Rudman and Rudman

FAMILY COURT OF AUSTRALIA

RUDMAN & RUDMAN

[2010] FamCA 961

FAMILY LAW – CHILDREN – Best interests of the child – Allegations of parental alienation syndrome – With whom the child subject of the proceedings should primarily live with – Where the father amended his proposed orders in order to relocate interstate – Where both children of the parties have different mental disabilities – Whether the older sibling not the subject of the proceedings may pose an unacceptable risk to the younger sibling – Where both children were separately represented by Independent Children’s Lawyers

Family Law Act 1975 (Cth) ss 60CA, 60CC(1), 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(5), 65DAC(3)

Aldridge & Keaton (2009) FLC 93-421
Marvel & Marvel (No. 2) [2010] FamCAFC 101
MRR v GR (2010) 84 ALJR 220

APPLICANT:

Mr Rudman

RESPONDENT:

Ms Rudman

INTERVENOR:

Chief Executive, Department of Disabilities, Housing and Community Services

INDEPENDENT CHILDREN’S LAWYER:

Ms L. Strong, Strong Law Pty. Ltd.

INDEPENDENT CHILDREN’S LAWYER:

Mr D. Ridge, Barker & Barker Solicitors

FILE NUMBER:

CAC

1034

2007

DATE DELIVERED:

29 October 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

24, 25 and 28 May 2010

Written submissions of the father filed in June 2010
Written submissions of the mother filed in June 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr S. Gill

SOLICITOR FOR THE APPLICANT:

Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT:

Mr L. Goodchild

SOLICITOR FOR THE RESPONDENT:

Campbell & Co Lawyers

COUNSEL FOR THE CHIEF EXECUTIVE,

DEPARTMENT OF DISABILITIES,

HOUSING & COMMUNITY SERVICES:

Mr A. Tonkin

SOLICITOR FOR THE CHIEF EXECUTIVE,

DEPARTMENT OF DISABILITIES,

HOUSING & COMMUNITY SERVICES:

ACT Government Solicitor

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms L. Strong

SOLICITOR FOR THE INDEPENDENT

CHILDREN’s LAWYER:

Strong Law Pty. Ltd.

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr D. Ridge

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

Barker & Barker Solicitors

Orders

IT IS ORDERED THAT:

The mother, Ms Rudman, have sole parental responsibility for the child, L, born … November 1997.
Notwithstanding Order (1), the mother will inform the father, Mr Rudman, about:
(a)All serious medical issues relating to the child;
(b)The names of the child’s medical practitioners and of any other practitioners of a similar sort, be they dental practitioners or psychologists upon whom the child may be attending;
(c)Details about his schooling including any information about the child’s progress;
(d)Any major events in the child’s life including important visits either by him, or to him, and about his activities.
The mother will authorise and direct the following to provide information to the father upon his request about the child:
(a)The child’s school, his school teachers and any counsellor at the school (in the last case subject to normal professional confidentiality);
(b)The child’s doctors, dentists, therapists or other medical or allied professionals including information about his treatment, his diagnosis and his prognosis from time‑to‑time.
The mother will consider consulting and discussing with the father major decisions affecting the child’s wellbeing.
Notwithstanding the above orders, the mother will have the right to make decisions about the child’s long-term care, welfare and development.
The child will live with primarily with his mother.
The child will spend time with his father initially in Canberra not less than once a month and if the parties are unable otherwise to agree on the first weekend in each month and such other additional times as the parents may agree upon.
(a)In relation to each period that the child spends with his father in Canberra, the parents will consult with each other and agree upon a collection and return time, but ordinarily, without taking account of the specific circumstances of each visit, would involve the child’s being collected on the Friday night and being returned on either the Sunday night or on the Monday morning. If the parties are unable to agree, the time that the child spends with his father will commence at 5.00 pm on the Friday evening and conclude at 5.00 pm on the Sunday evening.
(b)Nothing in these orders will be taken to preclude the parties moving towards additional time for the child to spend with his father either in Canberra or in Victoria or some other place of the parties’ agreement, provided that such development is in accordance with the child’s needs and the concurrence of the parents, with such advice as they may deem to be appropriate.
Each of the parents will facilitate the child’s communication by telephone with the other parent when the child is with him or her.
If Father’s Day should fall on a weekend when the child is not spending time with his father, then unless the parties otherwise agree, the weekend in which Father’ Day falls will be substituted for the next closest weekend on which the child’s time with his father would ordinarily occur. Similarly, if Mother’s Day should fall on a weekend when the child is not spending with his mother, then unless the parties otherwise agree, the next closest weekend will be substituted for the weekend in which Mother’s Day falls.
Each parent will keep the other informed of that parent’s address and telephone number(s) at all times.
I request that the Chief Executive of the Department of Disabilities, Housing and Community Services maintain contact with, and provide assistance to, the parents, but particularly to the mother, and provide such advice and support as may be possible and appropriate in all of the circumstances as she deems to be appropriate. To the extent that the Chief Executive requests, the parties will comply with any reasonable directions of the Chief Executive.
The Independent Children’s Lawyers are discharged.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable. Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.
All extant applications are discharged.
The matter be removed from the Pending Cases Inventory.

IT IS NOTED THAT:

I deliberately make no orders in respect of R, born … December 1994, in acknowledgment of his wishes at the moment, but in the hope and expectation that in due course he will want to, and will, develop a relationship with his father. To the extent that R does wish to spend time with his father, the mother will facilitate such time.
Should the mother pursue her Minute of Order Sought 16 (in relation to child support assessment matters), she will cause submissions to be filed within 14 days. The father will then be permitted to reply by written submission within a further 14 days.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1034 of 2007

MR RUDMAN

Applicant

And

MS RUDMAN

Respondent

REASONS FOR JUDGMENT

Introduction

This is a matter about two children, R and L, although orders are only sought in relation to L pursuant to the relevant provisions of Part VII of the Family Law Act 1975 (Cth).

Background

Both parents in this matter have been involved with the care of two children who presented an incredibly difficult challenge for them as parents. Professor N’s comments in her evidence on 24 May 2010[1] in response to a question about whether it would be difficult for the mother to cope with two children, said “I think it would be difficult for anyone”. She was referring to the mother at that stage, but the comment is applicable to both parents.
[1] Transcript of proceedings, 24 May 2010, 25.
The two boys are R, born in December 1994, who is now nearly 16 years old. His father seeks no orders in relation to R. R is disconnected from his father and does not want to spend any time with him, or see him, or, indeed, communicate with him at this time. The father’s position in seeking no orders in relation to R is not that he does not want to have anything to do with R, but rather he recognises at the present time it is unlikely that any orders would be helpful in either developing or continuing his relationship with R in the future. R wants to continue to live with his mother and there is no alternative proposal.
L was born in November 1997, and hence is nearly 13 years old. He has also lived almost all of his life with his mother, although his father has had a significant input into L’s upbringing. The orders that have been in place in relation to boys include at present rather more time with L than what might be called the traditional arrangements for a parent who does not have the primary care of a young person.

Relevant Law

Part VII of the Family Law Act 1975 (Cth) provides a legislative pathway for the making of a parenting order in relation to a child.
When making a parenting order, the Court must take into account as a paramount consideration the best interests of the child.[2] The Court must apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for a child.[3] This presumption may be rebutted in appropriate circumstances, such as where there are reasonable grounds to believe that a parent or a significant person in a child’s life has engaged in abuse of a child or a child who is a member of the child’s family, or family violence.[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.[5]
[2] Family Law Act 1975 (Cth) s 60CA.
[3] Family Law Act 1975 (Cth) s 61DA(1).
[4] Family Law Act 1975 (Cth) s 61DA(2).
[5] Family Law Act 1975 (Cth) s 61DA(4).
A positive finding that the presumption of equal shared parental responsibility is applicable as between a child’s parents triggers the operation of s 65DAA of the Family Law Act 1975 (Cth), which sets out, in “imperative terms”, certain factors which must be mandatorily considered by a judicial officer when making an order about the time that a child might spend with a parent.[6] This includes whether it would be in the best interests of a child, and reasonably practicable (within the meaning of s 65DAA(5) of the Family Law Act 1975 (Cth)) for an equal time arrangement, or a substantial and significant time arrangement (within the meaning of s 65DAA(3) of the Family Law Act 1975 (Cth)) to be implemented.
[6] Family Law Act 1975 (Cth) s 65DAA refers; see also MRR v GR (2010) 84 ALJR 220.
In Marvel & Marvel (No. 2)[7] the Full Court of the Family Court (Faulks DCJ, Boland & Stevenson JJ) acknowledged the circumstances in which it might be inappropriate to make an order for equal shared parental responsibility. The Full Court stated (at [103]):
It appears to us that as a parenting order, including an order for equal shared parental responsibility, must be in the best interests of a child, a court may in the exercise of its discretion find it is inappropriate to make such an order in certain circumstances. This could occur where, although there is no family violence or child abuse, the conflict or lack of effective communication between the parents is such that to properly exercise their equal shared parental responsibility they would be unable to comply with s 65DAC by consulting and making a genuine effort to reach agreement about major long-term issues affecting their child or children. In other words, in these circumstances an order for equal shared parental responsibility would inevitably lead to further conflict and perhaps contravention applications, which conflict and/or ongoing litigation could be adverse to the child’s best interests.
[7] Marvel & Marvel (No. 2) [2010] FamCAFC 101.
In accordance with s 61DA(4), I propose not to make an order for equal shared parental responsibility as between the parties. I find the presumption is rebutted. This is because of my assessment of the evidence and for the reasons I will outline in my Judgment. As I have found that the presumption is rebutted, it is unnecessary for me to make findings as to whether or not an equal time arrangement, or a substantial and significant time arrangement, is in the children’s best interests or reasonably practicable in the circumstances of this case.

Discussion

It is common ground that R suffers from Asperger’s Syndrome. This has brought about a number of difficult behavioural events and a continuing difficulty for him to relate to people or to engage in normal socialisation. At one point in the proceedings, there was an adjournment to enable an investigation of his behaviour in relation to L. During these proceedings, it was revealed that he had exposed his penis to L on more than one occasion.
Nevertheless, R is deeply committed to his mother and is also deeply interrelated with his brother. His separation from L may not be of any benefit to his condition or so the experts say.[8]
[8] Report of Professor N, 6 September 2009, 11 – 12.
L suffers from Down’s syndrome and requires special education but additionally, special emotional care and support. His primary attachment is with his mother and while his father might well be able to look after him physically, this would represent a significant change in L’s life.
In relation to L, the father seeks orders that would have L live primarily with him and his new wife.[9] The proposal for the father’s relocation to Victoria occurred during the course of these proceedings.
[9] The father remarried in 2008 in Victoria.
Although L has from time‑to‑time expressed reluctance about, or even opposition to, spending time with his father, the observations of the experts of L with his father suggest that, in fact, he has a good time with his father and has a good relationship with him.
The mother asserted during the course of the earlier part of these proceedings that L had suffered from physical punishment from his father, leaving him with bruising. That behaviour was the subject of some investigation and there is no evidence in any satisfactory terms that any physical abuse of L has occurred. The father denies it on his oath. L’s evidence about the matter, is vague and inconclusive. How L was injured remains a mystery, however, I am far from being satisfied that he did suffer any injury at the hands of his father and there is no evidence that would enable me to form the view that any order I made about L spending time with his father would expose him to an unacceptable risk of physical harm. In this regard, I take account of the father’s new partner (now wife), the stepmother. I take account also of the fact that in the time moving up to these proceedings, the father continued to see L and there were no further reports or allegations. While the cynic may remark that “the father would not do anything would he in the proceedings leading up to the hearing?”, I did not form that impression of the father. In essence, I accept his evidence that he did not physically injure L.
L’s situation is complicated by the fact that the primary expert, Professor N, recommended that L would benefit from increased socialisation with the father and the father’s extended family who live in Canberra. The complication now arises because the father has chosen, notwithstanding his knowledge of that recommendation from the expert, to remove himself to Victoria. This not only removes him from L and R (and restricts the time that L might spend with his father), but also removes the father from his extended family who were seen by the expert as being part of the support mechanisms for L.
One of the particular problems for me in this case is the fact that the father’s evidence leaves me with the uncomfortable conclusion that the decision to move to Victoria was one based on his needs with little regard or thought as to how such a decision would impact upon the boys, and in particular, upon L. Although in her submissions on behalf of the father, his counsel argued that the father put a lot of thought and care into his preparations in moving to Victoria, I cannot accept that that is so. Necessarily arrangements about what will happen to a child if he or she is living in a new or different environment must be, to some extent, tentative and even vague. However, I formed the view that the father’s enquiries were mainly carried out to satisfy me in these proceedings – that he was intent on ticking the right boxes rather than his having a clear, calculated and dedicated approach to doing what would be the best for L.
Moreover, the father appears to have given little thought to the effect that the separation of L from his mother would have on L. This is a matter which the expert, Professor N, has highlighted as being a problem for L as a consequence of leaving his mother’s care and going to live primarily with his father – as his father suggests he should.
That is not to suggest that the father would not look after L, and indeed, try very hard to look after L properly. What it does reveal, in my judgment, that the father’s lack of insight, lack of sensitivity and willingness to put his own future happiness ahead of what might be best for his boys.
I note in this regard there is some corroboration for that conclusion from the father’s earlier distancing of himself from R. This began when R was excluded from his father’s home in November 2007.
The father gave evidence in the proceedings about his regret in excluding R from his home but he did not thereafter make an application to resume spending time with him.
The father also indicated that he did not want to see L again in February 2008. This was temporary but nevertheless illustrated the point that I have made above about the father’s somewhat egocentric approach to what he says is best for his boys.
On the other side of the equation is that the mother has undoubtedly influenced the children against the father. It is abundantly clear from the conversation of the boys, (particularly of R), that the mother has discussed the proceedings with R and to some extent is enmeshed with him. This is unhealthy, according to the expert. R is being required (when he is not emotionally capable of doing it) to be a more adult confidante of the mother than he ought to be, or indeed for that matter, can be.
I could not be satisfied, notwithstanding the acerbic submissions on part of the father that the mother has set out to alienate the children deliberately. In particular, I reject the proposition that R, and for that matter, L, has been part of some so called parental alienation syndrome. This syndrome has been significantly discredited in the literature. This matter was not raised in that form during the course of the proceedings. Even assuming there was some validity to the proposition that there is such a syndrome (the validity of which contention I reject) each case must substantially rely upon its own facts and circumstances. Further, the high point in the so called syndrome is the allegation that there is a deliberate alienation on the part of one parent. That cannot, in my opinion, be said to have been made out on the evidence before me in this matter. That the mother has influenced the children in their attitude towards their father is, in my opinion, incontrovertible. That the mother has had inappropriate discussions with the children, in particular with R, is equally clear. I do not accept on the mother’s evidence having listened to her in the witness box and having read all of her affidavits that she has set out deliberately to alienate the children from their father. I believe that the mother clings, unreasonably in my opinion, to the belief that the father has physically abused L. This is unquestionably influenced her ordinarily jaundiced view of the father and probably provides a reason for, but not an excuse for, or a satisfactory explanation for, her approach to: the boys’ time with their father; their relationship to their father; and their attitude to their father.

I have criticised the father for his lack of insight. The mother similarly exhibits no insight in relation to this matter. The mother fails to understand that not only would the boys having a proper relationship with their father and spending time with him provide her with some of the respite that she now seeks professionally, but would also enable the young men to grow into more appropriately socialised human beings with an understanding that they are not responsible for the difficulties their parents have created for themselves.
The mother’s evidence in the witness box was solid. It did not indicate a malicious or deliberately obstructive approach. Her answers were carefully thought out, sometimes annoyingly so, and frequently, frustratingly so. Those answers, however, did not demonstrate, it seemed to me, any malicious commitment on her part to destroying the relationship of the boys with their father.
For his part, the father has, through many difficult times, not only caused by the disabilities of the boys, but also the unfortunate and acrimonious nature of the separation of the parents and the allegations which have arisen during the course of the dispute, demonstrated persistence and love. He has curiously contradicted this with his aberrant behaviour. This is principally to be seen in his refusal to see R for a long time and through to his bizarre decision to pack up and move to Victoria.
I am satisfied that either parent could physically care for L. I am not convinced, however, that the father fully understands the implications of this or of the subtleties in the preservation of the relationship of L and his mother and L and his brother. His approach to moving has left me in the difficult position of really having few choices about where L should live, notwithstanding some obvious deficits in the mother’s ability to cope with L, or L and R. Part of that difficulty is the complex and subtle interrelationship between L and R commented upon particularly by Professor N.[10]
[10] Above n 8, 11 – 12.
The intricacies of the brothers’ mutual love and affection and support is difficult to full appreciate in comparison with children who do not have the disabilities that each of these boys does. If L were to live with his father, Professor N has expressed an opinion that he might feel abandoned by R and his mother. That is not to suggest that there is not conflict between L and his mother and also with R from time‑to‑time, (although little evidence of this found its way in the proceedings before the Court). What it does illustrate, however, is the extraordinarily difficult task these parents face in raising these two young men and that this has been further affected by their poisoned interrelationship and the difficulties that flow from that.
This lack of insight was further highlighted during cross-examination, when the father expressed the opinion that R should if necessary be forced to go to mediation or counselling with him. The father seemed to be oblivious to the effect that such compulsion may have upon R.
I have begun this Judgment in a somewhat unusual way because of my deep concerns that the extraordinary difficulties these parents have faced in the past, (to some extent with great courage,) are now going to be aggravated by the decision made by the father and by the attitude of the mother to the children in relation to their relationship with their father.
The orders that I might have made if the parents were both living in Canberra could well have moved down the path of increasing the time that L spent with his father in the context of the recommendations of the expert and bearing in mind the socialisation that L would require. It would also have been much easier to facilitate L’s having a connexion with his family on his father’s side. That situation is impossible.
In my opinion, it is also not feasible to have L removed from the context of his brother and his mother with whom he has complex, but nevertheless, deep relationships. These relationships are far from being only positive and there is some force to the submission on the part of the father that the mother will have difficulty, if not extreme difficulty, in coping with caring for the two boys. That submission is supported by the fact that the mother needs to seek respite care on a regular basis. However, although this was presented as some form of criticism, it is really indicative of the tragedy of the present arrangements, amplified by the mother’s own disability of chronic low grade depression which Professor N says is dysthymic disorder. The impact of this is likely to be on her feeling at times somewhat overwhelmed by the difficulty she faces.
I will turn to the specific matters under s 60CC of the Family Law Act 1975 (Cth) in a moment.
The choices for me are to leave both boys together in a relationship which has some difficulties both between them and with their mother and from which their mother may not be able to work to encourage to have any much positive relationship at all with their father, to a situation where the boys are separated with possibly deep psychological conclusions for each of them and possibly dire consequences so far as the boys’ mother is concerned.
Leaving the boys with their mother may impose on her a burden she is but barely able to cope with. She has in the past demonstrated a willingness to seek assistance and she may in this way be able to care for the boys as they should be cared for. As if that were not enough, Professor N’s evidence about L’s inability to, or difficulty with, travel to Victoria suggests that even regular arrangements for him to spend time with his father in Victoria would be difficult. More frequent and less lengthy stays with his father would probably, on the evidence, be best for him, but the father’s decision to move to Victoria effectively means that this is not possible. If L were to travel to Victoria to spend time with his father, it must be at longer intervals. Moreover, as stated above the travel itself could be problematic, on the evidence of Professor N.
This suggests, at least for the foreseeable future, that the order I make for the time L spend with his father must involve the father’s travelling to Canberra to spend time with L. This coincidentally would allow L to spend time with his father’s extended family in Canberra. This imposes a very large burden on the father. This is particularly so with the sort of work he does, which can involve shift work and hence an inability to be able to travel on discrete weekends or at other times when L might be in school.
Sadly, in this matter, there are only “least worst” decisions, rather than “best” decisions, for L and implicitly, (although no orders are sought in relation to him), for R.

The primary considerations: s 60CC(2) of the Family Law Act 1975 (Cth)

In Aldridge & Keaton,[11] the Full Court of the Family Court (Bryant CJ, Boland & Crisford JJ) held that the Family Law Act 1975 (Cth) does not (at 83,825):
…direct any particular weighting or priority to any provision in [Part VII] (although we note the division of the s 60CC factors into primary considerations and additional considerations. It is clear however from the [Explanatory Memorandum] that while the use of the word “primary” is intended to stress the importance of the consideration in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary considerations.
[11] Aldridge & Keaton (2009) FLC ¶93-421.
The Court must consider the considerations outlined in s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) in determining what is in a child’s best interests.[12] Turning to the matters I am obliged to take into account the primary considerations as outlined in s 60CC(2) of the Family Law Act 1975 (Cth). Section 60CC(2) relevantly provides:
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.
[12] Family Law Act 1975 (Cth) s 60CC(1).
I deal with s 60CC(2)(b) first – to dismiss it. Although the mother will probably always believe that the father has in some way physically injured L, I am not satisfied on the evidence that there is any unacceptable risk of this occurring, no matter what order I make about the time that L spends with his father. However, if L were to spend time with his father (as his father now suggests as his primary carer), then, in my opinion, it will expose him to an unacceptable risk of psychological harm of the sort outlined as outlined by Professor N in her thoughtful and helpful evidence on 24 May 2010.
The expert evidence is that L will benefit with having a meaningful relationship with both of his parents, but for the reasons I have set out above, it seems to me that the father’s decision to move to Victoria has also severely compromised this option. In addition, in my opinion, L’s relationship with R as it has been considered and described by Professor N, if L were to be separated from R, would encounter some severe difficulties.
A further element in fulfilling the primary consideration of the need to protect L from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence is his interrelationship with R.
During the course of the proceedings, an adjournment became necessary as a result of a notification made to the Chief Executive of the Department of Disabilities, Housing and Community Services (the relevant Office of which is the Office of Children, Youth and Family Support – OCYFS) about R’s exposing himself to L. It appears that this happened on more than occasion. The OCYFS investigated the matter and determined ultimately to take no action. Moreover, the Chief Executive’s submissions did not raise any consideration of the need to protect L from R.
The co-location of the two boys with their challenges and disabilities may from time‑to-time cause difficulty in itself. The mother has demonstrated in the past a willingness to seek assistance and to accept the assistance when it is offered. It is possible, (although the evidence before me would not necessarily support this,) that there is some risk associated with R’s close association with L. I could not make such a finding on the evidence that I have at the present time and I certainly could not make such a finding in the context of the choices about where L would live. In particular, this is so in the context of the matters relating to L’s mother to which I have made reference above.
If I were to make orders that L should live primarily with his mother as well as accepting that R will also live with his mother, in my opinion, this would not constitute an unacceptable risk that L would be exposed to abuse, neglect or family violence at the hands of R. I am assisted in reaching this conclusion by both the submissions and attitude of counsel for the Chief Executive and the fact that there will be assistance available to the mother through OCFYS.
Hence, in this matter, in relation to each of the primary considerations there are reasons why the father’s orders would not be appropriate orders for L. In so far as the question of a meaningful relationship between the father and L is concerned, it is distressing that this situation may well have been put beyond my control by the decision of the father.

The additional considerations: s 60CC(3) of the Family Law Act 1975 (Cth)

The additional considerations, to the extent of their relevance, I deal with as follows.

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 (s 60CC(3)(a))

I am satisfied that R has developed a set against his father and this has to some extent been generated by the attitude of his mother. There was a thoughtful exchange between the Independent Children’s Lawyer and Professor N towards the end of her evidence. If, as it appeared to be the case, neither parent sought orders in relation to R as such, the expert and the Independent Children’s Lawyer agreed that the most important thing would be to ensure that R understood that this was not some form of abandonment by either parent (with neither wanting him,) but rather a recognition of his own views at this point.
What it is made difficult in this equation is that R’s views have, to some extent, been preconditioned by his mother and therefore, perhaps, should not be given as much weight as they might in other circumstances involving a young man of his age. However, against this must be set the inutility of making orders in relation to any near 16 year old who could, and probably would, make his (in this case) own decision and not necessarily follow the terms of any order. R, however, must be relieved of the obligation of thinking in some way that he has somehow alienated his father, deserted his mother or lost either parent’s love or support.
L’s wishes are equally complex because of his disability and the involved emotional responses it appears to generate. Again, the evidence of Professor N was particularly helpful on this point. What can I think be said with some confidence, although confidence is a matter rare in these proceedings, is that L enjoys time that he spends with his father, notwithstanding that, to some extent, he recognises that this enjoyment might be contrary to his mother’s wishes.
This indicates, (although L’s views about what should happen should not have determinative weight,) that L should spend time with his father. The problem of course is not whether he should, but how this can be accomplished given the present difficult geographical arrangements.

The nature of the relationship of the child with:
a)each of the child's parents; and
b)other persons (including any grandparent or other relative of the child) (s 60CC(3)(b))

L has a relationship with each of the parents and with R and, to some extent, the father’s extended family. Even in this situation, the matter is not free from complications. The mother and her mother-in-law have a fraught relationship, which has involved each of them saying, (to put it at its most neutral), unkind and unpleasant things about the other. It is probably a relationship incapable of repair because of the lack of will on either party to do enough to ensure that happens.
This is unfortunate for a variety of reasons. One illustration is that it removes an option for the mother to receive support in her care for the boys. Another, of course, is the fact it would be of great advantage to these two young men to have a more expanded portfolio of people among family and friends who are supportive of them and who enjoy spending time with them and who can extend them.

The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
a) either of his or her parents; or
b)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living (s 60CC(3)(d))

I have discussed this in my Judgment in some detail above and do not propose to repeat what I have already said. The change in arrangements would, in my opinion, impact adversely upon L. I note that, as pointed out in the submissions on behalf of the father, however, that there is no evidence before the Court that the effects of the change would have long term permanent impact on L. That is not the test. It is quite clear from the evidence of Professor N that there would certainly be a shorter, medium‑term effects on L. In addition, there may be long‑term effects on L. Whatever may be the situation, there will be difficulties for L; difficulties which he with his particular disability would have more difficulty in coping with.

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 (s 60CC(3)(e))

There is practical difficulty and expense for L to spend time with either parent because of their suggested arrangements. This was not previously a problem, but now is, because of the transport difficulties (it is a long drive, or a drive and flight). This will complicate the bringing into effect arrangements about the time L spends with his father, unless L’s father travels to spend time with L, (and one would hope R) in due course.
It will represent the ultimate test of the father’s loyalty and good‑heartedness for him to persist with, and maintain conscientiously his visits to Canberra to spend time with L and to ensure that those times are good times and not overshadowed by the burden in the father assuming the travel necessary to carry them out.

The capacity of:
c)each of the child's parents; and
d)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 (s 60CC(3)(f))

I have made comment about this above as well and do not propose to expand further. Neither parent offers an ineluctable model of appropriate parenting.

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 (s 60CC(3)(g))

In this case, these matters are a matter of high concern because of the disabilities of the boys have. Again, I have dealt with this at some length above.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (s 60CC(3)(i))

In my assessment of this consideration, despite the fact that no orders are sought in relation to R by the father, I take account of the parents’ respective attitudes to both L and R. This has also been the subject of discussion in my Judgment above. Extensive submissions have been addressed to this consideration by both counsel. Part of those submissions on the part of the father involved the inappropriateness of the mother having L sleep in the same bedroom as her. It would seem likely that this is not the best solution for L. On the other hand, what occurred between L and R, it would be recognised by some that to leave the boys together would have been a cause for criticism as well.
This is clearly a case of being “damned if you do, and damned if you don’t”. The mother’s inability to see that there might be any downside of the arrangement is of concern. But no more so one would think in the context of these proceedings than the father’s suggestion of forcing R to attend counselling with him.

Any family violence involving the child or a member of the child's family (s 60CC(3)(j)); and
Any family violence order that applies to the child or a member of the child's family, if:
a)the order is a final order; or
the making of the order was contested by a person (s 60CC(3)(k))

These factors, while complicated and present, will not be the subject of any further findings other than those that I have already made. I have already expressed my view that there is no further risk to L, and certainly not an unacceptable risk.

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 (s 60CC(3)(l))

I hope the orders I propose to make bring an end between the parties to their dispute but I have no confidence that they will have this effect.

Any other fact or circumstance that the court thinks is relevant (s 60CC(3)(m))

There are no other relevant matters to be taken into account.

Fulfilling the responsibilities of parenthood: s 60CC(4) & s 60CC(4A) of the Family Law Act 1975 (Cth)

In considering s 60CC(3)(c) and s 60CC(3)(i) above, I am obliged to consider the extent to which each of the parents have fulfilled, or failed to fulfil, their responsibilities as parents. This is outlined in s 60CC(4) and s 60CC(4A); these provisions relevantly provide:
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have in some cases explicitly, and in others implicitly, dealt with the matters raised in s 60CC(4) and s 60CC(4A) and do not propose to expand.

The submissions of counsel for the father

I was disappointed with the nature of the submissions made on behalf of the father in this matter. The submissions were comprehensive and showed attention to detail and assisted me to the extent that they enabled me to understand the father’s point of view.
But I have some sympathy for the view expressed by the mother’s counsel in reply (in paragraph 6) that references to the mother’s “irrational and illogical ravings” is “offensive and not supportive on the evidence”. That is by no means to say that the mother’s evidence was detached, objective, consistent and illuminating. I reiterate that there is no good decision to be made in this matter.
In summary, therefore taking all of those factors into account, what might I satisfactorily conclude?

Parental responsibility

This is a matter in which equal shared parental responsibility would be difficult, if not impossible, to maintain in circumstances where the parties are incapable (at least the mother is incapable) of even talking to each other. Notwithstanding that one would have hoped that given the extreme challenges both of them they might have been able to at least find some common or neutral ground about how the boys might best be handled.
It seems that this is not going to occur. Section 65DAC(3) of the Family Law Act 1975 (Cth) outlines that if a parenting order which provides for equal shared parental responsibility is made, the order is taken to require each of those persons to whom the order refers:
a)to consult the other person in relation to the decision to be made about that issue; and
b)to make a genuine effort to come to a joint decision about that issue.
In the circumstances of this case, and particularly in light of the concepts contemplated in s 65DAC(3), and in light of the statement of the Full Court authority of Marvel & Marvel (No. 2) referred to above, I find that such an order for equal shared parental responsibility would be inappropriate.
On the other hand, given the mother’s animosity towards the father and his mother, to leave her with unfettered responsibility to L may well be to preclude L from ever having any decent relationship with his father or his grandmother. While I feel obliged to make an order about parental responsibility vesting decisions about L’s best interests to be primarily with the mother, I will nevertheless require her, notwithstanding her objections to doing so, to consult with the father about a number of major matters about L’s, and for that matter, R’s, future. This includes informing the father about medical matters which may affect the boys, the treatment they are undergoing and any developments at their respective schools. I will require both parties to authorise any medical practitioner or allied medical professional treating L or R to provide information to the father consistent with their professional obligations.
In this regard, I do not require nor do I deem it appropriate or proper to ask any person who may be conducting counselling for either of the boys to disclose matters which they feel are confidential between them and each of the boys. I will require the mother, notwithstanding her objection to doing so, to continue to provide to the father, from time‑to‑time reports about the progress of the boys and to keep him informed about major events which happen in their lives. I think this can only realistically be done in writing, probably via e‑mail.
Because I will not make an order for equal shared parental responsibility, the provisions of s 65DAA of the Family Law Act 1975 (Cth) will not be brought into account. Even if they were, in my opinion, this is a matter in which L ought primarily live with his mother. I think that follows from the matters I have set out above and the history of the matter and of the boys, notwithstanding the difficulties that will generate for the mother.
L should spend time with his father on a regular basis and for the foreseeable future on the basis that the father will travel to Canberra and will take L for the weekend, or potentially, from some time on Friday until some time on Monday. I could also indicate that in my opinion, it would be appropriate for this to occur (on the basis of the evidence of Professor N) either every fortnight or such longer period than that as may be necessitated by the conditions of the father’s employment or his availability.
I do not believe that the time between visits of the father should be any less than a month, but I will accept the guidance of the parties’ lawyers in determining with precision the nature of the frequency of the visits and the arrangements for pickup, delivery and where L will be.
I propose to make no order in relation to R other than those I have foreshadowed above. Again, if both parents ask me not to make orders which would facilitate the father’s access to information about R, I will not persist in making orders in those terms.
There has been some communication between R and his father on FaceBook and SMS texting. I do not propose to make any specific order, but I would accept to the extent that I would require the mother to facilitate R’s having such communications with his father if he wishes to do so.
I think it is appropriate also that the father should have not less than weekly communication with L via telephone. While the details of this have not been fleshed out in the evidence of the parties, the parties should have an opportunity (a brief one) to indicate how this could best occur. In my opinion, the appropriate order would be that L’s mother will cause L to telephone his father on a certain day in each week (perhaps Wednesdays) at a fixed time (perhaps 6.00 pm) and that again subject to this not being distressful for L (which the evidence would suggest that it is not) that he be able to participate in communications with his father via Skype.
I recognise that the arrangements, particularly about L’s time with his father, are not likely to pertain permanently. I hope that they will advance to L’s spending time with his father in Victoria or on other holidays away from the father’s home, as time goes by. If it has not happened by normal progression and co‑operation through the parties at the end of two years, then notwithstanding that L will then be nearly fifteen years old, the matter may require further litigation. That would be in the nature of a fresh application, but I am indicate that, in my opinion, a failure for the parties to reach agreement and to co-operate enough to enable L to have a good time with his father to the extent that he would want to travel to spend time with his father in his father’s home by that time will constitute a basis for further litigation – if either of the parents have any stomach for it. I would certainly not blame them if they did not.

Conclusion

Those then are the arrangements that I consider should be put in place. I do not make those determinations as is sometimes the case with a firmness and resolve reflecting confidence that this would be best for L (and R). I believe, however, these are determinations I have been driven to by the evidence and by the nature of the boys and the complicating factors affecting not only the boys, but also the parents.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Senior Legal Associate:

Date: 29 October 2010

[2010] FamCA 961

29 October 2010

Key Legal Topics

Areas of Law

Family Law