Samworth and Beasley
[2010] FMCAfam 36
•3 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMWORTH & BEASLEY | [2010] FMCAfam 36 |
| FAMILY LAW – Parenting orders – child aged 9 years 6 months – child now a member of a blended family in father’s household – father seeking equally shared time resisted by the mother – relationship with half siblings in both the mother’s household to be considered – wishes of the child – historically poor ability of the parents to communicate constructively – consideration of “meaningful relationship” – consideration and relevance of research material relating to shared parental care where parental conflict is high – best interests of the child. |
| Family Law Act 1975 (Cth), Part VII |
| P v P [2006] FMCAfam 518 Goode & Goode [2006] Fam CA 1346; 36 Fam LR 422; FLC 93-286 Mazorski & Albright (2007) 37 Fam LR 518; at 526 G & C [2006] FAM CA 994 McCall & Clark [2009] Fam CAFC 92 |
| Applicant: | MR SAMWORTH |
| Respondent: | MS BEASLEY |
| File Number: | NCC 3810 of 2007 |
| Judgment of: | Coakes FM |
| Hearing dates: | 16, 17 & 18 March & 18 May 2009 |
| Date of Last Submission: | 18 May 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 3 March 2010 |
REPRESENTATION
| Solicitor for the Applicant | Ms Hendy |
| Solicitors for the Applicant: | GWM Lawyers |
| Solicitor for the Respondent | Mr K Byrnes |
| Solicitors for the Respondent: | Byrnes & Cox Laywers |
ORDERS
That the Orders made in the Local Court at [P] on 1 September 2006 relating to children are discharged.
The parents have equal shared parental responsibility for the child [Z] born [in] 1999 (“[Z]”).
Each parent is to have sole responsibility for making decisions concerning [Z]’s day to day care, welfare and development whilst she is in his or her care respectively.
That the parents are to consult each other in relation to any long term issue in relation to [Z] and are to make a genuine effort to come to a joint decision about issues concerning her care, welfare and development of a long term nature which include (but is not limited to) issues of that nature about:
(a)Her education, both current and future;
(b)Her religious and cultural upbringing;
(c)Her health;
(d)Her name;
(e)Changes to the living arrangements for her that make it significantly more difficult for her to spend time with a parent.
That the mother have sole parental responsibility for the children [X] born [in] 1993 (“[X]”) and [Y] born [in] 1994 (“[Y]”).
That [X] and [Y] live with the mother.
That [X] and [Y] spend time with the father as is arranged between the father and each of them.
That during school terms at the school attended by [Z], [Z] spend equal time with her respective parents and that she live with each of the parents for alternating periods each of one week during the school term commencing at the conclusion of school Monday afternoon and ending at the conclusion of school the following Monday.
That Order 8 above is suspended during school holidays during which time [Z] is to spend one half of each school holiday period with each parent as agreed in writing between the parents not later than one week prior to the commencement of each school holiday period, which commencement day is deemed to occur on the first day of the school holiday period immediately following the last day of the preceding school term, but in the absence of such agreement with the father for the first half of each school holiday period in those holiday periods which commence in an even numbered year, and the second half of such holiday periods with the mother, and with the mother for the first half of each such holiday period which commences in an odd numbered year and with the second half to be with the father.
The periods during which [Z] is living with each parent as referred to above is suspended, in so far as it is necessary or are varied to ensure [Z]:
(a)Live with the father from 12.00noon on Christmas Day until 6.00pm on Boxing Day in the year 2011 and each subsequent odd numbered year;
(b)With the mother from 12.00noon on Christmas Day until 6.00pm on Boxing Day commencing in the year 2010 and each subsequent even numbered year thereafter.
(c)Live with the father on Father’s Day weekend from after school on the Friday until the conclusion of school the following Monday if not otherwise living with the father pursuant to these Orders.
(d)With the mother on Mother’s Day weekend, if [Z] is not otherwise living with the mother for such period and from the conclusion of school on the Friday until the conclusion of school the following Monday.
That each parent is to advise the other as soon as possible in the event of any of the following occurring:
(a)[Z] being seriously injured or falling seriously ill.
(b)[Z] requiring urgent medical treatment from a doctor or ambulance crew;
(c)[Z] being admitted to Hospital.
That each parent is to inform the other of any change of particulars of that parent’s residential address, landline telephone number and mobile telephone number and within 24 hours of any such change occurring.
Both parents are to encourage and permit [Z] to contact the parent with whom she is not then living and at any other time requested by [Z] with such communication to be either by telephone, email, text message or any other form of written communication.
That each parent is restrained from enrolling [Z] in any school activity to occur outside normal school hours or any extra curricular activity to occur on a weekday or either a Saturday or Sunday without first discussing the proposed activity and possible enrolment with the other parent with a view to reaching an agreement, and not to occur unless so agreed, unless such activity is to occur only when [Z] is living with the parent who proposes such enrolment or activity.
That both parents are to authorise in writing the Principal of the school attended by [Z] from time to time to supply to the other parent copies of school reports, notices relating to pupils at such school, school newsletters, invitations to any sporting or social function, notices of and invitations to parent teacher interviews and any other notices directed to parents of children attending such school.
Within seven (7) days of the date of these Orders the father is to purchase a Communication Book for use by the parents and to enable them to communicate with each other about the needs and wishes of [Z] and to exchange details of importance relating to matters of her daily care, welfare, education, medical treatment and sporting commitments, such book to travel with [Z] at changeover and in a sealed envelope.
Each parent is restrained from denigrating the other parent in the presence or hearing of [Z] including making rude comments, making insulting comments, swearing at, shouting at and making any obscene gesture and each parent is further restrained from causing or permitting any other person to engage in such behaviour in the presence of [Z].
The parent with whom [Z] has been living for the second half of the school holiday period immediately preceding the commencement of a new school term is to take [Z] to school on the first day of the new school term, in relation to the commencement of Order 8 referred to above and in each new school term, [Z] is to live for the first week with the parent with whom she did not spend the second half of the immediately preceding school holiday period.
The parent with whom [Z] is to live for the first half of any school holiday period is to collect [Z] from her school at the end of the last day of school term.
Implementation of changeovers during school holiday periods is to be effected at Interrelate [P] during the ordinary operating hours of such centre, but if such centre is not open, and implementation is to take place other than at [Z]’s school then such implementation is to occur either at [locations omitted], as the parties shall agree in writing but in default of agreement, [omitted].
Within twenty eight (28) days of the date of these Orders each of the parents is to contact the Manager of Interrelate at [P] to arrange a single interview with the same Family Dispute Counsellor or Consultant but each on separate occasions, and not the mother’s counsellor, to discuss and prepare a written protocol for discussion and exchange of information about any matters relating to the children.
That both parents are to consult with a Family Dispute Resolution Practitioner at a Family Relationship Centre or elsewhere or such other consultant as may be agreed between the parents to assist with:
(a)Resolving any dispute between the parents as to the terms or operation of these Orders;
(b)Reaching agreement about any changes to be made to these Orders arising from any change in the needs or circumstances of [Z] or the parents, in the event that any dispute or disagreement arises concerning such changes.
That neither parent is to make an application to the Court for variation of these Orders to take account of the matters specified in Order 21(b) without first having complied with Order 21 in relation to such matters.
That each parent is restrained from changing the child’s place of residence to a place outside a radius of thirty (30) kilometres from the main post office in [P].
That it is determined pursuant to s66M of the Family Law Act 1975 that it is proper for MR SAMWORTH, the step-parent of [X] born [in] 1993 and [Y] born [in] 1994 (“[X] and [Y]”) to have a duty of maintaining his step children [X] and [Y].
IT IS NOTED that publication of this judgment under the pseudonym Samworth & Beasley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3810 of 2007
| MR SAMWORTH |
Applicant
And
| MS BEASLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents have one child of their relationship namely [Z] born [in] 1999 (“[Z]”) who is now ten years and three months of age (nine and a half years at the time of the hearing) and who has lived predominately with her mother since her parents separated in May 2006. Since then, [Z] has spent frequent time with her father, both in accordance with existing orders and additional time by agreement between the parents.
The dispute between the parents concerning [Z] is to be considered against the family constellation with three older children in the mother’s household by a previous relationship and half siblings to [Z], and three children of the father’s present partner, all of whom are older than [Z] and to whom she is not related.
The children in the mother’s household are [W] born [in] 1992 (“[W]”) who has left school and who has spent some time living with the father but has now returned to his mother’s home to live, apparently on a permanent basis and [X] born [in] 1993 (“[X]”) and [Y] born [in] 1994 (“[Y]”). [W], [X] and [Y] do not spend any time with their biological father, Mr S. On the evidence before me, it is clear that the father in these proceedings played a very significant role in the parenting of [W], [X] and [Y] and that they regarded him as their psychological father during the time the parents lived together.
In the father’s household, his present partner has three children [A] aged fourteen years, [B] aged thirteen years and [C] aged eleven years who enjoy a shared care arrangement with their biological father, broadly week about.
The father filed his application for parenting Orders on 13 June 2008, at that time seeking Orders that [Z] live with him and spend time with the mother each alternate weekend, half the school holidays and other special occasions. The father subsequently filed an amended application on 24 September 2008.
The mother filed her response on 14 August 2008 seeking Orders that the father’s application be dismissed and that existing parenting Orders be confirmed.
The respective applications at the hearing
It is the father’s application that [Z] live with each parent week about during school terms and share school holidays equally. Whilst the father was seeking an Order that [W] live with him, [W] had returned to the mother’s home in February 2009 and the father has acquiesced in that decision seeking only that [W] spend some time with him as they agree. Similarly, the father asks for an Order that [X] and [Y] spend time with him as agreed between the parents.
The father seeks a number of other practical parenting Orders.
The mother’s application is found in the outline of case document prepared by her Solicitors, and asks that the Orders of 1 September 2006 be discharged with [W], [X], [Y] and [Z] to live with her and that she have sole parental responsibility for them. The mother proposes that [W], [X] and [Y] spend time with the father as they agree between them.
The mother proposes that the father spend time with [Z] during school terms fortnightly from after school on Friday until the commencement of school on Monday and from after school each Wednesday until the commencement of school on Thursday during school terms, and for half the school holidays with appropriate arrangements for Christmas, Father’s Day and Mother’s Day. The mother also seeks a declaration pursuant to s.66M of the Act that the father has a duty to maintain [X] and [Y].
Background facts
The father is now forty three years of age (forty two years at the time of hearing) and is a self employed [tradesman] and a sole trader with a business in [P] generally working from 8.00am to 5.00pm five days a week.
The mother is forty four years of age and is qualified [in the healthcare industry] working shift work casually.
The parties met in mid 1996, started to live together in August 1997 and were married [in] 1999. Separation occurred on 1 May 2006 and an Order for a divorce was made on 12 February 2008 to become effective in one month.
[Z] is the only child of the marriage and she was born [in] 1999.
The mother met her first husband, Mr S in about 1990 and married him in 1991 subsequently giving birth to [W] in 1992, [X] in 1993 and [Y] in 1994.The family comprising the mother and Mr S and the three children moved to [P] in about December of 1994 and subsequently separated in about 1995.
The mother asserts that [W], [X] and [Y] have not had any contact with their biological father since about 2000.
In mid 2006 the father met his present partner, Ms R who is about forty years of age and in regular employment [in the administration industry].
Ms R has three children of her previous relationship [A], [B] and [C] to whom I have made reference earlier in these short reasons for judgment. The father and Ms R commenced cohabitation in November 2007 and live in her home in [P].
The mother lived with Mr O between April and July 2008 and whilst they remain friends, they have not resumed cohabitation. Mr O is forty seven years of age and lives in [L], a community to the south of [P].
On 1 September 2006, in the Local Court at [P] the parents agreed upon final Orders both in relation to parenting and property. Those Orders provided that [W], [X], [Y] and [Z] live with the mother and spend time with and communicate with the father as agreed but failing agreement each alternate weekend from after school on Friday until 5.00pm on Sunday and for the second half of each school holidays and on other special occasions. Those Orders provided that the mother and the children could relocate to [G] or to a different location no more than four hours drive from [P] provided that alternate times be agreed for the father to spend time with the children which also allowed for them to participate in weekend sporting activities.
Pursuant to the property Orders, the mother retained the former matrimonial home, which she continues to occupy in [P] and is entitled to occupy until [Z] reaches the age of eighteen years, or the mother remarries or the house is rented or if the house is sold with the father having the right to register a caveat over the property to protect the mother’s liability to him in an amount of $70,000.00 which is payable on or before the occurrence of any of the conditions pursuant to which the mother continues to occupy the home.
At the end of October 2008 the parents agreed that changeovers for [Z] occur at Interrelate and that the father’s weekend time with her extend to the Monday morning.
[W] has moved between the parents respective homes on several occasions. In early August 2007 he moved from the mother’s home to the father’s home and in February 2009 [W] moved back to the mother’s home and left school.
The evidence
The father relied upon the following affidavits:
a)His affidavit affirmed 10 June and filed 13 June 2008;
b)The affidavit of his partner Ms R sworn 10 June and filed 13 June 2008;
c)His affidavit affirmed 19 and filed 20 August 2008;
d)The affidavit of his partner Ms R sworn 14 and filed 18 November 2008;
e)His affidavit affirmed 14 November and filed 18 November 2008;
f)His affidavit affirmed 10 March and filed 11 March 2009.
The mother relied upon the following affidavits:
a)Her affidavit sworn 13 August and filed 14 August 2008;
b)The affidavit of Mr O sworn 12 August and filed 14 August 2008;
c)Her affidavit sworn 12 February and filed 13 February 2009;
d)The affidavit of Mr O sworn 19 February and filed 20 February 2009;
e)Her affidavit sworn 10 March and filed 11 March 2009;
I also had the benefit of a family report prepared by Dr Julianne Greenfield, a Regulation 7 Family Consultant and published on
20 January 2009. Dr Greenfield interviewed the parents and Ms R and all four children on 8 December 2008.
There were a number of exhibits.
I also had the benefit of listening to and observing the parents and their witnesses required to give evidence both in chief and in cross examination.
I also had the benefit of listening to the evidence of Dr Greenfield who was cross examined by the legal representatives for both parents.
The issues
It seems to me the issues are these;
a)What is the nature of the relationship between [Z] and her mother and her half siblings in the mother’s household.
b)What is the nature of the relationship between [Z] and her father, Ms R and the children now living in the father’s household.
c)
What weight is to be attached to [Z]’s wishes as expressed to
Dr Greenfield.
d)What is the significance, if any, of [Z]’s relationship with [W] and the consequence for [Z], if any, of living partially absent from him under the circumstances proposed by the father.
e)What are the appropriate parenting arrangements for [Z] and is an equally shared arrangement in her best interests.
f)To what extent, if any, should the parents poor relationship and poor ability to communicate militate against an equally shared arrangement for her.
The relevant law
I have regard to Part VII of the Family Law Act 1975 and in particular the amendments which came into being following the Family Law Amendment (Shared Parental Responsibility) Act2006. The significant sections are, and to which I must have regard, s.60CA which provides that:
“In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration”.
I must consider, in determining a child's best interests, the matters set out in s.60CC. They are broken down into two 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.”
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to s.60CC(4).
I must also have regard to s.60B which sets out the objects of part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy 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.
The relevance of the presumption of shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an Order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an Order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[1].
[1] Subsection 65 DAA
In P v P[2], Brown FM gave very careful consideration to the word "meaningful" in the context of s.60CC(2)(a) and said as follows:
“256. In the context of s.60CC(2)(a) the use of the word "meaningful" by the Legislature is interesting. The ordinary definition of "meaning" and "meaningful" when it is attached to an idea or some object is denoting of the significance or importance of that idea or object. It seems clear that the Court is only to consider whether a relationship is meaningful to the child concerned after it has assessed the benefit or advantage such a relationship will bestow on the child concerned. Accordingly, it seems clear that the Legislature intends the Court to consider the significance of the child concerned having a relationship with both his or her parents in a positive or beneficial sense.
257. The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered meaningful in the context of a parenting order is provided by s.65DAA. The emphasis is on time, but not merely on the extent of that time but rather on its quality and the manner of its utilisation with the child or children concerned. In this context the Court is to consider the parent concerned spending time that falls on weekends, holidays, week days and perhaps most importantly time that allows that parent to be involved in a child's daily routine and occasions of particular significance for both the parent and child.
258. The rationale of s.65DAA is that children benefit in an emotional and developmental sense from feeling that their parents are involved in all aspects of their care which flows from them being exposed to their parents in a variety of settings. These settings include fun activities on holidays and weekends, essentially interacting with their parents in a relaxed setting as well as the day to day reality of the child's life such as supervising homework and bed times, imposing day to day discipline, collection and delivery to school and sports training, essentially spending time with parents in more mundane situations. In this way the child is likely to have a more balanced and richer relationship with the parents concerned.”
[2] P v P [2006] FMCAfam 518 at para.256 to 258
I propose to adopt my brother’s interpretation of meaningful.
It seems to me that there is a shift toward the Court being required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode v Goode[3].
[3] Goode & Goode [2006] Fam CA 1346; 36 Fam LR 422; FLC 93-286;
I have considered also the decision in Mazorski and Albright[4], a case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantities one. Quantities concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant”.
[4] Mazorski & Albright (2007) 37 Fam LR 518; at 526
Section 60B (1) (a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.
Her Honour Justice Bennett discussed the terminology in G & C[5] finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[5] G & C [2006] FAM CA 994
In the recent Full Court decision of McCall & Clark[6], their Honours Bryant, Faulks and Boland concluded that there are three possible interpretations of s60CC(2)(a), at paragraph 118:
“One interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
A second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (“the presumption approach”); and
The third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”.
[6] McCall & Clark [2009] Fam CAFC 92
The Full Court concluded that the preferred interpretation is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant[7].
[7] Paragraph 119
The Full Court rejected the interpretation in sub paragraph (b) finding that if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[8].
[8] Paragraph 120
The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski, and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).
The Full Court also said[9]:
“In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”
[9] Paragraph 122
Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case. It seems to me the amending legislation provides a new focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.
The family report
I was greatly assisted by Dr Greenfield who prepared the Family Report and gave oral evidence and was cross examined extensively by Mr Byrnes for the mother. Dr Greenfield, in my view, is particularly well qualified and has extensive experience in the field of assessing and evaluating children’s relationships by interview and observation of them with their parents and significant other adults and relevant children.
Dr Greenfield has many years of experience in this field. Her qualifications and experience were not the subject of any challenge or criticism in these proceedings.
The family report by Dr Greenfield identifies accurately in my view the nature of the dispute between the parents, their relationship, and the perception by each of the other[10].
[10] Paragraphs 11 -25 inclusive of the Family Report
Dr Greenfield describes [Z] as a “poised and sociable young girl who would like to be a lawyer or a jazz teacher when she leaves school”[11].
[11] Paragraph 32 of the Family Report
I conclude from [Z]’s interview with Dr Greenfield that [Z] would like to spend equal time with each of her parents. [Z] explained to
Dr Greenfield that “she misses her Dad”[12].
[12] Paragraph 35 of the Family Report
In her evaluation, Dr Greenfield expressed a view that there is no doubt that [Z] would like to live alternate weeks with her father and brother [W][13]. By the time of the hearing, [W] had moved from the father’s home to the mother’s home. Dr Greenfield was of the view that [Z] had a positive attachment to both parents, missed her father and nominated her brother [W] as her favourite person and the one to whom she feels the closest. Dr Greenfield observes that the doubt that has arisen in [Z]’s mind about shared care relates to the mother’s efforts to persuade her that it will not work. Dr Greenfield makes the observation that these arguments relate primarily to the mother’s view that cooperation between the parties is impossible and conflict is inevitable[14].
[13] Paragraph 61 of the Family Report
[14] Paragraph 61 of the Family Report
Dr Greenfield recommended as follows:
a)That [Z] live week about with each of her parents;
b)That handovers take place at the school every Monday afternoon and at Interrelate during school holidays;
c)That in the event that the mother relocates out of [P] and its environs, [Z] primarily resides with her father and spends time with her mother every second weekend;
d)That in the event that the Court finds the parental dynamics too conflictual for shared care to be viable that [Z] primarily resides with her father.
e)That [Z] is permitted to contact either of her parents by telephone when she is in the care of the other parent.
f)That the parents have one off counselling (separately with the same counsellor) (not the mother’s regular counsellor) at Interrelate to discuss protocols for exchanging information about the children.
g)That the father give consideration to spending some 1-on-1 with [X] and [Y] say once a month for dinner or a coffee meeting.
The Family report interviews took place at a time when [W] was living with the father. Dr Greenfield was made aware at the hearing of his move back to his mother’s home.
It transpired that Dr Greenfield had not read all the affidavits at the time she prepared her report and at the time of cross-examination by Mr Byrnes. Copies were sent to her and the cross-examination resumed.
Discussion
The principle issue I am required to decide in this case is the nature and extent of the parental conflict and whether it precludes an equally shared care arrangement for [Z].
The tenor of the father’s written evidence is that he had substantial involvement with the care and upbringing of all four children before separation, and that following the Orders in September 2006 there had been some flexibility in making different arrangements for their care.
By early 2007 the father was concerned as to the mother’s ability to care for the children deposing to a number of matters including [W]’s arguments with his mother, [Y]’s complaint of being assaulted by her mother, the mother being absent from the home or unavailable for the children and increasing difficulty in organising co-operative parenting. The father perceived his concerns to be justified when [W] decided to live with him permanently in August 2007.
Following a number of incidents between the father and the mother, or the mother and her partner Mr. O, the father commenced these proceedings in June 2008 deposing to increasing difficulties in spending time with or talking to [Z], concerns about her care, and a desire to put [Z]’s wishes in place to spend week about with each of her parents.
The tenor of the mother’s written evidence is to the effect that she denies the extent of the father’s involvement with the children before separation, that following separation he has undermined her parenting decisions and her relationship with the children, that he is abusive, intimidating and threatening toward her and that communication is impossible.
The mother deposes to [Y]’s considerable developmental, behavioural and educational difficulties and the parenting challenge she presents. For a number of reasons the mother decided it was not appropriate for [Y] to spend time with the father after July 2007. [X] had stopped seeing the father in January 2007.
The mother perceived the father was motivated to bring his application to avoid paying child support.
The mother does not support the recommendations of Dr Greenfield and believes a shared care arrangement is doomed to failure.
The Parents Relationship with each other
It is constructive to look at three of the many incidents of which the parents give evidence to illustrate their difficulties in communication with each other.
The first occurred at the end of March 2008 when the mother decided to rent or sell her home at Property B consequent upon her decision to move in to Mr. O’s home, which triggered the sale provisions of the property orders made on 1 September 2006 in default of the mother being able to pay the father $70,000.00.
The evidence establishes the father agreed in discussions with the mother to the listing agent she proposed, but the mother required written confirmation from the father because, as she said in cross-examination, she felt she could not trust the father. The orders did not require a written agreement.
The mother and Mr O went to the father’s home with a prepared document, the father found the terms of the document unacceptable, he prepared a different document, it was Earth Hour and the father declined to turn on the outside porch light at the request of the mother and declined to return the mother’s document to her. An argument ensued. The mother became angry and swore at the father. When leaving, the mother claims she broke a pot plant accidentally whereas the father claims it was deliberate.
I find that neither parent on this occasion was able to be objective with the other to resolve what was a very simple issue and which was easily capable of resolution. Rather, each became antagonistic toward the other and behaved poorly. It was fortunate that the only child exposed to this argument was [W].
The second incident occurred on [Z]’s ninth birthday [in] 2008. The preceding evening [Z] phoned her father and asked to see him on her birthday and he collected her from school intending to return her to the mother at 7.30pm as [Z] had requested. The father asserts he had no conversation with the mother to make this arrangement assuming that because [Z] had made the request, it was with the mother’s knowledge and consent.
The mother deposed to [Z] asking her before [birthday date omitted] whether she could see her Dad on her birthday, to which the mother agreed, and then telephoning the father to make arrangements asking him to drop her off at the top of her drive at 7.30pm[15]. The father denied both in his affidavit and in cross-examination that such conversation had taken place. I prefer the father’s evidence. The father assumed that he would return [Z] to the mother at McDonald’s Restaurant at 7.30pm since that had been the agreed changeover point from mid June at the mother’s request.
[15] Paragraphs 27 and 28 mother’s affidavit sworn 12.2.09 filed 13.2.09.
What then followed that evening was a disaster for [Z]. Whilst there are different versions of what was said and at what time and the evidence does not enable me to make findings as to which version is to be preferred, I am satisfied the mother was aware the father was taking [Z] to McDonalds, which the father did, but the mother did not go there to meet her at the times the father was there. The father took [Z] to his home refusing to take her to the mother’s home. The mother went to the father’s home and demanded [Z] be returned to her. The father refused. The mother called the police which culminated in a police officer checking on [Z] in bed, and [Z] staying the night. [Z] had become very upset during this incident.
I find on the evidence that neither parent behaved responsibly on this occasion, and that both behaved badly with no insight whatsoever as to the affect on [Z] of such bad parental behaviour and the failure to communicate with each other constructively to solve the problem. There were a number of solutions which each could have adopted as the difficulties unfolded, but failed to do so, preferring instead to engage in antagonistic behaviour.
The parents were unable to agree immediately upon different arrangements for implementation as a consequence of which [Z] did not spend the second half of the October school holidays with her father. Again, this reflects poorly on both parents.
The third incident occurred earlier in the year on 1 June following the mother’s request of the father at the end of April not to return [Z] to Mr. O’s home at [L] where the mother was then living.
The father ignored such request and continued to return [Z] to [L] three times. On 1st June there was a confrontation between the father, his partner Ms R, the mother and Mr O when [Z] was returned and in her presence. There was shouting. I find on the evidence that the mother poked the father in the face. [Z] was upset and crying. The father contacted the police with a view to having the mother charged with assault but the police declined to prosecute. It was following this event that changeovers took place at McDonalds.
I find on the evidence that neither parent behaved responsibly on this occasion, and again behaved badly with no insight as to the affect of exposing [Z] to their fight. The failure to communicate and discuss a resolution is indicative of the antagonistic approach each adopts to a problem of this nature.
[Z]’s relationship with each of her parents and others
Dr Greenfield describes [Z] as having a positive attachment with both her parents, missing her father and nominating [W] as her favourite person and the one to whom she feels closest[16].
[16] Paragraph 61 of the Family Report.
Each of the parents describe [Z] as being a fond and loving child.
I am satisfied on the evidence that [Z] has a close and warm relationship with Ms R and her children, particularly [C] who is of a similar age, but with the inevitable occasional friction.
The father’s financial circumstances
The father was cross examined extensively as to the income from his business. It was put to him, and he denied, that he did not disclose the whole of his income to the Australian Tax Office and that he continued this practice. It was put to the father that he had given the mother, before separation, cash on a regular weekly basis of between $800.00 and $1,000.00, which he denied.
The parties applied to the National Australia Bank for a home loan to assist with the purchase of the home at Property B, and in support of that application gave to the bank copies of the husband’s income tax returns, but not income tax assessments for the 1998, 1999 and 2000 income tax years, suggesting the father had earned taxable income of $34,095.00, $41,611.00 and $48,514.00 for those years respectively.
The father admitted that such tax returns were false and were prepared by his accountant Mr D to support the loan application which otherwise may have failed for the reason that on what he asserted was his true income he could not afford the loan repayments and his application would be refused.
The evidence establishes that the bank loan was advanced and that all loan repayments were made. The father said in cross examination that it was from a combination of this income, Centrelink benefits and family payments that household expenditure was met.
The evidence establishes that the father’s income tax return for 1998 disclosed a taxable income of $14,095.00, for 1999 a taxable income of $14,611.00, and for 2000 a taxable income of $10,654.00. It appears income tax assessments were issued accordingly.
I am satisfied on the evidence that the mother knew of and was involved jointly with the father in the obtaining of the income tax returns submitted to the bank in support of the loan application. The mother acknowledged readily in cross examination that the father’s income tax returns as submitted to the Australian Tax Office would not meet the bank’s lending criteria.
The mother said in cross examination that the false income tax returns better represented his truer income, but when asked how she knew what his actual income was conceded she did not know, and based her belief on the amount of money he gave her each week.
The evidence falls short of my being able to make a finding as to who requested the preparation of the false income tax returns but on the balance of probabilities I find that both parties set about obtaining such documents with a view to giving them to the bank.
Mr Byrnes submits that I should find that the father has consistently failed to declare his true income for the purposes of reducing his child support liability for [Z], and that this reflects poorly on his attitude to his responsibility as a parent.
The difficulty with that submission is that it is not possible on the evidence before me to make that finding, and I do not make such finding. Put simply, there is no documentary evidence at all in the form of accounting records from the father’s business or banking records from which it could be established on the balance of probabilities that he has failed to declare income in the form of cash payments or otherwise. There is no independent verifiable evidence at all brought by the mother that the father failed to declare his true income.
Whilst the mother clearly holds this suspicion, it can be no more than that. In the interests of justice, such a finding against the father could be made only if independently verifiable facts were in evidence capable of leading to such a finding, and they are not.
The genesis of this part of the case appears to arise from the decision of a Child Support Agency Senior Case Officer in March 2008[17] following the mother’s application for review, to the effect that the father’s liability to pay child support be based from early 2008 until the end of 2009 on an annual child support income amount of $35,000.00. Some of the income tax returns to which I have referred above were made available by the mother to the Agency, the mother asserting that the father had failed to declare all income in his tax returns.
[17] See Annexure “A” to the mother’s affidavit sworn 12.2.09 filed 13.2.09.
The Senior Case Officer concluded that the father had access to financial resources equivalent to a child support income amount of no less than $35,000.00, and that such income amount was consistent with the type of income the father could earn if he was an employee of an independent employer.
This gave rise to a considerable increase in child support payable by the father for [Z], from $6.00 or thereabouts per week to $82.78 per week, or $358.70 per month. The father was cross examined extensively and gave evidence, which I accept that he has paid such assessment from the combined income and resources of his household including those of Ms R.
I find on the mother’s written evidence and at the time of the hearing that she continues to believe the father understates his income to the income tax authorities, and that he deliberately reduces his taxable income to minimise his liability for child support[18].
[18] See paragraph 90 of the mother’s affidavit sworn 12.2.09 filed 13.2.09
I find that for the mother to hold this view unsupported by any compelling evidence reflects poorly on the mother’s capacity to view the father in a more favourable light, and colours adversely her perception of his role as a parent to [Z].
I accept the father’s evidence as to his income and financial circumstances, and find that he has the capacity to financially support [Z] if she is to live with him as he proposes.
The evidence of Dr Greenfield
Dr Greenfield observed that [Z] presented as a poised and sociable young girl expressing a liking to be a lawyer or jazz teacher when she leaves school[19].
[19] Paragraph 32 of the Family Report
As to her interview with [Z], Dr Greenfield reports at paragraph 33 as follows:
“When I asked [Z] what her parents had told her about the interview, [Z] indicated that she knew that it was about whether she prefers to live with her mother full-time, like it is now, or alternatively live with each parent for alternating weeks. She volunteered that her mother had explained to her why alternate weeks would not work. Her mother had told her that if she lived with her parents week-about, that the parents would have to talk to one another, and then they would argue, because when they talk they argue. [Z] said she had to agree that this was true. Even though [Z] wanted to live half time with each parent, she was persuaded by her mother’s reasoning. However, she volunteered that if they did handovers at school, they would not have to speak with one another (and thus will not have an opportunity to argue).”
[Z] went on to tell Dr Greenfield that her mother had given her a second reason why week-about would not work. This was that her mother can only do one job because of her injured shoulder, and therefore she might have to move to [G][20].
[20] Paragraph 34 of the Family Report
Mr Byrnes informed me during the hearing that it was not his client’s intention to move to [G] and that his client would consent to an injunction restraining her from changing the child’s place of residence. Dr Greenfield had commented quite correctly shared care would not be an option unless the parents lived near to one another.
Dr Greenfield reports in paragraph 35 of the report as follows:
“[Z] said that she felt ‘fifty-fifty’ would be good because at school she cries because she misses her Dad”
[Z] told Dr Greenfield that she misses her half-brother [W]. This is to be considered in the context of [W] then living with the father full-time at the time of the interviews, and having since returned to the mother’s home.
Dr Greenfield describes [Z] as worrying about both her parents; her father because he only gets to see her for two days, whereas her Mum sees her for two weeks, and her mother because she cries as she misses [W] ( who was then living with the father )[21].
[21] Paragraph 38 of the Family Report
[W] told Dr Greenfield that he nominated the father as the person in the family to whom he feels closest, giving reasons adding that he would approach his step-father about any problem he had before other people.[22].
[22] Paragraph 44 of the Family Report
This seems to be at odds with [W] deciding to return to his mother’s home to live following the bicycle incident which the father saw as a form of discipline when [W] failed to follow some house rules. It is to be hoped that the father and [W] are able to reconcile their differences, and there is some indication in the father’s evidence that he is now making contact with [W]. It is also significant in my view that [W] told Dr Greenfield that he felt very positive about Ms R and that he hoped she and his step-father would marry.
In her Evaluation [23] Dr Greenfield observes that there is a school of thought that subscribes to the view that if parental conflict is high, then shared care is contra-indicated. Whilst this is true in many cases, the generalisation needs to be nuanced by looking at the interactional dynamics between the parents, the particular family circumstances, and the children’s wishes and attachments. Dr Greenfield comments that strategies need to be considered that may be employed in a particular situation.
[23] Paragraphs 60 – 67 of the Family Report
Dr Greenfield concluded there is no doubt that [Z] would like to live alternate weeks with her father and [W], that she has a positive attachment with both parents, misses her father and nominated [W] as her favourite person and the one to whom she feels closest.
Dr Greenfield comments that the doubt which arose in [Z]’s mind about shared care arose from the mother’s efforts to persuade her that it will not work flowing from the mother’s view that co-operation between the parents is impossible and conflict inevitable.
Dr Greenfield comments that [Z] also worries about her mother missing [W], and if she has shared care with her father, potentially missing her mother.
Dr Greenfield found the father to be an even-tempered, mild-mannered person. She concluded that the fact that [Z] and [W] have such a high regard for the father spoke well of the father’s ability to focus on the children and their needs. Dr Greenfield found the father impresses as a parent able to be a reliable caregiver with a steady child-focussed approach.
I concur with Dr Greenfield’s assessment of the father’s nature from my observation of him in the witness box, and the manner in which he gave his evidence, and he was cross-examined vigorously for the best part of a day by Mr Byrnes. I found the father answered questions to the best of his ability, was prepared to make concessions with the benefit of hindsight that he had behaved inappropriately at times, and that there were some things he would now do differently.
Dr Greenfield found the mother presented as emotionally labile, and that perhaps this may have been exacerbated by her medication to stop smoking. The mother impressed Dr Greenfield as an expressive, at times disinhibited person who can be overwhelmed by her own needs. Dr Greenfield noted the mother has a very demanding parenting role for [Y] for which she has sought assistance.
Dr Greenfield was subjected to a testing and thorough cross-examination by Mr. Byrnes. It was put to her that the mother had overcome a number of obstacles, including her own physical disabilities, and that this demonstrated she could provide a stable, secure, loving and safe environment for her children which did not warrant disturbance. Dr Greenfield conceded this was one way of looking at it but that the obstacles identified by Mr. Byrnes amounted to vulnerabilities which indicated to her that the mother may have difficulties coping with parenting four children unassisted in the future and that perhaps a different set of arrangements may be of assistance. Dr Greenfield said that the last couple of years had been absolutely fraught with difficulty for the mother, which coupled with a very dramatic series of incidents, upsets and difficulties did not lead her to conclude that everything had been addressed or resolved.
Mr Byrnes fairly put to Dr Greenfield the various incidents about which he had cross-examined the father suggesting that each amounted to the father not being child-focused and in effect challenging
Dr Greenfield’s conclusion that the father is child focussed.
Dr Greenfield said that the various events, as individual events could suggest the father was not child focussed. Dr Greenfield emphasized that there was a great degree of hostility and mistrust between the parents and that confrontation could be avoided by enabling changeovers to take place to and from school or at a Contact Centre.
In relation to [Z]’s wishes, Dr Greenfield acknowledged that whilst her wishes are important, they are not determinative given her age, and that there were other factors she took into account. I am satisfied that Dr Greenfield gave thoughtful and responsive answers to Mr Byrnes questions in how she came to her recommendation revolving around [Z]’s wishes, taking into account as well the fact that at the time of the hearing [W] no longer lived with the father.
Dr Greenfield was cross examined thoroughly by Mr Byrnes as to whether the conflict between the parents was so great that it precluded equally shared parenting for [Z].
Dr Greenfield’s first premise was that successful shared parenting did not necessarily require a degree of co-operative parenting, depending on the particular family circumstances. Dr Greenfield gave evidence that some parents will never be able to agree because of their different nature or because of interpersonal dynamics or the history of their separation, but that did not mean that there could not be a shared care arrangement if that was of benefit to the child, or the child was asking for this, or that the child’s relationship with each parent may be eliciting such wish and was a reasonable response by the child.
Dr Greenfield agreed that the immediate prospect of the parents improving communication with each other was very poor but that assistance from a counsellor in developing a protocol as to how they are going to communicate could be constructive.
In response to questions from Ms Hendy, Dr Greenfield said that Ms R impressed her with her comments about [Z] and felt she had a warm and loving relationship with [Z] and a real empathy with her and affection for her and that by and large it was reciprocal. Whilst [Z] had chosen a crocodile to depict Ms R, as compared with a lamb for her mother, Dr Greenfield felt this to be more indicative of loyalty conflict.
Dr Greenfield acknowledged the importance of [Z]’s relationships with her siblings.
In response to a question from me, Dr Greenfield articulated further her reasons for recommending a shared care arrangement. She had some concerns about the mother’s parenting capacity given a number of vulnerabilities she presented at interview. Her shoulder injury caused chronic pain which impacted on her ability to work. After making due allowance for an anti smoking drug the mother was taking,
Dr Greenfield found her temperament was that of a highly strung woman, emotionally labile and who had extreme difficulty maintaining a child focus in that when she was asked about the children the conversation would always revert to her needs. The mother described herself to Ms Greenfield as an unconventional and spontaneous person.
Dr Greenfield found her to be highly strung and concluded this would impact upon her parenting and her interaction with the children, and that the need to care for [Y], given her high needs would take enormous energy and resources.
I was able to observe the mother whilst she gave evidence and was left with the distinct impression that she has a forceful personality who will do all she can to achieve her objective. Whilst this is sometimes an admirable quality, it can be to a parent’s detriment if it gives rise to continuing disputes with the other parent.
Dr Greenfield described [Z]’s perception of her mother as a nice person who got for them whatever she and her sisters wanted, and her perception of her father as someone who cheered her up when she was sad or upset or quiet, and visited her at school. Dr Greenfield remarked upon the significance of her observations in this context with [Z] talking about the material things her mother is concerned with, whereas she described her father in terms of the emotional input he makes.
Relevant Research
Both Ms Hendy and Mr. Byrnes referred me to a great deal of research publications and reported cases. Mr. Byrnes relied especially on two papers:
a)The Australian Institute of Family Studies Research Report No. 9 entitled “Parent-Child Contact and Post-Separation Parenting Arrangements”;
b)Article from Australian Family Lawyer Volume 20 No. 1 by Jennifer McIntosh and Richard Chisholm entitled “Shared Care and Childrens’ Best Interests in Conflicted Separation – A Cautionary Tale from Current Research”.
It is fair to say that the tenor of these articles and much of the material cautions against a shared parenting regime where parents remain in high conflict with each other and communication is poor or non-existent.
I quote from the edition of the Australian Family Lawyer referred to above at page 14:
“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 co-operation’ and the containment of acrimony may prove to be central benchmarks”
The authors of this article pose the pertinent question, and I quote:
“Will a shared living arrangement in this parental context lead to an experience for the child of being richly shared, or deeply divided?”
I considered the research material and reported cases I was asked to consider, but at the end of the day it is no more than that, a consideration. It is not evidence in respect of which I can, or indeed am asked to make findings, but rather material which ought not be ignored in a general sense. Doing the best I can, the quoted passages above best summarise in my view the caution I need to exercise.
Application of Section 60CC and the Legal Principles
As to Section 60CC I make the following findings:
(2) The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
I find on the evidence before me that there is a very significant benefit for [Z] in being able to continue to enjoy a meaningful relationship with both her parents. The evidence establishes that [Z] has been able to maintain a satisfactory if not good relationship with each of her parents despite the continuing conflict between her parents and to which she has been exposed from time to time.
Her presentation to Dr Greenfield as a poised and sociable young girl suggests she has been able to cope with the less than desirable aspects of her parent’s relationship with each other which, on the balance of probabilities, flows from the more positive aspects of parenting each is able to give her.
The issue I am required to decide is whether the meaningful relationship which currently exists can be continued by [Z] spending the time she currently does with her father or whether it can be maintained or enhanced by adopting the father’s proposal, and if so, is that likely to result in a less meaningful relationship with the mother?
When I come to way the evidence before me, I conclude that it is likely [Z]’s relationship with her father will be enhanced if I adopt his proposal.
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
While I am satisfied on the evidence before me that neither parent will willingly expose [Z] to risks of this nature, the evidence establishes that both parents have behaved inappropriately at times when [Z] has been present. There can be no excuse for family violence in the presence of [Z] but this has occurred as a consequence of the parents poor relationship, and I have referred to some incidents earlier in these reasons for judgment.
During cross examination, the mother said that she was scared of the father, but when questioned more closely said it related to his anger and that he could be physically intimidating and may yell and scream at her. I find that the mother exaggerated her evidence in this respect and that she is not frightened of the father.
The evidence does not enable me to make a finding that the father is more liable than the mother to be abusive. Rather, I find on the evidence that each parent is liable to be, and has been abusive toward the other and that this could well occur in the presence of [Z] or indeed the other children. This can be avoided if the opportunity of the parents being together in the presence of [Z] is limited or eliminated whenever possible.
(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;
The father deposed to [Z] telling him that she would like to live one week with him and one week with mum. I accept the father’s evidence in that respect.
The mother was asked in cross examination whether [Z] had told her that she would like to spend an equal amount of time with her father. The mother avoided answering the question and said:
“Not really, no. No, [Z] sort of – [Z] said she wants to spend more time with her Dad but [Z] has also said that she wants that time to be with her Dad”.
It is clear from Dr Greenfield’s interview with [Z] that she would like to live week about with each of her parents. I found it interesting that [Z] volunteered to Dr Greenfield that her mother had explained to her why alternate weeks would not work[24]. Dr Greenfield commented that even though [Z] wanted to live half time with each parent, she was persuaded by her mothers reasoning but went on to volunteer that if change over took place at school then the parents would not have to speak with one another and therefore not have the opportunity to argue.
[24] Paragraph 33 of the Family Report
These statements by [Z] to Dr Greenfield were not the subject of any challenge as to there accuracy. I find the most likely explanation for [Z] being persuaded by her mothers reasoning is that she knows her mother does not support a week about arrangement and does not wish to tell her mother of her preference for fear of hurting her feelings. This is consistent with Dr Greenfields conclusion that [Z] worries about both her parents[25].
[25] Paragraph 38 of the Family Report
Whilst [Z] told Dr Greenfield she felt “50-50” would be good because at school she cries because she misses her dad, there is other evidence before me she cries sometimes when she is with her father and misses her mother. This is perhaps not surprising in all the circumstances.
I find that I am not able to ignore [Z]’s wishes and the reasons for those wishes but ultimately, it is not determinative by itself. Equally, I am not able to ignore Dr Greenfield’s observation that [Z] displayed a strong sense of fairness when she elected to spend half the Christmas holidays with her father rather than attending [R] despite her father’s attempts to persuade her to attend[26]. It seems to me that I can conclude quite safely that fairness weighs heavily on [Z]’s mind in so far as her parents are concerned and she is sufficiently mature to recognise this adult concept.
b) the nature of the relationship of the child with:
[26] Paragraph 66 of the Family Report
(i)each of the child's parents; and
There is no doubt on the evidence before me that [Z] has a fond, close and loving relationship with each of her parents. Dr Greenfield concludes that [Z] has a positive attachment with both her parents and misses her father.
(ii)other persons (including any grandparent or other relative of the child);
There are a number of significant other persons with whom [Z] enjoys a relationship both in the mother’s household, namely her half siblings and in the father’s household, namely Ms R and her children.
As to the mother’s household, it is clear that [Z] has a particularly close relationship with [W], whom she identified as her favourite person to Dr Greenfield and she has a close relationship with [X] and perhaps an occasionally troubled relationship with [Y]. In the father’s household, I am satisfied she has a close relationship with Ms R, about which I have referred earlier in these reasons. Equally, I am satisfied that [Z] has a close relationship with Ms R’s children.
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;
Much of the evidence during the hearing related to assertions by each parent that the other had been uncooperative and inflexible when it came to making arrangements for [Z], especially in relation to implementation of those arrangements. There have been only a few occasions on the evidence before me when the parents had been flexible and accommodating.
In my view, it was wholly inappropriate for the mother to explain to [Z], as referred to in paragraph thirty three (33) of the Family Report, why a week about arrangement would not work. This exemplified
Dr Greenfield’s observation that the mother puts her needs before those of the children. It suggests the mother would not be willing to facilitate and encourage a week about relationship for [Z] with the father. The consequence was [Z] was left to provide a solution to Dr Greenfield.
During his cross examination, the father conceded that he had no present complaints about the mother’s care of [Z] or the other children, although his earlier evidence was to the effect that he had a number of complaints.
I am left with the distinct impression that the father is more willing and able to facilitate and encourage [Z] having a close and continuing relationship with her mother. He is to be criticised however for not complying with some of the mother’s requests during the instances which I have described earlier in these reasons, but that criticism applies equally to the mother in insisting upon some matters which she could have just as easily resolved herself.
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
[Z] currently spends time with the father from after school Friday until back to school Monday morning and generally for half the school holiday periods.
The mother proposes some additional time each Wednesday after school overnight until back to school Thursday morning. The father proposes a week about arrangement.
It seemed to me that the mother’s proposal is more likely to lead to instability for [Z] with six changes of residence per fortnight with the inevitable consequence of something being forgotten or not collected and the necessity for increased communication between the parents. Whilst changeovers at school can occur in the absence of the other parent, and even with the use of the communication book, which I propose to Order, it seemed to me there is likely to be an adverse affect by virtue of increased logistical difficulties. It does not seem to me that the arrangements proposed by the mother would affect [Z] adversely on being separated from her mother or her father, irrespective of the frequency.
On the other hand, the father’s proposal would result in two changes of residence in a fortnight with the consequent significantly reduced risk of logistical difficulties. There may be an adverse affect of [Z] missing either her mother or her father depending which week it is but it seems to me likely that she would cope with this given that she told
Dr Greenfield that she misses each of her parents at certain times and which appears not to have had a significantly adverse affect upon her.
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
It seems to me that there is unlikely to be any adverse affect upon [Z] spending less time with her half siblings in the mother’s household if I adopt the father’s proposal given Dr Greenfield’s oral evidence that [W] and [X] are significantly older than [Z] and will spend increasing time away from home or pursuing activities more appropriate to their years. It seems to me that spending less time with [Y] will not result in any adverse affect upon [Z] given her peculiar difficulties.
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;
This has no application in the circumstances of this case. Whereas the mother had talked of a move to [G], that is not to occur and the mother consents to a restraint in those terms. It is equally appropriate that the father also be restrained similarly.
Both parents live in close proximity to each other, [Z]’s school, and both have use of a motor car.
f) the capacity of:
(i)each of the child's parents; .
(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;
I am satisfied on the evidence that the mother is able to provide for [Z]’s day to day physical needs and, to a large extent, her emotional and intellectual needs. I have referred earlier in these reasons to
Dr Greenfield’s evidence concerning the mother’s approach to parenting. Against that, there is nothing to suggest on the evidence before me that the mother has failed to provide as best she is able for [Z]’s emotional and intellectual needs. I am satisfied equally that the father is able to provide not only for [Z]’s day to day physical needs but also her emotional and intellectual needs. Similarly, I am satisfied that Ms R is able to assist the father in providing for [Z]’s emotional and intellectual needs. Having observed Ms R give evidence, I accept Dr Greenfield’s oral evidence as to Ms R sensitive approach to assisting the father in parenting [Z].
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;
[Z], on the evidence before me, presents as a thoughtful mature young girl shortly entering her teenage years and well aware of the conflict between her parents and with a strong sense of fairness and clearly wanting to spend equal time with each of her parents whom no doubt she recognises as each offering her something different from the other but which she finds enjoyable and beneficial.
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;
On the evidence before me, this has no application.
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Both parents have failed in their responsibilities of parenthood in their attitude toward [Z] and the other children in continuing to engage in petty disputes, many of which were in evidence during the course of the hearing and from which either could have walked away at any time but preferred to continue.
During the course of his cross examination, the father conceded that his behaviour was poor and that with the benefit of hindsight, he would now do things differently. I was not left with the impression that the mother made the same concession. In fact, the mother continued to attribute responsibility to the father for many of the instances.
It is this incapacity on the part of both parents to accept that this is inappropriate conflictual behaviour to which [Z] has been exposed at times, that suggests to me that I could have little confidence that their attitude toward [Z] on some occasions, and to their responsibility as a parent is likely to change. This is made all the more difficult by the failure of each of them to recognise that the failure to communicate successfully continues to be a major difficulty for each of them and that nothing has been done by either of them in a constructive sense to bring about improved communication. In my view, it is no answer to protest that one arranged for counselling, and the other did not.
I am of the view that it requires both parents to step back from the manner in which they have spoken to each other in the past and consider carefully how each could speak in a civil manner with a view to reaching a consensus as to how to deal with any particular problem. It is for this reason that I propose to make an Order that both parents consult with a Family Dispute Counsellor at Interrelate in [P] to develop a protocol, recommended by Dr Greenfield as to how to resolve disputes. I was left with the distinct impression from having observed both parents give evidence, and hearing the manner in which such evidence was given that neither in truth wants the present difficulties to continue but would like a resolution. If a protocol is put into place as to how to discuss matters with a view to reaching a resolution that will be a very significant step forward for each of them. It seems to me, again relying upon Dr Greenfield’s evidence, that the mother would derive significant benefit from such a protocol as it would reduce one of the vulnerabilities she faces.
j) any family violence involving the child or a member of the child's family;
I have already referred to this earlier in these reasons and no further observation or finding is necessary. It is fortunate that the incidence of family violence has been minor and that there is no suggestion they have continued in more recent times.
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;
On the evidence before me, there is no current family violence Order in force.
l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In framing the Orders I propose to make, I will endeavour to avoid the need for further proceedings. In particular, I will Order that the parties must confer with a Family Dispute Resolution Practitioner or other Consultant as a prelude to any further parenting proceedings being instigated.
m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance I consider to be relevant.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(i)other persons (including any grandparent or other relative of the child);
I have considered these matters at some length earlier in these reasons and no further comment is necessary save that one of the matters I am required to consider under this sub section is financial maintenance of the child.
I have referred earlier in these reasons to the notice of decision of the Child Support Agency pursuant to which the father, at the time of the hearing, was assessed with an annual child support income of $35,000.00 with a consequent liability to pay child support as assessed by the Child Support Agency. The evidence before me is that the father pays the current child support assessment but was seeking a review of the Notice of Decision, the outcome of which was not known at the time of the hearing.
The father was cross examined as to his payment of school fees for the children pursuant to the Orders made in the Local Court at [P] on
1 September 2006. Whilst there was no Order to that effect, there was a notation at the end of the following terms:
“The applicant is to pay all school fees for the children while ever they attend school in [P] until each child completes Year 12”.
The father conceded in evidence that he had not paid school fees in accordance with the notation. The father’s evidence was to the effect that he had paid some school fees and that when [Y] and [X] stopped spending time with him at the mother’s behest, he ceased paying school fees.
Whilst a notation does not have the same force as an Order, I find on the evidence that the father well knew he had committed himself to paying school fees for the children, that he knew failure to do this would place an increased financial burden on the mother but somewhat capriciously made a decision not to pay the fees. This was not the act of a responsible parent.
Section 61DA
When making a parenting Order, the Court is required to make 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, subject to the presumption not applying or being rebutted under circumstances provided in the section.
The father proposes that he and the mother have joint responsibility in consultation with each other for all matters concerning decisions relating to [Z]’s long term care, welfare and development. The mother seeks to have sole parental responsibility for the children, and in that context she includes [W], [Z], [X] and [Y].
I find on the evidence that it would not be in [Z]’s bests interests for the mother to have sole responsibility for all decisions concerning her care, welfare and development, whether long term or day to day.
[Z] has been spending significant periods of time with her father and the mother proposes an additional overnight occasion each week. If the mother were to have such sole responsibility for all decisions then the father would be at the mother’s whim as to her choice of school, activities at school, activities outside school and almost every other aspect of her day to day life. In my view, that would not be appropriate and would inevitably lead to further disputes and presents a real possibility that the father would be restricted in his activities with [Z].
The same difficulties would arise if I accede to the father’s application for a week about arrangement.
I conclude on the evidence before me that it is in [Z]’s best interests for her parents to share the parental responsibility they have for her and I will define in the Orders I propose to make those matters about which they are required to consult with a view to reaching an agreement. Irrespective of my final decision, I propose to make an Order that each parent is restrained from enrolling [Z] in any extra curricular activity without first discussing the proposal with the other parent and endeavouring to reach an agreement.
In all other respects, responsibility for day to day decisions can lie with the parent with whom [Z] is for that period of time.
Section 65 DAA
Consequent upon making an Order for equal shared parental responsibility the Court must then consider making an Order for a child to spend equal time or substantial and significant time with each parent in certain circumstances.
Section 65 DAA (5)
Section 65DAA (5) provides that in determining 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 that the Court considers relevant.
I have considered many of these matters earlier in these reasons under the various sub sections of 60CC(3) but I conclude on the evidence before me that there are a number of matters which the parents have put into place or can put into place which removes sources of conflict and therefore prevents [Z] from being exposed to any arguments or inappropriate behaviour.
First, the majority of changeovers can take place at the school or other wise at Interrelate. Whilst I have made provision for changeovers in a public place in the event of Interrelate not being available, it seems to me that these occasions will be very limited and hopefully non existent.
Second, since changeovers have occurred at Interrelate, there has been no significant incident.
On the evidence before me, there has been no significant event or argument to which [Z] has been exposed for some considerable time.
I am satisfied that as a consequence of the hearing, both parents realise now the importance of being able to communicate effectively and without conflict. Whether that can be achieved is another issue, but with the use of the communication book, which the mother supports and the establishment of a protocol for resolving disputes with the assistance of a Family Consultant, and what seemed to me to be on the father’s part some insight into the necessity to avoid conflict and the likely ability on his part to do so, then it is likely an equally shared arrangement will be in [Z]’s best interests.
To do otherwise is to deny [Z] the opportunity to which she is entitled to have a substantial and meaningful relationship with each of her parents.
In coming to such conclusion, I have not ignored the mother’s strongly expressed sentiments as to why she feels such an arrangement would not be successful. I have read and reread and given very careful consideration to her affidavit sworn 12 February 2009 in which she responded to Dr Greenfield’s report and annexed the email she sent to Dr Greenfield setting out the reasons why she felt an equally shared arrangement would not work for [Z].
I read[27] the mother’s statement that she would be shattered by an equal time arrangement and would have great difficulties seeing [Z] on only an alternate week basis and that she would deeply miss her if she was seeing her for alternate weeks. I am not surprised the mother would depose in such fashion given my findings as to her character and nature but I would be equally confident that if that is to be my decision, the mother would accept such decision. There was a passage during her cross examination when the mother gave compelling evidence of the need to put [Z]’s interests first and to look at what [Z] wants. If the mother is able to continue to adopt that view she will hopefully accept an equally shared arrangement.
[27] Paragraph 133 of the mother’s affidavit sworn 12 February 2009
Final conclusion
It is not without some hesitation that I conclude that it is in [Z]’s best interests that she spend equally shared time with her mother and father. At the end of the day, I give greater weight to what I perceive to be the need [Z] has, as reflected in her wishes, to spend equal time with both her father and his family and her mother and siblings.
In coming to this conclusion, I have considered and weighed carefully all of the evidence before me, but particularly that of Dr Greenfield who did not resile from her recommendations and gave cogent reasons to support those recommendations at the conclusion of her evidence.
I accept that the mother will, in all probability, be disappointed in my decision but I take into account the evidence before me and am of the view that her parental ability both in relation to [Z] and the other children will not be affected adversely.
I have not overlooked [W], [X] and [Y] and in respect of whom both parents sought Orders.
[W] is now eighteen (18) years of age and the practical reality is that he lives with his mother and is able, if he so wishes, to spend time with the father as they can arrange between themselves. Given [W]’s strongly expressed views about the father to Dr Greenfield, I would like to think the father would set out to foster and maintain that relationship.
It is appropriate that the mother have sole parental responsibility for [X] and [Y], that they live with her and that there be provision for them to spend time with the father, if they so wish, as is arranged between the father and each of them.
For these reasons, I make the parenting Orders as set out at the beginning of these reasons for judgment.
Section 66M declaration
The mother seeks a declaration pursuant to section 66M of the Family Law Act 1975 that the father has a duty to maintain the children [X] born [in] 1993 and [Y] born [in] 1994.
In the strict sense, it is not possible to make a declaration within the meaning of s.66M for the reason that there is no provision in the section for the making of a “declaration”. Rather, the Court is empowered to determine by way of Order that a step parent of a child has a duty of maintaining such child.
Section 66M is in the following terms:
When step-parents have a duty to maintain
(1) As stated in section 66D, a step‑parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.
(2) A court having jurisdiction under this Part may, by order, determine that it is proper for a step‑parent to have a duty of maintaining a step‑child.
(3) In making an order under subsection (2), the court must have regard to these (and no other) matters:
(a) the matters referred to in sections 60F, 66B and 66C; and
(b) the length and circumstances of the marriage to, or relationship with, the relevant parent of the child; and
(c) the relationship that has existed between the step‑parent and the child; and
(d) the arrangements that have existed for the maintenance of the child; and
(e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
The evidence establishes that at the time the parties commenced cohabitation in August 1997 [X] was four (4) years of age and [Y] nearly three (3) years of age. During the time the parents lived together until separation in May 2006 the father and the mother together provided financial support for both children, as well as [W] and [Z]. From the time of separation until the beginning of 2007 the father paid school fees for [X] and [Y] but ceased at that time to do so. The father continued to pay school fees for [W] and [Z] and the father maintained [W] for those periods that he lived with him supplemented by child support paid by the mother.
Since early 2007 the father has not spent any time with and has had no relationship with [X] and [Y].
As to the matters I am required to consider in s.66M(3)(a), section 60F has no application, section 66B sets out the objects and to which I have regard and section 60C relates to the principle that parents have the primary duty to maintain children. In that respect, the mother’s evidence is that the children’s biological father, Mr S had paid some child support up to 1996 but was sentenced to a long period of imprisonment in about 2000 with a subsequent release in about 2009. The mother adduces no evidence as to Mr S’s capacity to pay child support and in all the circumstances, it is reasonable to assume there is none.
The evidence establishes that the father had a close relationship with [X] and [Y] for so long as they lived together in the family unit from August 1997 until May 2006. Whilst the mother disputes that the father paid school fees for [X] and [Y] prior to the beginning of 2007, I prefer the father’s evidence but it is common ground that the father has provided no financial support for either child since that time.
The mother adduced evidence of her financial circumstances in her first affidavit filed 14 August 2008 which was not the subject of any serious challenge. The father’s financial circumstances emerged during the course of the hearing.
It was not submitted by either Mr Byrnes or Ms Hendy that there was any special circumstance which, if not taken into account, would result in injustice or undue hardship to either parent or the children.
As a consequence of the parenting Orders I have made, the father will have additional financial responsibility for the support of [Z] whilst she is living with him on the week about arrangement. It is possible that his present child support liability for her will be reduced but not extinguished and that is a matter to be determined by the Child Support Agency. I do not accept Mr Byrne’s submission that the fact the father sought parenting Orders in respect to [X] and [Y], by itself, gives rise to a duty on the father to provide financially for them.
Conclusion
The making of an Order under section 66M(2) is discretionary. In all the circumstances to which I have referred above especially the long relationship between the father and [X] and [Y], and that for all intents and purposes he was and continues to be their psychological father, I find it is proper for the father to be found to have a duty to support [X] and [Y]. I will Order accordingly.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate: Angela Scott
Date: 3 March 2010
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