Potter and Potter
[2009] FMCAfam 918
•14 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| POTTER & POTTER | [2009] FMCAfam 918 |
| FAMILY LAW – Parenting – whether child should live primarily with one parent – equal time. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65D, 65DA, 65DAA Family Law Amendment (Shared Parental Responsibility) Act 2006 |
| Applicant: | MS POTTER |
| Respondent: | MR POTTER |
| File Number: | SYC 1251 of 2008 |
| Judgment of: | Orchiston FM |
| Hearing dates: | 22 & 23 June 2009 |
| Date of Last Submission: | 23 June 2009 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cleary |
| Solicitors for the Applicant: | Adamson Solicitors |
| Respondent appeared in person person |
ORDERS
[X] (“the child”) live with the mother.
Subject to Order (3) below and Order 11 of the 23 June 2009, the child spend time with the father as follows:
During pre-school/school terms
(a)Each alternate weekend from after pre-school/school Friday until 5pm Sunday;
(b)Each other week from after pre-school/school Wednesday until before pre-school/school Thursday; or otherwise as agreed between the parties;
(c)For up to 2 hours on the child’s birthday at such times as agreed between the parties;
(d)At other times as agreed between the parents. In this regard, the parents shall use their best endeavours to ensure that the child spends time with the mother on Mother’s Day and the mother’s birthday, and with the father on Father’s Day and the father’s birthday.
In the event that the father resides more than 100kms away from the child’s usual residence, the child spend time with the father as follows:
Until the child starts school:
(a)from Saturday 10am to Sunday 4pm on the first weekend of each month in the Sydney metropolitan area;
(b)upon 14 days notice being provided to the mother that the father will be in the Sydney metropolitan area, such times as agreed between the parties
(c)for up to 3 hours on the child’s birthday and in the event that the father is unable to spend time with the child on the day of her birthday, then the first Saturday following thereafter and should that be additional time, that he spends such time with her as additional time;
(d)At other times as agreed between the parties.
Upon the child starting school:
(e)from Friday 6pm until Sunday 4pm on the first weekend of each month;
(f)Unless otherwise agreed, the father pay the costs of the child and the mother or other acceptable adult as nominated by the mother to travel to and from the metropolitan area closest to the father’s residence; or the father pick up and return the child to the mother’s residence and pay for the costs of so doing.
(g)upon 14 days notice being provided to the mother that the father will be in the Sydney metropolitan area, such times as agreed between the parties
(h)At other times as agreed between the parties.
Each party be restrained from discussing the Court proceedings, including but not limited to the role of the Court and of the Judge or Federal Magistrate, with or in the presence of the child.
Both parents to complete a post separation parenting course with Unifam or equivalent organisation, and within 14 days of the date of these Orders, shall do all things necessary and sign all documents to facilitate their assessment and participation in such a course.
Each parent shall advise the other and keep the other informed as to their respective residential addresses, land line and mobile telephone numbers, e-mail addresses and any other information necessary for the child to communicate with the other parent.
The mother do all acts and things and give all authorities necessary for the father to arrange direct with the child’s pre-school/school for the delivery to him of copies of all pre-school/school notices, newsletters, reports and photographs.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All outstanding applications be dismissed and the matter removed from the list of cases awaiting finalisation.
NOTATION
These Orders to be read in conjunction with the Consent Orders of 23 June 2009.
IT IS NOTED that publication of this judgment under the pseudonym Potter & Potter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES |
SYC 1251 of 2008
| MS POTTER |
Applicant
And
| MR POTTER |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the child, [X] born in 2005 who is 3½ years of age. She is the only child of the relationship between the applicant mother and the respondent father.
Background
The applicant mother, Ms Potter, now aged 25 years, and the respondent father Mr Potter, now aged 32 years, were married in 2004 in Sydney. The mother went to live with the father in Houston where the father was working as an [omitted]. Shortly after, the mother became pregnant and the parties moved to Sydney where [X] was born.
The parents separated on 31 January 2007 when [X] was 1 year old.
Since separation, [X] initially moved between her parents by informal arrangement during which time she spent half a week’s rotation with each parent in Sydney for three months; then about a 4 week block with the father in Victoria where the father’s parents were residing; and then some block time in Brisbane upon the father relocating there for his employment. The father then spent some months in Victoria before returning to live in Sydney in the lower Blue Mountains.
On 26 February 2008, Interim Orders were made at the Manly Local Court providing inter alia for the child to live with the mother (Interim Order 1), and in the event that the father returned to live in the Sydney Metropolitan area, to spend time with him on the first and third weekends of the month from 10am Saturdays to 4pm Sundays (Interim Order 4(a)).
Further Interim Orders were made in the Federal Magistrates Court on 17 September 2008 providing inter alia for the parents to have equal shared parental responsibility for the child (Interim Order 1); extending Interim Order 4 of the Manly Local Court to also apply if the father resides in an area within 30 minutes travelling time of the mother’s current residence at [C] (Interim Order 2.a.ii.); extending Interim Order (4)(a) of the Manly Local Court to include [X] spending time with her father on each Tuesday and Thursday from 4pm to 7pm (Interim Order 2.a.i); and extending the Interim Orders of Manly Local Court to provide for the mother to facilitate the paternal grandparents spending time with the child as agreed between the parents (Interim Order 2.b.).
The mother agreed to the further extension of the child spending time with her father from 3pm Friday to 5pm Sunday on alternate weekends. Otherwise, it is agreed that the child has not spent time with the father on Tuesdays and Thursdays pursuant to Interim Order 2.a.i of
17 September 2008.The mother initially moved in with her parents in Sydney after the parties separated.
Both parents have now re-partnered. Since September 2008, the mother has been living with Mr D, who is 27 years of age, initially with Mr D’s mother, and now in a rented three bedroom house at [C] in which [X] has her own room.
Since September 2008, the father has been living with Ms C who is 32 years of age and her 2 sons, [Y] aged 10 and [Z] aged 3, in a rented four bedroom house at [W] in the lower Blue Mountains in which [X] has her own room which the mother concedes is “lovely” (transcript 22/6/909).
The father states that the travelling time between the respective residences of the parties is 45 minutes; the mother puts it as between
1 hour and 1 hour and 15 minutes.
Both parents are in fulltime employment. Since January 2009, the father secured employment at [R], Richmond and moved to the lower Blue Mountains. Since then this employment was terminated on 6 May 2009. He is now consulting for [A] under a sole trader contractual arrangement, still located at the Richmond base. The father states that his hours as a contractor are fairly flexible. The father is also studying for a Masters degree in [omitted]. His partner, Ms C is not employed outside the home.
The mother works [in the Education Industry]. She is studying for a Diploma in [omitted] and hopes to go on to study for a Bachelor of [omitted]. Her partner, Mr D works full-time as an [omitted] in the hardware industry.
On Tuesdays to Fridays, the mother leaves for work at 7am and Mr D takes [X] to preschool on his way to work, with the mother finishing work at 3.30pm and picking the child up from preschool on these days. On Mondays, the mother has a late start and thus drops the child at preschool on her way to work, with Mr D’s mother picking her up from preschool and minding her until the mother gets home after 6pm.
The father states that he is able to have flexible work arrangements. He is able to pick [X] up from preschool on the alternate Friday afternoons when she is spending time with him, and the mother collects her at the end of that time from the father’s place of residence. The father’s partner, Ms C, is not working and the father says that she is available to help him with the majority of looking after [X] during the day, if a shared time arrangement is implemented, as sought by him.
The Court has no affidavit material from the maternal and paternal grandparents in this case.
The competing proposals and material relied upon
The mother relied upon the following documents:
·Initiating Application filed 20/12/07
·affidavit of the mother sworn 3/9/08 and filed 5/9/08
·affidavit of the mother sworn 28/5/09 and filed 1/6/09
·affidavit of Mr D sworn 28 or 29/5/09 and filed 1/6/09.
The father relied upon the following documents:
·Amended Response filed 28/5/08
·affidavit of the father sworn 15/2/08 and filed 19/2/08
·affidavit of the father sworn 28/5/08 and filed 28/5/08
·affidavit of the father sworn 22/6/09 and filed in Court on 22/6/09
The Court also had before it a Family Report from the expert witness, Dr Todd Jacobson, dated 16 May 2009. Dr Jacobson was called for cross-examination by the parties.
On 23 June 2009, being the second day of the hearing, the parties were able to agree on many of the issues between them. Final Orders were thus made by the Court in accordance with the Consent Orders of the parties on that occasion, in particular, that the parties have equal shared parental responsibility for the child.
Otherwise, in summary, the mother seeks the further following orders that:
·the child live with the mother
·the child spend alternate weekends with the father from 3pm Fridays to 5pm Sundays
·the parties be restrained from discussing the Court proceedings, including but not limited to the role of the Court, with or in the presence of the child.
In summary, the father seeks further orders that:
·the child spend equal time with both parents in a shared care arrangement. At the beginning of the hearing, the father sought that this be implemented on a 3 week about block arrangement, but then amended this to a 1 week about arrangement. During his closing oral submissions, he proposed a 3 month transition from 6pm Wednesdays to 8.30am Mondays, followed thereafter by week and week about from 6pm Wednesday to 6pm the following Wednesday, conditional on the parties remaining within 100 kms of each other.
Relevant legal principles
Part VII of the Family Law Act 1975 (the Act), following the Family Law Amendment (Shared Parental Responsibility) Act 2006, sets out the relevant law in Parenting cases. Section 61DA provides for a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption relates to parental responsibility about major long term issues, not to the time that the child spends with each parent. Major long term issues are defined in s.4 of the Act as education, religious and cultural, health, name, and significant changes in living arrangements.
In this case the parents agree that the presumption applies and that they should retain equal shared parental responsibility for [X].
The Court must therefore consider whether [X] spending equal time with each parent would be in her best interests: s.65DAA(1)(a), and whether it is reasonably practicable to do so: s.65DAA(1)(b). If so, the Court must consider making an order for equal time: s.65DAA(1)(c).
If the Court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests: s.65DAA(2)(c), and whether it is reasonably practicable: s.65DAA(2)(d), and then consider an order for substantial and significant time: s.65DAA(2)(e).
“Substantial and significant time” is defined in s.65DAA(3). The criteria that the Court must consider in determining whether it is reasonably practicable for the child to spend substantial and significant time with each parent are set out in s.65DAA(5) as follows:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Section 60B(1) of the Act sets out the objects to ensure that the best interests of the child are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in the best interests of the child, the Court must first consider the primary considerations set out under s.60CC(2), followed by the additional considerations under s.60CC(3) of Part VII.
Section 60CC(2) provides that:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The additional considerations set out under s.60CC(3) (a) to (m) are set out in the body of the judgment. In considering both s.60CC(3)(c) and (i), the Court must also take into account s.60CC(4) and s.60CC(4A).
Sub-sections 60CC(4) and (4A) provide that:
s.60CC(4) – Relates to s.60CC(3)(c) and (i).
Extent to which each parent has fulfilled/failed to fulfil responsibilities as a parent.
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Section 65D provides that, subject to the presumption of equal shared parental responsibility, that the court may make such parenting order as it thinks proper.
The Issues
The key issues thus remaining for the Court’s determination are:
· whether the child should primarily live with one parent; and if so which parent; and what time should the child spend with the other parent; or
· whether a shared time arrangement should be implemented; and if so on what basis.
In this case, the parents have agreed to final Orders that it is in [X]’s best interests for her parents to have equal shared parental responsibility for her. The Court is thus required to consider whether her spending equal time with each parent would be in her best interests and whether it is reasonably practicable, and then consider an order for equal time (s.65DAA (1)(c)). Otherwise, the Court must consider whether [X] spending substantial and significant time with each parent would be in her best interests and whether it is reasonably practicable, and then consider an order for substantial and significant time.
These issues will be dealt with below within the context of the what is in [X]’s best interests as ascertained by a consideration of the objects and principles set out in s.60B(1) and s.60B(2) of the Act, respectively, and within the framework of the primary considerations under s.60CC(2), and then the additional considerations under s.60CC(3), and taking into account how each parent has fulfilled or failed in their parental responsibilities to date, as required under s.60CC(4) and s.60CC(4A) of the Act.
Preliminary findings
I found both parents and Mr D to be honest and reliable witnesses in this case. I accept that each parent very genuinely loves their daughter and has a sincere devotion and interest in her on-going development and welfare, notwithstanding the high level of conflict between them. Both parents impressed as intelligent and articulate persons who recognised the importance of the other in [X]’s life. Equally I accept that Mr D impressed as demonstrating a strong commitment towards [X] and there is no issue that she has developed a good relationship with him.
I also found Dr Jacobson to be an impressive expert witness in this case.
Primary considerations
(a) The benefit to the child of having a meaningful relationship with both parents
I am satisfied that [X] has already developed and presently enjoys a meaningful relationship with both her parents. I am satisfied that both parents dearly love [X]. According to Dr Jacobson [X] has developed “a high-quality relationship” with each parent. I accept his evidence in this regard.
I am also satisfied that [X] loves both her parents and enjoys having both of them in her life. I accept the evidence of Dr Jacobson that she “impressed as a spirited and animated child. She was obviously intelligent and likely to be more articulate than most children her age”. From the photographs of [X], tendered as Exhibit 1B in these proceedings, I accept that she is indeed a captivating child.
I accept that both parents have contributed significantly in ensuring that [X] has developed so admirably.
(b) The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence.
The mother raised some matters in her affidavit material regarding the father’s lack of use of sunscreen, mosquito repellent (given [X]’s allergy to mosquito bites) and personal wipes when [X] has been in his care. The mother, however, concedes in cross-examination that these events coincided with the father moving to the Blue Mountains after he had not been seeing [X] on a regular basis for some period of time and that he has been receptive, although “not amicably” to her comments and concerns and taken action on these matters and that these issues no longer arise (transcript 22/6/09 pp 49-50).
I am thus satisfied that there is no evidence upon which the Court can draw the conclusion that the child has been or is being exposed to neglect. Further, the mother concedes in cross-examination that she believes that “you [the father] are a wonderful father to [X]” (transcript 22/6/09 p.33). I note that Mrs Cleary makes no submissions in regard to this primary consideration.
The mother also states that she has some concerns about the father drinking alcohol to excess when he is with [X]. She states that the father would often drink to excess during various periods of their relationship and that recently he had telephoned her abusing her when he appeared to be intoxicated due to his slurred speech and aggressive nature (mother’s affidavit 28/5/09 paragraph 35).
The father accepts that when he was between 18 and 26 years of age, he may have had a problem with his use of alcohol, but that at the age of 25 he took steps to address the situation. He says that he estimates that he drinks up to 10 standard drinks in 7 days (see Dr Jacobson’s Report Paragraph 35). On the evidence before me I do not consider that [X] has been or is being exposed to any unacceptable risk on this account. I note that Mrs Cleary makes no submissions in this regard.
Additional considerations: s.60CC(3)
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The father’s evidence was that [X] had expressed to him that she would like to spend more time with him. The father’s affidavit of 22/6/09 at paragraphs 34 states that:
[X] has asked to remain in the Blue Mountains home; and she has replied in the affirmative that she should like me to ask the Judge if she could stay with her Daddy for a longer period.
Dr Jacobson also stated that during his observations of [X] with the father, he overheard [X] say that she would like to spend some additional time with her father, “[h]owever, this came in the context of questions her father asked of her; essentially, if she would like to do so”.
Given the lack of maturity of [X] and the context in which these conversations took place, I do not consider that the Court should place any weight on this evidence of the child’s views.
Rather, I accept the evidence of Dr Jacobson that [X]
was obviously intelligent and likely to be more articulate than most children her age. Nevertheless, her language skills and cognitive abilities were not sufficient for her to engage in a useful discussion with the writer about parenting arrangements (paragraph 36 of his Report).
(b) the nature of the relationship of the child with:
(i)each of the’ child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
I accept that [X] has developed a very good relationship with both her parents. I accept Dr Jacobson’s evidence that she has a “high quality relationship” with each parent (paragraph 47 of his Report). He observed “an obvious relationship” between [X] and both parents where she seemed to enjoy interacting with both of them (paragraphs 37-38; 42, 44).
There is also no issue in this case that [X] has developed a very good relationship with Mr D and that they enjoy spending time together. I accept that he has become an important and committed person in [X]’s life where he supports her daily activities, including looking after and taking her to preschool most mornings. I accept his evidence that, simply put, “having both [the mother] and [X] in my life has been a blessing for me” (his affidavit paragraph 9). I further accept that he appropriately acknowledges the father’s role in [X]’s life (transcript 22/6/09 p.58).
There is no direct evidence before the Court in regard to the father’s partner, Ms C and her relationship with [X]. She has filed no affidavit material in this case, given no oral evidence before the Court, and was not present for the interviews conducted by Dr Jacobson. Her two children, [Y] (10 years old) and [Z] (3 years old) were also not present for the interviews conducted by Dr Jacobson. This is unfortunate, in particular where on the father’s proposal for a shared time arrangement, Ms C would be looking after [X] for the majority of each day when he is at work.
The only evidence in this regard comes from the father who states that “[X] has formed a close and fond relationship with Ms C and her children. [X] and [Z] are particularly close, due to the proximity in age, and spend the majority of the time playing together at home and when we go on Adventures to the bush surrounding the Blue Mountains” (father’s affidavit 22/6/09 paragraphs 25, 26).
In his oral evidence, the father further stated that Ms C is a “competent and caring mother, that I have known her since ... we were both 19 years of age. We’ve had an extended friendship over that period, I know many of her family and friends ... I have no compunction in giving [X] into her care while I’m at work, rather into the care of a childminding facility ... Also, ... there has not been any question of my ability to make good and sound decisions regarding the day-to-day care of [X]” (transcript 23/6/09 p.20).
Otherwise, some indirect evidence on the matter comes from the mother who says that she had to initially suspend the extension of time that [X] spent with her father from Fridays after preschool since about January 2009 when [X] “was getting a little bit more distressed in adjusting to Ms C and her children moving into the father’s household”, but that she “seems to be settling a lot better” and that she was happy for the Friday pick ups by the father to be reinstituted (see transcript 22/6/09 p.29).
The Court had no affidavit material or oral evidence from Mr D’s mother who picks [X] up from preschool on Mondays and looks after her until the mother gets home. I note however that no issue was taken in this regard.
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
There is no doubt in this case that there is a high level of conflict between the parents and that their communication and co-operation has accordingly suffered.
The father points to the fact that he earlier relocated to Brisbane, took up a job offer there and bought a home on the understanding from the mother that she would also move there with [X], but that she reneged on this arrangement.
The mother agrees that initially she did agree to move to Brisbane but that once it was clear that the relationship with the father was over, she made the decision to stay in Sydney where she had family support. I accept that the mother’s change of position caused the father “a great deal of pain and suffering”, but equally I accept her explanation for so doing.
The father also points to the mother not facilitating his request to spend block time with [X] during the 3 month period that he was staying in Victoria after he left Brisbane. Given the young age of [X], the mother did not support her spending block time with her father in Victoria, notwithstanding that this appears to have been the case earlier in their separation. I accept the mother’s concerns in this regard which are consistent with the expert opinion of Dr Jacobson that [X] should not be away from her mother for a block period of more than 1 week until she starts school. Equally, the father did not avail himself of the time he could have spent with [X] in Sydney at that time.
Dr Jacobson also points to the father’s “obvious negative attitude” towards the mother and “his apparent distrust of her” (paragraph 47 of his Report). He further refers to the fact that the parents “said they do not communicate with each other about [X]’s care” (paragraph 49 Report).
Notwithstanding, these matters, he reports that “It would seem that the parents have been able to not only shield [X] from their conflict, negative attitude and distrust of each other, they have supported a relationship between [X] and the other parent. Mr and Mrs Potter’s efforts in this regard should be recognised as their efforts have had a beneficial effect on [X]” (paragraph 47 Report).
I consider that the mother has demonstrated and continues to demonstrate a preparedness and ability to facilitate and encourage [X] having a close and continuing relationship with her father. I accept her evidence that she wishes the father to have “an active and substantial role’’ in the child’s life by which she means that she would like [X] and the father to spend as much time as possible together “that is practical for her and that still helps her stay in a routine.” She acknowledges that the father has been a “wonderful father to her and I know that you [the father] teach her lots of things and I want you to be there for her as much as you can be in every way” (transcript 22/6/09 p.43).
In this regard, the mother has facilitated [X] making all telephone calls to her father that she has wanted to; she has been responsive to the father’s requests that his time with [X] be extended from Saturday mornings to Friday afternoons given his working half days on Friday; she has rearranged to move [X]’s music and swimming lessons at the father’s request so that his Saturdays with [X] are free and has left the earlier extra compensatory hour in place on Sundays after this change; and she has sought, with limited success, to facilitate the extended relationships between herself and Ms C and between the father and
Mr D. I accept that the mother has been responsive to [X]’s best interests in this regard.Equally, I accept that the father respects the importance of the mother in [X]’s life and has demonstrated both the willingness and ability to facilitate and encourage a close and continuing relationship between her and the mother.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
On the father’s proposal for a shared time arrangement, [X]’s time with her mother would be significantly reduced. Furthermore, on the father’s proposal, [X] would be taken out of daycare during the periods that she is spending with her father and would be looked after at home by Ms C.
The mother has been, and is, [X]’s primary carer. On all accounts [X] is presently well-adjusted and thriving in the present arrangements for her care, including her attending pre-school on Mondays to Fridays. I accept the mother’s evidence that she is in a stable, and secure routine.
Any change to this regime would have to be carefully considered. The Court must have concern in the child moving from a regime in which she has obviously been flourishing, to one which would be so dependent on the role that Ms C would play, as well as that of her children, in [X]’s daily life; where these persons have not been interviewed and/or observed by Dr Jacobson inter-relating with [X]; and where the Court itself has had no opportunity to assess Ms C’s willingness and capacity to undertake this critical role.
I also accept the evidence of Dr Jacobson that the conflict and poor communication between the parents has the potential to adversely affect [X]. The father’s proposal for shared time would require a very high level of co-operation, trust and communication between the parents and indeed upon their respective partners. Whilst the parents have been able to shield [X] from their high level of conflict under the existing regime, I consider that a shared care arrangement may put much greater pressure on the already problematic relationship between the parties, which could readily impact on the child.
I am also satisfied that after release of Dr Jacobson’s Report, the father has sought to play down the level of conflict between the parents and the vitriolic comments he made to Dr Jacobson about the mother at the interview. I accept that the parents have been able to communicate on some matters and that they have sought to protect [X] from their conflict. Nonetheless, a shared care arrangement could place this present fragile situation at risk, and as [X] gets older, with the potential for her to become more directly involved in the parents’ conflict.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
No issue has been raised by the parties on the basis of the expense of either the current arrangements, or the father’s proposed shared care arrangements.
Nor has any issue been raised in regard to the child communicating with the other parent. Indeed the parents agreed to final Consent Order 2 being made on 23/6/09 which provides for a very flexible and facilitative communication between [X] and the other parent.
The present interim Orders put in place on 17/9/08 provide for the father to spend time with the child on each Tuesday and Thursday between 4pm and 7pm. It is common ground, however, that [X] has not been spending time with her father mid-week.
At present the parties live quite some distance apart. On the father’s evidence it is 45 minutes travelling time between their respective residences. On the mother’s evidence it is between 1 hour and 1 hour and 15 minutes. Both have private car transport. Neither put in issue any practical difficulty with the present care arrangements, which the mother proposes should continue.
In terms of the father’s proposed equal shared care arrangement, I see little practical difficulty arising prior to the child commencing primary school, at which time the choice of school, its respective distance between their residences, the extent to which [X] is able to have social contact with her school friends out of school hours and any fatigue factor from her having to potentially travel midway each day between the parents’ residences to school, become pertinent issues to consider in [X]’s best interests.
Also, I am aware that both parents are presently renting their residences and are hopeful of buying premises in the near distant future. This could result in further practical difficulties in any proposed equal shared care arrangement. I am mindful that [X] has already had a number of changes to her living arrangement and to her day care/preschool arrangements. To date she appears to have adjusted well to these changes. However, the mother’s evidence, which I accept, is that she took some time to adjust to Ms C and her children in the father’s household. In these circumstances, I consider that it is important to minimise future changes in [X]’s routine to provide as much consistency and stability commensurate with both parents continuing to have a meaningful relationship with her.
I am also mindful of the father’s employment “lifestyle”, as he calls it, of an [occupation omitted] which, in his own words, operates “in a global context of mobility” (transcript 22/6/09 p.53). Since separation, he has moved between Brisbane, (where he anticipated that the mother and [X] would follow him), Victoria and Sydney. To his credit he sought to return to Sydney to be able to play a very meaningful role in [X]’s life. His contract with [R] at Richmond was however recently concluded and he has now taken a consultancy position still based at Richmond. The father accepted in cross-examination that he may be required “to move to other places” with his present consultancy, but that “at this time it doesn’t look like it – the current contract is open-ended and there’s no reason for me to think that it wouldn’t continue. My intention is to remain in the area” (transcript 22/6/09 p.66).
Notwithstanding the father’s clear present intention to remain in Sydney, I consider that, given the nature of his occupation, the need for him to have global mobility cannot be ruled out. In this regard, he stated in his affidavit of 28/5/08 that “Opportunities which present themselves for my career are likely to include working in the USA, Europe, and other foreign locations” (paragraph12).
For the reasons stated above in regard to this consideration, I am satisfied that [X]’s best interests favour the present arrangements continuing which do not substantially affect [X]’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
[X] is clearly an intelligent young child. I accept that both parents have provided admirably for her educative and intellectual needs, including reading her stories, and teaching her how to spell her own name, and attending her music and swimming lessons.
The mother concedes that [X] “learns a lot” from her father who is “a good teacher”, and a “wonderful father to [X]” (transcript 22/6/09 p.33), and in particular that her interest in [science] have been generated by her father.
I accept that both parents have also been responsive to her medical needs, when required, including both taking her to her first immunisation when they were still together. Indeed the parties entered final Consent Orders on 23/6/09 for their continuation of the blue book in this regard.
I also accept that both parents have been responsive to [X]’s emotional needs by providing her with loving and highly nurturing environments in which to develop whilst in their personal care. From birth they have both clearly been involved in her day to day care and have placed an extremely high priority on ensuring her continued welfare and development. The mother also attests to the importance she places on ensuring [X]’s routine is maintained to ensure her on-going stability, growth and development.
I have, however, the following reservation in regard to the father meeting [X]’s present emotional needs. The father professes to have a good understanding of the developmental stages of children and to have qualifications in psychology gained at university and to have read many books on the subject (transcript 23/6/09 pp 17-18), however, I am concerned in regard to the father’s explanation to [X] as to why she could not spend more time with him, in particular given her age and level of maturity and the extent to which it could involve her in the present proceedings, and, despite his stated intention to the contrary, involve her in the conflict between the parents. His asking her whether she would like him to ask the Judge if she could spend more time with him (see father’s affidavit of 22/6/09 paragraph 33) could clearly set up a conflict in her young mind between her love and loyalty to each of her parents as well as some conflict and guilt that she is not spending enough time with her father.
The father explained that he was “trying to communicate to her that I do love her and that I do ... want to spend more time with her” and that “I make it very clear to her that it’s not her fault ... that she’s not able to spend more time, and I make it clear that it’s not my fault and I make it clear that it’s not her mother’s fault, and instead, I place the blame on an archetypical figure, third party, that sits in judgment, whom, if there’s any emotive anger set up in her character that it be – and , unfortunately, probably have to deal with this later in terms of making sure that she understands the judicial system is set up for a reason, but that she direct it, rather, at a third party than at any of the people who are obliged to care for her and provide emotional stability and support for her ... I would rather place the emotive blame on a third-party archetype than any of the parties ... rather than on one of the people who is responsible for her primary emotional care and to whom she has a great emotional attachment” (transcript 23/6/09 pp.15, 17).
Notwithstanding that [X] is an intelligent child, I am concerned that the father’s explanation seeks to involve her at such a young age in the present proceedings and to expose her to statements about the role of authority figures in society which she could not properly understand at her young age and which may have the potential to set up conflict and misunderstanding in her mind.
I accept that the father was well-intentioned in the way in which he dealt with [X]’s distress at having to leave him after spending time with him, and considered she had the maturity to cope with this explanation as to why she had to return to her mother. However, I consider that his approach was misguided and not in [X]’s best interests.
Accordingly, I accept the submission by Mrs Cleary that an Order should be made to protect the child in this regard in the future to restrain the parents from discussing these proceedings with [X] or in her presence.
I accept that Mr D has contributed very positively to [X]’s intellectual and emotional needs and the maintenance of her present strong routine. He says that they love reading books together before bedtime; that he enjoys their morning trips to preschool together and other activities such as trips to the park, shoulder rides, playing hide and seek and cooking; and that he tries to attend her music and swimming lessons when he can.
I accept that Mr D also contributes towards her financial needs, including contributing towards her preschool, swimming and music lesson fees.
The father contributed to the financial support of [X] on an informal basis from the time of separation of the parties until the mother sought that the Child Support Agency (CSA) collect child support on her behalf. The mother asserts in this regard that she involved the CSA because she was sick of the father saying to her “If you give me [X] I will give you your money ... The reason I went to the CSA is because you are unreliable and because you would only make part payments here or there and because I was sick of fighting with you about it. I wanted it on paper through a collection agency so it was one less thing that you and I would have to fight about” (transcript 22/6/09 p.50).
The mother states at paragraph 40 of her affidavit of 28/5/09 that the father has provided very little financial support for [X] and that she has only received $96 in child support payments since July 2008. The mother’s position is that the father is $2,721 in arrears, not including a missed monthly payment of $642.94 (see the handwritten notation on Exhibit 2).
The father says that the collection of child support by the CSA coincided with his not being in receipt of income and hence he has been sorting this issue out with the CSA. He does not admit that he is in arrears and that no assessment has been provided to him by the CSA which would lead him to believe that he is in arrears (transcript 22/6/09 pp 69-70).
Exhibit 2, being a Transaction Statement for the period 1/7/08 to 15/6/09 from the CSA to the mother, dated 15 June 2009, states that the Balance as at the 15 June 2009 is $0.00. On the evidence before me, Exhibit 2, on its face, apart from the handwritten notation apparently made by the mother, does not disclose that the father is in arrears. I am not therefore prepared to find that the father has not been meeting his obligations to financial support the child, albeit not always on time.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
I accept the submission by Mrs Cleary that nothing turns on this consideration and that [X] is “a three year old girl, who’s perfectly healthy and doing well” (transcript 23/6/09 p.28).
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant in this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I rely on the matters discussed above under s.60CC(f) in the present context.
Otherwise, I accept that both parents are highly committed to [X]’s care, welfare and development. They both involve themselves in her education and her swimming and musical activities. The father has been nurturing in her an interest and knowledge of astronomy.
I accept that [X] has thrived in their care, with the mother taking the primary role and working full-time to support her. I accept that the father is highly committed to taking on a shared care role.
(j) any family violence involving the child or a member of the child's family;
This consideration is not relevant in this case.
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
This consideration is not relevant in this case.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Dr Jacobson considered the lack of co-operation and communication between the parents to be the key factor mitigating against a shared care arrangement.
Despite the parents’ ability to co-operate and communicate on a number of matters and their having been able successfully to date to shield [X] from their conflictual relationship, I am mindful of what the father describes as the “extreme level of hostility” between himself and the mother (transcript 23/6/09 p.13).
In these circumstances, I consider that the continuation of the current care arrangements would be least likely to lead to the institution of further proceedings in this case, noting that the parties agreed to Consent Order 5 of 23 June 2009 providing for [X] to spend longer time away from her mother in a 3 week block over the Christmas holidays once she starts school, as recommended by Dr Jacobson.
I also note that the parties have agreed to attempt to resolve any issues that may arise in the future between them by mediation rather than seeking recourse to the Court in the first instance (see Consent Order 3 of 23 June 2009).
(m) any other fact or circumstance that the court thinks is relevant.
I do not consider that any other fact or circumstance arises in this case which has not already been discussed in the context of the above primary and additional considerations.
The presumption of equal shared parental responsibility
Under the legislative pathway, once the presumption of equal shared parental responsibility applies, as it does in the present case (see Final Consent Order 1 made on 23/6/09), the Court must then consider whether the child spending equal time, and if not equal time, substantial and significant time, with the each parent would be in the child’s best interests and would be reasonable practicable in the circumstances of the case.
The Court has thus carefully considered whether [X] spending equal time with each of her parents, including with a transition period as proposed by the father (see below), would be in her best interests and would be reasonably practicable.
Equal time
The father’s proposal
At the outset of the hearing, the father proposed that [X] spend a 3 week block rotation with each parent, although he stated that he preferred “to leave it a bit more flexible’’ (transcript 22/6/09 p.8). In this regard, I note that the father’s most recent affidavit of 22/6/09, proposes that “equal time be for no less than a four days at a time rotation, and no more than a three weeks at a time. This time being at one a barrier to disruption for [X] and the other for protecting against anxiety from missing the other parent” (paragraph 40).
The father then “firmed” up his proposal to a 1 week about rotation. In his closing submissions he further amended his proposal to provide for a 3 month transition period where [X] would spend from 6pm Wednesday to 8.30am Mondays with her father, and thereafter on a week about basis with each parent from Wednesday 6pm to the following Wednesday 6pm, conditional on the parents remaining within 100 kms of each other.
The father stated that he was of the opinion that [X] would have the maximum opportunity thereby “to fulfil her potential by spending more time with me in residence” and that such time “should include time during the week so that she experiences her father leaving for work and returning’’ (father’s affidavit 22/6/09 paragraph 37; and see further the father’s affidavit of 28/5/08, paragraphs 16 and 18).
First, in regard to [X] spending equal time with each parent, I am aware that since separation [X] initially spent some block time with her father as agreed between the parties.
On the father’s submission, [X] has already moved her primary residences to a number of different locations and attended several different day-care establishments, in addition to block periods of time spent with him in Queensland on a number of occasions. He submits that “through these experiences and by the great parenting by both parties, she has been equipped with life skills which enable her to easily adapt to changing circumstances … She has shown no evidence of being adversely affected by these circumstances … It is a fact in this case that [X] has spent large blocks of time apart from both parents and remains a good natured, intelligent, lively young lady. This is a testament to her own natural ability to adapt and diligent parenting” (transcript 23/6/09 p.69).
The current extended arrangements for [X] to spend overnight on Friday and Saturday nights with her father appear however to have tested her resilience to cope with further changes in her life. Her mother states, in this regard, that she became “clingy and upset” on her return home when Ms C and her two sons moved in with the father, but that since suspending the Friday pickups, she has been “very happy to go and came back without any tears or problems at all” (affidavit 28/6/09 paragraph 45).
The father states that [X] has on only one occasion left his home “without breaking into hysterics” (father’s affidavit 22/6/09 paragraph 32). This remains a continuing concern in the child’s adjustment in moving between the parents’ households. Whilst the mother has agreed to reinstituting the Friday extension, I consider that any extension of the current arrangements to a fully shared care arrangement may only serve to exacerbate [X]’s already tenuous adjustment in moving between households and undermine her present carefully achieved stability and routine.
The father states that [X] has “led a disruptive life thus far” (transcript 23/6/09 p.68). Given the above concerns, I consider that any further disruption to the present arrangements by the introduction of an equal time arrangement, whereby [X] would be taken each alternate week out of her present pre-school, which is located only a few minutes from the mother’s school, and placed primarily in the care of Ms C, would not be in [X]’s best interests.
Secondly, I am concerned that any shared residence arrangement would be highly dependent on the role of Ms C, and perhaps to a lesser extent, her two children, in circumstances where the father proposes that Ms C assume most of the daytime care for [X] when in his care (see transcript 22/6/09 p.20). Such an arrangement would constitute a most important change from [X]’s present routine which would need to be very carefully assessed.
Except for the positive evidence of the father in this regard, which is referred to above, Ms C and her children were not able to be assessed by the expert witness, Dr Jacobson, for him to form any opinion as to [X]’s interaction with them. Further, the Court did not itself have the opportunity of assessing Ms C. In these circumstances, the Court is unable to draw any proper conclusion as to Ms C’s willingness and capacity to undertake this critical role, and the extent to which she would facilitate and encourage [X]’s relationship with her mother and Mr D. Thus, on the limited evidence before it, the Court would be concerned to place [X] into the daily care of Ms C where, in accordance with a shared care arrangement as sought by the father, [X] would be spending half her life with Ms C and her two children, particularly [Z] who is very close in age to [X].
Furthermore, Dr Jacobson expressed the view that the father’s proposal for a shared residence arrangement “is likely to be aimed at meeting his needs rather than [X]’s needs” (Report paragraph 50).
Thirdly, in regard to [X] spending equal time with each parent, I am concerned about the extent to which such a regime could work successfully in the context of the parents’ deep-seated conflict and the extent to which this could impact on their on-going decision-making, communication and co-operation concerning the care, development and welfare of [X].
I accept the unchallenged evidence of the mother that on one occasion the father told the mother that he hated her in front of [X] (transcript 22/6/09 p.46). I also accept the mother’s evidence that the father has “on a number of occasions, denigrated me to the other people and to myself in front of [X].” I further accept her unchallenged evidence that “[o]n a number of other occasions, he has also sent me crude, vulgar and sexually explicit text messages on my mobile and on Messenger” (mother’s affidavit of 28/5/09 paragraph 32”, and see further transcript 23/6/09 pp.8-12, in particular at p.11).
Dr Jacobson also referred in his Report to the father making vitriolic comments about the mother which the father agreed in cross-examination was the case (transcript 23/6/09 p.12).
Despite the father’s view that there is “an extreme level of hostility” between the parents, he asserts that [X]’s behaviour reflects that they have effectively shielded her from their hostility which has not prevented them from being good parents to [X] and co-ordinating and co-operating in her care and needs. I am also aware that the father agreed to a non-denigration final Order being made on 23/6/09, which may assist the situation.
Nonetheless, as discussed above, I consider that the father has sought to play down the level of conflict between the parents and the vitriolic comments he made to Dr Jacobson about the mother at the interview in order to present a picture to the Court that the parties can communicate effectively about [X]’s care, welfare and development.
Dr Jacobson was of the opinion that:
A shared residence arrangement has the potential to have numerous benefits to a child including, but not limited to, developing the relationship between the child and each parent to the fullest. However, each parent must be able to co-operate, communicate and coordinate with the other parent at a high level [emphasis added] for the arrangement to be successful. Moreover, unless both parents are able to do the above-mentioned things, there is potential for a child participating in a shared residence arrangement to be disadvantaged, if not put at risk, in numerous ways. For example if the parents are unable to coordinate a child’s health care there is risk the child could receive duplicate medical treatment possibly resulting in deleterious drug interactions. Furthermore, unless the parents are able to liaise with each other at a high level, [emphasis added] there is potential for an escalation in the conflict between them to which the child might be exposed. Cleary none of these things would be in a child’s best interests.
I accept his evidence on this matter. I consider that this is a case where the parents are not able to communicate with each other at a high level. Although they have demonstrated that they can reach agreement on some matters, including that Mr D not bathe [X], and the use of the blue book to assist in co-ordination of her medical treatment and that they have to date largely shielded her from “their extreme level of hostility’’, I consider that the high level of co-operation and communication necessary to under-pin a shared care arrangement is sadly lacking in this case. The risk that [X] will be exposed to their conflict in the future, as she matures, would not be in her best interests.
In summary on the point, I accept the evidence of Dr Jacobson that he did not observe “a good constructive basis for their communication” and he wished to draw the Court’s close attention to paragraph 20 of his Report where he stated that “the extent of [the father’s] assurance impressed the writer as verging on arrogance, if not grandiosity.
Mr Potter had no compunction about expressing some vitriolic views about [the mother] ...”. He was of the view that the conflict between the parties “has a direct bearing on the level of co-operation and added to the willingness to join together, to co-operate, communicate” (transcript 22/6/09 p.77). For these reasons, he considered that [X] “must live principally with one parent and spend time with the other parent (his Report, paragraph 51).I do not accept the father’s submission that Dr Jacobson’s testimony should be discounted on the basis that he did not make direct observations of the communication between the mother and father, rather relying on questions asked of each parent.
Fourthly, the parties do not live in close proximity to each other. The Court is concerned about the distance and travel time between the parents’ respective households not being facilitative of a shared care arrangement. Once [X] commences school, the practical difficulties of a shared care regime will be compounded. The parents would be required to co-operate and agree on the choice of a school, which could be expected to be problematical and may involve her in living in one or both households quite some distance away from her school, her school friends and extracurricular school activities. These problems could be further compounded if either parent moves further away from the other, given that they are presently both in rental accommodation. I thus consider that an equal time arrangement is not reasonably practicable in this case.
Furthermore, the Court had no corroboration from the father’s present employer that his flexibility of hours would continue indefinitely. I also consider as discussed under s.60CC(3)(e) above, that the father’s global mobility, given the nature of his job, cannot be ruled out. I note in this regard that final Consent Order 11 of 23/6/09 provides for the child to spend time with the father in the event that he is required to travel overseas for his work for long periods of time and is therefore unable to spend time with [X] in Australia.
In conclusion, I am satisfied therefore that the parents’ current and future capacity to both implement and communicate effectively with the other and resolve difficulties that might arise in an equal time arrangement, and the practical difficulties involved, pose an impediment in this case. I am concerned about the impact such an arrangement would have on [X]’s very positive development and present stability and routine. In these circumstances, I do not consider that such an arrangement of equal time is in [X]’s best interests.
From birth, the mother has been responsible for more of [X]’s care. She has lived primarily with her mother since she was 13 months old when the parties separated. Dr Jacobson was of the opinion that:
Given her young age and because Ms Potter is most likely [X]’s primary attachment figure, as well as reasons that relate to
Ms Potter having a proven track record being [X]’s resident parent, the writer recommends that [X] continue to live with
Ms Potter. Furthermore, it appears to be that [X] has been developing well in the context of the current parenting arrangements (his Report paragraph 51).I accept his evidence on these matters. Accordingly, I consider that it is in [X]’s best interests that she continue to live primarily with her mother.
Substantial and significant time
[X] is presently spending substantial and significant time with each of her parents under the present arrangements.
I consider that [X] continuing to spend alternate extended weekends with her father is in her best interests. It ensures that she is able to spend important week-end leisure time with both of her parents.
Whilst the father has not been spending mid-week time with [X] as provided under the current interim Orders, nonetheless, I consider that it is important that [X] have the opportunity to spend time during the alternate week with her father. This will assist her in fostering and maintaining a meaningful relationship with her father. In these circumstances, I consider that the Court should provide for [X] to spend time one overnight with the father midweek in the alternate week.
I also accept the submission by Mrs Cleary that whilst the father has no present intention to change jobs, and that there is no implicit criticism if he does so, it may be that work takes him away in the future. I accept that the Court should make orders in this eventuality in accordance with the orders sought in the mother’s Application.
I also note that the parties have accepted the expert opinion of
Dr Jacobson that, given [X] present young age, she spend only 1 week at a time in the Christmas holidays away from her mother, her primary carer, but that this be increased to a block of 3 weeks once she is at school age (see final Consent Order 5 of 23/6/09).
I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of Orchiston FM
Associate: K Lambert
Date: 14 September 2009
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