Pickering and Pickering
[2016] FCCA 2711
•20 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PICKERING & PICKERING | [2016] FCCA 2711 |
| Catchwords: FAMILY LAW – Interim arrangements for care of children aged ten and three – parties agree presumption of equal shared parental responsibility applies – overnight time – high conflict between parents and poor communication skills – matters to be considered – final hearing scheduled for April of 2017 – nature of interim hearing – section 60CC factors – best interests. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR PICKERING |
| Respondent: | MS PICKERING |
| File Number: | ADC 1311 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 14 October 2016 |
| Date of Last Submission: | 14 October 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 20 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms M Dickson |
| Solicitors for the Applicant: | Angela Ferdinandy Solicitor |
| Counsel for the Respondent: | Ms J Cocks |
| Solicitors for the Respondent: | Hyde White Legal Services |
ORDERS
Until further or other order:
Order 3 of the orders of 18 March 2016 be varied as follows:
The father spend time with the children X born (omitted) 2007 and Y born (omitted) 2013 as follows:
(a)With X:
(i)On each alternate weekends from after school Friday (or 3.30pm if it is not a school day) until 5.00 pm the following Sunday;
(ii)On the other weekend of each fortnight from 10.00 am on Sunday until the commencement of school (or 9.00 am if it is not a school day) the following Monday;
(iii) On each alternate Wednesday from 3.30 pm until 6.30 pm.
(b)With Y:
(i)On each alternate weekend from after school Friday (or 3.30pm if is not a school day) until 5.00 pm the following Saturday;
(ii)On the other weekend of each fortnight from 10.00 am on Sunday until the commencement of school (or 9.00 am if it is not a school day) the following Monday;
(iii)On each alternate Wednesday from 3.30 pm until 6.30 pm.
(Noting the father’s time with each child will coincide so that Y and X spend alternate Friday evenings and the other Sunday evening of each fortnight with the father).
An injunction issue and the father be restrained from allowing the children to view any video, DVD, or form of electronic entertainment, including video games, which is not rated G.
Subject to these orders, the orders of 18 March 2016 continue.
The final hearing before Judge Brown on 29, 30 & 31 March 2017 at 10.00am is confirmed.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 1March 2017.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 15 March 2017.
On or before 15 March 2017 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.
IT IS NOTED that publication of this judgment under the pseudonym Pickering & Pickering is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1311 of 2015
| MR PICKERING |
Applicant
And
| MS PICKERING |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern further interim parenting arrangements for two children in a high conflict family. The parties to the proceedings are Mr Pickering (“the father”) and Ms Pickering (“the mother”). They are the parents of X born (omitted) 2007 and Y born (omitted) 2013.
The mother was born in 1972. She is a part time (occupation omitted). The father was born in 1965. He is a self-employed (occupation omitted). Previously he was in the (employer omitted). The parties met in Adelaide in 1994. They married in (omitted) 1998 and finally separated in March 2015.
The mother commenced these proceedings on 22 April 2015 seeking orders in respect of both the division of marital property and arrangements for the children. Her initial position was that the children should live with her and spend only day time periods with their father until Y was five in (omitted) 2018.
It is the mother’s position that Mr Pickering is an ostensibly charming person who in reality has a deep emotional need to control and dominate those around him particularly women. As a consequence of these traits, Ms Pickering asserts that the father is emotionally volatile and frequently angry and has a demeaning attitude towards women. As such, she has concerns about the children spending extended periods of time with their father particularly Y, given his tender years.
The father responded to the mother’s application on 24 April 2015. He seeks a week about shared care regime for the children. He regards the mother as having been financial profligate during the parties’ marriage, unduly protective of the children and emotionally insecure herself.
Mr Pickering disputes the mother’s characterisation of him as a controlling person. Rather, he asserts that it is the mother who is the controlling one as she is using the children as a means of satisfying her own emotional needs and as a mechanism to frustrate him. Essentially, he assets that the mother is unhealthily enmeshed with the children.
In August 2015, the parties attended a child dispute conference with Family Consultant Ms C. Amongst other matters, Ms C reported as follows:
“It appears to be common ground that the parents do not communicate with one another.”
This remains the position up to this stage. The case is one characterised by mutual mistrust and communication difficulties.
On the recommendation of Ms C, the parties commissioned an experienced psychologist, Ms R, to conduct a family assessment report, which included a detailed interview with X and observations of the children with each of their parents. Given his tender years, Y was not interviewed. Ms R’s report was released in early 2016. It is a detailed document of some 20 pages.
Ms R observed both X and Y to be comfortable with each of their parents, who in turn were described as being “responsive and sharing affection with the children”. In these circumstances, it seems clear that both children know each of their parents well and love them and are loved in return.
In interview, X indicated that he wanted to spend overnight stays with his father. However, he also indicated that he “wanted his father to stop getting so angry and mean to his mother in front of him and Y”. He referred to Mr Pickering as being the “angriest person” and his mother to be “the saddest person”. When asked, by Ms R, to supply three wishes, in respect of anything he wanted, X indicated that he wanted “his father to stop yelling at his mother”.
Ms R administered the family relations test to X. Interestingly, X assigned positive items, in approximately equal numbers, to each of his parents. He reported that both his mother and father loved him, were nice to him and played with him. Again this confirms the strength and significance of X’s relationship with each of his parents.
Following her assessment of the family, Ms R was of the view that the parties’ parenting relationship was not conducive to an equal time regime. In addition, given Y’s tender years and his attachment to his mother, Ms R did not think that such a regime would be in Y’s best interests.
Ms R described the parties’ mode of interpersonal relationship and communication in respect of parenting issues to be “problematic”. In their respective interviews with Ms R, both the father and the mother assigned responsibility for their impaired facility to communicate to the behaviour and attitude of the other.
Ms R was also strongly of the opinion that the mother’s proposed outcome which significantly limited the introduction of overnight time for the children until Y was five years of age was not in the best interests of the children, particularly given X’s expressed preference to spend more time with his father.
However, militating against extensive time between father and children were the unequivocal statements provided by X, which indicated that he had been exposed to negative comments concerning his mother which emanated from Mr Pickering. Ms R recommended that X attend upon a child psychologist to assist him to address the emotional issues arising from this exposure.
In her family assessment report dated 23 December 2015, Ms R provided the following recommendations in respect of arrangements for the children to spend time with their father:
“… it is suggested this [time for X] commence once a week, between Friday after school and Saturday 5 pm on alternate weekends, and Sunday 10 am and Monday morning on intervening weekends. This will allow X some individual time with Mr Pickering and ensure the boys have time together on a day time basis, if Y continues to spend time with Mr Pickering according to the current arrangements.
Once Y is able to manage 2 consecutive overnight stays, an alternate weekend arrangement Friday after school to Sunday 5 p.m. is advised for both children, in addition to visits to share a meal on intervening Wednesdays. X’s time spent might then be increased i.e. Friday to Monday morning and intervening Wednesdays to share a meal. An extension of time beyond this remains dependent on the parties’ ability to demonstrate co-operative parenting and their respective availability to provide care, to ensure the children are not required to attend for additional time at Childcare or OHSC, beyond that currently experienced. It is suggested X commence school holiday time with Mr Pickering on a split week basis, 3 and 4 days respectively with each parent, thereby allowing Y to attend with him during the day on some occasions until Y is comfortable with overnight stays.
A cautious approach to introducing overnight stays with Y is advised, given his age and unsettled/challenging behaviour at this time. He will likely struggle if away from his mother on an overnight basis (3d). If Y was to experience separation anxiety, this has the potential to impact negatively on his relationship with Mr Pickering. The introduction of an overnight stay one night each weekend might be considered when Y turns 3 years in April, progressed to 2 consecutive nights on alternate weekends by the time he reached 4 years, while continuing visits on intervening Wednesdays. It is advised Mr Pickering complete a parenting course appropriate for children in the age range 2‑8 years, e.g. Positive Parenting or Circle of Security, prior to Y commencing overnight stays.”
In the light of Ms R’s recommendations and the progress of the matter to date, the parties disagree as to the next step forward. In this context, it should be noted that the parties’ competing applications have been listed for final hearing on 29, 30 and 31 March 2017, approximately five months hence.
It is at the final hearing stage that the court is able to make findings of fact about evidentiary issues in dispute between parties if necessary. The most significant factual issue in this case is the nature of the parties’ relationship with one another and whether it has been one characterised by family violence and, if so, what are the implications of this for the children and their care arrangements.
Arrangements in respect of the children up to this stage
It is common ground between the parties that during their marriage Mr Pickering was the family’s main breadwinner. As such, he worked long hours, leaving home early and often returning late. Ms Pickering took maternity leave and, by its nature, her profession is more suited to part time hours. As such, it does not appear to be contentious that Ms Pickering is to be regarded as the children’s primary carer up to this stage.
Until recently, the matter was being managed by Judge Cole. It has been referred to me for final hearing. As I understand matters, there have been a number of interim hearings before Judge Cole which have led to extensive orders being made in respect of care arrangements for the children. In general terms, it is not usually considered to be conducive either to the best interests of children or helpful to case management that there be frequent interim hearings given the shortened form of the interim hearing which does not allow findings of fact to be made in respect of contentious issues.
On 29 June 2015, the parties agreed that they would have “equal shared parental responsibility” for X and Y. The children were to live with their mother and spend time with their father from 10.00am until 5.00pm on alternate Saturdays and the other Sunday of each fortnight. In addition, the children were to spend from 3.30pm until 6.30pm, on alternate Wednesdays with their father for the purpose of enjoying an evening meal together.
On 29 June 2015, the parties were also referred to a conciliation conference in respect of property issues arising from their separation. To their great credit they were able to resolve these issues at the conference and final property orders were made on 15 December 2015.
On 23 September 2015, Judge Cole directed that the parties commission Ms R to prepare the family assessment report with the report to be released towards the end of the year. In this context, the case returned to court on 18 March 2016.
On this occasion, Mr Pickering agreed without acknowledging any necessity for it to attend upon an anger management counsellor. In addition the parties agreed to facilitate X attending upon Ms O, a psychologist as recommended by Ms R. It was further agreed that the children would be exchanged between the parties at a Children’s Contact Centre if either their school or childcare were not available for any reason.
In respect of the actual time arrangements, it was ordered that Mr Pickering would spend time with X as follows:
·on alternate Fridays from the conclusion of school until 5.00pm on the following Saturday;
·on the other Sunday, of each fortnight, from 10.00am until the commencement of school the following Monday;
·on alternate Wednesdays from 3.30pm until 6.00pm.
On my calculations, this amounts to two separate overnight periods, for X, on two occasions each fortnight as well as an alternate Wednesday touch base opportunity for an evening meal.
So far as Y’s time with his father was concerned, it was ordered as follows:
·alternate Saturdays from 10.00am until 5.00pm;
·in the other Sunday of each fortnight from 10.00am until 5.00pm; and
·the touch base meal, on alternate Wednesdays, to coincide with X’s time with the father.
Accordingly, Y has not been spending any overnight time with his father. He turned three in (omitted) this year but spent regular weekend daytime with Mr Pickering designed to dovetail with that of X. As indicated above Ms R regarded Y attaining his third birthday as being likely to coincide with a significant developmental milestone.
From the father’s perspective, it is now time for Y to begin to spend overnight time with him notwithstanding Ms R’s advice of caution. From Mr Pickering’s perspective, his time with Y has gone well and now that Y is a little more mature, overnight time is warranted.
In addition, it is Mr Pickering’s view that it is also appropriate for X to spend consecutive overnights with him given this is his (X’s) expressed preference to Ms R. It is Mr Pickering’s evidence that X is consistently expressing a desire to spend a whole weekend with him.
On 18 March 2016, orders were also made in respect of arrangements for the children to spend Christmas with each of their parents. In 2016, the children will spend from 12.00pm until 12.00pm Boxing Day with their father; and from 10.00am on Christmas Eve until 12.00pm on Christmas Day with their mother.
Following the making of these orders, Judge Cole transferred the matter to me. The case was referred to me for directions to be made in respect of the final hearing. On 14 July 2016, the father filed an application in a case. These reasons for judgment arise because of this application.
In his application, Mr Pickering seeks that X should spend time with him during school terms on alternate weekends from after school Friday until 5.00pm the following Sunday; and in the other weekend of each fortnight, from 10.00am on Sunday until 9.00am the following Monday. He proposes the retention of the Wednesday evening meal, but seeks that it be each Wednesday rather than alternate ones.
During school holidays, he seeks to spend time with X on the same basis as during school terms but seeks the extension of mid-week time from 9.00am Tuesday until 6.00pm the following Wednesday. Accordingly, during term time, he seeks three overnight periods per fortnight with X.
In respect of Y, Mr Pickering seeks orders that would see Y spending time with him from the conclusion of school Friday until 5.00pm the following Saturday in the first week of each fortnight and from 10.00am on Sunday until 9.00am the following Monday in the other week of each fortnight. As with X, he seeks the Wednesday evening meal opportunity be made weekly. Accordingly, he seeks two separate overnight periods with Y each fortnight.
In support of his position, Mr Pickering deposes that X continues to request to spend more time with him particularly for the whole weekend. Mr Pickering has also attended a parenting course and counselling sessions with an anger management counsellor, Mr H.
Mr H has provided a report which is positive as to how Mr Pickering has engaged with him and his openness to adopt other modes of communication with Ms Pickering. Mr H wrote as follows of Mr Pickering:
“He regards Ms Pickering very highly and considers her as ‘compassionate’ and essential to the children’s lives. His hope is that she will remain the primary carer and that he will be able to spend time with his children. He wants the children to feel ‘safe, supported and happy’. He is clear that both their mother and he are ‘good for the kids’. He intends to do all he can to keep the ‘children from friction’. For example he will not say things about their mother that could be seen to diminish her. The long-term goal is that he and Ms Pickering will be in a position to have direct contact. However, in his mind it will take time to build the trust necessary for that to happen.”
In her responsive affidavit, Ms Pickering asserts that she has noticed no great improvement in the manner in which Mr Pickering elects to communicate with her. It is also her evidence that X’s behaviour remains problematic which she attributes to the father continuing to make denigratory comments about her and members of her family particularly her father.
She also alleges that X has been exposed to adult videos which contain sexual innuendo and are clearly unsuitable for him. Underpinning her position is her view that Mr Pickering holds misogynistic and stereotypical attitudes towards women which represent unsuitable role modelling for the children particularly X, at this stage of his development. She alleges that the father either tacitly or actively exposes the children to his essentially negative view of her as a mother and of women generally.
Ms Pickering deposed as follows on 22 July 2016:
“I do not agree that an increase in time spent by either child with their father is in their best interests. I have seen no change toward myself or the children with regards Mr Pickering’s ongoing abuse and control. Y and X continue to display troubling behaviour which is not assisted by Mr Pickering severing any direct communication with me and becoming increasingly aggressive at handover such that he physically grabs the children and slams the gate on me. … ”
Since July, both the father and the mother have filed further affidavits which have delineated a greater polarisation of views in respect of how the children are currently coping and who of the parties is the more responsible for the vexed parenting relationship between them.
Mr Pickering is critical that the mother is often late and obstructionist at handovers and he is given little, if any, notice if arrangements have to be changed. It is his position that the mother has made inappropriate comments about adult issues to X. He also deposes that the mother has been unreliable in ensuring that X attends school properly and on time.
The mother deposes that the father has been difficult to deal with in respect of funding X’s attendances upon Ms O and is avoidant of his child support obligations. She doubts the efficacy of Mr Pickering’s counselling with Mr H, asserting that the father has recently sent a sexist SMS to X and continues to allow him to play adult video games. She also alleges that the father is attempting to rent out rooms in his home to avoid liability for child support.
Accordingly, the vitriolic content of both parties’ affidavits indicates that there has been little lessening in the tension and mistrust between them. It is in this context that Mr Pickering’s application in a case must be determined.
In my view, one legitimate response for the court would be to leave arrangements as they are given that the final hearing is relatively imminent and in the context of this truncated interim hearing, it is not possible for the court to resolve the entrenched evidentiary issues outstanding between the parties.
Through her counsel, Ms Dickson, Ms Pickering has indicated some willingness to alter the interim arrangements inaugurated in March 2016. She proposes that X should spend time with his father from 10.00am Saturday until the commencement of school (or 9.00am) the following Monday; with the alternate Wednesday evening to continue.
So far as Y is concerned, she proposes that he should spend time with his father, overnight on alternate weekends, from 10.00am Saturday until 5.00pm the following Sunday. Again, the alternate Wednesday evening can continue.
She advocates this outcome as being appropriate because it will give X a block weekend period with his father for which the child has apparently been agitating. It will also begin a gradual overnight experience for Y. From her perspective a significant advantage of such a regime will be that she will have an entire weekend with the children.
From Mr Pickering’s perspective, the proposal is a cynical and manipulative one which will mean that his relationship with the children is likely to be subject to a qualitative diminishment. He is concerned that he will go for lengthy periods of time without interacting directly with the children. He is particularly concerned that he will lose the opportunity to spend time with the children on each weekend.
The court is called upon to resolve this troubling dispute. In my view, there are pros and cons arising from each parent’s position which can be validly argued. In these circumstances, in deciding the case in respect of a comparatively short period of time, I am concerned not to unwittingly create more rather than less conflict between them by creating a perception that one has lost and the other has won.
This is because in this particular case the parties’ separation has precipitated the creation of strong personal politics which are being expressed as a struggle between them for the ultimate control of time in respect of the children.
Although both parties ostensibly approach the case from the perspective of what is best for the children, from each of their perspectives, the most important factor is the degree and exactitude with which the court divides the children’s time with each of them and who of them any such decision favours.
These dilemmas arise when parents seek the involvement of the court to determine intricate details of how a child’s time is to be divided up. For obvious reasons, such decisions are usually better left to the parents concerned, who know well the children who will be affected by such decisions and what are the practical implications of any particular arrangement for all concerned, both parent and children.
The current situation seems to be working as well as might be expected given the difficult circumstances prevailing. As such I consider that there are perils in meddling with the current arrangement because of unintended outcomes which may arise from changing it at this interim stage.
As a consequence, I am loath to re-enter this controversy again which was previously examined by Judge Cole. This is particularly so given that the final hearing is now only around five months away and during this period the children will spend regular periods of time with their father. However, given the vehemence each party has approached the matter, I feel obliged to determine the issues, albeit with some trepidation.
The legal principles applicable
As the summary of the conduct of the case to date indicates, it is clear that the parties have very different views as to how X’s and Y’s interests are to be best served, both now and into the future. I do not question the validity of either party’s views, in respect of these matters, at this stage.
In my view, both parties are law abiding citizens, who have a significant level of dispute about what is best for their children whom they both love. Regrettably, they are unable to resolve that dispute consensually so it falls to the court to determine the matter. The court must perform this function pursuant to the principles contained in the Family Law Act 1975.
This need for resolution arises at the interim stage, at this stage, there is no time for there to be an exhaustive hearing of all the evidence likely to be available. The final hearing, scheduled for March will potentially provide a forum for such an exhaustive hearing involving cross examination of all relevant witnesses, including the parties themselves and Ms R.
It is through cross examination that the court is able to determine issues of credit – essentially deciding which pieces of evidence are likely to be more reliable, including the account of the parties have given of the nature of the relationship between them. In addition, at final hearing the methodology and recommendations of Ms R can be critiqued and tested.
These things cannot happen at the interim stage where the hearing is necessarily truncated. However, the same legal principles apply at both the interim and final hearing stage. The difference being that the hearing at the interim stage is shorter and the court cannot make findings about disputed factual matters as they arise from Affidavit material.
The legal provisions, relating to how a court determines parenting arrangements for a child are both complex and controversial. They are contained in Part VII of the Family Law Act. Since its inception, the Act has been subject to several major changes reflecting community concerns regarding significant societal issues such as family violence and the on-going relationship between parents, particularly fathers and their children following relationship breakdown.
Given the complexity of these issues, it is not always easy for the lay reader to distil the actual effect of these legislative changes and what they mean in practice particularly for the court. I will do my best to explain the relevant provisions. It is also the case that, at the interim stage, I am obliged to follow a specific pathway which was delineated by the Full Court of the Family Court in the case of Goode & Goode.[1]
[1] Goode & Goode (2006) FLC 93-286
In deciding whether to make any particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account in deciding how a child’s best interests are to be served are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to in a number of decisions of the Family Court as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Other specific criteria relating to how the court is directed to consider how the best interests of any children concerned may be served by any order which is made are set out in section 60CC(3). There are fourteen such criteria which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice for the child affected in every case.[2]
[2] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[3] As such the various factors in section 60CC are inclusive but not exclusive of one another.[4]
[3] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[4] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Part VII of the Act is to be interpreted in the light of a number of objectives and principles which underpin the two primary considerations contained in section 60CC. These objectives and the principles underlying them appear in section 60B(1) & (2) respectively.
The objects of Part VII include ensuring that children’s best interests are met through them having the benefit of both their parents having a meaningful involvement in their lives, whilst at the same time being protected from coming to any form of harm.
The principles speak of children’s rights to know and be cared for by both their parents and to regularly spend time with each of them. The legislation recognises the fundamental entitlement of children to have a relationship with their biological progenitors. However all these considerations are subject to the overall proviso of the child’s best interests.
Given the importance, which the applicable legislation places on the co-involvement of parents, in their child’s life, and development 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 [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of the specific amounts of time which a child spends with each of his or her parents. There is no presumption in favour of equal time per se. This is not the starting point for the court’s deliberations.
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found on reasonable grounds that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
It should be noted that at an early stage of these proceedings, the parties agreed that they would have equal shared parental responsibility for X and Y [see order of 29 June 2015].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
The interaction between section 61DA and section 65DAA is complex. The application of the presumption does not result in any mandatory direction that the court must implement an equal time regime (or one based substantial or significant time) if the presumption applies. Both such outcomes are subject to the court being satisfied that two discrete criteria have been met – firstly, they are in the child’s best interests; secondly, they are practical in an objective sense to implement.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and on occasions and events which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The relevant legislation speaks of children’s rights rather than of any parental right to care for or parent a child pursuant to any specific regime. In theoretical terms, an equal time regime may be the most beneficial outcome for a child, but the court is directed not to overlook the practical realities of the overall situation for the child concerned prior to reaching such a conclusion.
The High Court, in a case known as MRR v GR has considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable. Both these considerations arise as a consequence of section 65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made or when that has been ruled out a substantial and significant time regime.
The High Court has held that it is a statutory pre-condition of the making of an equal time order (and a substantial and significant time order) that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child, not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[5]
[5] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
Accordingly, the nature and viability of the relationship between the parents concerned is a legitimate area for the examination of the court both at the interim and final stage. In a case like the present one, it is likely to be of fundamental importance, particularly if the presumption is not rebutted. Accordingly the pathway to an equal time regime is a complicated one. It is not the starting point of the court’s deliberations.
The pathway delineated in Goode & Goode can be summarised as follows:
·consider the section 60CC matters relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time if the court considers it to be in the best interests of the child concerned.
In my view, it is noteworthy to point out that it has taken me well in excess of thirty paragraphs to summarise the law relating to parenting orders, in the interim context. The law cannot be regarded as simple, particularly where the issue arising concerns the commonplace controversy of equal time arrangements for children or implement arrangements which fall short of it.
Discussion
It is now necessary for me to consider the various factors arising under section 60CC, bearing in mind the truncated nature of the hearing before me and the various evidentiary issues which remain in controversy between the parties.
The mother essentially approaches the case from the perspective of protective concerns relating to what she characterises as the father’s controlling personality and lack of insight in respect of the emotional needs of the children concerned. She contends that the father is intent on achieving what he believes is what is fair for him, rather than what is developmentally appropriate for X and Y.
In this context, she places significant emphasis on the tender years of Y, who has only recently turned three years of age. As such, she urges caution and assets that she has made a significant concession in respect of overnight time for Y in particular. It is her case that this arrangement will provide an emotional airlock for the children, if they have a regular and entire weekend with her.
From the father’s perspective, the emphasis in the case should be on the likely benefits for the children of their time with him being extended but within the parameters of X having block periods of time with his father and a move to some gradual overnight time for Y. He contends that if the current level of frequency is not maintained, it will have the potential for the time between parent and child to be rendered less rather than more meaningful for X and Y.
As such, he disputes that the mother has made any great concession. Rather he regards her proposal as a retrograde step, as it will mean he will no-longer have time with the children each weekend which will not lead to the children’s relationships with him being improved and rendered more meaningful. Rather it may make the relationships more constrained and potentially artificial or stilted.
In this context, he asserts that the time is now right for X to have extended overnight periods of time with him and for the court to move cautiously in respect of some overnight time for Y, but not at the price of leaving his time with the children largely the same in quantitative terms.
He submits that his preferred approach will enhance the quality of the relationship which the children have with him which will be beneficial for both children in both the short and longer term. He vehemently resists any attempt to concentrate his time with the children which he regards as a backward step.
Clearly, the parties have very different personalities and views about matters pertaining to parenting. These differences are easy to elaborate within the matrix of section 60CC, but more difficult to resolve within the parameters of an interim hearing such as this one.
It is very often the case that the parties in high conflict cases become fixated upon the minutiae of the fortnightly calendar of how time is to be divided vis-à-vis them and their children. As such it becomes an issue of control arising from the personal politics of their relationship.
The focus in the legislation, particularly that provided by section 60CC, is on the quality of parental relationship rather than on their quantity. Relationships do not necessarily become more meaningful if they are temporally extended. However, for obvious reasons, they require sufficient time to be established and maintained. In my view, this issue of balance between quality and quantity must be examined in the context of the relevant parenting relationship and against the best interests criteria delineated in section 60CC.
The parties’ parenting relationship is extremely poor. As such, it does not provide fertile ground for either an equal time or substantial or significant regime to arise organically. Rather, it will be necessary for the court to make definite orders pursuant to which the children’s time with each parent is clearly delineated.
The evidence available from Ms R indicates that both children have a close and significant level of relationship with each of their parents [section 60CC(3)(b)]. However, it also seems clear that Y’s most significant relationship at present is with his mother. Given his tender years this is important [section 60CC(3)(g)].
Given the emotional vulnerability of both children clearly articulated by X to Ms R, when he indicated his distress at what he perceives to be his father’s belligerent attitude to his mother which makes her sad, it also seems to me that the court must be careful about make any precipitate changes in arrangements for the care of the children concerned [section 60CC(3)(d)].
Weekends are likely to be important to both parties, particularly Mr Pickering. I understand he has a demanding job and works long hours. Ms Pickering is also likely to look forward to having more relaxed time with the children outside the rigours and demands of the school week during which she also has her own employment demands.
A child’s views [section 60CC(3)(a)] are a factor which the court is required to consider subject to any factors which may affect the weight to be given to those views such as the children’s maturity or level of understanding. Relevant authority directs that a child’s view is important and requiring of being given “proper and realistic weight” rather than token regard.[6]
[6] See H v W (1995) FLC 92-598 at 81,944
At ten years of age, X is likely to be mature enough to express a preference as to how his life is arranged and what he does with his time. He is however not the ultimate arbiter of what happens to him. I must be mindful that he may be subject to the influence of those around him, particularly in regards to placating their feelings. Ms R was sanguine that X did wish to spend more rather than less time with his father.
The mother is concerned that Mr Pickering will continue to expose X, in particular, to inappropriate electronic entertainment. I must assess the degree of risk of this occurring; the potential consequence of the risk materialising; and put in place a response which is proportionate to the risk as so assessed.
It does not seem inherently improbable that Mr Pickering has allowed X to play 18+ video games although I am not in a position to make a definitive finding in this regard. I have not been provided with evidence regarding any direct consequences for X of such exposure. In these circumstances in my view a proportionate response to the risk arising is an injunction to prevent such activities in future.
To his credit, Mr Pickering has acquiesced in seeking anger management counselling. Mr H describes him as being open to the counselling, after some initial reservations and of speaking positively of Ms Pickering’s central role with the children. Again, I must put in place a response which I consider is proportionate to the degree of risk that Mr Pickering will expose the children to some unbridled comment about their mother or some example of sexist behaviour.
In my view, it would be a disproportionate response to the degree of risk arising to confine significantly Mr Pickering’s time with the children because of these dangers. In my view, the injunction which was made on 18 March 2016 is an appropriate response to the risk in question pending further hearing.
Although as a result of their mutual acquiescence, the parties hold equal shared parental responsibility for X and Y, in my view, it would be neither in their best interest nor reasonably practicable for there to be an equal time regime given the contents of Ms R’s report and the obvious deficits in the parties’ shared facility to communicate effectively.
The next consideration is whether there should be a substantial and significant time regime. This issue must be considered I think in the context of the benefits likely to be derived by the children from having a meaningful level of relationship with both of their parents.
In Mazorski v Albright[7] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned. The expression meaningful is also used in section 60B(1)(a).
[7] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their children having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Family Law Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence as an individual.
The aspects of a child’s life in which a parent can be meaningfully involved are therefore multifarious. They include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations.
In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents. It is these types of interactions which add significance and value to parent/child relationships and so add meaning to them.
From Ms Pickering’s point of view, I can understand why she would want an entire weekend with the children untrammelled by any involvement with Mr Pickering. No doubt she feels that it is only fair that this should occur given that she is doing the lion’s share of the mundane nuts and bolts parenting arising from the school week.
At present, Mr Pickering only has brief exposure to the children on a school week. At this stage, he is cast largely in the role of a weekend parent. This has arisen because of his work commitments and as a consequence of Y’s age. Ms Pickering does not propose any change to weekday arrangements at this stage. Necessarily it is Mr Pickering’s long term aspiration that his parenting role be broadened to encompass more day to day activities with the children.
From Mr Pickering’s perspective, every opportunity to spend time with the children is valued. No doubt he envies Ms Pickering the opportunity to put the children to bed regularly; prepare their breakfasts; and be engaged in other like activities on a day to day basis. I accept that it is mutual involvement in these types of activities which add warmth and familiarity to parent/child relationship – it is the opportunity for a parent and child to hang around together without the pressure to do any particular activity.
I can also appreciate why Mr Pickering would perceive it to be a backward step, in terms of his relationship with the children being developed, if he spends the same amount of time with them but it is concentrated into the one weekend of each fortnight. As I am at pains to point out, the court’s exercise is not purely a quantitative one, although many parties approach it as such. Indeed, Mr Pickering points to the fact that Ms Pickering has the greater proportion of time with the children at present.
It is implicit in Ms Pickering’s current position that she accepts the benefits of X having a full weekend in his father’s care and the court beginning the process of Y having an overnight stay. These developments will, in my view, most likely add meaning to the level of the children’s relationship with their father. Their will more time to do things together; an opportunity for Mr Pickering to engage with Y in a different context; and more hanging out time for father and children.
In my view, the likely benefits outweigh the potential pitfalls. In experimental terms, in my view, the experiment is warranted, particularly given Y has now turned three and will have the support and familiarity of his older brother through the process. In this regard, I note Ms R’s indicates that one overnight period for Y is warranted each week rather than each fortnight provided he does not suffer separation anxiety.
It seems to me that the children’s relationship with their mother is already replete with meaning by dint of the large number of day to day interactions she has with the children. I can appreciate in these circumstances why Ms Pickering would wish to round out her parenting role by increasing her weekend time with the children.
This may ultimately occur at a later stage of proceedings or when the children are older. Certainly Mr Pickering aspires to a process of evening out of weekends; weekdays; and holidays; so that each parent has a fully rounded parental role with the children. This will be an issue for the final hearing, particularly whether the parties’ parenting relationship will sustain such an aspiration and whether it is actually in the children’s best interest rather than being beneficial in theoretical terms.
At this stage, it is impractical to consider a regime which includes weekday time and, in any event, neither party proposes it. In these circumstances the extension of time must occur on the weekends. I also consider that it would not be beneficial for the time to be condensed into a longer weekend each fortnight. I reach this conclusion on the basis that it will not be conducive to the adding of meaning in the children’s relationship with their father and it is not open to consider additional time on weekdays.
I am satisfied that the experiment of one overnight per week is warranted for Y. This can easily dovetail with the current overnight arrangements for X. The first weekend for Y can commence, with X, from after school (or 3.30 pm if school is not in session) and conclude at 5.00 pm the following Saturday. The second weekend can commence again with X, at 10.00 am Sunday and conclude at the commencement of school the following Monday (or 9.00 am if it not a school day).
In addition, X’s first week can be extended to 5.00 pm the following Sunday allowing him a longer two night weekend with his father which is congruent with his wishes. I am satisfied that there are no unacceptable risk factors associated with this extension of time for either child.
I do not propose to alter the existing Wednesday regime or make specific orders in respect of the forthcoming end of year school holidays. Specific orders have been made for the festive days of Christmas.
It is preferable that the children be exchanged wherever possible at a neutral and safe location such as school, childcare, kindergarten or a children’s contact centre. This will not always be possible, particularly during school holidays during which it is envisaged the regime will continue. Again orders have been made in respect of handover which envisage exchange at the father’s home provided the mother stays in the vicinity of her motor vehicle. I have not been asked to change that order.
I will confirm the final hearing of the matter and make the necessary orders to prepare the case for trial. In this context, it seems to me to be useful that there be some investigation prior to trial of how an extension of time is working from the perspective of each of the parties. The orders of 18 March 2016 bear a notation that the parties will enquire of Ms R regarding her up-dating her family assessment in early 2017. In these circumstances I will not make a formal order to this effect.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirty six (136) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 20 October 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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