Rivero and Mellott - [2009] FMCAfam 640

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RIVERO & MELLOTT

[2009] FMCAfam 640

FAMILY LAW – Child aged 3 years – interim arrangements for care – parties have previously agreed on shared care regime – orders made to that effect – arrangement almost immediately breaks down – high level of parental conflict – whether appropriate to apply presumption of equal parental responsibility – best interests – family violence – benefits of meaningful parental relationships.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DB, 65D, 65DAA

Goode & Goode (2006) FLC 93-286
In the Marriage of Patsalou (1994) 18 Fam LR 426
JG & BG 18 Fam LR 255

Applicant:

MR RIVERO

Respondent:

MS MELLOTT

File Number:

ADC 1333 of 2009

Judgment of:

Brown FM

Hearing date:

22 June 2009

Date of Last Submission:

22 June 2009

Delivered at:

Adelaide

Delivered on:

25 June 2009

REPRESENTATION

Counsel for the Applicant:

Ms Nelson QC

Solicitors for the Applicant:

Jane Ekin-Smyth

Counsel for the Respondent:

Mr Noble

Solicitors for the Respondent:

Andersons

ORDERS

UNTIL FURTHER OR OTHER ORDER:

Order 2 of the orders made on 20 May 2009 in respect of the child of the marriage [X] born in 2006 recommence at 9:00am on Saturday, 27 June 2009 with the child living with the father until 9:00am on the following Monday, 29 June 2009 and thereafter the shared parenting regime envisaged by the aforesaid order to continue.
The child be exchanged between the parties to give effect to order 1 hereof at the McDonald’s Restaurant at [address omitted] or such other location as the parties may mutually agree.
The parties are restrained and an injunction issues restraining each of them from denigrating or abusing the other to, or in the presence of, or within hearing of the child.
Pursuant to section 68R of the Family Law Act 1975 the Domestic Violence Restraining Order made on the 28 May 2009 be varied so that the father may approach the mother for the purpose of giving effect to order 1 and 2 hereof.
The parties exchange all necessary information regarding the child’s care welfare and other day to day needs in writing in a communication book to be exchanged between them on each occasion the child moves between their respective households.
In the event the child is in the care of the mother on Father’s Day the child will spend between midday and 4:30pm on Father’s Day with the father or at such other times as the parties may mutually agree.
The parties share responsibility for issues related to the child’s health and in the event the child receives medical treatment whilst she is in the care of one of her parents that parent shall inform the other of the name of the medical practitioner concerned and provide details of any diagnosis and treatment prescribed to the child by that medical practitioner.
The procedural orders made on 20 May 2009 remain in force and the parties’ applications be listed for further direction on 24 July 2009 at 9:30am on which occasion consideration will be given as to whether or not the parties competing applications should be fixed for final hearing and whether a family assessment report should be ordered.

IT IS NOTED that publication of this judgment under the pseudonym Rivero & Mellott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 1333 of 2009

MR RIVERO

Applicant

And

MS MELLOTT

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern interim arrangements for the care of one child. She is [X] born in 2006.
The parties to the proceedings are [X]’s parents. Her father Mr Rivero and her mother Ms Mellott.
Mr Rivero is forty-two years of age. He is a self employed [tradesman]. Ms Mellott is thirty-nine. She is [employed in the Health Industry].
The parties began to live together in 2004 and married in 2005. [X] is their only child, although Ms Mellott has two teenage children, [Y] and [Z] from an earlier relationship.
There is no dispute between the parties that they separated, in difficult and unhappy circumstances, in late January of 2009.
The salient events which bring the parties to this point can be easily summarised. Mr Rivero began proceedings on 9 April 2009. At that time, he sought orders only in respect of the division of the parties’ marital property.
In his initiating affidavit, he set out his position regarding prior arrangements for [X]’s care. He described himself as a “hands on” father. It was his position that he regularly cared for [X], whilst Ms Mellott worked evening shifts as a [omitted].[1]
[1] See father’s affidavit filed 9 April 2009 at paragraph 39-40
Mr Rivero deposed that he had regularly bathed and fed [X]. After the parties’ separation, he had spent time with [X], on alternate days, between 7:30am and 4:30pm.
At the time of his initiating application, Mr Rivero aspired to spend more time with [X], particularly overnight time. However, his application did not make specific reference to his proposal in this regard.
In the normal course of events, Mr Rivero’s application was made returnable on 20 May 2009. At this stage, Ms Mellott had not formally responded to the application. Notwithstanding this state of affairs,

Ms Mellott had sought legal advice in respect of Mr Rivero’s application and was represented by counsel on 20 May 2009.
At this stage, the parties were able to agree on some arrangements for [X]’s ongoing care. Their agreement was reduced to a written form, prepared by their respective counsel and formal orders were made in its terms. The orders bear the notation that “The parties have not agreed all parenting issues …”.
Notwithstanding this lack of complete acquiescence, the parties agreed that they would “share parental responsibility” for [X] and she would live with each of her parents in what is commonly called a shared care arrangement, moving between her parents home every two or three days during alternating fortnights.
When the configuration of days is summarised, it results in [X] spending six days per fortnight in her father’s care, which is a mixture of week days and weekends and eight days in her mother’s care, again which is a mixture of week days and weekends.
The obvious intent of the orders is that [X] should spend roughly equal periods of time with both her parents, but should not be separated from one of them for any more than three days. No doubt, this arrangement was reached after consideration had been given to [X]’s age and developmental needs but also, by necessary implication, to the nature of her relationship with each of her parents.
The orders were silent about arrangements for special occasions, particularly Mother’s Day. Otherwise, the orders made on 20 May 2009 dealt with procedural matters relating to Mr Rivero’s application for final property orders.
Ms Mellott formerly responded to the father’s application on 3 June 2009. At that time, on both an interim and final basis, she sought orders that she should have sole parental responsibility for [X].
In addition, she sought orders that would see [X] only spending supervised time with her father, which she wished to be supervised by one or other of [X]’s paternal grandparents. She also wished the court to order Mr Rivero to undertake an anger management course.
More recently again, on 19 June 2009, Ms Mellott has revisited her position and now proposes that any time spent between [X] and her father only take place subject to the professional supervision of a children’s contact centre, which arrangement should be considered after Mr Rivero has been psychologically assessed as to his ability to “safely parent [X]”.
For his part too, Mr Rivero has also formally amended his position. He too wishes Ms Mellott to undergo a course in anger management. More importantly, in the context of these proceedings, he wishes the court to make an order that [X] be delivered up to him, so that the orders of 20 May 2009 may be implemented. It is common ground between the parties that Mr Rivero has not seen [X] since 25 May 2009, after previously spending the weekend of 23-24 May with her.
Obviously, some event of great significance occurred between the parties following 20 May 2008, which has caused the derailment of the consent arrangement for [X]’s care. In the intervening period, both

Mr Rivero and Ms Mellott have devoted significant resources to examining this event from their respective points of view.
The event in question concerned an unpleasant altercation, which was witnessed by [X] and which occurred at their former family home on 25 May 2009, when Mr Rivero arrived, by prior arrangement, to collect some items of property.
The interim hearing before me on 22 June 2009 centred on this incident. Both Mr Rivero and Ms Mellott have enlisted others to support them in their respective elaboration of the incident and support their respective positions that either he or she is the victim of the other’s violent and unpredictable temperament.
The hearing, at the interim stage, does not allow for the hearing of oral evidence either from the parties concerned, or any interested persons or other witness. In particular, there is no scope for cross-examination and the detailed scrutiny of any affidavit material earlier deposed.
As a result of these procedural constraints, I cannot make findings of fact, where there is a dispute between the parties concerned, as to what previously happened between them. There are many such disputes in the case concerned, particularly regarding what occurred on 25 May 2009.
Both parties are however clear as to what should be the significance of the event concerned. From the father’s point of view, it is self apparent that he is and remains a very significant person to [X]. He asserts that he has been instrumental to her care from her earliest days and it must necessarily follow, from the mother’s agreement to the orders of 20 May 2009, that she accepts that this is the case.
As such, Mr Rivero asserts that the court, in its duty to secure [X]’s best interests, should immediately reinstate the orders of 20 May 2009, which will ensure that [X] maintains the most meaningful relationship possible with him.
It is the father’s case that such an outcome is the legislatively mandated optimal one for [X], which follows from the parties’ mutual agreement that they should each retain and share parental responsibility for her. Mr Rivero asserts that the mother wishes to resile from her earlier agreement in this regard for ulterior motives related to her own emotional needs.
On the other hand, the mother asserts that the father is a violent and domineering person, who badgered her into the orders of 20 May 2009, against her better judgment. She asserts that what occurred on 25 May has confirmed her long standing experience of Mr Rivero and the fact that he is incapable of restraining his temper and moderating his propensity to be violent, for [X]’s greater good, notwithstanding the fact that the marriage between the parties is over. As such, at this stage, the court’s fundamental responsibility is to protect [X] from further exposure to the father’s violent behaviour.
In all these circumstances, Ms Mellott asserts that it is patently self apparent that the parties are incapable of exercising joint parental responsibility for [X] because their relationship is a poor and mistrustful one, which is characterised by marked communication difficulties. Most importantly, she asserts that it is likely to have adverse implications for [X], if she lives in a shared care regime.

The evidence and documents relied upon

It is important for the parties to understand that the number of affidavits filed and the length of those affidavits will not necessarily assist me to resolve the fundamental evidentiary issues in dispute between the parties at the current stage.
In a fairly short period of time, no doubt as a result of the heat generated by what occurred on 25 May, the proceedings have resulted in a plethora of prolix affidavits, particularly so far as the mother is concerned.
Nor is it particularly helpful to me for the parties to attempt to trawl through distant events in the hope of seizing upon some incident which will discredit the other. Again, this is a tendency more prevalent in the mother’s material. She has sought to enlist some of the father’s former partners and girlfriends to support her assertion that he is a violent and emotionally insensitive person by reason of fundamental propensity.
The father relies on the following documents:
i)Three affidavits of himself filed on 9 April 2009, 28 May 2009 and 16 June 2009;
ii)An affidavit of Mr R, the paternal grandfather filed 12 June 2009;
iii)An affidavit of Ms R, the paternal grandmother filed 12 June 2009;
iv)An affidavit of Ms A filed 15 June 2009;
v)An affidavit of Mr L filed 15 June 2009;
vi)An affidavit of Mr S filed 22 June 2009.
The mother relies on the following documents:
i)Two affidavits of herself filed 3 June and 19 June 2009;
ii)An affidavit of Ms M filed 19 June 2009;
iii)An affidavit of Ms C filed 19 June 2009;
iv)An affidavit of Ms R filed 22 June 2009.
Mr Noble, counsel for the mother, characterised many of the above mentioned deponents as “barrackers”. At this stage, I am not in a position to disagree with Mr Nobel’s characterisation. I suspect that many of the witnesses concerned have aligned themselves with the party to whom they feel close, either through ties of blood or friendship.
Ms R is a professional colleague of the mother. She deposes that the mother is a calm person at work, who has no anger management issues. I did not find her evidence particularly helpful in the overall context of this case.
Ms M describes herself as a clinical psychologist. She does not depose as to her particular qualifications. She deposes that she was involved in a relationship with Mr Rivero between 1999 and 2003. She categorises their relationship as an abusive one.
In particular, she deposes as to an event which occurred in Burma in January of 2002. She also alludes to the contents of a process of relationship counselling, which she and Mr Rivero undertook. It is her case that after she and Mr Rivero separated, she realised the extent of the alleged “abusive nature” of the relationship between the two and was horrified by it.
In my view, I must be cautious about the contents of Ms M’s affidavit. The father denies the gravamen of its contents. I do not know if the witness concerned has any axe to grind with Mr Rivero. I am also concerned that the mother would enlist a witness to depose about events which she (Ms Mellott) can have no personal knowledge about.
Mr L has been a friend of the father for about twenty years. He described him (Mr Rivero) as “easygoing”. He is not so complimentary about Ms Mellott, describing her as irascible and aggressive. Ms A has a similar perspective on Ms Mellott. Again, in the overall context of this case, I did not find their evidence to be particularly helpful.
Pursuant to the provisions of Division 12A of Part VII of the Family Law Act, the court is directed to give effect to a number of principles in its conduct of “child-related proceedings”. The intent of these principles is to ensure that proceedings between parents, which relate to the care arrangements for their child or children, should be conducted in as less adversarial manner as possible.
As such, it would appear to be incumbent upon the court to ensure that emotionally inflammable material is kept to a minimum, if not altogether excluded from proceedings, unless it is absolutely necessary.
Rather, the court is directed to ensure that the proceedings remain focused on the best interests of any child concerned and, so far as is possible, the potential for irremediable damage to be occasioned to the parenting relationship between the parties concerned is kept to a minimum.
I remind the parties that these proceedings are an inquiry into what is the best outcome for [X]. The proceedings are not analogous to a popularity contest in which [X] is awarded, like a prize, to the parent who can enlist the most supporters.
For obvious reasons, Mr and Mrs R Senior are now closely aligned with their son, whom they hold dear. They describe Ms Mellott as being essentially difficult and disagreeable. Ms Mellott asserts, through her counsel, that she has been hurt by what Mr and Mrs R have said about her. As such, she is implacably opposed to the paternal grandparents being involved in conducting either supervision or handing over of [X]. This has not always been her position.
Mr and Mrs R Senior attest as to the parenting proficiency of their son, so far as [X] is concerned. They each also depose as to their prior close involvement with [X] and their desire to continue to play a significant role in her life, as she grows to maturity.
Mr R Senior denies that he has impliedly suggested to Ms Mellott, in an email communication to her, that he sympathises with her position that Mr Rivero is a violent person. To the contrary both Mr and Mrs R Senior deny that this is the case. Rather, they strongly support their son.
Ms C and Mr S were both present during the “incident” of 25 May 2009. Mr S says he has known Mr Rivero for a long time. Ms C deposes that she has been a friend of Ms Mellott for around 20 years.
Both Ms C and Mr S depose that they heard both parties yelling and arguing. Both assert they each asked both parties to desist from disputation with one another.
Ms C deposes that she did not see Ms Mellott physically assault

Mr Rivero. She does however concede that she heard Mr Rivero yell out that he was being assaulted by Ms Mellott. She saw no evidence of any injury on Mr Rivero’s person.
Mr S deposes that he saw Ms Mellott “scuffling” with Mr Rivero. He does not directly depose that he saw any specific assault. Both Ms C and Mr S depose that the altercation was about “papers”, particularly bank statements.
[X] was present during this unpleasant incident. Mr S’s view is that she was not directly aware of it. Ms C asserts that the child was greatly distressed by the incident.
Police were apparently called to the incident but no charges were laid. The police concerned apparently regarded it as a domestic and private matter between the parties.
On 28 May 2009, police officers applied on Ms Mellott’ behalf for a domestic violence restraining order against Mr Rivero. An ex parte order was made by the Adelaide Magistrates Court against Mr Rivero on this date for a period of two years. Both the mother and [X] are named as protected persons in the order concerned.
This order has done little to calm emotions between the parties. I am informed that Mr Rivero intends to challenge the order and, as such, there will be a further contested hearing between the parties in the Magistrates Court at some time in the future.
The mother has filed two lengthy affidavits in these proceedings. Annexed to her affidavits are many documents. Included in these documents are two emails to the mother from former girlfriends of the father, who apparently write regarding Mr Rivero’s emotional instability and violent character.
One writer alludes to an event in 1989. The other to events prior to 1996. I disregard these documents, which are not on oath. Their only relevance can relate to the lengths to which the mother is prepared to go to gather mud to throw at the father. In my view, I must be extremely cautious about such alleged propensity evidence.
Issues relating to the financial support of [X] have created controversy between the parties. These disputes have related to Mr Rivero’s taxable income for child support purposes. It being Ms Mellott’s position that he is able to reduce his taxable income because of his self-employment.

Ms Mellott sought an administrative departure from the assessed rate of child support. Her application was finalised by a senior case officer on 18 May 2009. This resulted in Mr Rivero’s taxable income being fixed at $32,000.00, which resulted in an assessment of child support payable to Ms Mellott for [X] of $43.00 per week.
It would also seem to be the case that the parties’ pool of matrimonial assets is not a large one in dollar terms. Controversy apparently arises about the value of improvements conducted to the former matrimonial home by Mr Rivero and other injections of capital. I am concerned that financial issues have provided a flash point for the parties, who appear to have had a volatile relationship at times in the past.
From my analysis of their respective depositions, it is not possible for me to determine from Mr S and Ms C’s affidavits what occurred on

25 May 2009
. Accordingly, it is necessary to turn to the parties themselves.
As might be anticipated, the parties have very different views about the incident and indeed about an earlier altercation, which allegedly happened in January of 2009 and which precipitated their separation. Indeed, the parties have very different views about the nature of their relationship generally.
The mother assets she and [X] were assaulted by the husband, at the former family home, on 23 January 2009, after an argument. She says Mr Rivero grabbed her bag, whilst she was holding [X] and pulled her back into the kitchen.
[X] allegedly fell and hit her head on a bench. Ms Mellott says she was bruised on her thigh and back. She reported the incident to the police on 27 January 2009 but advised them she did not wish any police action taken against Mr Rivero at that stage.
In her statement to police, in support of the family violence order made on 28 May 2009, Ms Mellott referred to the incident of January 2009 and to other incidents of violence she claimed to have suffered in December of 2008 and June of 2006.
It is her case that she has been a frequent victim of family violence, at the father’s hands and she has been intimidated and overborne by the father’s behaviour towards her. Essentially, it is her position that what occurred in May of 2009 was the “final straw”, after which she became aware of the potential threat Mr Rivero posed to both herself and [X].
Mr Rivero denies that he is the violent and emotionally abusive person described by Ms Mellott. He concedes that there was an unpleasant incident between the parties in January of 2009, to which [X] was a witness.
It is Mr Rivero’s case that there was an argument between the parties in the afternoon of that day. He asserts that the mother was hostile and argumentative and he was trying to escape her aggression. He claims that it was the mother who was harassing him, rather than visa versa. In particular, Mr Rivero asserts that the mother abused him with an extreme profanity.
Mr Rivero deposes that the mother’s hysterical behaviour caused [X] to become very upset. As such, he was concerned at the mother’s apparent intent to decamp from the home with [X]. At this stage, it is his position that he tried to restrain the mother, rather than assault her.
As I have already indicated to the parties, I am unable to resolve what occurred at this stage definitively, in the absence of cross-examination. However, neither parties’ account can be described as being inherently implausible.
In addition, there are no independent or objectively placed witnesses, who are able to provide a dispassionate account of what occurred. After the incident occurred, the mother did not think it was of sufficient gravity to warrant a police charge being laid against the father. Nor did it prevent her from agreeing to the orders of 20 May 2009.
Families SA has had some brief involvement with the family. Department officers interviewed Ms Mellott on 30 January 2009. They found allegations of physical and emotional abuse of [X] to be substantiated but took no concrete steps in regards to her as they understood the parties were separated.
Mr Rivero is aggrieved no member of the Department interviewed him to ascertain his version of events. As such, he is critical of a letter written by the Department and any implied criticism of him which it may contain. I am cautious about this letter.
Mr Rivero’s evidence is that it has been Ms Mellott who has been the abusive spouse during the parties’ relationship. It is his case that he has been concerned about the impact of the mother’s behaviour on [X], particularly in the period leading up to the parties’ separation and afterwards. To this end, he undertook a “Kids R First Program” to assist him with parenting issues arising from the parties’ separation.
Ms Mellott acknowledges arguing with Mr Rivero in the past and using foul language towards him. However she asserts she has only ever responded to Mr Rivero’s behaviour. She denies she has anger management issues.
It is common ground between the parties that they embarked on an extensive course of mediation, following their separation, in an attempt to resolve parenting arrangements for [X]. Ms Mellott asserts that [X] has stayed overnight with her father on around seven occasions since the parties separated and has otherwise spent day time periods of time with her father. This was the background to the orders of 20 May 2009. In addition, it is common ground between the parties that [X] spent time with her father on the weekend of 23-24 May.
It is also the case that the father spent time with [X] on the weekend of Mother’s Day. The mother was annoyed that the father was not prepared to return [X] early to her on Mother’s Day so that she could spend some time with [X]. Apparently an arrangement was made in respect of this weekend, without the parties being aware of the significance of the day in question. The mother asserts that she felt intimidated by the father’s attitude when the issue was raised.
The mother attended at the home of Mr and Mrs R Senior, where the father was staying at the time, on Mother’s Day, with police. She apparently wanted [X] produced to her. The father was not willing to do so. This unpleasant incident did little to ease tensions between the parties. However again, notwithstanding this incident which took place on 8 May 2009, the mother was willing to agree to the orders of 20 May.
The father and mother arranged for the father to attend at the former matrimonial home on 25 May 2009, so that the father could collect some items of his property. Clearly, given their mutual perception regarding the volatility of the situation between them, each felt the need to have an independent witness present.
It is the mother’s position that the father became enraged when he discovered that the mother had provided certain of his financial documents to her solicitor. Accordingly, it is her position that the father was the aggressor in the situation.
The father confirms that there was a dispute between the parties regarding the return of his “personal paperwork”. It is however his case that the mother was hostile towards him. I suspect that it was also not beyond the bounds of possibility that he was annoyed that his business records had been provided to his wife’s solicitors.[2]
[2] See father’s affidavit filed 28 May 2009 at paragraph 9-10
In this context, Mr Rivero concedes that he took a pile of documents, which he was examining. It is his case that the mother snatched these documents from him and began to abuse him. It is his case that the mother became hysterical.
In his affidavit material, the father has raised his view that the mother suffers from some form of depressive illness. Obviously, the father is not qualified to express such an opinion. For her part, Ms Mellott is critical that Mr and Mrs R Senior have alluded to her as a “gold digger”.
In my view, all parties concerned must closely consider the potential for their comments about each other to cause gratuitous pain and offence but achieve little, if anything, in the forensic process of these proceedings. Many of their comments can only inflame the already volatile situation between the parties. Such an outcome can only have a deleterious consequence for [X], whom all concerned profess to love deeply.

The legal principles applicable

The service of [X]’s best interests is the most important consideration in this case [Family Law Act s.60CA]. The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.
The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child [section 61DA].
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The court has a discretion not to apply the presumption at the interim stage, if circumstances exist which make it inappropriate for it to be applied [Section 61DA (3)]. The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption [see Goode & Goode (2006) FLC 93-286 at 80,903].
The presumption is also rebutted if evidence is provided which satisfies the Court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible [section 61DB].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous [section 60CC(3)]. Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them.[3]
[3] see Goode & Goode (supra) at 80,903
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[4]
[4] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In Goode & Goode the Full Court directed that in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
Allegations of family violence must be closely examined by the court, bearing in mind the serious consequences exposure to family violence may have for the child concerned. Children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other of a child’s parents are not appropriate psychological role models for children.[5]
[5] see In the Marriage of Patsalou (1994) 18 Fam LR 426
Allegations of family violence are easy to make and difficult to refute. This is because family violence, more often than not, arises within the private confines of a family home and may evoke emotions such as embarrassment, shame and indeed fear, which render the reporting of it to appropriate authorities difficult and accordingly its independent verification problematic. It is now generally recognised that family violence is prevalent in all social settings and walks of life.
However, family violence is not homogeneous in its qualities. It can range in character from impulsive behaviour that arises as a result of a stressful situation, such as relationship breakdown and is instantly regretted or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned.[6] Obviously the latter behaviour is the more damaging, so far as children are concerned.
[6] see JG & BG 18 Fam LR 255 at 261
Again these are factors which the court must bear in mind in examining issues of family violence in the context of determining the best outcome for the child concerned. Not all incidents of family violence will be necessarily damaging to a child.
The fundamental task for the court is to assess prospective dangers for the child concerned, arising from the possibility of further exposure to family violence, rather than to punish a parent for past failings, particularly if that failing arose against a background of difficult circumstances or indeed as a result of provocation or incitement.
Finally, the definition of family violence in the Family Law Act has an objective level. The fear or apprehension occasioned by the behaviour complained of must be reasonable [section 4]. It is not unknown for parties in acrimonious proceedings, such as these, to exaggerate unfortunate incidents, which have previously occurred, either unintentionally or for tactical reasons.

Presumption of Equal Shared Parental Responsibility

Although I am not in a position to make a concluded finding about the circumstances of the parties’ relationship, it seems self apparent that the relationship is currently a difficult and strained one. It seems clear that there have been a number of unpleasant altercations between the parties, to which [X] has been a witness. Police officers have been involved on several occasions.
As the incident surrounding Mother’s Day demonstrates, the parties have currently little capacity to empathise with the position of the other or to resolve practical issues consensually. Both parties continue to feel aggrieved at what he or she perceives to be the unreasonable and selfish behaviour of the other.
In addition, although I cannot determine clearly what happened in either January or May of 2009, it seems clear that there were at least two unpleasant altercations between the parties, which involved family violence. As such, I believe there exists reasonable grounds on which I can conclude that either Mr Rivero or Ms Mellott has engaged in family violence.
However, at this stage, I am unable to conclude who of them has been the major protagonist in the commission of this violence; indeed whether one or other of them through his or her behaviour has incited or provoked a violent response from the other; or whether the violence involved was essentially precipitated by the parties’ stressful and unhappy situation with one another and, as such, was mutual in nature.
Given the issues regarding family violence and the volatility of the parties’ relationship with one another, I have come to the conclusion that it would not be appropriate for the presumption of equal shared parental responsibility to be applied at this interim stage.
As a result, I need not turn automatically to the matters which follow from the application of the presumption. Rather, I must consider the individual criteria set out in section 60CC of the Family Law Act to determine what is the best parenting arrangement for [X] at this stage.

Determining [X]’s best interests – section 60CC factors

a) The primary considerations

The applicable legislation places two considerations in a position of pre‑eminence – the need to protect the children concerned from harm as a result of exposure to abuse, neglect and family violence; and the benefits of them having a meaningful relationship with both parents.
The rationale of the amended provisions of Part VII of the Family Law Act is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flow from them being exposed to their parents in a variety of settings. This I take it is the legislature’s intent by its use of the word “meaningful” in section 60CC(2)(a).
These settings include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations. In this way, the child is likely to have a more balanced and so richer relationship with each of his or her parents.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care [Goode & Goode (2006) FLC 93-286 at 80,901].
Ms Mellott does not argue that Mr Rivero has not been involved in providing care for [X] in the past. In addition, it would seem to be implicit in her agreement to the orders of 20 May 2009 that she acknowledges that [X] is likely to benefit from developing and extending her paternal relationship in future.
It is however Ms Mellott case that [X] needs protection from family violence. Her case is based on the proposition that the father has been the major initiator of this violence and, as such, is an inappropriate role model for a child of [X]’s age. In addition, she asserts that [X] may be psychologically damaged, if she is exposed to a further episode of the father’s violent behaviour in future.
For the reasons already provided, I am not in a position to resolve who of the parties is more at fault in respect of the various unhappy altercations between them. Nor am I in a position to categorise accurately the nature of the violence which has occurred between the parties.
It is however interesting to note that the two most recent incidents, of which the mother complains, occurred within the context of a dispute between the parties arising from the circumstances of their separation. In particular, the incident of 25 May seems to have focussed on financial documents.
Neither party asserts that the other would willingly involve [X] in their arguments or disputes with one another. Again, neither party asserts that the other is not well motivated towards [X]. In these circumstances, the potential for [X] to be exposed to family violence, in future, would appear to be much reduced if interactions between the parties can be lessened and those which occur take place in an environment where emotions can be held in check.
As such, I do not think that the protective concerns for [X] should be allowed to assume pre-eminence over the benefit [X] is likely to derive from having a meaningful relationship with both her parents.
At this juncture, the mother proposes that [X] should spend only limited time with her father, in the confines of a children’s contact centre. If the court pursues such an option, it is inevitable there will be a significant delay in the parties being accepted into such a program. In addition, the time available for such supervision is also likely to be extremely limited, being no more than one or two hours a week or fortnight.
Inevitably, in spite of the best intentions of the operators of such contact centres, they provide a somewhat stilted and institutional atmosphere in which to develop a paternal relationship. At this juncture, I do not think that the outcome proposed by the mother will ensure that [X] maintains a significantly meaningful level of relationship with her father. It would not be in her best interests.

The additional considerations

[X] is too young to be able to express any definitive view in this case. For obvious reasons, her wishes, which in any event are unknown to me, cannot be determinative of this case.
It seems clear to me that [X] has a significant level of relationship with both her parents. They have been closely involved in providing care for her up to this stage. In particular, in the past, the mother has been prepared to entrust [X]’s care to the father, whilst she has been at work.
Overnight time is often a very vexed issue between parents, particularly in respect of children of [X]’s age and younger. In my view, it is significant that the mother has been prepared to allow [X] to spend overnight time with her father and the orders of 20 May envisaged such an arrangement continuing.
I do not gain the impression that Ms Mellott is a person whose views are easily suborned. The orders of 20 May 2009 bear the notation that the parties do not agree on all parenting issues to do with [X]. The fact remains however that the mother was willing to agree to those orders, which envisage an extensive range of contact between [X] and

Mr Rivero, is indicative of the strength and quality of the relationship between [X] and her father.
In addition, it seems clear that [X] has a close relationship with her paternal grandparents. It would seem to me to be in her best interests for these relationships to be fostered and supported.
The poor relationship between the parties and their mutual mistrust make this a problematic case. Notwithstanding these difficulties, the parties each have a responsibility to encourage a close and loving relationship between [X] and the other of her parents.
I am concerned that both parties have demonstrated failings in this regard. The mother elected to withdraw [X] from the father, notwithstanding the substance of the orders of 20 May 2009. She has not proposed many practical solutions as to how [X] may maintain her level of relationship with her father. Regrettably all concerned have rather chosen to escalate the intensity of the legal proceedings between them.
There is now less emphasis, in interim family law proceedings, on the importance of maintaining pre-existing arrangements for the care of children. However, in this case, it would seem to be the case that, both prior to the parties’ separation and afterwards, Mr Rivero continued to see [X] regularly.
Given this situation, I believe that it is likely to be in [X]’s best interests that there is a continuity in such arrangements. In particular, I am troubled that [X] did not see her father for close to a month, when previously she had seen him frequently.
Apart from the parties’ poor relationship, there are no practical difficulties in Mr Rivero spending regular periods of time with [X].

I accept he has flexible working hours and has the assistance of his parents in respect of arrangements for [X]’s care.
This does not appear to be a case about parenting capacity. Both parties are able to supply [X]’s day to day needs. It seems to be the case that she is a well cared for and much loved child.
The more problematic issue is the likely emotional consequences for [X] of prolonged exposure to the significant parental conflict involved in this case. This has caused all the important people in [X]’s life to become aligned against one another, in either the father’s or the mother’s camp. This cannot be a situation conducive to the maintenance of a happy psychological balance for [X].
[X]’s age is a very significant consideration in this case. She is just over three years of age. As such, she remains highly vulnerable and dependant upon others to maintain her safety and well being.
There is no principle that one size of parenting order fits every child and family. Shared care may be regarded as an ideal but it should not be imposed on every family willy-nilly. Rather I must look to the circumstances of the child concerned and shape an individual response to those circumstances, which I think is likely to be in the child’s best interests.
There is often much controversy, particularly in cases regarding children of [X]’s age, regarding the appropriateness or otherwise of overnight time away from a parent, who is invariably described as having been the child’s primary carer or primary attachment.
In this case, both parties seem to have been involved in providing nurture for [X] from her earliest days. The mother worked as a [omitted] and, in this situation, the father was compelled to engage in many of the practical aspects of [X]’s parenting.
In the past, Ms Mellott has supported [X] spending overnight periods with her father. In addition, the orders of 20 May 2009 envisaged [X] being away from her mother for periods of around 48 hours at a time.
How [X] will respond to this regime is as yet unknown. However, I do not think that the arrangement can be ruled out merely on the basis of [X]’s age alone or the fact that she has been predominantly cared for by one parent more than the other. Both parents have been significantly involved.
Although it might be said to be a matter more appropriately left for the final hearing, the background and circumstances of the parties appear to be relevant to the determination of the parenting issues at the interim stage.
Mr Rivero is self-employed. It is his case that the nature of his employment gives him a high degree of flexibility to be closely involved with [X] and her parenting. [X] is Mr Rivero’s first born child. Like many men of his generation, he aspires to be an involved father to [X].
To this end, he rejects what he sees as an outmoded dichotomy, where one of a child’s parents was largely a breadwinner and the other was engaged exclusively in parental nurture. It was in response to such aspirations that the Family Law Amendment (Shared Parental Responsibility) Act 2006 was promulgated, as well as, the acceptance, by Parliament, that strict gender roles in Australian society were changing.
In this case, I do not think that it can be said that Mr Rivero has changed his outlook on parenting [X] as a result of his separation from Ms Mellott. In effect that he has reappraised his parenting aspirations only after the parties’ separation. To the contrary, it is my impression that his views about wanting to be both emotionally and practically involved in [X]’s parenting have remained constant.
I have spent some time discussing the complex issues of family violence which arise in this case. The family violence order made on 28 May 2009 cannot be determinative in this case. The order is not a final one nor was it made after a contested hearing.
The greatest difficulty in this case is the parties’ poor relationship and obviously compromised ability to communicate. Must this, of itself, rule out a shared parenting regime and mean [X] must live predominantly with one parent? If so, who should it be, particularly in circumstances where each party says the other is violent and unstable and is driving the conflict between them.
The separation between the parties is a recent one. It involves financial issues. In these circumstances, it is hardly likely that the parties will have an empathetic and completely cordial relationship with one another. For obvious reasons, the potential for differences of opinion to arise between the parties will have increased following their separation.
In my view, I must be careful not to adopt an unduly utopian standard for the parties’ communication skills, at this stage or expect them to adhere to a standard which is clearly unattainable given that they separated in difficult and acrimonious circumstances, as many couples do, particularly those that seek the court’s assistance to resolve their parenting disputes.
In the period following their separation, the parties embarked upon an extensive and voluntary process of mediation. As such, ostensibly at least, it would appear to have been their mutual wish to be able to reach a consensus about future arrangements for [X]’s care and to avoid acrimonious proceedings such as these.
It would be simplistic for the court to expect that shared parental time arrangements could only come about organically or consensually. Necessarily these types of issue are likely to generate considerable controversy between the parties concerned. Is the fact that the parties parenting relationship is not of a type which is likely to be highly amenable to a shared parenting relationship sufficient reason for the court to rule out such an arrangement in any particular case, including at the interim stage.
In this case, it is impossible for me to conclude who of the parties is the emotionally volatile and violent one. Indeed, it is not beyond the bounds of possibility that both of the parties share some of these attributes and thus the relationship between them was inevitably labile as a result of a combination of their personalities and other extrinsic factors.
In addition, it is difficult, if not impossible, for me to determine who of the parties is driving the current level of conflict between them and assess whether one or other of them has some ulterior motive, unrelated to [X]’s best interests, for wanting to perpetuate and emphasise the intractability of the conflict between them, perhaps for tactical reasons.
It is not unknown for one parent, who is opposed to a shared care regime, to be prone to accentuate the level of difficulty between the parents concerned in order to achieve the outcome he or she prefers. Whether such ulterior motives exist, in any individual case, may be difficult to glean, particularly at the interim stage. For obvious reasons such behaviour is inimicable to good parenting practices.
It would be non-sensical if the court could only consider an equal time arrangement in the circumstances most conducive to the facilitation of such an arrangement. For obvious reasons, parents who litigate with one another are not likely to be the products of such optimal circumstances. Necessarily, the vast majority of parents who come to court, particularly at the interim hearing stage, do not agree on many issues to do with their children and have problems discussing their differences amicably.
In this case, I have grave reservations about the overall practicality and workability of the shared parenting regime, which Mr Rivero wishes to have reinstated. In addition, given the ambivalence of much of the evidence about both parties’ prior behaviour, I also have grave reservations about [X] living predominantly with one parent and having only limited and perhaps stilted interactions with the other parent.
I may be accused of being unrealistically optimistic but I would hope that the relationship between the parties will settle down, particularly if the financial issues between them are resolved. After all, in the fairly recent past, the parties have been able to reach some level of agreement on an arrangement for [X]’s care, albeit for the briefest of times.
After having attempted to consider all of the applicable section 60CC factors, against a background of conflicting evidence, notwithstanding the fact that the presumption of equal shared parental responsibility has been rebutted, I have come to the conclusion that it is likely to be in [X]’s best interests for the shared care arrangement to be resumed.
I reach this view primarily because I am satisfied that [X] has a strong and viable relationship with both her parents. In my view, the maintenance of each of these relationships is fundamental to [X]’s ongoing wellbeing. It seems to me that, apart from the parties’ currently dysfunctional relationship, each of them is able to provide more than adequately for [X]’s needs and has done so in the past.
I would hope the parties can each restrain themselves in future and behave better towards one another, at least while they are both in [X]’s presence. This would appear to be the best mechanism to prevent [X] being exposed to future incidents of family violence, rather than awarding her predominant care to one of her parents. An outcome which would necessarily appear arbitrary to the parent disadvantaged by it.
The parties are due to attend a financial mediation conference shortly. I hope the conference is useful to them. However, if it is not, close consideration will be given to fixing their respective applications for final hearing in the New Year.
At this stage, the court can also consider whether it will be appropriate for the parties to commission a family assessment report to examine the ongoing viability of a shared care regime for [X]. No doubt, such a report will focus on the ongoing practicality of a shared parenting arrangement, pursuant to the various criteria listed in section 65DAA(5) of the Act.
The parties’ current applications were listed before me on 22 June 2009 in a duty list. Following extensive submissions from each of the parties, the proceedings were adjourned to 25 June 2009 for decision. In the meantime, I ordered that [X] spend a period of 24 hours in the care of her father.
On Monday, there was much discussion about how [X] was to be exchanged between the parties. Ms Mellott was vehemently opposed to Mr and Mrs R Senior being involved in the process in any way.
As such, it seemed appropriate that a public and well frequented locale be utilised. All concerned, myself included, were opposed to the utilisation of a police station, notwithstanding the mutual allegations of improper behaviour which had been made.
In this context, a McDonald’s Restaurant was suggested. As a result, I ordered that [X] be exchanged at the McDonald’s Restaurant at [address omitted]. The domestic violence restraining order, made in the mother’s favour, was varied so that this handover could occur. I also made a mutual injunction restraining each of the parties from abusing or denigrating the other.
In all these circumstances, I propose ordering that the orders of 20 May 2009 resume effective from 9:00am on Saturday 27 June 2009, so that [X] spends time with the father from that time until the following Monday at 9:00am and thereafter the second week of the two week cycle resume.
In the absence of other proposals, I will continue the use of the [address omitted] McDonalds as the locale for [X]’s exchange. I will also continue the other injunctions previously made.
As far as I know, there are no dates of special significance for [X] and her parents, until perhaps Father’s Day and Christmas time. I will make orders in respect of Father’s Day but believe it is premature to deal with the issue of Christmas, at least until the parties have attempted to agree upon some arrangement which is appropriate given their own personal arrangements for the festive season.
At this stage, there do not appear to be any pressing major long term issues to do with [X]’s care [Family Law Act section 4]. Fortunately [X] appears to enjoy good health. She is too young for issues relating to her education to be pressing.
In these circumstances, I will make an order that the parties share responsibility for issues to do with [X]’s health and medical needs. If [X] needs to attend a doctor, when she is in the care of one of her parents, I will make an order requiring that parent to inform the other of such an occurrence and provide details in respect of the consultation and any treatment prescribed.

At this point, it would also seem to be appropriate that the parties exchange information regarding [X]’s care, in a written form, recorded in a communication book passing between them.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 25 June 2009