Rusconi & Lukin
[2009] FMCAfam 41
•27 January 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RUSCONI & LUKIN | [2009] FMCAfam 41 |
| FAMILY LAW – Parenting – when should the consented to relocation take place – what time should the child spend with the mother prior to relocation – what time should be spend with the father after relocation. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA |
| Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3. |
| Applicant: | MS RUSCONI |
| Respondent: | MR LUKIN |
| File Number: | CAC 2407 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 10 December 2008 |
| Date of Last Submission: | 10 December 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 January 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Foster |
| Solicitors for the Applicant: | Meyer Pigdon Family Lawyers |
| Respondent: | Self-Represented |
RECITALS
The parties have agreed that the child, [X] (born in 1993) (“[X]”) be allowed to relocate to the United States of America (“USA”) with the mother.
The mother and father were born in the USA. The mother and father have family in the USA. The father and his extended family visit Canada frequently.
The parties have agreed that [X] will be enrolled in The [F] School in Washington, DC for the school year starting on 7 September 2009.
For [X] to be enrolled in The [F] School she is required or recommended to participate in the following activities at The [F] School campus in Washington D.C.;
4.18 January 2009 – Guided tour of the [F] School;
4.214 January 2009 – Interview;
4.323 to 24 April 2009 – Testing for new students.
The father is liable to pay child support to the mother pursuant to the Child Support (Assessment) Act 1989; however no assessment has been sought by either party. The father has been paying $780.00 each fortnight to the mother by way of child support for [X] and the parties other child [Y] (born in 1990). In accordance with the agreement between the parties, from 1 January 2009 the father will pay $390 per fortnight ($10,140 per annum) by way of child support for [X] only.
ORDERS
That for the purpose of these Orders:
(a)“The parties” refers to Ms Rusconi and Mr Lukin;
(b)“[X]” refers to the child of the parties, [X] born in 1993;
(c)“The father’s home” refers to the father’s usual residence within the Australian Capital Territory;
(d)“The mother’s home” refers to the mother’s usual residence within the State of New South Wales.
That all previous Orders relating to the care of [X] be discharged.
That the mother be permitted to relocate [X] to live in the USA on or after 22 June 2009.
That [X] spend time with the father as follows:
(a)From 12noon on 6 December 2008 to 12noon on Christmas Eve 2008 with the father returning [X] to the mother’s home at the conclusion of his time with her;
(b)From 12noon on Christmas Day 2008 to 8.00pm on 4 January 2009 with the father returning [X] to the mother’s home at the conclusion of his time with her;
(c)Subject to clause 5 below, from 12 noon on 28 January 2009 to 12noon on 22 June 2009 subject to the child travelling with the mother to the USA from 17 – 24 April 2009;
(d)From 5 July 2009 to 7 August 2009 in the USA or Canada;
(e)For Spring Break in 2010, from the conclusion of The [F] School third term to the commencement of the following term in Canada, the USA or Australia at the fathers election;
(f)For the Christmas holiday period, from the conclusion of The [F] School second term in December to the commencement of the following term in Canada, the USA or Australia at the fathers election;
(g)From 5 July 2010 to 7 August 2010 in Canada, the USA or Australia at the fathers election;
(h)Subject to the father providing the mother with one months prior written notice, for 3 non-consecutive periods of up to 14 days each, each year in the USA or Canada up to the 22 March 2011, subject to the father ensuring that the child attend school as required and all other activities in which she is enrolled or due to attend provided that only one such period can be during [X]’s summer school holiday period other than with the written consent of the mother.
(i)At other times as agreed between the parties and [X] in writing, and at least 28 days prior to any such period.
That [X] live with the mother at all other times including;
(a)From 5.00pm on 13 February 2009 to 5.00pm on 15 February 2009 and each third weekend thereafter until 22 June 2009.
That unless otherwise stated, for the purposes of Orders 4.1, 4.2, 4.3 and 5 the mother will deliver and collect [X], or arrange for [X] to be delivered and collected, to and from the father’s home at the start and conclusion of each care period.
That the costs associated with the child’s domestic and international relocation and travel in accordance with these orders are to be borne as follows:
(a)The mother will be solely responsible for the costs of:
(i)The child’s travel to and from the USA in January 2009, April 2009 and June 2009; and
(ii)The relocation of the child’s possessions to the USA in June 2009; and
(iii)Two return economy airfares USA to Australia to USA in each US school year commencing August 2009 in order to implement the orders for the child to spend time with her father.
(b)The father will be solely responsible for the costs of:
(i)The relocation of the child’s possessions from Sydney to Canberra in January 2009; and
(ii)The child’s travel associated with her attendance at the father’s wedding in Canada in July or August 2009; and
(iii)Any additional time that the child spends with him wherever that might be.
That, if [X] is required to travel by aeroplane to spend time with the father, pursuant to these orders, at least 28 days prior to the intended date of travel for [X] the parent responsible for paying for the travel provide to the other parent a copy of the paid return ticket or e-ticket in [X]’s name including an itinerary of travel.
That, if [X] is not required to travel by aeroplane to spend time with the father, pursuant to these orders, at least 28 days prior to the intended date of travel for [X] the parent responsible for paying for the travel provide the other parent with an itinerary of travel, including the time and place for [X]’s collection and return.
That, if [X] is required to travel within the USA or to Canada from the USA by aeroplane to spend time with the father, she is to leave from and return to Washington Reagan Airport.
That, if [X] is required to travel to Australia from the USA to spend time with the father, she is to leave from and return to Washington Dulles airport.
That the parties do all acts and things necessary to enrol [X] in The [F] School, Washington D.C. to commence in the first term of the US 2009 school year and the father shall sign and return to the mother any documents required to be signed for [X]’s enrolment at The [F] School within 7 days of such documents being provided to him.
That, if [X] is not accepted to the [F] School, the mother and father are to consult with each other as to a suitable alternative school in the Washington D.C. area.
That the mother authorise and direct The [F] School (or any other school at which [X] is enrolled) to provide to the father copies of any and all correspondence, school reports or documents of whatsoever nature concerning [X].
That the parties provide each other with information as soon as practicable upon the happening of the following:-
(a)any medical emergency involving [X], including but not limited to serious illness, accident or hospitalisation;
(b)events or information related to the general health of [X], including but not limited to medical appointments, test results, progress reports, details of any treatment (notice of appointments to be provided as soon as practicable following the making of such appointments);
That the mother keep the father informed of [X] residential address, telephone and email contact details at all times and advise the father within 48 hours of any change to [X]’s residential address and/or contact details.
The Applicant and the Respondent are restrained from:
(a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the child’s hearing;
(b)Discussing any proceedings between the parents or the relationship between the parents in the presence or hearing of the children or permitting any other person to do so.
IT IS NOTED that publication of this judgment under the pseudonym Rusconi & Lukin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
CAC 2407 of 2007
| MS RUSCONI |
Applicant
And
| MR LUKIN |
Respondent
REASONS FOR JUDGMENT
Introduction and Background
This application relates to [X] born in 1993. [X] will turn 16 in March this year. It is somewhat unusual for this Court to deal with parenting applications relating to a child who is almost 16. This is because children of this age tend to be quite independent and are able to articulate their views quite clearly. The evidence before me indicates that [X] is a very intelligent young woman who is capable of clearly expressing her own views, and who has adapted quite well to the separation of her parents, even though that separation has been marked by high levels of conflict, and very low levels of communication between the parents.
[X]'s case commenced as one where the primary issue was whether [X] should relocate with her mother from Australia to the United States. That main issue has been resolved between the parents and I was asked to adjudicate in relation to some very specific issues arising out of the agreed relocation.
[X]'s mother was born in the United States but now resides in Sydney. She is 55 years old, is undertaking [omitted] studies and is an [occupation omitted. [X]'s father was also born in the United States but lives in Canberra. He is 54 years old and he is an [omitted] who works at a leading Australian university undertaking research in this field. [X]'s parents commenced cohabitation in 1980, married in February 1988, became Australian citizens in 2004 and separated in April 2005. [X] has a sister, [Y] who was born in the USA, is 18 years old and in fact will be residing in the USA in order to study and play soccer this year.
[X] completed Year 10 at a leading Sydney high school.
In December 2004 the family moved to Canberra as a result of the father's appointment at a university there. After separation in April 2005, [Y] and [X] spent time with their father each third weekend. In February 2006 the children and the mother relocated to Sydney, and continued to see their father each third weekend.
The parents entered into consent orders as to property settlement and spousal maintenance in January 2008.
[X]'s parents have agreed that she will relocate with her mother to the United States in order that she may continue her studies, but at a school known as the [F] School in Washington, United States of America.
Both the mother and the father intend to remarry during the course of this year, in the United States and Canada respectively. The mother will thereafter reside permanently in the United States, but the father and his wife will return to Canberra and continue living there.
Both parties were capably represented throughout these proceedings but the husband chose to actually conduct the final hearing on his own. The mother was represented by Mr Foster, of Counsel. Even though the father was representing himself it is clear to me that his affidavit evidence had been prepared with the assistance of very capable legal representation. It was also apparent to me that the father was, although not legally trained, a very intelligent and articulate man who was more than capable of adequately representing himself in the proceedings.
Issues, competing proposals, and common ground
The first issue that arises in this case is when [X] should relocate to the United States with her mother. The mother says that it should be on 10 April 2009. The father says that it should be on 26 June 2009. In cross-examination the father rejected a proposed compromise date of 1 June 2009, primarily on the basis that this was inconsistent with [X]'s stated views to him, which were to remain in Canberra attending [N] High School, for two terms in 2009. In cross-examination the father also rejected a relocation date of 22 June 2009 even though [N] High School's position on the evidence was that the dates between 22 June and 26 June were not important to [X]'s education. The father gave no plausible or convincing evidence but nonetheless insisted on 26 June 2008.
The second issue was what time should [X] spend with her mother when she is living with her father in Canberra? The father proposes that there should be no time. The mother proposes that it should be each alternate weekend. During the course of the hearing, however, the father indicated that he would accept whatever the Court imposed, but was not prepared to actually advance a proposal himself. The expert appointed in this matter, whose report I will refer to shortly, was careful to emphasise that orders should not be made based on [X]'s wishes, as well as emphasising the importance of trying to protect [X] from the intense parental conflict that continued between her parents.
The third issue is what time should [X] have with her father, once she relocates to the United States with her mother? The mother proposes every spring break, Christmas 2010, a month in July/August 2009 and 2010, and subject to notice, three non-consecutive periods of up to
14 days each year up to 22 March 2011, in the United States or Canada, subjected to [X] being able to continue to attend at school. The father proposed half of the summer school holidays, 13 days in the winter school holidays, and eight days during [X]'s spring break, but all subject to the father nominating dates on four weeks notice. He also proposed additional time when he might be in the United States no more than three periods each year, up to five days duration, on not less than one week's notice.
There were some very minor issues of difference between the parents about the payment of the costs associated with the travel, the making of the arrangements, and some logistical issues. I will deal with these issues in the orders but I note that the areas of difference are relatively minor and, indeed, I had very little evidence, and minimal submissions, to assist me in determining what orders to make.
Despite the intense conflict that exists between [X]'s parents, by the time of the hearing they had managed to resolve many outstanding issues, and define much common ground. Both [X]’s parents are to be commended for the progress that they have made in reaching resolution about these issues. For example the parents agreed that the father will continue to pay child support as agreed, for [X], at the rate of $390 per fortnight. They have agreed that the mother will pay the cost of two return airfares USA/Australia/USA for [X] in each school year until she turns 18 in 2011. The father agrees that any additional costs of travel will be borne by him.
The parents have agreed that [X] will attend [N] College and that the father will bear the cost of this. Each parent has agreed that they will pay the costs associated with [X]'s travel to their respective weddings. The mother agrees to pay the costs associated with [X]'s relocation to the United States, and subsequent education there. The father agrees to bear the costs of [X]'s relocation from Sydney to Canberra during the time that she lives with him. The mother agrees to bear the costs of [X]'s trips to the USA in January and in April 2009. Indeed, immediately after hearing the evidence in this matter on 10 December 2008 I was able to make orders by consent that covered [X]'s time with her father, and travels to the USA with her mother in both January and April 2009.
In these Reasons for Judgment, therefore, I will focus on the issues in dispute.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Parental Conflict and Shared Parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[1]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[1] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[2] and the containment of acrimony may prove to be central benchmarks.
[2] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[3]
[3] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Evidence
I had available to me a considerable volume of affidavit evidence that had been filed on behalf of both parents. As the issues progressively narrowed, by the time of the hearing not much of it was of direct assistance.
Both the mother and the father gave evidence and were cross-examined. After hearing their evidence it is very hard to be critical of either of them, given the circumstances of this case. Both parents have good reasons for advancing their respective positions. I am satisfied that both parents have advanced proposals that they firmly believed were in the best interests of [X]. To re-visit issues that have happened in the lives of the parents both before and after separation would be singularly unhelpful in this judgment, so I propose to avoid doing this. Even though the father might be open to criticism for not involving the mother in [X]'s enrolment in [N] High School, the fact is that the mother does not oppose this and, indeed, accepts that it is [X]'s desire to attend that school, for [X]'s own reasons. The father might also be criticised for not advising the school that, at best, his proposal was that [X] be enrolled for two terms only in 2009. In the context of this case, governed as it is by s.60CC and other provisions within Part 7 of the Family Law Act, his actions are irrelevant in the context of the issues raised in this case. I otherwise found both the mother and father credible and reasonable witnesses.
On 14 November 2008 I released to the parties the Part 15 expert's report prepared by Ms Jill Burrett a consultant psychologist. She interviewed the parents and both [X] and her sister [Y]. She also interviewed the father's partner, and the mother's partner, as well as observing the interactions between the children and their parents and stepparents. I reproduce what I consider to be the relevant part of the opinion expressed by Ms Burrett at pages 5 - 7 of her report:
[X] is caught in the middle of her parents’ inability to compromise over the next few months of her life. I have formed the opinion that [X] would like to spend the first months of next year with her father and Ms M, and she has expressed this to me, as well as her interest in attending [N] High School. Although she will not be continuing at school there for more than two terms, she appears positive about going to school there temporarily.
I am of the view that [X] is seeking to spend more time with her father before she leaves for the US for reasons that are appropriate and reasonably well thought out. I have observed the relationship between [X] and her sister [Y] to be close and affectionate notwithstanding their different positions in relation to their parent’s conflict. I do not consider that her spending time with her father and stepmother prior to moving permanently to the US will significantly affect their relationship in the longer term. In view of the ongoing conflict between the parents I am of the view that for [X]’s period with her father to be enjoyable and useful for [X], there should be as few interruptions as possible. To assist this, neither parent should engage [X] in discussions or inferences about her parents’ respective characters and viewpoints about the family and its history.
It is very important for [X] that whatever is decided finalises the arrangements for the foreseeable future, so that she is no longer quite so caught up in the middle of her parents’ estrangement. She has been put in the position of feeling she has to decide what happens next and how to please everybody. Both parents must honour their commitment to ensuring that there is no doubt that [X] will continue her schooling in the US, as agreed, even if she should have mixed feelings about leaving Canberra at the end of her period there. Once she is settled back in the US she will be closer to her sister [Y], and living with her mother and stepfather and his children. She will be further from her father but I am told that he does travel for his job and have regular holidays in his country of origin so that contact will be possible there, and the girls’ Australian history can be sustained by their visiting their father and Ms M here.
I do not think that given the estrangement between her parents and the short period of time in question, it is appropriate or necessary for [Y] to have frequent contact with her mother during her period with her father. (Ms Rusconi is currently proposing to remain in Australia and have fortnightly contact with [X]).
I have formed the view which is confirmed by the parents, that [Y] and [X] are close, though aware of their different temperaments. I do not think interrupting her period with her father by several trips between the US and here is desirable, as the total period here is not long.
Recommendations:
· That [X] spend the first months of 2008 with her father and attend [N] High School.
· That the parents retain their commitment to [X] beginning at the [F] School in early September 2008 and thence living substantially with her mother.
· That the parents find a compromise so that [X]’s time with her father be as continuous as possible whilst honouring her essential [F] School activities, some of which may be able to be conducted in Australia.
· That the parents find a compromise about [X] and [Y]’s contact during the first part of 2008, which does not interrupt [Y]’s settlement into her new College life in the US, given that they will all be reunited in July for Ms Rusconi’s wedding, and holidaying with their father in July.
There was no serious challenge to the expert evidence given by Ms Burrett, in her cross-examination by both the father, and the mother's counsel. Not only was there no challenge to what I considered to be a record of the views expressed by [X] about spending time with her father in Canberra and attending [N] High School, but in cross-examination the mother agreed that these were [X]'s views. I therefore find, on the evidence, that [X] has expressed the view that she would like to spend time with her father this year, and to attend [N] High School in Canberra for a period. I will need to decide, however, how long that period is.
I do note the opinion of the expert that [X]'s period of time with her father should be interrupted as little as possible, even in order to spend time with her mother. The expert believes there are no issues relating to [Y] and [X] being separated during this period.
When should [X] relocate to the United States?
The mother says it should be 10 April, and the father says it should be 26 June 2009. The difference amounts to just under one school term at [N] High School in Canberra. It should be borne in mind that the parents have agreed that, whatever order I make, [X] will travel with her mother to the United States for approximately a week in April so that she may attend the [F] School in Washington DC to undertake some tests for new students. Indeed, [X] has already been to the school in January 2009 for the purposes of school interviews. Whilst this by no means does justice to the mother's evidence, her reasons for wanting the earlier date for relocation seemed primarily focused on ensuring that [X] has the best possible preparation for attendance at the
[F] School, as well as providing adequate time for settlement in a new country. Her evidence was that, particularly having regard to the family's prior experiences with international relocation, adequate time needed to be allowed for the children to acclimatise to a new country, a different culture and new schools. Indeed, in this case, [X] would also need to adjust to a new family consisting of her mother, her stepfather, and his two children. The mother's case also emphasised the availability of tutoring, particularly in mathematics and French, to help prepare [X] for school in the United States.
The father's reasons for the later date for relocation focused primarily on what he considered to be honouring the views expressed to him by [X] that she would live with him and attend [N] College for two terms before moving permanently to the United States. He emphasised the importance of [X]'s relationship with him, and argued that even on his relocation date there is sufficient time for [X] to receive tutoring and settle into a new life in the United States before her school term commences in September 2009.
In the cross-examination of Ms Burrett, the Part 15 expert, she described [X]'s views as, in effect, wanting to "hang out" with her father and stepmother in order to "invest in the relationship a bit more before returning to the United States". However, [X] had also expressed the desire to have whatever possible opportunities to assist her in a smooth transfer to a new school in the United States.
Whilst some criticism might be directed to the father about the amount of time he has spent discussing these issue with [X], thus leading to the possibility that the expression of her views has been influenced by this, I am satisfied that Ms Burrett’s reporting of [X]'s views are not influenced by anything that [X]'s father might have said to her. She is clearly an intelligent, articulate young woman who is not only capable of expressing her own views but, I warn the parents, is also quite capable of ignoring any order that I make in these proceedings, a fact of which I am sure they are well aware.
It seems to me that [X] wants to "invest in" her relationship with her father and the equivalent of two school terms provides a more adequate opportunity for that to happen. I am not convinced that the alleged benefits that the mother sees in an early return to the United States such as tutoring, acclimatising to a new culture etc are in fact benefits that a young woman like [X] actually needs. Even if there were benefits of an early return for her, I think those benefits are outweighed by the benefits to her of investing in her relationship with her father. I record, however, that I do not accept the father's submission that the real reason for the mother wanting an early relocation to the United States are reasons pertaining to the mother, and not [X]. I accept that all of the reasons advanced by the mother were genuinely held and were primarily focused on what was best for [X], and not the mother.
Moreover, I accept the mother's evidence as to the benefits to [X], if she leaves Australia on 22 June rather than 26 June 2009. The mother plans to remarry on 4 July, and the slightly earlier return date takes much pressure off [X], and her mother, whilst causing no meaningful interruption to her education in Australia.
What time should [X] spend with her mother, during the period when she is living with her father in Canberra?
I am prepared to accept that the father's initial position, that there should be no such time, was based on or at least influenced by Ms Burrett's report and her opinion that having regard to the ongoing conflict between the parents, [X]'s period with her father should have as few interruptions as possible. However, I did not form the view that Ms Burrett was adopting a nil time position, as is evident by her recommendations. It must also be remembered that [X] will be spending time with her mother in the United States in January 2009, and April 2009. The mother proposes each alternate weekend, but under the circumstances I propose to make an order for each third weekend. Having regard to [X]'s age and obvious independence, particularly in terms of organising her own social life, I believe that once every three weeks will provide a frequency that makes it workable for [X], as well as her mother. Moreover, the frequency does not, in my opinion, detract in any meaningful way from her desire to "invest in" her relationship with her father before she moves to the United States.
What time should [X] spend with her father, after her relocation to the United States?
It is important to note that as time goes by [X] will inevitably have a greater influence of the arrangements for her to spend time with her father, whether that be in Australia or elsewhere. Nonetheless, I will make orders as it is clear from the expert's evidence that orders are necessary to avoid [X] feeling that she has to make substantive decisions due to the inability of her parents to do so. Nonetheless, it must be recognised that with increasing age comes increasing autonomy and that [X] may well chose to do things her own way, at her own time, and irrespective of what either or both her mother and father, or this Court, thinks is appropriate. The evidence indicates to me that the father's position as an academic enables him to travel quite often, including to the United States. On top of this, of course, are the existing links that both he, and his future wife, have with the United States and Canada. Moreover, a close examination of the competing proposals of the mother and the father indicates that, in substance, there are actually few points of significant difference between them, as regards their respective proposals for [X] to spend time with her father. For example each proposal gives to the father the flexibility to have extra time with [X] in the United States, provided it does not disrupt her education, a limitation which I am prepared to accept as reasonable under the circumstances. One of the significant points of difference is whether [X] should spend time with her father over Christmas 2009. The mother proposes that he have no time during this period. Her proposal is understandable, from her prospective. [X] will have spent time with her father in July, and Christmas 2008. Christmas 2009 will be the first Christmas spent together as a new family consisting of [X], [Y], the mother, and her new husband and his family. From the father's perspective, however, he argues that if he does not spend time with [X] over Christmas 2009 unless he is able to travel to the United States beforehand on one of the optional visits to which both parents agree, he will not see [X] between 6 August 2009 and 20 March 2010. I believe that is an unacceptably long period and that on the facts of this case there is a real risk that the meaningful relationship that I believe already exists between [X] and her father will be undermined by that length of absence. I do not believe, therefore, that an interruption of about two weeks which happens to correspond with Christmas 2009 will detract from [X]'s family life in the United States.
The orders that I propose are not quite what the father proposed in terms of fixed (as opposed to optional) contact with [X]. My orders will provide for fixed time during each spring break and Christmas holiday period as well as one month during the summer break in July/August 2010. I recognise that there will still be potentially long periods when [X] will not be able to spend time with her father, unless he invokes the optional provisions for him to spend time with her in the United States. There must be a balance of competing interests here as well as taking into account the practicalities of the costs, distance, and duration of travel as well as the realities of life for [X] and both of her parents.
Other matters
As indicated above the parents have reach agreement on almost every aspect of the travel arrangements including the costs. However, I propose to make orders which, in my opinion, give effect to what I believe each parent intended, or are otherwise consistent with the evidence as I understand it.
Whilst I did not have specific submissions dealing with some of the ancillary matters relating to travel, such as how much notice has to be given, what information has to be conveyed and the actual manner of travel, I propose to make orders to cover this.
Matters raised in the expert's report lead me to make orders to the effect that the parents are not to denigrate each other, or to discuss these proceedings or any aspect of their relationship with [X], or in [X]'s presence, or to allow third parties to do so. Once orders are made, I expect both parents to implement these orders and not to involve [X] other than to make her aware that these orders were made.
The father proposed that I make an order to the effect that each parent will respect [X]'s wishes in relation to her living arrangements and that each parent will confer in an attempt to resolve matters raised. I am not prepared to make this order lest it be an invitation, expressed or implied, for one parent to elicit [X]'s views for the purposes of triggering a variation of these orders. I trust the parents will heed the opinion clearly expressed by Ms Burrett that it is "very important for [X] that whatever is decided finalises the arrangements for the foreseeable future, so that she is no longer quite so caught up in the middle of her parent's estrangement." She must no longer be "put in the position of feeling she has to decide what happens next and how to please everybody". Whilst I recognise here, as I have elsewhere in these Reasons for Judgment, the possibility that [X] will act autonomously and independently, what I urge the parents to do is to ensure that they do not, directly or indirectly, contribute to the continuation, or exacerbation, of the situation where the daughter they both love has been caught in the cross-fire of their conflict.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Associate: Anthony Thompson
Date: 27 January 2009
0
0
1