arrangement that might best meet the needs of the children. Although, Ms Brown was reluctant to forgo a shared-care arrangement for [X] and [Y], she was open to suggestions by Mr Parker that would reduce the number of occasions the children needed to travel and that would provide them with the most stability. Both parents acknowledged the desirability for [Z] to eventually have the same routine as the older children such that all three siblings could be raised together.
…
15. Given Ms Ms Brown’s wish to reassess her agreement with Mr Parker, it would appear that she remains uncertain of the best outcome for the children.
Summary
16. At this point in time, the children require a set routine, whereby they are able to feel secure in their day-to-day routine and secure in the knowledge that they will see each parent and each other on a predictable basis.
17. It would appear that, at present, Mr Parker might be in the better position to provide the children with a secure base as he is settled in Canberra. It is a pity that Mr Parker and Ms Brown live some distance apart as it would be ideal for the children, given their young ages, to spend time with each of their parents on a frequent basis. However, Mr Parker has made his home in Canberra and Ms Brown has work commitments in Sydney.
Likewise I have had particular regard to the following paragraphs from her second Family Report in October 2009:
5. As mentioned in the family conference report, the history of the children’s care arrangements is a complex one. What is of concern is the instability of arrangements for the children over the past two years.
…
Mr Parker
10. Mr Parker presents with an open and friendly manner. He impresses as a considerate and responsible adult. Mr Parker describes himself as friendly, calm, sociable and reasonable. He informs that he has a wide network of friends both in his work and social environments. Mr Parker asserts that he does not misuse alcohol as alleged by Ms Brown. He remarks “I didn’t start trying a drink socially until a lot later than a lot of people at school – I was eighteen”. He adds that he mostly consumed “a few beers once a week with a few mates”. Mr Parker further adds “it stayed like that pretty much”. He comments that his alcohol consumption increased at the time his relationship with Ms Brown was deteriorating. Mr Parker stresses “it never got to the point of alcoholism”. He reports that, since living in Canberra, his consumption of alcohol has reverted to the original moderate pattern of social drinking. Mr Parker is adamant that he has never been violent as a result of alcohol consumption or violent in general. He states “I’ve never laid a hand on her [Ms Brown] or on anyone”. Mr Parker adds that, during the lead-up to the separation, “it did get abusive – it was always verbal stuff – just yelling”.
11. Mr Parker was administered the Personality Assessment Inventory (Morey, 1991). The test provides a measure of psychopathology in addition to attitudinal and behavioural features and it also provides a measure of patterns of interpersonal relationships. Mr Parker’s results on one of the validity scales was slightly elevated and suggests he might have responded to items to present himself in a positive light. Some caution is required in interpreting his results. Overall, Mr Parker’s results were unremarkable and indicative of a well-functioning individual. They suggest an absence of any psychopathology. His score on the ‘alcohol’ scale is in the average range and is suggestive of an individual who consumes a moderate intake of alcohol. With respect to other areas of concern expressed by Ms Brown, Mr Parker’s result on the ‘aggression’ scale indicates that he has reasonable control over the manner in which he expresses anger and hostility. The result on the scale that measures ‘suicidal ideation’ is suggestive on an individual who has few thoughts of suicide. Mr Parker’s scores on the ‘interpersonal’ scales are suggestive of someone who is comfortable and self-assured in social interactions and who is empathic in relation to others.
12. Mr Parker’s results on the above test are consistent with his presentation over several meetings. He might, however, have a tendency to resort to a greater consumption of alcohol under stressful situations. At present, Mr Parker does not exhibit any behaviours or attitudes that might inhibit his ability to effectively care for the children. In fact, Mr Parker exhibits positive parenting attributes. As a parent he describes himself in terms of “I just try to talk to the kids as people – not baby them – I’m very affectionate – I’m consistent, not overly strict, but consistent – I do lots of activities with them – I like to take them camping – I get them to learn to share and not place so much importance on ownership – I listen to them – show them how to be patient like I am – to be calm – try to facilitate their learning as much as I can – try to keep the conflict with Ms Brown out of it”. Mr Parker’s delight in the children is apparent. Of [X], he informs “he’s a typical older brother – quite bossy and wants to tell [Y] and [Z] what to do – he likes the company of other kids – he gets frustrated when he can’t do things”. He expresses concern that [X] is regarded by Ms Brown as having learning difficulties. He remarks “you have to learn at your own speed – not everyone is the same”. With regard to [Y], Mr Parker comments “she’s very confident and sociable – she’s very affectionate”. He describes [Z] as “he’s the happiest little kid”.
…
Ms Brown
14. Ms Brown presents with a manner that is, at times, open and, at other times, wary and uncertain. She impresses as earnest and as motivated to make decisions that best meet the needs of the children and others around her. Ms Brown also impresses as anxious, which might, at times, inhibit her ability to be confident in her decision making. As a result, Ms Brown’s behaviour, could, at times, be perceived by others as indecisive. Ms Brown informs that she had experienced some anxiety during her secondary school years. She explains “my Dad is an ambitious person – he wanted me to go to university – I had to work a lot harder – I was a high flyer”. It would appear there is some tension in Ms Brown’s relationship with her father. In a light-hearted manner, she explains “he’s pushy – it’s a Protestant thing”. She informs “I have faith in the good part of bullies – I give in to bullies like [E’s father] [former partner] and [Mr Parker].
…
16. Ms Brown explains that she has had two particularly stressful times in her life. She refers to the end of her relationship with [E’s] father. Ms Brown informs that she experienced grief and distress in relation to the separation and grief in relation to the loss of the primary care of [E]. She explains “it was a very confusing time – I felt things were out of control – I started compulsive-obsessive behaviours”. Ms Brown informs that she was prescribed medication for the condition and had counselling, which, I understand, she still continues. She remarks that she had little support from Mr Parker and that “I had to take control”. Ms Brown further remarks “I then gave control over to my church, family and friends – I know I couldn’t take total responsibility – I can’t do it all on my own”.
…
18. Ms Brown, too, was administered the Personality Assessment Inventory. Her result on one of the validity scales suggests that she may have responded to test items in a slightly haphazard manner. Interpretation of her test results, therefore, requires some caution. In general, Ms Brown’s scores on the clinical scales indicate an absence of any form of psychopathology. In regards to areas of concern that have been raised, her result on the ‘anxiety’ scale is, in fact, reflective of an individual who is relatively free of clinical symptoms of anxiety. Ms Brown’s slightly elevated score on one of the sub-scales associated with borderline features suggests that she feels resentful and betrayed by people once close to her. Her other scores associated with borderline features are unremarkable. Ms Brown’s somewhat elevated result on the ‘drug problems’ scale is indicate of someone who has, at some stage, experienced some adverse consequences as a result of regular drug use. In relation to the ‘interpersonal’ scales, Ms Brown’s score on the ‘dominance’ is suggestive of someone who is not skilled at asserting themselves. Similarly, her result on the ‘warmth’ scale is indicative of someone who is eager to be liked, is trusting and ready to forgive and is at risk to be taken advantage of in personal relationships. Ms Brown’s score on the ‘non-support’ scale, however, indicates that she feels supported in her relationships with family and friends.
19. Based on the above test results, it would appear that Ms Brown no longer has an anxiety condition of clinical significance and that her experience of obsessive-compulsive symptoms was a reaction to a series of particularly stressful life events. She might, however, have some predisposition to reacting to stressful situations with anxiety associated symptoms. Ms Brown’s presentation over several meetings is suggestive of an individual with an anxious and tense disposition. Ms Brown’s tendency toward anxiety might incline her to worry about the children to the degree that her delight in them is often overshadowed by her concern for their welfare.
20. There is little doubt that Ms Brown is a caring and concerned parent. In regards to the children, she informs “I just want them to have a stable up-bringing- it’s been a mess since the cancer scare”. She adds “I want them to have a good relationship with their father”. Ms Brown, however, stresses “right now, I need primary care of them – to re-establish a bond with the older two children and for the three children to re-establish a sibling bond – it’s good to see the children as a group of three”. She informs “I think [X] needs complete stability – to have one bed at the moment – he’s unsettled”. Ms Brown explains “he needs specific learning help – he has slight dyslexic issues – he responds to structure”. With respect to [Y], Ms Brown remarks “she’s more resilient”. Of [Z], she expresses the concern “he doesn’t know his father”. In relation to all three children, Ms Brown, however, adds “they look forward to seeing their father, but they get worried they won’t see me”. She explains “when I had to return them to [Mr Parker], they were screaming”.
…
23. Mr Parker is cognisant of Ms Brown’s preference that he return to the Port Macquarie area. He informs that he experiences Ms Brown’s father as intrusive in relation to the care of the children and that residing in close proximity to her parents would compromise his role as parent. Mr Parker expresses concern that, while the children are in the primary care of their mother, it is Dr GB who makes most decisions about them.
24. Ms Brown is keen to develop a more positive parenting relationship with Mr Parker. She informs that she was under the impression that Mr Parker would return to the Port Macquarie area and that the two of them would share the care of the children. Ms Brown remarks “it’s hard to have three children at a time – it’s challenging”. She comments “if [Mr Parker] were to move, he could have as much time with the children as he needed”. Ms Brown remarks ‘I want them to have a good relationship with their father”. She asserts that, if Mr Parker were to remain in Canberra and the children in her primary carer, “I will go out of my way to make sure they see him”.
Dr GB and Mrs MB (Maternal Grandparents)
25. Dr and Mrs MB view their role in relation to their daughter and grandchildren in terms of providing stability for the family unit and of providing a home “where they are loved and nurtured”.
[X]
35. [X] is five years old. He presents as a friendly child with a well developed sense of curiosity and with a strong will. Of the three children, he impresses as the more vulnerable sibling, who has a greater need of adult attention than his sister or younger brother. [X] impresses as having attained the developmental milestones expected of his age. Ms Brown expresses some concern regarding his capacity for learning. Mr Parker has the view that children simply learn at their own pace and does not view [X] as experiencing any learning difficulties. He mentions that [X] does get frustrated “when he can’t do things”.
…
[Y]
37. [Y] is almost five years old. She presents as a bright, gregarious and confident child, who relates to those around her with ease. Similar to her older brother, [X], she impresses as having a strong personality. Both parents describe her as resilient, caring, independent and as a quick learner. There is little doubt that she has successfully attained the developmental milestones expected of her age.
…
[Z]
39. [Z] is two years of age. He presents as robust, lively and as a good-natured child. [Z] displays the same determined manner as his older siblings. He is an alert child and exhibits the characteristics of a two-year old who, developmentally, has attained all expected milestones.
…
Observation of the Children with their Father
41. Just prior to the observation session of the children with their father, I found the children in the top foyer of the Court in the company of both parents and their maternal grandparents. The three children were clustered around their father, one sitting on his lap the other two on either side enthusiastically sharing news with him. I understand Ms Brown and her parents accompanied the children to the Court and were then joined by Mr Parker. While Mr Parker was being attentive to the children, all four adults, much to their credit, communicated cordially with each other.
…
43. Once in the playroom, all three children enthusiastically selected activities. Their play was constructive throughout the session. Mr Parker remained the focal point for the children, who constantly engaged him in their activities and sought physical proximity. The children played well together as a sibling group. It was observed that [Z] collected toys and created a barrier around them to prevent his older siblings from taking them. Mr Parker was instrumental in encouraging the children to share the toys in a manner to maintain harmony. He was adept at providing attention to each child. Mr Parker created a story with the toys that engaged all three children. The children were captivated by the activity and delighted in each other’s imaginations.
44. Mr Parker was observed to be a confident and competent parent. His manner with the children is affectionate and, at the same time, containing. Mr Parker was instrumental in encouraging the children’s confidence, sense of competence and independence. He impresses as a parent who understands and is responsive to his children’s needs. The children’s delight in their father and their constructive play in his presence suggests that they feel secure in his care and regard him as a significant attachment figure.
Observation of the Children with their Mother
46. The three children joined their mother sitting around the table in the playroom. [X] sat on her lap. Ms Brown helped him with a writing task, which he enthusiastically completed. Ms Brown was appropriately encouraging of his work and [X]’s pride in his achievements was apparent. [Y] drew some pictures and chatted to her mother, who responded warmly to her questions and requests. [Z] engaged in an activity at the table and joined in the general interaction at the table. Ms Brown was attentive to all three children. The children behaved in a constructive manner throughout the session. Their mother remained their focal point. Ms Brown had provided the children with some refreshments. While they ate rice biscuits, the children developed an activity with the toy kitchen set.
47. In general, Ms Brown displayed appropriate parenting skills. Although her manner is somewhat intense, the children were contained, relaxed and happy in her presence. Ms Brown impresses as a caring and affectionate parent. Her focus with the children appears task oriented, which may not be surprising given she is a [professional]. Ms Brown is instrumental in promoting the children’s sense of achievement. In terms of understanding the children’s needs, it might be that she relegates greater importance to the current doctrine of parenting practices rather than have trust in her own understanding of them. From my observations of the children’s interaction with Ms Brown, it would appear, however, that she is responsive to their needs. The children are contained and happy in her presence. There is little doubt that they regard their mother as a significant attachment figure.
…
Assessment in Response to the Terms of Reference
50. It is apparent that the children have a close emotional relationship with both parents and feel secure in the care of each of them. It is to be expected that [Z]’s primary attachment figure is his mother, given he has been in her care during the attachment phase of his development and given he has had limited time with his father. [Y] has indicated some apprehension in relation to being separated from her mother. The test results indicate that she feels equally secure in the care of each parent. Her apprehension might, therefore, stem from the uncertainty of seeing her mother again given the recent haphazard care arrangements. With respect to other significant adults in their lives, the children have a positive relationship with their maternal grandparents. From the account of members of their father’s family they, too, enjoy a positive relationship with those family members.
51. [X], [Y] and [Z] are observed to have a close sibling relationship. They interact well together under the guidance of each of their parents. There is some indication that [Z] is relearning to be part of a sibling group now that the three children move between their homes as a sibling group. Both parents have, on different occasions, stressed the importance of the siblings being raised together.
52. All three children present as happy and, to varying degrees, resilient. This indicates that, regardless of the conflict between their parents, they have been appropriately nurtured. [X] appears to be the more vulnerable sibling. As the older child, his vulnerability might stem from longer exposure to his parents’ conflict prior to the separation. Both parents display the capacity to provide for the needs of the children. My impression is that Mr Parker, as the more confident parent, is better attune to their overall needs. Both parents, however, display positive parenting attitudes and behaviours.
…
54. As indicated in the family conference report, it is a pity that the distance between the children’s homes is substantial. It would be ideal for the children to have easy access to both parents. A solution would be for Mr Parker to relocate to the [C Town] area and, as proposed by Ms Brown, to share the care of the children. If this were to occur, there might need to be some clarity around the children’s maternal grandfather’s role in relation to the children for Mr Parker to feel unhindered in his role as their father. Further, if Mr Parker and Ms Brown were to contemplate a shared care arrangement, there would need to be an improvement in their parenting relationship to make such an arrangement work for the children such that they could move between their homes without anxiety. It would appear that Mr Parker has little trust that such a change might occur. However, it seems that the adults do have the capacity to be cordial to each other in the presence of the children and might, with professional assistance, better manage their parenting relationship.
55. If the children were to remain in the primary care of their mother in [C Town], Ms Brown has demonstrated that she would facilitate the children’s relationship with their father. There is little doubt that the children would miss their father and the quality of his care. There are some concerns regarding the children remaining in the primary care of their mother. I am uncertain of the nature of Ms Brown’s relationship with her parents, especially her father, and her ability to be the decision maker regarding the children. Ms Brown openly informs that she finds the care of three children a challenge. There is a concern that, if she lost the support of her parents, she might find it difficult to cope as a single parent.
56. If the children were to live primarily with their father in Canberra, there is little doubt that they would be well cared for. There is further little doubt that the children would miss their mother, especially [Z]. If [Z] were to pine for his mother, it would impede his ability to attain developmental tasks with the result of impacting on his adjustment. Given Mr Parker’s lack of trust in Ms Brown, I am less certain of his ability to promote the children’s relationship with her. As mentioned above, it might require professional assistance for the parents to improve their parenting relationship and to build trust in each other. If Mr Parker were to be the children’s primary carer, it is important that the children understand that they are not being abandoned by their mother.
57. With respect to the parents’ psychological and psychiatric health it would appear that both have vulnerabilities in face of significantly stressful situations. Unfortunately, neither adult was in a position to meet the other’s needs during their relationship with dire consequences for each of them. My assessment of Mr Parker, however, is that he has a more robust psychological make-up than Ms Brown and that his excessive use of alcohol during the deterioration of his relationship with her was confined to that time. It would appear he no longer misuses alcohol and impresses as a well-functioning individual. He does not exhibit any form of psychopathology that might inhibit his ability to care for the children on a primary care basis.
58. Ms Brown presents as being more fragile in her psychological make-up. Given the stressful events in her life over the years, it is to her credit that she has sought professional assistance and no longer exhibits any symptoms of clinical concern. She does, however, impress as anxious, which might stem from a need for validation and a need to please others. Again, to Ms Brown’s credit she is continuing with counselling to address these issues. There might be times when her ability to care for the children is inhibited to some degree. Given the positive presentation of the children, it would appear that, for the most part, Ms Brown is responsive to their needs.
59. In regards to the children’s future care arrangements given the circumstances of the distance between their homes, Mr Parker could be regarded as being in the better position to provide consistent quality of care and stability for them. If he were to commit to facilitating the children’s relationship with their mother and members of her family, the risk of the children, [Z] in particular, of pining for her would be minimised. The risk would be minimised if the children were to spend frequent and predictable time with her. If the children were to remain in the primary care of their mother, [Z]’s sense of security would be maintained as would [X] and [Y]’s with a continuation of a, now, familiar routine. The quality and stability of care with their mother, however, remains somewhat uncertain.
The following summary comments are taken from Ms Lang's oral evidence.
First, Ms Lang noted her concerns about the living arrangements for the children, both in terms of their ongoing extended separation from one parent, as well as the stability of the children within their parents' home.
In the course of her oral evidence, there are various exchanges with Mr Nash SC in relation to Ms Brown's anxiety, including concerns about the role of Dr GB, and with Ms Brown's own ability to parent the three children.[32]
[32] See Transcript (5th February 2010) pp.165-166.
Mr Davies, Counsel for Ms Brown, asked questions of Ms Lang in relation to a further or understandable cause of his client's anxiety, namely that the current proceedings caused Ms Brown to relive the earlier proceedings that involved her daughter [E] and which, as described by Mr Davies, did not result in a positive outcome as far as Ms Brown was concerned. Ms Lang agreed.
There was also some discussion about the ongoing lack of trust between the parents. For example, in response to questions from Mr Ridge, Ms Lang noted (in my summary form) the following: (a) Mr Parker's parenting lends itself to providing the children with a more secure attachment than does that of their Mother; (b) the children should not be separated in their living arrangements; (c) the children together provided both a buffer of support for [Z] as well as a sound building unit; and (d) in her view, with appropriate support, Ms Brown would cope if the Court ordered the children to live with their Father.[33]
[33] Transcript (5th February 2010) pp.183-184.
I concur with and accept Ms Lang’s evidence. Moreover, there was nothing on behalf of Ms Brown to challenge it.
E. The legislative pathway
The building blocks or stepping stones, as they are often referred to, that go to make up the legislative pathway are set out in Part VII of the Family Law Act (“the Act”). They have been the subject of significant and ongoing judicial comment notably by the Full Court in Goode v Goode and Keach v Keach.[34] In Goode v Goode, at [81], the Full Court has stated very clearly that “the legislative pathway must be followed.”
[34] In particular, see (2007) 36 Fam LR 422, especially at [10], [47], [48], [56], [81] & [82], and (2007) FLC ¶93-353 at [24] ff respectively.
I also adopt, respectfully and gratefully, by way of overview and context Brown J's summary of relevant principle in her important “twin pillars” remarks in Mazorski v Albright. Her Honour said, at [3] – [6]:[35]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[35] (2008) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” Beginning at [20], through to [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[36]
[36] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA(2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
At the outset, notwithstanding the difficulties between the parties, and having regard to Ms Lang’s evidence, to the effect that if the parties lived closer together a ‘shared care’ arrangement would be appropriate, I see no impediment to making an order for equal shared parental responsibility.[37]
[37] Cf. s.61DA.
Of the objects in s.60B(1), in my view, subparagraphs (a), (c) and (d) are those most relevant to these proceedings. Likewise all of the principles in s.60B(2)(a) to (e) are in play in these proceedings.
In my view, on the evidence before the Court, there are no protective issues to be addressed in relation to the children, such matters being canvassed by s.60CC(2)(b) and s.60CC(3)(j) and (k).
The statutory touchstones are, (i) s.60CA which provides that the children's best interests are the paramount consideration, and (ii) s.60CC(2)(a), which provides that the primary consideration is the benefit to the children of having a meaningful relationship with both parents. Unless otherwise indicated in what follows, I should be taken as sequentially following the order of matters in s.60CC(3).
Having regard to the ages of the children, there are no views here to be considered.
It is clear, as noted above, that the children have a good and close relationship with both parents.
In relation to subparagraph (c) and (i) of s.60CC(3) and s.60CC(4) there are some difficulties in relation to the parents being able to promote a good and close relationship between the children and the other parent. It is not so much a case of either of the parents being unwilling to promote the relationship of the other parent or either of them being in any way appreciably deficient in their attitude to the children or to their responsibilities of parenthood, but rather, especially in Mr Parker's case, that he has very little trust in Ms Brown's capacity and reliability to abide by arrangements made in relation to the children.
Mr Parker readily agreed that attending a post-separation parenting program, which assisted separated parents in their communication in other skills, would assist. I do not doubt either parent's good intentions to do whatever can be done to enable them to communicate better in relation to matters concerning the children.
Primarily through Ms Lang's evidence, I have already addressed the basic issues raised by subparagraphs (d) and (e) in relation to the physical distance between the parents and the likely impact on the children of a change in residence. In the light of the evidence, Ms Brown will cope with the proposed orders with support. As well, to the degree that he can, Mr Parker will provide any extra time with the children and their Mother (especially [Z]). And he will do more of the driving than he currently does so the changeovers are closer to halfway between Canberra and the Port Macquarie area.
This added responsibility on Mr Parker is endorsed by Mr Ridge who recommended that the children live with their Father and spend time with their Mother, as I have already noted.
In the absence of emergency, a neutral venue for changeover should be agreed, which is approximately halfway between the parents' residences. Likewise, if possible and appropriate, it might also assist if Mrs MB, that is the maternal Grandmother, facilitated the changeovers, at least until some of the dust and emotion of litigation has settled.
In this regard I stress the need for predictability and certainty for the children's sake in particular, but also for the parents' sake too. There needs to be close and diligent adherence to the orders made.
There are no issues about either of the parents being able to provide for the various needs of the children which also have regard to the maturity and other matters of each of them.
In my view, the orders that I propose making are the most preferable and least likely to result in ongoing or further litigation.
In canvassing earlier in these reasons the evidence before the Court, I have addressed sufficiently various matters that have arisen, post-separation, which would otherwise come within the purview of s.60CC(4A).
I next must consider s.65DAA because of my ruling that the parents are to have equal shared parental responsibility. The section has been the subject of recent discussion, determination and direction by the High Court in MRR v GR.[38]
[38] MRR v GR (2010) 263 ALR 368; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC¶93-424.
In MRR v GR, at [13], the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. (Internal citations omitted.)
The Court went on to say, at [15]: “Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
In the absence of the parents living closer to each other, a shared or equal time arrangement has no application in this case. For the same reasons already noted, on a number of occasions related to the very significant geographical distance between the parties, the logistical issues of travel alone also militate against the operation of the provisions of the section that relate to substantial and significant time, namely s.65DAA(3) and (5). It is simply impossible, and from the perspective of practicability (reasonable or otherwise), insuperable, that an order for substantial and significant time be made.
Thus, given that I will make an order that the children reside with their Father and spend time with their Mother, the issue is how much time the children spend with their Mother. The question or the reference point in this regard is what is going to be in their best interests.[39] In the absence of, and subject to any agreement in writing between the parties, the orders sought by Mr Parker, in my view, provide the best arrangements by which the children can and will spend the maximum amount of time with their Mother. Of course, if Ms Brown was to re-visit her decision not to move closer to the children, then other arrangements could and should be made. Only the future holds the answer to such a question or possibility.
[39] See Goode v Goode (2007) 36 Fam LR 422 at p.445 [82(i)].
Ancillary Issues: Finally, there were three other issues that need to be addressed that were raised in written submissions; very briefly I turn to them. Because of the conclusion which I have reached, based on the evidence to which I have referred, in my view, it is not formally necessary to make the determination of a number of other matters that essentially go to the admissibility of certain materials.
However, for the sake of completeness I note the following.
The first issue concerns the admissibility of a judgment of this Court delivered by Brewster FM in proceedings involving Ms Brown and her former partner Mr M in 2004. They involved Ms Brown's daughter from that relationship, [E]. Mr Nash SC asked Ms Brown questions in relation to those proceedings. In large part Ms Brown said that she did not recall details of them. Mr Nash SC sought to tender a copy of that judgment.
For his part Mr Davies asked questions of Ms Lang about the same 2004 proceedings and, as I have noted, asked whether the result in that matter, which was not advantageous to Ms Brown, might be a contributing cause for Ms Brown's heightened levels of anxiety. He opposed the tender. Both Counsel addressed this matter in their written submissions. The relevant provisions of the Evidence Act 1995 (Cth) that are in play are ss.91, 157 and 190 and, of course, s.69ZT of the Family Law Act is also relevant.
I have determined the substantive issues before the Court on the affidavit and oral evidence before me. Thus it is not formally necessary for me to make a determination on this tender. However, should it be necessary to indicate a view, I would be minded to rely more on s.190 of the Evidence Act and s.69ZT of the Family Law Act, to allow the tender. If that were to be the case the issue would become one of weight in the circumstances of the case for the reasons already given. In my view, little would turn on the earlier judgment for the purposes of these proceedings.
In relation to the proposed tender of police records, which were marked MFI 3, I would take essentially the same view as just expressed in relation to MFI 1, being the judgment of Brewster FM, which is to say that if admitted it would become a question of weight. In my view, given that they relate to events of some years ago, and that little of the contents have been tested, in my view they too would be of little weight and, therefore, of rather limited utility for the purposes of the current proceedings.
In relation to MFI 2, being a “report” prepared by Dr J, there are a number of extra considerations in addition to any issues going to weight. Mr Ridge helpfully set out the factual basis or circumstances as to how Dr J's "report" came into existence. It is clear that it was not sought by the Court and that Dr J produced it rather mistakenly in response to a subpoena. It certainly does not meet the criteria for an expert's report, as set out by [then] Heydon JA in Makita v Sprowles, and as that case has been qualified somewhat by a number of Federal and other Supreme Court decisions.[40] Those decisions and other relevant matters are set out in Cross On Evidence.[41]
[40] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
[41] Cross on Evidence (Eighth Australian Edition) J.D. Heydon) (Sydney: Lexis Nexis Butterworths, 2010) [29045] ff.
Because (a) it was not ordered by the Court, (b) it does meet the requirements as specified by significant and ongoing authority beginning with Makita v Sprowles, (c) Dr J's clinical notes were produced on subpoena and used by the independent children's lawyer, and (d) the Court had the benefit of two detailed reports from Ms Lang, the tender of Dr J's “report”, qua an expert report, would in the normal course of proceedings be rejected. In any event, even if it was admitted, it would be a question of what weight to give to it. In the circumstances, in my view, its weight was, at best, extremely light. In the light of the other evidence before the Court, I do not propose making any formal ruling on its admissibility.
F. Conclusion
Three matters briefly to conclude.
First, and most importantly, in litigation of this kind it is not always easy to appreciate, let alone accept, that it is not a conventional legal contest. This is to say that it should never be the case that one parent has won and the other has lost. The children are not, so to speak, spoils of war who are carried off by the victor. Doubtless it will take some time for things to settle down, but settle down they must for everyone's sake, especially the children's.
Secondly, I commend to the parties a previous judgment of mine. It is called Monds v Mullen.[42] I offer it because I provide a summary of various virtues and other references that might assist them to consider, in a slightly different light, when they have the time, their parenting responsibilities, once the dust of litigation has settled.
[42] [2009] FMCAfam 58.
Thirdly, I also offer the observation that, as with almost all parenting cases, two therapeutic aids over which the Court has little or no control will make a significant difference to all who have been embroiled in this litigation. In addition to a post-separation parenting course, those aids are the passage of time and the cessation of litigious hostilities.
In the best interests of the children, I make orders as sought by Mr Parker.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate:
Date: 31 August 2010
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