POWERS & POWERS
[2018] FCCA 2844
•16 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| POWERS & POWERS | [2018] FCCA 2844 |
| Catchwords: FAMILY LAW – Parenting – long protracted dispute –weight to be accorded to views of mature 15 year old – whether the parents should have equal parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 Lennon & Lennon [2011] FamCA 571 |
| Applicant: | MR POWERS |
| Respondent: | MS POWERS |
| File Number: | MLC 4508 of 2007 |
| Judgment of: | Judge Williams |
| Hearing date: | 27 August 2018 |
| Date of Last Submission: | 27 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Starkie, Solicitor |
| Solicitors for the Applicant: | L G Yves Michel & Co |
Counsel for the Respondent: | In person |
| Counsel for the Independent Children's Lawyer: | Mr Eidelson |
| Solicitors for the Independent Children's Lawyer: | Lampe Family Lawyers |
ORDERS
All previous parenting orders regarding the child [X] born …2003 (“[X]”) including any watch list order are discharged.
The parties retain equal shared parental responsibility for the child [X] born …2003.
That save for the purposes of the long summer vacation in each year, [X] live with each party on a week about basis with changeover being effected from the conclusion of school each Friday (or 3:30pm if a non-school day).
That during the long summer vacation of each year, [X] live with each party for one half of the summer vacation as agreed between them, and in default of agreement with the Father for the first half commencing from the conclusion of school term 4.
Notwithstanding the provisions of paragraphs 3 and 4 hereof, [X] spend time with each parent on Christmas Day and Easter as may be agreed upon, and with the Mother for the …Orthodox Christmas and the …Orthodox Easter as may be agreed upon.
That wherever possible changeover be effected at the school [X] attends but if not a school day then changeover be effected at the home of either parent with the parent whose period of residence is due to commence to collect [X] from the home of the other parent.
That [X] be permitted to communicate with the non-resident parent by way of telephone, email or face to face visits at his discretion.
That each parent keep the other advised of their residential address and contact number and inform the other parent within 24 hours of any change.
That both parents be restrained from:-
(a)Discussing with [X] his living arrangements and his views regarding same;
(b)Any changes to [X]’s living arrangement;
(c)Denigrating the other parent to or within the hearing of [X];
(d)Discussing these proceedings or the evidence to or within the hearing of [X].
That each parent forthwith notify the other of any relevant medical, dental or hospital issues that arise for [X] whilst in that person's care and provide information of the name of any doctor or allied health professional or hospital.
That each parent be entitled to attend all school events for [X] normally attended by parents of pupils at his school and to receive all information in relation to his schooling including but not limited to school reports, photographs and notices usually received by parents of pupils at his school.
That all communications between the parents be by way of SMS text message and/or email.
That the parents be and are hereby restrained from removing or attempting to remove [X] from the Commonwealth of Australia until they have given the other parent at least 45 days’ notice in writing of their intention to do so, provided always that to be valid and effective such notice must:-
(a)Provide the other party with full paid return flight tickets for [X] and the accompanying adult.
(b)Provide the other party with an itinerary for the duration of the travel.
(c)Provide the other party with a telephone number at which the child can be contacted for the duration of the travel.
(d)Facilitate telephone contact between [X] and the non-travelling parent.
(e)Provide proposals for make-up time with the other parent.
That the parents do all such acts and things and sign all documents necessary to enable [X] to obtain …Nationality citizenship and a …Nationality Passport within six months of the date of these Orders.
All passports for [X] to be held by the Family Law Courts Registry in Melbourne and the parties do all acts and things required to release the passports to the travelling parent within 7 days of a request to travel provided the travelling parent has complied with paragraph 13 hereof.
That the Independent Children's Lawyer have leave to provide a copy of these Orders to any school [X] attends.
That the Order for the appointment of the Independent Children's Lawyer be discharged.
The Court requests that the Australian Federal Police remove the name/s of the child:
[X] born …2003
from the Airport Watch List at all points of international arrivals and departures in Australia.
IT IS NOTED that publication of this judgment under the pseudonym Powers & Powers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4508 of 2007
| MR POWERS |
Applicant
And
| MS POWERS |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the father and the respondent is the mother of the child [X] born …2003. (“[X]”). [X] is now 15 years and 3 months old.
Issues in dispute
The following issues were in dispute:
a)Whether the parents should have equal shared parental responsibility for [X];
b)Whether the mother should have sole parental responsibility for [X];
c)Should [X]’s current living arrangements continue, or should he live with each parent in a week about arrangement;
d)Make up time for the mother, arising from past periods of time when [X] has been in his father’s care, without his mother’s consent;
e)Whether paragraph 4 of the orders made 25 February 2008, restricting the area of the mother’s primary residence, should be discharged.
Issues agreed by the parties
At the commencement of the trial the parties were able to agree as follows:
i)[X] should:
1. be a dual Australian and …Nationality citizen;
2. be removed from the airport watch list;
3. be permitted to travel overseas with either parent, subject to provision of proposed travel arrangements and adequate notice of travel
ii)Both parties should do all things to enable [X] to obtain …Nationality citizenship;
iii)[X]’s passport should be held by Family Law Courts Registry in Melbourne;
iv)Orders should be made by consent to give effect to the agreement, in accordance with the relevant provisions of the orders proposed by the Independent Children’s Lawyer.
Synopsis of disputed issues
I have determined it is in [X]’s best interests that:
a)The parents have equal shared parental responsibility;
b)[X] live with each parent on a week about basis during school terms and term holidays;
c)During the long summer holidays, [X] spend one half of the holidays with each parent;
d)There be no order for make-up time;
e)Paragraph 4 of the orders made by consent on 25 February 2008 should not be discharged.
Background
The mother was born on …1975, and the father was born on …1977.
In …1998, the mother moved from Country A to reside in Australia.
The parties married on …1999, and on …2003 [X] was born. The parties finally separated on 16 February 2004. At the date of separation, [X] was 8 months old.
In 2004, the Mother commenced proceedings seeking a recovery order, as she alleged the father had unilaterally removed [X] from her care. The father filed a Response seeking time with [X]. [X] remained living with his mother and commenced to spend time with his father, initially supervised, and then progressing to unsupervised.
On 24 April 2007, the father issued a further parenting application relating to [X].
On 4 July 2017, procedural orders were made including an order for a family report and for a final hearing.
On 25 February 2008, final consent orders were made as follows:
a)That the husband and wife have equal shared responsibility for [X];
b)[X] live with his mother;
c)[X] spend time with his father for five nights a fortnight.
On 9 February 2009, the father filed a Contravention Application which was heard and determined by Federal Magistrate McGuire, (as His Honour was then known).
On 20 May 2009, Judge McGuire made the following declaration and orders:
i)The mother contravened final orders made 25 February 2008;
ii)The mother enrol in and complete a post-separation parenting course; and
iii)Make-up time be provided to the father.
On 18 March 2010, the mother issued a further parenting application and an Application – Contravention.
On 7 April 2010, an order was made withdrawing the mother’s Application - Contravention filed 18 March 2010.
On 1 November 2010, parenting orders were made again providing for [X] to live with his mother and spend five nights a fortnight with his father.
On 8 August 2014, the mother obtained an Intervention Order against the father, which will expire in 2021.
The current application
The father filed an Initiating Application on 19 September 2016, which was amended on 22 March 2018, seeking final parenting orders for [X] to live week about with both parties.
On 5 October 2016, orders were made, inter alia, for the parties to attend an s.11F assessment and for the matter to be adjourned, pending the memorandum from the s.11F Family Consultant.
On 7 December 2016, the mother filed an Application – Contravention.
On 30 January 2017, further orders were made, including the listing of the matter for final hearing.
On 13 March 2017, [X] ran away from his mother’s home and remained with his father until 21 March 2017.
On 3 April 2017, the father obtained an Intervention Order against the mother.
On 20 March 2018, the father filed an Application in a Case.
On 8 April 2017, [X] again ran away from his mother’s home.
On 23 May 2017, the mother filed an Application – Contravention to attempt to return [X] to her care.
On 22 June 2017, orders were made, inter alia, appointing an Independent Children’s Lawyer, [X]’s return to his mother, a family report and for [X] to attend upon a counsellor.
On 8 February 2018 the matter was listed in the court call-over initiative and the parties were ordered to attend dispute resolution.
On 12 February 2018, the parties and [X] attended upon Ms A, psychologist, for the preparation of a family report. The report was released on 8 March 2018.
On 13 April 2018, orders were made dismissing the mother’s Application – Contravention filed 7 December 2016 and 23 May 2017.
On 27 August 2018, the trial commenced.
The proposals of the parties
The father’s proposal
The father’s proposal may be summarised as follows:
i)All previous parenting orders be discharged;
ii)The parents have equal shared parental responsibility for [X];
iii)[X] live with each parent on a week about basis, with changeover to occur after-school each Thursday;
iv)[X] be permitted to make telephone calls, and send emails to the other parent in accordance with his wishes;
v)All non-school changeovers be effected by each parent;
vi)Liberty to each parent to attend extra-curricular activities;
vii)Changeover arrangements;
viii)Each parent be at liberty to attend all sporting and extra-curricular activities;
ix)[X] be removed from the airport watch list and be permitted to travel overseas, provided the other parent is provided with notice of proposed travel arrangements.
Documents relied on by the father
The documents relied upon by the father are as follows:
a)Amended Initiating Application filed 22 March 2018;
b)Affidavit of father filed 19 March 2018;
c)Outline of Case document filed 11 April 2018;
d)Family report of Ms A dated 8 March 2018.
The father gave evidence and was cross-examined by the mother. Counsel for the Independent Children’s Lawyer did not cross-examine the father.
The father gave evidence in a reserved and quiet manner. He responded directly to questions and was not evasive. I accept him as a witness of truth.
The mother’s proposal
The mother’s initial proposal may be summarised as follows:
i)[X] live with her;
ii)The mother have sole parental responsibility for [X];
iii)[X] spend time with his father each alternative weekend from the conclusion of school Friday until 5.00pm on Sunday during school terms, half of all school holidays and special occasions.
At the commencement of the trial the mother’s proposal was that the existing arrangements for [X] should remain in place.
Documents relied on by the mother
The documents relied upon by the mother are as follows:
a)Response filed 29 March 2018;
b)Affidavits of mother sworn and filed, 5 December 2016, 23 May 2017, and 6 April 2018;
c)Notice of Risk filed, 23 May 2017;
d)Outline of Case document filed 11 April 2018.
The mother’s evidence was often very evasive, and she was at times both combative and non-responsive. In particular her evidence about the events of 3 November 2017 was not credible and I do not accept her professed inability to correctly recall the events. She did however, impress me as a committed albeit somewhat authoritarian parent.
Evidence
The standard of proof in this case is the balance of probabilities (s.140 Evidence Act1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
The father and the mother relied upon their respective affidavits. The affidavits recounted the history of the parties’ long standing conflict pertaining to parenting matters.
I do not intend to recite the evidence of all parties at trial. However, all of that evidence, together with the affidavits of the parties relied upon, the exhibits tendered and submissions made by the legal practitioners and the mother, has been considered and taken into account.
In Bell & Nahos [2016] FamCAFC 244, Strickland J addressed the obligations of a trial judge in that regard as follows (at [28]-[29]):
28. Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
29. I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.
The Applicable Law
Part VII of the Family Law Act1975 (Cth) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
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.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Fortunately for [X], both parents agree that he has a meaningful relationship with each of them and this was not an issue in the proceedings.
Ms A, in the family report and in her evidence whilst being cross-examined, that [X] loved both his parents and wished to preserve a meaningful relationship with each of them.
The assessment of [X]’s relationship with each parent was further confirmed by the observations of the conjoint meetings, which are referred to in the family report.[1]
Section 60CC(2)(b) the need to protect the child from physical or
[1] Paragraphs 61 and 62 of the family report observation of [X] and his parents.
psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The father’s Outline of Case document alleges in some detail that the mother poses a risk to [X]. The document states as follows:
i)the father accepts that [X] has told him that he has been abused by the mother and that the father accepts [X]’s account of these allegations;
ii)[X]’s mental health has suffered due to the mother’s alleged abuse and poor parenting style.
The mother’s Outline of Case document also alleges in some detail that the father poses a risk to [X]. The document states as follows:
i)[X] is struggling emotionally and psychologically;
ii)The father has historically prevented the mother from obtaining professional assistance for [X];
iii)[X] is exposed to continuing psychological harm, as the father continues to condone his disrespectful behaviour towards his mother;
iv)The father has supported [X]’s allegations of abuse in the context of the mother attempting to impose boundaries on [X]’s behaviour, in particular, rules about homework and chores.
The affidavits of both parties refer to a litany of complaints by each parent against the other, many of which are historical.
The proposals of each of the parties at trial is entirely inconsistent with the allegations that either party poses a risk to [X].
It is inconceivable that a parent who seriously considered the other parent posed a risk to a child, either physically or psychologically, would propose that a child live in a week about arrangement with the alleged abuser, or spend five nights a fortnight in the alleged abuser’s care.
After having:
a)Observed each party giving evidence and being cross-examined;
b)Read all of the relevant affidavit material filed by each of the parties;
c)Read the family report and heard the evidence of Ms A.
I find that neither party individually poses a risk to [X], either physically or psychologically.
The ongoing, unrelenting, entrenched and systematic conflict between the parents adversely affects [X] psychologically. Both parents are equally responsible for the continuation of the conflict and appear to be unable to recognise that their son has had enough of the ongoing battles between them, and seeks to have a relationship with each of his parents.
The additional considerations are set out in s.60CC (3) of the Act. I will now consider the additional considerations.
Section 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
[X] is 15 years and 3 months old. The disagreement and conflict between his parents about his living arrangements has been ongoing since he was 8 months old.
It is apparent from the family report that, quite appropriately, Ms A did not explicitly reveal [X]’s views about his living arrangements.
This was in accordance with his consent and expressed wishes to her, during the family report interviews. He did not want Ms A to specifically reveal his views, because he did not want either parent to be upset or perceive any disloyalty.
It is however, abundantly clear that he wishes to continue to have a meaningful relationship with each parent and spend substantial time with each of them, in a block of time.
Ms A stated in her report that her recommendations were in accordance with [X]’s views. Her recommendations include that [X] live in a week about arrangement with each parent and that was consistent with his view of self-preservation.
Ms A was of the opinion that [X] was absolutely committed to both parents, but was “overwhelmed with being the meat in the sandwich”. He was of an age where he sought a greater level of autonomy in his living arrangements and more flexibility to avoid being caught in the parental conflict and the two differing personalities and parenting styles of his parents.
In terms of [X]’s views, the only conclusion I am able to make is that he would like to live in a week about arrangement.
Counsel for the Independent Children’s Lawyer, in his final submissions, stated that [X] was a mid-adolescent boy with his own view point, who had reached a level of maturity, whilst navigating the parental conflict and his views should be respected.
Ms A at paragraph 54 of the family report stated:
“[X] was 14 years and 10 months old at the time of the current assessment. There was no evidence to suggest the presence of mental health or cognitive deficits. He presented with characteristics similar to his father, specifically that he was reserved/introverted and economical in the information he provided. His reported resistance to participate in the assessment, further reduce the level of detail he provided.”
At paragraph 56 of the family report, Ms A stated:
“[X] would not be drawn into discussion about his parents behaviour and while he provided some indication of his wishes, he was clearly reluctant to be effusive in details.”
At paragraph 68 of the family report, Ms A noted that although [X]’s engagement was not abundant, he made his wishes very clear. In her view the impact of verbalising those wishes presented a psychological danger for him, which resulted from his feelings of distress that he was the cause of the ongoing parental conflict.
After considering the evidence of both parents and Ms A, I am of the view that [X] is a mature and thoughtful adolescent who is cognisant of the emotional minefield of his parent’s dynamic. His views should be accorded significant weight.
Section 60CC(3)(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 have no doubt that [X] dearly loves both his parents. However, the nature of his relationship with both parents is different.
As observed by counsel for the Independent Children’s Lawyer, [X]’s personality accords more with that of his father. His father is generally a more permissive parent than his mother. According to the mother, the father does little to regulate [X]’s compulsion to play electronic games, which she views as a distinct lack of parental capacity.
[X]’s relationship with his father is more harmonious and less conflictual, than his relationship with his mother. [X] was quite content to spend time with his father from 8 April 2017 to 22 June 2017, when he refused to remain with his mother after an intense period of conflict with her. Both parties conceded that nothing untoward or dangerous happened to [X] during the period of time he remained with his father.
His mother’s personality is stronger and more ebullient. Her parenting style is more structured than that of the father, and she is more concerned with the imposition of defined boundaries to regulate [X]’s homework, educational obligations and domestic chores.
This was identified by Ms A in the family report who observed [X] with each of his parents.
Her observation of [X] with each of his parents is described at paragraph 61and 62 of the family report. [X] engaged in a warm and loving manner with his father and easily engaged in conversation with him. Ms A observed that [X] clearly has positive regard for his father and together they engaged in sharing information and a puzzle game. Their manner towards each other was evident of a secure attachment style.
The engagement between [X] and his mother, according to Ms A’s observations, was less warm than noted between [X] and his father. However, she observed that the relationship was affable and that the mother worked to engage [X] in a discussion and that her direct communication style was age-appropriate.
At times there have been quite extreme examples of conflict between [X] and his mother. The events of 3 November 2017, which are referred to in paragraphs 102 to 116 of the mother’s trial affidavit, is an example of [X]’s desperation, resulting from conflict with his mother.
However, despite the past levels of conflict, [X] dearly loves his mother and wants to spend significant time with her.
According to the mother’s unchallenged evidence, [X] enjoys a loving relationship with his half-sister and his maternal grandmother. There was no evidence about his relationship with any member of his extended paternal family.
Section 60CC(3)(c) the extent to which each of the child’s parents 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
Participation in making decisions about major long-term issues in relation to the child
The orders of 25 February 2008 include an order that the parents have equal shared parental responsibility for [X]. The father seeks an order for equal shared parental responsibility. The mother seeks an order that she have sole parental responsibility. The issue of parental responsibility is discussed elsewhere in these reasons.
Although the parents are unable or unwilling to communicate with each other, there was no evidence that decisions had not been made in the past, pertaining to [X]’s long term welfare.
There was also no evidence about any significant dispute involving [X]’s religious and cultural upbringing, his health or education, other than [X] potentially requiring some form of psychological assistance or counselling and historical issues about [X]’s childhood ear problems.
[X] currently attends …College and there was no evidence from either parent that this was not appropriate or that he should change school.
Opportunity to spend time with and communicate with the child
There was no evidence that either parent had voluntarily or willingly failed to spend time with [X] or communicate with him. The mother’s allegations were that the father had spent additional time with [X] when he should not have done so.
There have been periods when [X] has remained in his father’s care, when he should have been cared for by his mother, pursuant to the relevant orders. These periods included between 27 July 2016 to 5 August 2016, 13 March 2017 to 21 March 2017 and 8 April 2017 to 22 June 2017.
It is self-evident that each parent wishes to spend as much time as possible with their son.
Section 60CC(3)(ca) the extent to which each of the child’s parents has
fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
There was little evidence about the parent’s financial obligations to support [X] and this was not in issue during the proceedings.
Section 60CC(3)(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
The mother and [X] live with the maternal grandmother and [Y], [X]’s young half sibling.
The father lives with his partner, who did not attend the family report, nor was she a witness in the proceedings.
The father’s case is that a week about arrangement would:
a)lead to greater stability and continuity of care for [X];
b)reduce the conflict between [X] and his mother;
c)be in accordance with [X]’s views of his preferred living arrangements.
From the father’s perspective, there was no evidence to suggest that there would be any adverse effect on [X] if he moved to a week about arrangement. He would still be able to spend significant time in each parent’s household.
The mother’s case is that the existing arrangements would best promote [X]’s best interests and ensure structure, routine and imposition of necessary boundaries around [X]’s educational commitments.
Section 60CC(3)(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
The parents live in close geographical proximity to each other. There are no practical difficulties to prevent [X] spending time with each of his parents.
Section 60CC(3)(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
Upon hearing the evidence of both parents, and despite the allegations levelled by each against the other, I am satisfied that both have the capacity to provide for the emotional and intellectual needs of [X].
However, I am gravely concerned that if the dysfunctional and conflictual relationship continues between his parents, this will have an adverse effect on [X] in the future. [X] has been a victim of the parental conflict since he was eight months old.
Section 60 CC(3)(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
Any such relevant factors have been addressed in this judgment.
Section 60CC(3)(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 is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Apart from the highly conflictual parental relationship between them, both parents are generally responsible and competent parents.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The father alleges that the mother has been abusive of [X]. Specifically he alleges that her parenting style and interaction with him, such as protracted and heated arguments, has caused him to suffer emotional distress.
I have no doubts there have been episodes between the mother and [X] which have been highly distressing to both of them. The incident on 3 November 2017 is such an example. However, given the mother’s forthright and strong personality, it is inevitable that there will be clashes between herself and her son particularly as he grows older and seeks to assert his personality.
I do not, however, find that the mother has perpetrated family violence against [X].
Similarly, I do not consider that the mother’s allegations that the father has undermined her parental authority, can be construed as family violence.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
The mother obtained an Intervention Order against the father which will expire in 2021. There was little evidence about the circumstances giving rise to the making of the order.
Section 60CC(3)(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
In the vast majority of parenting cases it is preferable that orders are made to minimise future proceedings.
Since final orders were made by consent on 25 February 2008, the parents had been in continual dispute about their son’s living arrangements. In order to minimise the prospect of future proceedings, it will be necessary to ensure orders are detailed and prescriptive. It is not in anybody’s best interests, least of all [X]’s for the parents to continue to be embroiled in disputes.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
All relevant facts and circumstances are referred to in these reasons.
The mother’s application to discharge paragraph 4 of the orders made 25 February 2008, which geographically restricts the location of the mother’s home.
Equal shared parental responsibility
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interest of the child for the child’s parents to have equal shared parental responsibility.
Section 61DA of the Act provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or (b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1) … if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable. Substantial and significant time
(2) … if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Parental Responsibility
The mother seeks an order that she should have sole parental responsibility for [X].
The basis of her application is that the parties are unable to communicate and that may lead to a situation where decision making for [X] is impeded or in fact never achieved. The mother asserts that the lack of communication and parental conflict will continue to cause further psychological harm to [X], if she is not vested with sole parental responsibility.
The mother’s trial affidavit refers to many historical matters which have been the subject of disagreement between the parties.
At paragraph 37 of her trial affidavit, the mother refers to her role and perception as the primary carer and submits it is appropriate for the primary carer to have sole parental responsibility.
The father seeks an order that the parties retain equal shared parental responsibility for [X]. He does not assert that his allegations that the mother poses a risk to [X] would satisfy the court that the presumption of equal shared parental responsibility should be rebutted.
It is a very serious matter to exclude the rights and responsibilities of parental responsibility from a parent. His Honour Murphy J stated in Lennon & Lennon [2011] FamCA 571:
The exercise of discretion in favour of excluding one parent from consultation and decision-making in respect of major long-term issues through child is, it seems to me, a very significant step being a very serious interference with the fundamental rights of a person. There is no doubt that the exercise of that discretion ought to be resolved in favour an outcome which is seen to be in the best interests of the child. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration, nor that the legitimate fundamental rights of a parent are irrelevant.
Despite the 14 or so years of parental conflict, both parents have consistently sought to pursue a full and beneficial relationship and involvement in [X]’s life.
There was no evidence identifying any particular current needs of [X] in relation to education, health or religion.
Whilst there are obvious problems with the conflictual parental relationship and communication, I do not consider that to be an impediment to equal shared parental responsibility.
There was no evidence to identify any particular needs of [X] in relation to education, health or religion. To the contrary, both parents were in agreement about [X]’s current schooling and prior to the commencement of the trial, managed to reach agreement about [X]’s dual citizenship, passport, and overseas travel.
It is not uncommon for parents embroiled in litigation to be unable to communicate and fail to reach agreement. In this family, particularly when considering [X]’s age and desire to be involved in decision-making affecting his living arrangements, it is incumbent for his future emotional and psychological health that the parents are able to reach an acceptable level of communication and co-operation, until [X] turns 18 years.
I am of the view that the statutory presumption of equal shared parental responsibility should apply in this case. There is no evidence to rebut the presumption. I accordingly intend to make an order that the parties retain equal shared parental responsibility for their son.
Statutory Pathway
Having determined that it is in the best interests of the child that there be an order for equal shared parental responsibility, I am now required to address the statutory pathway set out in s.65DAA(1) – (5).
Firstly, I will address [X] living equal time with both parents.
The father in his Application seeks orders that [X] live equal time with both parents. The configuration of equal time proposed by the father is that [X] live with each parent on a week about basis, with change-over to take place at the conclusion of school each Thursday.
The mother opposes an equal time regime and seeks that [X] live with his father, during school terms on a fortnightly cycle as follows:
a)In week one, from the conclusion of school on Thursday (or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Monday (or until 9.00am if a non-school day, public holiday or pupil free day); and
b)In week two (from the conclusion of school on Thursday) or from 3:30pm if a non-school day, public holiday or pupil free day) until the commencement of school on Friday (or until 9.00am if a non-school day, public holiday or pupil free day).
The factors advanced by the father in support of his Application for shared care may be summarised as follows:
a)[X]’s views, which are implicit from the recommendations of the family report writer;
b)[X] being more involved in decisions pertaining to his living circumstances which is commensurate with his age and maturity;
c)Simplification of the existing arrangements, which would minimise dispute between the parents.
The factors advanced by the mother in opposition to an equal time arrangement may be summarised as follows:
a)She perceives herself as [X]’s primary carer and seeks that this continue;
b)The inability to communicate and resolve potential differences in implementing an equal time arrangement;
c)The father's further undermining of her relationship with [X];
d)The non-structured parenting style in the father's household will lead to a deterioration in [X]’s academic achievements and an increase in unrestricted access to electronic games.
Ms A’s recommendation was that [X] should live in a week about arrangement.
Evidence of Ms A
Ms A prepared a family report dated 8 March 2018. Ms A was cross-examined by counsel for the Independent Children’s Lawyer and the mother. She impressed me as a highly competent and credible professional witness.
Ms A interviewed the parents on 12 February 2018. She also conducted observation sessions of [X] with each of his parents.
The overwhelming feature of the family report is that [X] is suffering significant psychological distress as a result of the parties’ continuing conflict. It is Ms A’s view he does not have the emotional capacity to assertively engage with his mother and appears emotionally withdrawn from her. Ms A attributes his behaviour to a combination of his mother’s behaviour towards him and to his stage of development against the backdrop of him feeling abject guilt about the conflict between his parents.
At paragraph 36 of the family report, Ms A again commented that [X] “impresses as a reserved youth who is psychologically dismayed and overwhelmed by the ongoing conflict between the parties.”
As referred to earlier in these reasons, [X] did not consent to Ms A specifically revealing his views about his preference for his future living arrangements. According to her, [X] was reluctant to be effusive in the details of his views, albeit he made his wishes clear.
Given the serious history of conflict between [X] and his mother, which is comprehensively detailed in the mother’s trial affidavit, I have considerable concerns that to make an order contrary to [X]’s preferred views, may well lead to:
i)Further arguments between [X] and his mother;
ii)[X] leaving his mother’s home to seek solace at his father’s home;
iii)Further conflict between the parents, with each continuing to blame the other, for [X] leaving his mother’s care;
iv)Further detrimental psychological effect on [X].
In my view, the path of least parental conflict for [X] is in his best interests. That will only be achieved by making orders in accordance with his views as to his future living arrangements. To make orders other than in accordance with his views, would be inviting [X] to take matters into his own hands and “vote with his feet”.
I accept Ms A’s recommendations that it is in [X]’s best interests to live equal time with each parent.
I have determined that spending equal time with each of the parents is in [X]’s best interests. Having made that determination, I will address whether it is reasonably practical for [X] to spend equal time with each of the parents.
The parents live in close proximity to each other and there is no geographical impediment for equal time.
Despite the parental conflict, the parents have the capacity to implement an equal time arrangement. There is no evidence to suggest that [X] will be unable to move between each parent household in the future. Indeed, if changeover were to occur on a weekday, changeover could take place at school and thereby minimise any parental contact.
As referred to in these reasons, the parent’s current and future capacity to communicate with each other and resolve difficulties is strained and limited. However, [X] is of an age when he will be seeking to assume more responsibility for his living arrangements, he will be able to participate and have input in discussions about implementing a week about arrangement.
In terms of the impact on [X], I am of the view that a week about arrangement will be positive for him and in accordance with his views.
The mother’s claim for make-up time with [X].
As a result of [X] leaving his mother’s home after conflict between them, the mother seeks make up time. She did not submit any proposals about the specific times this would be able to occur, but in her final address she submitted possibly over Christmas or term school holidays.
She submitted the total time she was seeking was 62 days. She had not discussed her proposals with [X]. Ms A’s evidence, when cross-examined by the mother, was that [X] was at an age where he is able to contribute to issues concerning his future and he should be accorded a greater level of autonomy.
I am of the view that given the conflictual history between the mother and [X], and his preference for his future living arrangements, [X] should have the opportunity to have some input about the future holiday arrangements. To make orders without his views being ascertained, may well lead to further conflict between [X] and his mother, which is highly undesirable.
I do not propose to make orders for make-up time.
The mother’s application to discharge paragraph 4 of the orders made 25 February 2008
Paragraph 4 of the orders made by consent on 25 February 2008 geographically restrict the location of the mother’s home.
Paragraphs 130 to 138 of the mother’s affidavit address why she seeks to discharge the order.
Her reasons may be summarised as follows:
i)In 2008 she was pressured to resolved the proceeding, which included such a restriction;
ii)The restriction is financially burdensome and unworkable;
iii)She lives in the small house and after the birth of her daughter she may wish to move to a larger house which she would be unable to afford in her current neighbourhood;
iv)She would prefer to move closer to a train line or on the other side of the city, to enable her to commute to the city for work.
Her evidence is that she would not move a significant distance from [X]’s school so that his school commute would be significantly more taxing or make seeing his father difficult. She also has no current intention to relocate.
The father’s trial affidavit was sworn and filed on 19 March 2018 and the mother’s trial affidavit was sworn and filed on 6 April 2018. The father did not file any further affidavits addressing the mother’s application to discharge the particular order.
Counsel for the Independent Children’s Lawyer cross-examined the mother about this issue. It was apparent from her answers that she had no immediate or specific plans to relocate from her neighbourhood.
Counsel for the Independent Children’s Lawyer submitted that there was no evidence to warrant discharge of the existing order and that if the mother actually sought to move in the future, she could make an application. I agree with that submission and do not intend to discharge the relevant order.
For these reasons, I make the orders set out the commencement of this judgment.
I certify that the preceding one hundred fifty seven (157) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 16 October 2018
0
3
2