Ryan & Janosi
[2011] FMCAfam 774
•21 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RYAN & JANOSI | [2011] FMCAfam 774 |
| FAMILY LAW – Rice & Asplund test – parental responsibility – schooling – relevance of International Law – relevance of social science. |
| Family Law Act 1975, ss.4, 60CA, 65DAA, 61DA, 65DAC, 65E, 65CA, 60B Child Support (Registration and Collection) Act 1988 Federal Magistrates Act 1999, s.17A Evidence Act 1995, s.114 |
| Rice & Asplund [1979] FLC 90-725 U & U (2002) 211 CLR 238 Re G: Children’s Schooling (2000) FLC 93-025 Kelly & Kelly [2002] FamCA 379 AIF & AIS (1999) 199 CLR 160 Cowling & Cowling [1998] FamCA 19 Griffiths & Griffiths (1981) FLC 91-064 Cilento & Cilento (1980) FLC 90-847 Goode & Goode (2006) FLCA 93-286 Marvel & Marvel [2010] FamCAFC 101 Minister of Immigration & Teoh (1995) 183 CLR 273 Mabo v Queensland [1988] HCA 69 B & B & Minister of Immigration and Multicultural & Indigenous Affairs [2003] FamCA 621 Gilshannon & Giles [2008] FamCAFC 31 R & BH [2006] FamCA 919 F & B (2003) FamCA 596 Houston & Sedorkin (1979) FLC 90-699 King & Finneran [2001] FamCA 344 D & Y (1995) FLC 92-501 SPS & PLS [2008] FamCAFC 16 |
| Applicant: | MR RYAN |
| Respondent: | MS JANOSI |
| File Number: | PAC 442 of 2008 |
| Judgment of: | Harman FM |
| Hearing date: | 21 July 2011 |
| Date of Last Submission: | 21 July 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 21 July 2011 |
REPRESENTATION
| Solicitors for the Applicant: | Benetatos White |
ORDERS
In accordance with paragraphs 1 to 6 of the father’s amended application, filed 28 April 2011.
I note Mr Ryan’s indication to the Court that he does not propose to make any application to the Child Support Agency, under the Child Support (Registration Collection) Act 1988, or otherwise, for any credit, variation or departure of any administrative assessment of child support in force from time to time, based upon his assumption of responsibility for payment of [X] and [Y]’s school and pre-school fees.
I declare that I am not satisfied that there has been any substantial and significant change in circumstances, referable to [X] and [Y]’s parenting arrangements, or care, welfare and development, sufficient to warrant a further litigation of parenting issues between their parents at this time.
I dismiss all outstanding applications and responses and remove all issues from the list of cases awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Ryan & Janosi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 442 of 2008
| MR RYAN |
Applicant
And
| MS JANOSI |
Respondent
REASONS FOR JUDGMENT
These are proceedings between parents of two small children
[X], born [in] 2006 and, accordingly, shortly to turn five years of age; and,
[Y], born [in] 2008.
The parties to the proceedings are [X] and [Y]’s parents, Mr Ryan, who is the applicant in these proceedings and the children’s father, and
Ms Janosi, who is the respondent in the proceedings and the children’s mother.
Past history.
The parties have been engaged in litigation far from continuously. That is a credit to them both as parents.
These parents had engaged in litigation in 2008. At that time proceedings had been commenced by an application filed by Mr Ryan on 29 January 2008. That date is of some significance, as at the time that the proceedings were commenced only the elder of the two children, [X], had been born and she was, at that time, a very young child of about 18 months.
Shortly after the proceedings had been commenced, and before a response had been filed, an amended application was filed by Mr Ryan, as these parents had had visited upon them, at that time, the happy circumstance of the birth of their second child, [Y], on [date omitted]. A response was ultimately filed, as well as a further amended application, by Mr Ryan.
The response that was filed by Ms Janosi had proposed time arrangements for [X] that were not dramatically different to those proposed by Mr Ryan. In relation to [Y] the arrangements proposed by each parent were quite different. At the time Ms Janosi’s response was filed [Y] was a child of some six weeks of age and the time arrangements that were proposed by Ms Janosi were entirely appropriate arrangements proposing short, frequent visits of a non-overnight nature, but building up and proposing that from 12 months of age [Y] would stay with her father for the same period of time as provided for [X].
The periods of time that were proposed by Ms Janosi for [X] to spend with her father were from 4.30pm until 7pm on Wednesday, from 10am Saturday until 6pm Sunday each alternate weekend, and from 6pm Friday until 6pm Saturday in the following week, together with other periods of time for special events and the like.
The 2008 proceedings were ultimately concluded by orders, again to the credit of these parents, made by consent. They were made at a time when the matter was listed for hearing and both parties were legally represented but they were, most assuredly, were made by consent. Those orders provided a regime in relation to [X] that built up over time and provided that from the time of the orders until [X] was five years of age time would increase in regular progressions. That is particularly important, because [X] will turn five in a few months time, on 21 November this year and from that time the orders provide for an equal time arrangement for both children.
The arrangement presently in place for [X] sees her spending time and living with her father each alternate week from 6pm Friday until 8.30am the following Monday and in each intervening week from 6pm Thursday until 6pm Saturday, as well as from 4.30pm until 7.30pm each Wednesday. Accordingly, she is presently in a time arrangement that one might describe, by reference to s.65DAA, as a substantial and significant time arrangement.
From the age of five, being from this November and in four months’ time, the arrangements for both children will move to an equal care arrangement, so that both children will live with their father from 6pm Wednesday until 6pm Friday in one week and then from 6pm Wednesday until 8.30am Monday in the following week.
The time arrangements in relation to [Y] were far more staggered. They commenced from the date of the orders in October 2008, as being each Wednesday evening for the same period of time as [X], each Saturday from 10am until 6pm, and each alternate Sunday from 10am until 6pm. Time arrangements of that nature continued until [Y] was
10 months of age or until around the end of 2008. Thereafter, and for a number of short period, time built up, until at the age of 16months [Y]’s time with her father became the same as [X], being each alternate weekend, Thursday to Saturday, in the intervening week from 6pm Friday until 8.30am Monday, and then each Wednesday from 4.30pm until 7.30pm.
Those orders ended the proceedings in which the parties were then involved. However, these fresh proceedings were commenced, again by Mr Ryan, by application filed on 20 October 2010. Prior to commencing these proceedings the parties attended and completed Family Dispute Resolution.
The application filed by Mr Ryan dealt with a single, limited issue regarding the school and pre‑school, respectively, that these children will attend. That application has been replaced by an amended application, filed on 28 April 2011, but which does not broaden the ambit of the dispute between these parents.
The response that has been filed by Ms Janosi deals not only with the school issues but also seeks to replace the care arrangements provided by the orders of October 2008, with a fresh set of care arrangements, which would see [X] and [Y] living primarily and substantially with Ms Janosi and spending time with their father, Mr Ryan, each Wednesday, from the conclusion of school, or 3pm, until 7.30pm, and each alternate weekend, from 3pm, or the conclusion of school Friday, until 9am, or the commencement of school Monday.
That would, on any interpretation, represent a substantial change to both the present and the shortly to be implemented arrangements with respect to these two children. That is to criticise of Ms Janosi for making the application. It is simply to reflect the application that she has made to the court.
These proceedings are listed today to determine two discrete issues. Firstly, the schooling issue as raised in Mr Ryan’s application and now responded to by Ms Janosi, and, secondly, to determine whether
Ms Janosi’s application for variation of parenting orders should continue subject to whether I am satisfied that the Rice & Asplund [1979] FLC 90-725 threshold, as it has been referred to in submissions, has been crossed.
I propose to deal with the two issues separately as they have been dealt with separately during the conduct of the matter and for a number of additional reasons.
Firstly, with respect to the schooling issue there has been limited cross‑examination, but cross‑examination has been permitted on such basis as each of the parties has wished to pursue. In relation to the Rice & Asplund issue I have not permitted cross‑examination, having taken the view that this is a matter akin to a committal in the criminal jurisdiction. It is a matter in which I need not be satisfied as to the relative merits of the various arguments advanced and issues identified by each of the parties but must accept and assess the evidence given by the parties on its face and giving it full weight. Whether either party’s evidence is either proven or not proven is ultimately a matter for final hearing, if the matter is to proceed. In any event, the parties do not have any substantial factual dispute with respect to most issues.
The evidence
Each of the parents has filed an affidavit, which I have. As I have indicated, each of the parents has been cross-examined with respect to their evidence. The cross‑examination of each of the parents has been of particularly illuminating.
The substantial issue in relation to schooling is largely one of whether these children will attend a school and Preschool relatively proximate to their mother’s home or whether they will attend, on Mr Ryan’s application, a private school and a private pre-school, which are roughly halfway between their respective homes.
The evidence of Mr Ryan is that he wishes for [X] to attend, commencing with her enrolment 2012 and subject to a place being immediately available to her, the [P] School at [O], being a suburb near [P] and relatively in between these parents’ homes at [W] and [D], respectively.
The parties have each annexed a number of printouts from internet sites, such as Whereis and Google Maps, showing the track that would be taken from each of their homes to that school and the time that it is estimated, albeit as has been observed by Ms Janosi, those estimates do not take into account traffic or traffic conditions, to traverse that distance. It would appear on the common evidence of the parties, and subject to the above caveat, to be about 20 minutes from each parent’s home to the school and preschool proposed by Mr Ryan. Ultimately, the distance between the parents’ homes themselves is about
40 minutes, leaving allowances for travel and other conditions.
The basis upon which Mr Ryan proposes the above arrangement is that he expresses that he wants his daughters to have the best education they can and he asserts that their educational needs would best be met by them attending and obtaining education through this private school. He also proposes that it would be a matter of convenience being between the respective homes of each parent (and come November, 2011 the children’s home for one half of their time) and would enable the children to have a like routine in each household as regards travel to and from school. A number of other perceived advantages are put in Mr Ryan’s material.
For her part, Ms Janosi proposes that [X] would attend [M] School at [D], which is some little distance but only a matter of a few kilometres or so from her home.
Ms Janosi concedes that [M] is not the closest public school to her home, in fact, there being a school within sight of her front step. However, it is proposed that [M] School would provide the better alternative for [X], particularly as
a)A number of young people with whom she presently attends a preschool at [L] School are intending to go on to [M]; and,
b)A cousin of hers, [Z], is going to be attending [M] and she has, and I accept so, a close bond and relationship with her cousin.
It is proposed in relation to [Y], that she would attend the [L] Preschool and ultimately would go on to attend the same primary school as her sister, she being a year behind in enrolment.
Objections are raised by Ms Janosi to Mr Ryan’s proposals on a number of bases. Principal amongst those are
a)The cost – that however is rendered somewhat nugatory as the amended application filed by Mr Ryan proposes that he will be solely responsible for all fees incurred with respect to both [P] School and the private preschool he proposes, and he has further indicated, through his counsel, that he does not propose to make any application for credit under the Child Support (Registration and Collection) Act 1988 for such payments; and,
b)That it would involve travel by Ms Janosi which she does not wish to be engaged in, which would further disadvantage her in light of the fact that she is solely dependent upon Centrelink benefits and child support for her support at present, having left paid employment to care for the children.
Having left employment is not, again, a matter that I observe as a criticism of Ms Janosi but purely an accurate reflection of her evidence.
Ms Janosi has indicated that when the children are at school, she may well return to some employment, whether full time or part time, but that she has made the conscious choice that she wishes to be available on a full-time basis, in her words, 24/7, to care for the children while they are young. She is to be commended for that choice rather than criticised. However, that does mean that she is in somewhat parlous financial circumstances and there is some merit to what she puts: that even though the cost of driving to and from [O] from her home, a round trip of about 40 minutes each way and, accordingly, 80 minutes per day on days when she is required to undertake the travel, will incur and inconvenience and a cost to her, particularly with respect to petrol.
Other complaints or opposition that had been raised by Ms Janosi have, during her cross-examination, become less significant. That is particularly so in that Ms Janosi has conceded, both in her evidence and in closing submissions, that she doesn’t have a problem with the [P] School, or indeed the children attending that college, but her objection is that she doesn’t want [X] to be going to that school unless she can be guaranteed a placement at that school starting in 2012.
Mr Ryan is clear in his evidence that this is not yet guaranteed, although it is a possibility, and the delay that has occurred since his application was filed late last year, no doubt, has aggravated the uncertainty.
Accordingly, Mr Ryan’s proposal is that unless and until the place becomes available, his evidence being that a place will become available, it’s just a matter of whether it is immediately at the start of the 2012 school term or during the year, that she would attend a nearby public school, being [O] School.
The parties, and each of them, have annexed to their material and have spent some significant time in discussion between themselves and as part of these proceedings, copies of the NAPLAN test results for the schools that are available on the government website. Each has indicated that they have, for each school proposed considered the NAPLAN results and they have informed their decision making.
I propose to now address that portion of the evidence and the relevant legal principles that apply.
Discussion of Legal Principles
Each of these parents, under the orders which are presently in force, have equal and shared parental responsibility. Neither party proposes in these proceedings that this would change.
The Family Law Act 1975 (the Act) gives clear definition as to what is meant and expected by an order for equal shared parental responsibility.
Equal shared parental responsibility is presumed by s.61DA. These parents, however, have moved beyond the presumption and have entered into an order which neither party proposes would change. I hasten to add that whilst the Court is not bound by the parties’ proposals, (see U & U (2002) 211 CLR 238), I would not be satisfied in this case that the presumption could or should be displaced as neither parent has raised any complaint or criticism nor led evidence that would suggest that there could or would be a finding such as to indicate that the presumption does not apply or that there would or could be a finding such as to suggest that the presumption is rebutted.
The Act, by its terms, anticipates and expects that parents who have equal shared parental responsibility will make joint and equal decisions with respect to major issues decisions – see s.65DAC.
“Major issues decisions” are defined in s.4 of the legislation and of note with respect to these proceedings includes decisions as to the child’s education, both current and future. It also includes decisions with respect to religious and cultural upbringing, which perhaps has some relevance in light of the evidence raised by Ms Janosi that, whilst she is baptised as a Catholic, she has not practised that faith since adulthood and that she desires for her children to make free choices of their own in due course with respect to their religious upbringing and faith and that she does not wish the children, at this point in time, to be engaged in any form of indoctrination or other tutelage with respect to such matters.
That position as advanced by Ms Janosi is of some importance as one has in this country few Constitutionally-guaranteed freedoms and those which are generally referred to are implied. One at least arises by implication from the Constitutional provision that there is and is to be no prescribed State religion. Accordingly, each person is free to choose their own faith and their adherence to it.
Flowing from that and the nature of each shared parental responsibility, each parent is entitled to similarly make decisions about the faith and following of same with respect to their children.
As has been observed by the Full Court in cases such as Kelly & Kelly [2002] FamCA 379, as well as perhaps the most oft quoted authority with respect to children’s schooling, Re G: Children’s Schooling (2000) FLC 93‑025, and to quote the Full Court in that, in the latter decision:
Although there is no legal presumption in favour of the resident parent and, correspondingly, no hurdle or onus faced by the other parent that is not to say that the reality of the child residing predominantly with one parent has no relevance.
It was also observed that the most important element of the Act in making decisions of the nature called upon in this case, being a decision as to the children’s future schooling, is the paramountcy consideration previously set out in s.65E, and now s.65CA. Accordingly, the decision I am called upon to make with respect to these children’s schooling is based upon the child’s best interests being the primary consideration. That is not to suggest that parental views are irrelevant, far from it. It is also not to suggest that the impact, emotional, practical or otherwise, upon parents is irrelevant.
The role of parents in implementing arrangements and the inconvenience or burden placed upon them by any order made by the Court must have some relevance particularly as regards reasonable practicality (see s.65DAA(5)). Whilst the impact and effect on parents is relevant, in that detriment of impracticality or undue burdens will ultimately flow on to the children, in accordance with the paramountcy principle (see AIF & AIS (1999) 199 CLR 160), such considerations are largely subservient to the primacy of the child’s best interests.
I make clear at this point in time that in making this decision, and notwithstanding the evidence that each of the parties have raised, that there are a number of matters that are not for this Court to determine and, lest it should be suggested that the reasons given for this decision might offer support to any of the following propositions, I disabuse anyone who may come upon these reasons of those assumptions, being:
a)The Court’s role is not a comparison of the schools proposed by each parent
b)The NAPLAN tests which each parent has referred to are of some interest and relevance, but only in the context that each of the parents has given clear evidence that they have taken those results into account in formulating their own positions, and in particular, in the case of Ms Janosi, in her having rejected a previous proposal by Mr Ryan regarding the children attending [W] School which is very proximate to his home.
c)I do not place any weight or significance upon the NAPLAN tests. NAPLAN results have been within the public domain for some years, and since those tests were first published in the public domain, it has been made clear that they are not intended to reflect a “league table” by which schools will be compared. They have been relied upon to varying extents by these parents to judge the wealth, benefit or efficacy of each school to their child’s needs. The NAPLAN results are nothing more than a reportage of test results applied across the State and I do not place any weight upon them.
d)It is not this Court’s role to make any choice by way of preference or otherwise between public and private education as being more beneficial or of more assistance to children or, more importantly these children, in their education. The choice of school for a particular child is a matter of marrying up that child’s needs are against that which can be provided.
e)Not all children are the same. Indeed, they are discrete, inherently individual human beings and deserve to be treated as such, and there is no one educational solution, as any educator would accept and advocate, that will meet any given child’s needs. To the extent that this could be possible as regards, for instance, a child with specific special needs, I note that this is neither suggested nor any evidence going to that issue adduced.
f)This is not a decision which is focused upon trying to achieve a compromise which works for the parents. Any arrangement must work for the parents, at least to a level that it is manageable and sustainable. But this Court does not make decisions, and will not in this case, based upon trying to find a convenient model that meets parents’ availability and needs. The decision will be made, as the legislation requires, based upon what is the best arrangement, from the Court’s perspective, to meet the needs of these children, including, but not exclusively confined to, their educational needs.
There is a wealth of literature in the public domain which the Court is entitled to have regard to by virtue of s.144 of the Evidence Act 1995 That material indicates quite clearly that children’s academic and educational performance is affected and influenced by both internal and external stimuli – being matters coming from without the child and without the child’s family – as well as from within the child’s lived experience.
Matters such as socioeconomic status, the quality of teaching staff and resources, the quality of students by whom the child is surrounded, can all have an impact on the child’s educational achievement.
One is also entitled to view education in its broader context rather than focusing purely upon scholastic or academic success for education is not confined purely to those elements but also physical, social, moral and discipline considerations.
Of some real importance to a child’s education, as explained by social science literature, and commonly accepted by educators as some of the greatest impacts upon the likely benefit to a child of any educational environment, and ultimately, their likely academic success, are factors such the child’s own potential, the involvement and provision of assistance, guidance, encouragement and support of caregivers, as well as that which has occurred prior to the child commencing school in terms of their tutelage and support - so that by the time they engage in a more formal environment such as primary school, that they have appropriate reading and numeracy levels, appropriate communication skills.
A child’s educational achievement also depends on such basic matters as their nutritional needs and their discipline needs being met, which largely come from their parents, rather than the school that they attend. There is also a wealth of material available in the public domain which makes very clear the importance of the family environment and the involvement of both parents, and particularly, fathers.
In research by Sherlin in 1992, it was suggested that research showed that students performed better academically, had fewer discipline problems and become more responsible adults when their parents were actively involved in their learning. That research went on to indicate:
“But over the years, parent involvement has often meant mothers’ involvement. In schools, preschools and head start programs and within the family itself, it has been assumed often that mothers have primary responsibility for encouraging children’s learning and development. These assumptions miss the importance of fathers’ involvement.
In addition, the adverse effects of a father’s absence on the development of his child are well‑documented. Further research has made very clear that in two‑parent families, fathers are highly involved in children’s schooling (see, for example, the NCES study (1997)). Further studies have also revealed starkly that there is real scope and real predictability of children’s academic, social and psychosocial success based on high involvement of parents; that the more highly involved parents are, and the more likely others and children are to believe that their children will succeed and will, in fact, success (see again, the National Household Education Survey (1996))”
Highly involved parents provide a real benefit to children through both their involvement within the school and most importantly, their involvement before and after school, through matters such as ensuring attendance, ensuring motivation and assisting with homework and other projects (see the same study).
All of those matters are the issues that social science identifies and the issues that I am far more interested in than being guided by the “league table” as it is incorrectly and ill advisedly called, represented by the comparative NAPLAN scores.
The evidence of Ms Janosi makes clear she does not really object to [X] attending the [P] School. Her concern is really that [X] does not have a guaranteed place in 2012 and accordingly, she is concerned that [X] not then be required to move schools by going firstly to [O], or for that matter, [M], and then moving to the [P] School
Another concern that was raised by Ms Janosi related to the fact that [X] is suggested to not be a socially outgoing child (and that would not appear to be largely contested in the proceedings), and that [X] has a limited number of friends through the present kindergarten she attends at [L] School. It is suggested that she should be able to go on to [M] with the few friends from that school that are going there, although the evidence does not make clear that they are, in fact, going. It is also suggested that [Y] should have the opportunity to then attend the same preschool, [L], as did her sister.
There are a number of difficulties with those contentions. One is, as I have indicated, the absence of evidence to suggest or support the contention that [X] is, in fact, a child who will not cope with or adjust to change, or that indeed, the friends that she has made at the [L] Preschool will be going with her to [M]. Certainly, there is the clear evidence, and I accept it, that her cousin, [Z], is going to that school.
The more important and fundamental issue, however, arises from those portions of authorities such as Cowling& Cowling [1998] FamCA 19 and Griffiths & Griffiths (1981) FLC 91-064, Cilento & Cilento (1980) FLC 90-847 and Rainer & Rainer (1982) FLC 91-239 that were not struck down, or at least are conflicted, by post 2006 cases such as Goode & Goode (2006) FLCA 93-286 and Marvel & Marvel [2010] FamCAFC 101.
What is clear is that is that these parties have, since mid 2010, that is, for over a year now, been in dispute with each other about the school and preschool that both of these children will attend.
At the time that this dispute arose, in mid 2010, neither child was attending school or Pre School. In late 2010 Mr Ryan filed his application after having attended family dispute resolution with
Ms Janosi, and there having been no agreement. It was in that context, and whilst the matter was adjourned on Ms Janosi’s application and awaiting interim hearing in March of 2011, that [X] was, in fact, enrolled at and commenced attending [L] Preschool one day per week and from February, 2011.
Clearly, from that concession made by Ms Janosi, [X]’s enrolment and attendance at her present Pre School was a unilateral action which was contrary to the equal shared parental responsibility which these parents enjoy. The decision by Ms Janosi was also, to some extent, in frustration and subjugation of the application that was pending by
Mr Ryan before the court.
I do not place any weight upon what might otherwise be referred to as an established status quo of that attendance such as arose from
Ms Janosi’s unilateral decision and in place, in any event, for only a few months. However, nor do I seek to interfere in that placement for the remainder of the year because there is no suggestion, nor indeed any application, that that would change until the 2012 school year.
With respect to schooling, there is very little to set apart the proposals. As I have indicated I do not propose, for one moment, to be seen to be making a decision between public versus private education, nor between individual schools. I have no doubt that both of these schools provide excellent academic opportunities to their students.
I have clear and substantial evidence in relation to what is offered by [P] School and less so as regards [M] School. But that does not cause me to infer that [M] is not an excellent school or that it is in any way inferior to [P] School. They are simply different schools with different student cohorts and different staff. That does not make either better or worse than the other. However, I am not required to make decisions about the broader social context of which school is the “better school” however that phrase may be defined and by reference to whatever criteria,.
My decision is what the better arrangement for [X] and [Y] is.
In making that decision, and by reference to the case law to which I have referred, I am required to consider the relevant principles and objects as set out in s.60B and by ensuring the children have the benefit of both of their parents having a meaningful involvement in their lives, protecting them from physical or psychological harm, (which thankfully in this case is not an issue) and ensuring the children receive adequate and proper parenting. I am satisfied that both of these parents will provide adequate and proper parenting for their children. I am also required to ensure that parents fulfil their duties and meet their responsibilities regarding the care of their children.
The principles underlying those objects are that children have a right to know and be cared for by both of their parents, children have a right to spend time on a regular basis and communicate on a regular basis with both of their parents and others significant to their care. That is a matter which whilst not directly relevant to the decision that I am called upon to make, is a matter of some moment as regards the arrangements that are in place in Mr Ryan’s household. Mr Ryan lives with his parents, and indeed, his mother has attended court with him today no doubt to support her son, and as she has an active and abiding interest in the care and welfare of her grandchildren.
One of the criticisms that has been raised by Ms Janosi, whilst no order sought by her to address it, is that she and Mr Ryan, in her mind, have responsibility for caring for the children, and accordingly Ms Janosi had indicated that whilst Mr Ryan is working, and particularly when he is on call for work which might involve him in weekend work once a month, that she does not want the children staying with his parents. Instead it is suggested that he should contact her to resume care of the children if and whilst he is engaged in employment.
That again is on the basis of her belief that “it is not up to anyone else to look after our children but us”. However, that principle of the legislation, together with a number of others to which I will refer in due course, make clear that there are a broad number of people that it will benefit these children to have contact and involvement with. Indeed, in 2012, both of these children will have an even broader base of people involved in their care and guidance and who will influence them greatly, being school teachers and pre school teachers.
Accordingly, I am satisfied that even if such an application were made, such an order would neither be practical nor in the children’s best interests as the intention of the legislation, and in particular the objects and principles to which I have already referred, is that children will have involvement with their parents and others and that children will be part their parents’ life and household. For these children their involvement in their father’s life involves experiencing him working and being with and, at times cared for by, their grandparents.
If children are to have their parents have a meaningful involvement in their lives then children should experience the reality of their parents’ lives not some artificial construct whereby their parents are the only people of significance to them. To ignore the reality of arrangements that are in place for their care, which in Mr Ryan’s household includes his entire household and assistance and care by others, would not meet the objects of the Act and, absent evidence demonstrating detriment to these children of Mr Ryan, as an exercise of parental responsibility, making such arrangements during his work as he considers appropriate, would be an unnecessary and unwarranted intrusion..
The principles continue with a requirement that parents should share duties and responsibilities concerning the care, welfare and development of their children. Parents should also agree about future parenting which regrettably as regards the school issue, has not been possible in this case. Children also have a right to enjoy their culture, although that has not arisen as a matter of any significance in this case.
I am required to consider s.60CA in all that is done by this court, both substantively and procedurally and being the prescription that the best interests of the child are the paramount consideration, and as highlighted in Re G: Children’s Schooling and Kelly & Kelly as fundamental to decisions such as this.
I need not, for the purpose of this decision, consider the presumption of equal shares parental responsibility as a final order already provides for that but lest I am wrong in that regard I note that this has already been discussed above.
I am required to consider s.65DAA but not, for the purpose of this decision, so far as it mandates a consideration of equal or substantial and significant time before any other time arrangement.
I have regard to sub.s(5) of s.65DAA which sets out the matters that would inform my decision as to what is reasonably practical.
I am required to consider who far apart these parents live. As I have indicated the parents live about 40 minutes drive away from each other. Each has a car and a licence. It is certainly suggested in Ms Janosi’s case that she may come into some difficulty in the event that her car breaks down or requires some repair and that she may not be able to afford repairs immediately. There is no such contention on Mr Ryan’s part.
The distance apart that these parents live and their present ability to traverse that distance are manifest and demonstrated by arrangements that have been in place for the last three years.
The parents’ current and future capacity to implement an arrangement is relevant. There is no suggestion by either of these parents that they have been unable to traverse the distance between their respective homes to implement the time arrangements that have been in place since October 2008, or to continue to do so. No parent proposed or suggests that there would be any real issue in that regard.
Similarly, in relation to an ability to implement an arrangement for these children to attend either school proposed by either parent, there is no real suggestion that that cannot be done. These parents impress quite clearly as parents who are focussed on their children and who would do what is required to ensure that such things as are important for their children happen. Ms Janosi, to her credit, went so far as to not only concede that her issue with [P] School is not the school but the lack of guarantee of a placement or position commencing term 1 2012, but also by her indication that, if indeed, [X] and ultimately [Y] were attending that school and had friends in the area of the school, that she would have no difficulty transporting the children to visit and play with their friends. Ms Janosi indicated she has a friend at [omitted] which is all but an adjoining suburb of [O].
I am required to consider the parents’ current and future capacity to communicate with each other and resolve difficulties. It is suggested in Ms Janosi’s material that there are problems with communication. However, there is little to provide support to that contention. Clearly these parents have not been able to resolve the schooling issue. That is not, however, in my mind, a manifestation of an inability to communicate or resolve difficulties; it is an inability to resolve this difficulty. And the school issue is a matter of some real importance and contention to both parents and, according, it is entirely acceptable for them to have different views.
If these parents had remained an intact family they may and in all probability still would have strong and different views. They may approach the issue differently, resolve issues differently and possibly achieve a different outcome to that which they each propose now. But there is no evidence in the material that I have read, or which has been led before me today, that suggests any real basis for the assertion that there is any difficulty with communication.
I was taken by counsel for Mr Ryan to a number of portions of his affidavit, with respect to which Mr Ryan was not challenged, that indicate (at paragraph 60) that at changeovers the parents are able to speak and exchange information regarding the children, to confirm whether they have had their bath and their dinner and the like.
Similarly, it is suggested at paragraphs 77 and 78:
Communication between... Ms Janosi and I is usually reasonably good. The only times we have had difficulties is in relation to me spending holiday time with the children, and the difficulties I have had in relation to reaching agreement concerning the children’s schooling.
There is then discussion about children’s medical appointments, some of which have been attended by both parents, some not, and reference to an indication earlier this year when the child, [X] had a birthday party for a preschool friend on Mr Ryan’s weekend and both parents were able to attend the party together. There are a great many matters which come before this court where the suggestion that both parents would attend such a party would perhaps cause a pre-emptive notification to the relevant State welfare agency in relation to fears that would be held for all of the children attending the party in light of the conflict that would flow.
That is not so for these parents and as again was described by counsel for Mr Ryan, these are not parents who demonstrate a history of high conflict. They have a history of disagreements and they are relatively minor, save for the school issue which has been dealt with appropriately and in accordance with the Family Law Act by attending family dispute resolution prior to commencing proceedings and in accordance with not only the provisions of the Act but its spirit and philosophy consistent with the objects that parents should agree on arrangements, and should both have active input into those arrangements as they have both in outside discussion and in presenting their case to the court today. Save the school issue what is obvious is that such disagreements have arisen have been resolved by these parents and without external interference.
The impact that the proposed arrangements would have on the child is a matter which has some moment in this case. Ordinarily, the court would be reluctant to find real favour with an arrangement that proposed a midway point for the children’s schooling. However, there is some merit, in this case, to such an arrangement. That is particular so having regard to the care arrangements that will apply for these children come November, 2011 and with the commencement of school for [X] in 2012. From [X]’s birthday in November of this year, the children will live in a shared care arrangement, spending from Wednesday to Monday in one week and Wednesday to Friday in the other week in their father’s home, and from Friday to Wednesday in one week and from Monday to Wednesday in the other week in their mother’s home.
The equal shared care arrangement was put into place by consent by the orders made in October 2008. To that extent, if the children were to attend school proximate to either parent’s home, they would be involved in significant travel whenever they were in the care of the other parent. There would be greater practical difficulty and expense whenever they were in the care of the other parent. There would also be the potential that there would be greater difficulty in the other parent having as active a role in the child’s school and schooling as they may desire.
The midpoint arrangement has, in those circumstances and noting that this will involve the children in a consistency of routine in both households and in travel that is about 20 minutes each way, from each parent’s home, has some attraction which it may not otherwise have if the care arrangements between these parents were different.
I have raised with both Ms Janosi and counsel for Mr Ryan the collateral issue that is before the court today being the Rice & Asplund argument as to whether Ms Janosi’s application should be dismissed at this point in time or continue and, if it continued, the potential for further change for these young girls in the future. I am satisfied that, firstly, the Rice & Asplund test in all probability is not made out but, in any event, even if it were then I am satisfied that I should consider this application today based on its facts and circumstances as at today, and whilst any parenting application is, by its nature, a prospective exercise one can only project from the solid foundation of fact at the date of hearing.
I am then required to consider s.60CC titled “How a court determines what is in a child’s best interests”. The primary considerations provide for a consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents. The significance of that consideration is that it is consideration of a meaningful relationship rather than a time arrangement, and, further, it is a consideration of each parent’s meaningful relationship with the children, not any one parent.
The second primary consideration is the need to protect the child from physical or psychological harm, although, as I have observed, neither party has suggested that this consideration is in play in this case.
The additional considerations both inform the primary considerations and stand alone in their own right as considerations to the extent that they are relevant and as follows.
Views
Neither party seeks to lead any evidence regarding their children’s views at least as regards the school and preschool that they would attend and these children being not quite five and four years of age, respectively. That is to their credit and demonstrates a level of insight by each of these parents that they, having regard to the age of their children, are and should be the ones be making decisions for their children and not otherwise.
The one slight concern I have is that when questioned regarding the choice of a high school for the children, Ms Janosi had indicated that this would be a matter that the children would decide as they would then have a choice and be old enough and mature enough to decide.
I do not know how mature these children will be at the end of Year 6 but, in any event, I would suggest to both parents that the decision is for them, not their children. Certainly, and consistent with the International Convention on the Rights of the Child, their children may have a voice in that decision but to suggest that they would determine the issue is, perhaps, misguided.
The other potential benefit that is raised by Mr Ryan, in his case, is that the school he proposes is a kindergarten to Year 12 school, whereas if attending a public school the children would need to change schools at the end of Year 6 and transitioning to Year 7. I do not place any weight upon that consideration and note that irrespective of which of the proposals were to apply, these children will have educational choices available to them in the future.
Nature of the children’s of the children’s relationship with each parent and other persons, including grandparents or other relatives.
Clearly, these children have an excellent relationship with each of their parents and I am satisfied, based on Mr Ryan’s evidence and inferentially from their present residence arrangements, that they would also enjoy an excellent relationship with their paternal grandparents as well as with their maternal extended family, including Ms Janosi’s sister and [X] and [Y]’s cousin, [Z].
The Willingness and Ability of Each Parent to Facilitate and Encourage a Close and Continuing Relationship Between the Children and the Other Parent
Neither parent can be criticised in this regard. Neither parent complains of a history of non‑compliance with the existing orders. It could be suggested that Ms Janosi, by the fact she wishes to change the orders and reduce the time the children would spend with their father, demonstrates a lack of willingness to facilitate or encourage the relationship. That has not been suggested and that is to Mr Ryan’s credit as such a suggestion would have no factual foundation.
The fact that a parent holds a view as to what may be a better arrangement for a child, and brings an application to the court and advocates for change, does not mean that they demonstrate a lack of willingness or ability to facilitate a child’s relationship with the other parent. Ms Janosi complies, continues to comply and I have no doubt will continue to comply with whatever orders are in force with respect to these children, and the fact that she holds a contrary view and urges the court to intervene in the matter does not suggest a lack of willingness.
The Likely Effect of Change Including Separation from either Parent, or Any Other Child or Person
It is suggested, in Ms Janosi’s case, that if [X] were to attend [P] School rather than [M], that would mean that she would be separated from the few friends that she has made attending [L] Preschool. However, that cannot be a matter of significance as, on her own evidence, Ms Janosi indicates that if there were a guaranteed place commencing term 1, 2012, she would not oppose the proposal at all. Accordingly, to the extent that it is a change, I cannot be satisfied that it would be a detrimental change.
It is not proposed on either party’s application as regards the schooling issue that there would be any other separation from any person. There is also the issue that [X] would not be able to attend [M] School with her cousin, [Z], but again the above concession addresses that.
Practical Difficulty and Expense
This is raised in Ms Janosi’s case, particularly having regard to her meagre financial position. I am satisfied, however, that it would not be an inappropriate burden on one or either parents which could not be overcome.
There would be also practical difficulties in Mr Ryan’s household from time to time and he has identified them. He has indicated that they would be resolved either by his parents assisting or, in due course and, one would hope, when each of these children are quite a bit older than now that public transport would be available. Accordingly, I am not satisfied that would be preclude either party’s preferred school option.
Capacity of Each of the Parents and Any Other Person Caring for the Child to Provide for the Child’s Emotional and Intellectual Needs.
I am satisfied both parents are perfectly capable of doing so and will.
The Maturity, Sex, Lifestyle and Background of the Children
Some comment has been made to the fact that both of these parents are from a Christian background. Ms Janosi is from a Catholic background. It is less clear from Mr Ryan’s perspective, but I infer that he may or may not be Catholic, having regard to his Scottish heritage and the schools that he has attended. I may be wrong, but again, I am satisfied that the term “Christian background” is not necessarily reflective or embracive of all of the various sub‑branches of Christianity, such as Anglicanism, Protestantism, Presbyterianism, Methodists and Catholics.
However, consistent within all of those faiths, as well as, indeed, Judaism and Islam, there is common reference to at least the Old Testament, and indeed, reference to (and in the other faiths referred to not perhaps the same reliance placed upon), the New Testament.
In any event, I am not satisfied that the background of these parents bears any relationship to present reality for these children. And accordingly, it is not a particularly relevant consideration.
Aboriginality
There is no suggestion the children are from an Aboriginal or Torres Strait Islander background.
Parental Attitude
Again, neither parent can be criticised in this regard. There is some minor criticism and perhaps validly so, that Ms Janosi has unilaterally determined to enrol [X] at [L] Preschool when she clearly knew
Mr Ryan opposed this. However, rather than being critical I prefer to take the path of simply not placing any weight upon a perceived recently created status quo arising from those arrangements. In short, unilateral decisions by one parent do not set a precedent for what will occur in the future.
Clearly, this child should be attending some form of preschool in preparation for school to address the socialisation required for school and the like. It is regrettable that the decision has been unilateral, but it will not bind my decision-making. It has afforded [X] the opportunity for four months of having a Pre School experience being an experience which she otherwise would have been denied.
Neither parent can be substantially criticised for their attitude. It is, on one hand, perhaps suggestible that Mr Ryan is driving the agenda as to school. But certainly, in her evidence and submissions, the school proposed by Mr Ryan is conceded by Ms Janosi as an appropriate choice by Ms Janosi so I cannot be critical.
Similarly, if Mr Ryan were pressing his application as originally framed, that each parent pay half of the costs, or if it were suggested that he was going to then seek a credit from Child Support for that which he paid, whether half or all, I would have substantial criticism to make, and indeed, as observed to his counsel, it would be unlikely that his application could succeed.
But Mr Ryan has quite sensibly and appropriately and as a testament to him changed his application. This was put in submissions in the vernacular as “Putting his money where his mouth is” It is also perhaps an expression of his regard and concern for his children, and no doubt it is with some assistance from his parents that he has made the proposal that he has.
Family violence
There is no suggestion that there is family violence or family violence orders.
Avoiding future proceedings
This is a vexed issue in this case. I have also today to deal with the issue of whether I am satisfied that Ms Janosi has established a sufficient change in circumstance to warrant a reopening and re‑litigation of parenting arrangements.
I am satisfied that based on the isolated decision that I am required to make with respect to schooling, that I can conclude that matter by orders today that will avoid future proceedings.
The other course that would be open to me would be to defer this decision, subject to whatever may follow from, if it were to follow, a reopening of litigation. But that would simply leave the matter at large and I am not satisfied that would be in the interests of these parties, let alone their children.
Conclusion
I am satisfied that ultimately, orders with respect to schooling as proposed by Mr Ryan are the most appropriate arrangements I can put in place, being the arrangement that, at the very least, has a degree of mutual support, albeit with caveats and conditions from Ms Janosi’s perspective.
However, the arrangements proposed by Ms Janosi have no such mutuality of support and would accordingly fly in the face of both the objects and principles set out in s.60B and the general requirements which inform decision-making in this Court by reference to the Family Law Act 1975 and as interpreted in light of the International Convention on the Rights of the Child; see Minister of Immigration (1995) 183 CLR 273 & Teoh, Mabo v Queensland [1988] HCA 69 and B & B & Minister for Immigrationand Multicultural & Indigenous Affairs [2003] FamCA 621.
Rice & Asplund Issues
Also before the court today is an application set down as a discrete issue to determine whether the court is satisfied that there is a sufficient and substantial change in circumstances referable to the children’s best interests as would warrant a reopening of those issues.
That decision, in itself, is a Part VII determination and accordingly each of the provisions, which I have referred to above, would have application. I propose to consider those provisions by reference to the findings made above.
The principles established by the court in Rice & Asplund are longstanding.
Rice & Asplund is a decision of a superior court which, albeit decided some years ago, remains binding upon this court. If there is any doubt in that regard see, for example, Gilshannon & Giles [2008] FamCAFC 31, a decision of Warnick J sitting as the Full Court on the Family Court on appeal from a decision of a Federal Magistrate, and R & BH [2006] FamCA 919 being a decision of the Full Bench of the Family Court comprising Kay, Warnick and May, a most authoritative Full Bench, and arising from a decision of a single judge of the Family Court.
It is important to note in R & BH, the decision referred to immediately above, as well as Gilshannon & Giles that their Honours had particular regard to whether the Rice & Asplund test remained a current and valid test at the time of those decisions, which post-date the 2006 amendments.
Their Honours were clearly of the view that it remained good authority. Their Honours also referred, in the later case, to the decision of Kay J in F & B (2003) FamCA 596, and indicated a succinct expression of the principle as providing that:
One cannot re-litigate issues that have already been litigated in child welfare matters unless the circumstances are so changed as to make it appropriate for the matters to be re-litigated.
Their Honours also quoted Marshall SJ in Houston & Sedorkin, (1979) FLC 90-699, wherein his Honour said:
The inquiry before me is a positive one directed to the best interests of the child and the parties seeking the discharge of a current order for custody should place before the court evidence which demonstrates a material change in circumstances, such as to warrant the discharge or variation of the current order. This is of particular relevance in a case where a relatively short period of time has elapsed since the making of the current order.
In dealing with the latter portion of that particular authority I note that I am satisfied that a significant portion of time has passed since the last order was made. On its face, a period of not quite three years would not appear a significant period of time. However, chronology is a man-made construct and bears little relationship to the organic world of physics. At the time that the order was made [X] was not quite two years of age and [Y], as previously indicated, was 10 months of age. Accordingly, in the lives of these children, the vast majority of their life post dated the orders. On that basis one could not suggest, I would feel that an insignificant time has passed.
Their Honours also quoted, and accepted and endorsed as their own position, the decision of Collier J of this registry in King & Finneran [2001] FamCA 344. In that case, Collier J opined as follows:
The words, in any event, being the words used within the 2006 amendments to the Family Law Act and within Rice & Asplund requiring a substantial and significant change in circumstances, are not words of necessarily strict dictionary definition. In D & Y (1995) FLC 92-501, their Honours of the Full Court made a finding that a trial judge had a discretion whether to deal with a change of circumstances as a preliminary issue, or proceed to a full hearing.
I pause to indicate that it is on that basis that I am satisfied that I can and should deal with and entertain this application as a discrete issue today, as otherwise and save for the Full Court’s authority in the above-quoted case, this application could not be otherwise than an application for summary dismissal which has, both under s.17A of the Federal Magistrates Act 1999 and the Federal Court Legislation, a very different approach.
His Honour went on to indicate:
Their Honours indicated that in the circumstances that prevailed in that case, that is a nine-day hearing a little more than two years previously, that a judge would be extremely loathe to reopen the issue of custody except on strong grounds.
The word “strong” in that case is a departure from the previous nomenclature of “substantial or significant”, as used in earlier cases, or indeed as had been observed in the decision referred above of Houston & Sedorkin as a different test again. It is perhaps of benefit when the Full Court is consistent in their terminology, but in any event one need not become embroiled in an argument of semantics as to which is the better nomenclature.
His Honour continued:
It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to re litigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstances would result in a change to the orders. It merely indicates that the changed or fresh circumstances must be such that if taken into account there is a real likelihood that a change may follow.
In this case the changes that are alleged by Ms Janosi, she being the protagonist advocating that application, fall broadly within a number of categories.
It is suggested that at the time that these orders were made that the children were very young, and accordingly the passage of time of itself is something which should cause concern. Somewhat tangentially, and I use that expression as no criticism of Ms Janosi, she had indicated in opening that part of the change alleged was based upon well established psychological data, presumably in the public domain, and I accept so or at least that that is how it was put, which suggests that there would be a psychological risk to these children of being separated for extended periods from their primary carer. There are a number of elements of that proposition which warrant explanation.
Firstly, and whilst no such research was proffered or tendered by
Ms Janosi, I had raised at the outset that I would make reference to and would make available to all parties, and in particular Ms Janosi, readily available research regarding time and care arrangements, and particularly the indicators and contra indicators of the likely success of shared care arrangements for young children.
I have ultimately provided to the parties, and each of them, copies of two such studies being;
a)“Post separation parenting arrangements and developmental outcomes for infants and children, collected reports” authored by McIntosh, Smythe, Kelaher, Wells and Long in May 2010; and
b)“Some when’s hows and whys of shared care, what separating parents who spend equal time with their children say about shared parenting” authored by Smythe, Caruana and Ferro, 2003.
The latter of the above studies suggests in its conclusions and summary, that:
A number of conditions, relational and structural, appear necessary to make shared care a viable option for separated parents. These conditions include geographical proximity, the ability of parents to get along in terms of a businesslike working relationship as parents, child focused arrangements which keep children out of the middle, and with children’s activities forming an integral part of the way in which the parenting schedule is developed, a commitment by everyone to make shared care work, family friendly work practices especially for fathers, a degree of financial independence especially for mothers, and a degree of parental competence.
I have made that available to the parties and I intend to rely upon it to address what might otherwise be concerns that I might have as to the shared care arrangement which these parties have opted for, voluntarily. Subject to one caveat referred to in submissions by
Ms Janosi but not supported by evidence the shared care arrangement has worked between them.
I routinely incorporate a reference to social science in my decision-making and as it is of particular assistance with respect to young and pre school children. To impose an arrangement upon children of the ages of these children which, by reference to the above material, is not developmentally appropriate or which flies in the face of the things that one would expect to see in order to be able to predict the success of such an arrangement, would not be to make a decision that is in a child’s best interests.
However, in this case I refer to the above social science literature to highlight the absence of evidence which would contraindicate the likely future success of the arrangement in place in this case and agreed to be working well.
The parties do not live any significant distance apart. The parties are able to get along. The parties appear, from the arrangements that they have put in place and their ability to communicate, child focused. Each of the parents has to date, through their consent and their compliance with the arrangement, demonstrated a commitment to making the arrangement work. Mr Ryan gives some evidence that he has family friendly work practices both through his work hours and days and also through the assistance he has available through his household. The only real detriment in that regard is that clearly Ms Janosi does not have any real financial independence, but she does get by, including through the assistance of her brother from whom she rents a house. And both of these parents are entirely competent.
Accordingly, none of the matters which one would generally expect to see or be alleged to suggest the present arrangement is inappropriate are so alleged. The failings and inability to focus and communicate that would contra indicate shared care are absent from these parents.
I also pause to observe that each of the matters referred to as important to the success of shared care arrangements in meeting children’s needs, to the credit of the drafters of the present legislation, are by and large incorporated within the Act as mandatory considerations in s.65DAA(5).
While it is suggested that our legislation, either through its drafting or its application, ignores and does not have regard to established social science principles this clearly cannot be so when one considers the matter set out in s.65DAA(5) as against the conclusions produced in the above paper by Smythe, Caruana and Ferro. Indeed, they are directly referrable as follows:
a)Subsection (a), how far apart the parents live - geographical proximity, in the words of Smythe, et al.
b)The parents’ current and future capacity to implement the arrangement and their current and future capacity to communicate with each other and resolve difficulties - equates to the ability of parents to get along and establish child focused arrangements as set out by Smythe, et al.
c)The impact on the child - is referrable to the parents having child focused arrangements, as well as the children’s age and their developmental needs being met, which would also be met by family friendly work practices and parental competence.
Section 65DAA(5) codifies presently understood social science.
By reference to the collected reports document produced by McIntosh, et al, one can see that two studies have been conducted. One study, the first thereof, deals with school age children in high conflict separations. These children are neither school age nor do they have parents who are high conflict. None of the evidence would support such a finding, nor is it contended in the evidence. An absence of communication is suggested but I have dealt with that above.
The material produced in the second study, dealing with infants and toddlers in separated families in the general population, described with respect to two to three year old children, four to five year old children and children under two, the type of time arrangements that, by general reference, are age appropriate. It also describes, for the purpose of this exercise, the types of behaviours by children that one might expect to see if the arrangement was not meeting their children’s needs. It speaks in terms of children, if time arrangements are not appropriate to their emotional and developmental needs, demonstrating crying or hanging on to parents, worrying a lot, seeming serious, not reacting when hurt, often becoming upset, gagging or choking on food, refusing to eat, hitting, biting or kicking a parent.
Save some suggestion that these children, or either of them, can, in either household, be clingy at time, there is no suggestion that any of those behaviours are observed or demonstrated by these children in any context. And accordingly by reference to the research that supports those conclusions it would be difficult to find evidence suggesting any difficulty.
It is suggested by Ms Janosi that the children can be a little clingy with her for a brief period when they return. Mr Ryan for his part suggests that [Y] in particular can be clingy with him when she first comes to him. The totality of the evidence suggests that these are children whose emotional needs are being met and who are not children whose emotional needs are not being met by the present arrangement.
To that extent I am not satisfied that available social science – and I am conscious and accept and appreciate that I have referred only to a small portion of it - supports the contention that these children, in their lived experience, are not having their needs met, or conversely, are being impacted negatively by the arrangement presently in place.
Paragraphs 43 of Ms Janosi’s material and 46 of Mr Ryan’s material refer to periods of being clingy and unsettled but that is as far as it goes and it is suggested that this is for limited periods of time. This need not necessarily be taken to be out of the ordinary for children who, for whatever period of time, be it day visits or overnight, have been absent a parent. Indeed the fact that consistent behaviours are demonstrated in each household and that no other complaint is made by either parent in either household gives me some comfort that, indeed, these children are well settled and emotionally resolved to the arrangement that their parents have put in place by consent and which has operated for some three years.
Paragraph 45 of Ms Janosi’s material refers to comments made to her in consultation with the children’s GP. Some criticism is raised of that evidence, in Mr Ryan’s case, both as to issues of admissibility, but more pertinently on the basis that the existing orders require that each parent advise the other of medical appointments, so that they can each attend and Mr Ryan asserts he was not advised of any such appointment. The evidence in that paragraph provides:
I have spoken to my local GP [who is not named] about the issue and he said words to the effect of “The children are having separation anxiety issues because they are not with you. They probably think you are going somewhere.”
That paragraph would not, but for the provisions of s.69ZT, be admissible as it is clearly hearsay. However, s.69ZT(1) excludes the application of certain portions of the Evidence Act 1995. That is, of course, subject to the caveat that the Court can apply those rules of evidence strictly, should the Court consider it appropriate. Secondly and more importantly in sub.s (2) even such material is permitted then the Court may give such weight, if any, as it thinks fit to evidence admitted as a consequence of the provision, on the basis that it is hearsay, untestable and perhaps, more importantly, is without any context. I have some difficulty placing any real weight upon it at all.
It is not disputed between these parents that these children demonstrate some period of being clingy when they return to each parent, but there is nothing in the evidence that suggests that that is out of the ordinary, is extreme, or has ever occasioned any more serious concern than the suggestion that on one unspecified occasion that Ms Janosi has spoken with an unnamed GP regarding it. There is no suggestion that the GP has given other than general advice in response to what was said to him, no suggestion that he has met with the children, performed any testing, or engaged in any other process. Accordingly, I cannot be satisfied that the behaviours that are described as the children being clingy could possibly be a substantial and significant change in circumstances such as would warrant these parents being put through the emotionally and financially depleting exercise of further litigation.
It is also suggested that there is a lack of routine between the children’s households when they are in their mother’s and father’s care. However, in that regard the suggestions with respect to the absence of routine are minor. Ms Janosi conceded in her evidence that she is not aware of the routine, if any, within Mr Ryan’s household, and accordingly it is impossible for me to ascertain the veracity or otherwise of that proposition.
Lastly, there is a suggestion of poor communication and I have addressed above the evidence with respect to communication between these parties.
There are no AVOs, there are no suggestions of matters that would give rise to or warrant application for AVOs. There is no suggestion that communication between the parents is other than, at worst, businesslike and at best, cordial and cooperative, although there is some conflict – suggested by Mr Ryan –around discussion of block periods of time for holidays, which required negotiation at this point between the parents, or the schooling issue which has not been able to be resolved through either discussion or family dispute resolution.
Having regard to the authorities to which I have referred, I am satisfied that I could not find a substantial and significant or strong change in circumstances such as would reopen the issue.
I am particularly influenced by Warnick Js decision, to which I have referred in Gilshannon & Giles, and his earlier decision referred to within that judgment in SPS & PLS (2008) FamCAFC 16, that Rice & Asplund is still “in effect good law”. I
The changes to the Act in 2006 would, in my mind, go further than expressed by his Honour of Rice & Asplund still being “good law” and the basis of the authority would, in fact, be strengthened having regard to the philosophy of that legislation to return decision-making to parents, to avoid disputes between parents, and Part VII, when taken as a whole, including those portions contained within subdivision E dealing with family dispute resolution, is now quite clear that parents should own responsibility for decision‑making for their children, and the Court should become involved if, and only if, it is seriously warranted and in a child’s overall best interests.
That is also consistent with the international Convention on the Rights of the Child and with each international instrument which recognises the family unit as the fundamental unit of society and with respect to which there should be as little interference by the State (in this case comprising court process) as is possible. Such matters have been dealt with, not only within the context of our domestic legal system, (again see Teoh, Mabo and B & B & Minister for Immigration and Multicultural & Indigenous Affairs) but have also been addressed in international jurisprudence, including decisions by the European Court of Human Rights on exactly that issue.
The net effect of this nation’s international obligations by execution of the International Convention on the Rights of the Child and other such treaties, covenants and instruments, is to pay more than lip service to the statement of principle that the family is the fundamental unit of society, and to interference should not occur and be invoked by a litigant, unless and until warranted and by application of the Rice & Asplund principle to not revisit issues previously determined in the absence of clear and compelling changes of circumstances of a serious, substantial and significant nature Those international instruments together with the 2006 amendments would, again, in my mind, strengthen the Court’s position to not engage its processes and inflict them upon disputes, unless they are of such a magnitude that it is fundamentally required to meet a child’s best interests.
I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 5 August 2011
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