Sander and Abbey
[2018] FCCA 2295
•17 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDER & ABBEY | [2018] FCCA 2295 |
| Catchwords: FAMILY LAW – Children are 6 & 3 years old - parties conferred with equal shared parental responsibility for children - high degree of conflict in parenting relationship –father wishes to take children interstate for Christmas each alternate year– ability to raise children without unreasonable interference from the other parent – beneficial relationships – court’s duty to deliver individual justice – father seeks a meaningful relationship with the children – best interest. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61D, 61DA, 64B, 65D, 65DAA, 65DAC, 65DAE Evidence Act1995 (Cth), s.140. |
| Cases cited: Fox v Percy (2003) 214 CLR 118 VRR & RR (2002) FLC 93-099 AMS v AIF (1999) CLR 160 Bartel & Schmucker (No 3) [2012] FamCA 1094 MRR v GR (2010) 240 CLR 461 Goode & Goode (2006) FLC 93-286 Mazorski v Albright (2007) 37 FamLR 518 Bright v Bright (1995) FLC 92-570 B v B: Family Law Reform Act 1995 (1997) FLC 92-755 Russell & Russell & Anor [2009] FamCA 28 Gin & Hang [2010] FamCA 617 |
| Applicant: | MR SANDER |
| Respondent: | MS ABBEY |
| File Number: | ADC 2749 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 8 May 2018 |
| Date of Last Submission: | 12 July 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 17 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Adelaide Family Law |
| Counsel for the Respondent: | Mr Roberts |
| Solicitors for the Respondent: | Andrew Hill & Co |
ORDERS
That the children [X] born 2012 and [Y] born 2014 live with the mother.
The parties have equal shared parental responsibility for making decisions concerning the long term care, welfare and development for the said children.
Each parent has responsibility for making decisions concerning the day to day care, welfare and development of the children whilst in his or her care.
That the children spend time with the father during the school term as follows:
(a)From 1 July 2018 from the conclusion of school on Friday (or 6:00pm if a non-school day) to 6:00pm on Sunday and in each alternate week thereafter;
(b)Every Wednesday from the conclusion of school at 3:00pm until 7:30pm; and
(c)From the start of 2020, time be extended on the intervening Wednesday from the conclusion of school to conclude at the commencement of school on Thursday.
During both the short term and Christmas school holidays:
(a)From the date of these orders for three (3) consecutive nights on each alternate week from Friday 9:00am until Monday 9:00am save and except for the last Friday of the school term;
(b)From 1 January 2019 for four (4) consecutive nights on each alternate week from Friday 9:00am until Tuesday 9:00am;
(c)From 1 January 2020 for five (5) consecutive nights each alternative week from Friday 9:00am to Wednesday 9:00am;
(d)From 1 January 2021 for six (6) consecutive nights each alternative week from Friday 9:00am to Thursday 9:00am;
(e)From 1 January 2022 for seven (7) consecutive nights each alternative week from Friday 9:00am to Friday 9:00am.
That notwithstanding the orders made in paragraphs 4 and 5 herein the children shall spend time with the parties on special occasions as follows:
(a)With the mother on Mother’s Day from 6:00pm on Saturday evening proceeding Mother’s Day to 6:00pm on Mother’s Day;
(b)With the Father on Father’s Day from 6:00pm on Saturday evening proceeding Father’s Day to 6:00pm on Father’s Day;
(c)On the child’s birthday so that the child spends at least three hours on her birthday with the parent who is not providing a residence for her on the occasion of her birthday at times to be agreed between the parties and failing agreement to be from 3:30pm until 6:30pm;
(d)During each Easter as follows:
(i)With the father in 2019 from 5:30pm Maundy Thursday to 6pm on Easter Saturday in each alternate year thereafter;
(ii)With the mother in 2019 from 5:30pm on Easter Saturday to 6pm on Easter Monday and in each alternate year thereafter;
(iii)With the father in 2020 and for the same. In the alternate year thereafter from 5:30pm on Easter Saturday until 5:30pm on Easter Monday; and
(iv)With the mother in 2020 and for the same. In each alternate year thereafter from 5:30pm on Easter Thursday until 5:30pm on Easter Saturday.
(e)Commencing in 2018, and in each alternate year thereafter the mother spend time with the children from 9:00am on 23 December to 6:00pm on 30 December; and
(f)Commencing in 2019, and in each alternate year thereafter the father spend time with the children from 9:00am on 23 December to 6:00pm on 30 December, with liberty to take the children to New South Wales to spend time with the paternal family over Christmas.
That handovers, save and except those that are to be conducted at the children’s school pursuant to order 4 herein be as follows:
(a)At the father’s home at the commencement of the children’s time with the father;
(b)At the mother’s home at the conclusion of the children’s time with the father; and
(c)That the parties be able to utilise agents for the exchange of the children between them.
That the parties be at liberty to nominate an agent to attend at handovers, if they are unable to attend, and that this is communicated to the other parent via email or text message.
That the parties be restrained and injunctions be granted restraining each of them from:
(a)Discussing the proceedings with the children or allowing any other person to do so;
(b)Denigrating the other party to or, in the presence of the children or allowing any other person to do so;
(c)Uploading official school photos or videos of the said children to social media or other social media platforms or external websites; and
(d)Harassing or intimidating the other party or allowing any other party to do so.
The mother and father do:
(a)Facilitate the said children communicating with the other parent by telephone at any that the said child/children reasonably request to telephone the other parent;
(b)Facilitate the parent who is not spending time with the children pursuant to previous paragraphs herein to speak with the said children by telephone at any reasonable time;
(c)Keep the other parent informed via email or text message as to any significant medical issues concerning either of the said children and do authorise the other parent to consult with and obtain advice from the said children’s medical or other treating practitioners;
(d)Forthwith advise the other parent by telephone, text message or email in the event of any illness or accident suffered by either of the said children requiring hospitalisation or other facility to which the child/children have been admitted or treated;
(e)Authorise the other parent to receive any and all information from any treating medical practitioner, health professional, therapist or counsellor upon whom the child attends from time to time;
(f)Authorise the other parent to receive significant medical and dental records as well as any records maintained by any health professional, therapist or counsellor and keep the other informed of the names and addresses of all treating medical practitioners, health professionals, therapists or counsellors;
(g)Be able to attend all of the said children’s school functions and activities including parent/teacher nights, sports day, school concerts and any other activities or events which the parents are normally invited to participate and attend;
(h)That both the father and mother be able to attend excursions or camps with the children, with the father to provide seven (7) days’ notice to the mother; and
(i)Authorise any school which either of the said children attends from time to time to provide the other parent at that parent’s sole expense in all things copies of all school newsletters, school reports and official school photographs.
The father be at liberty to travel interstate with the children during the school holidays in the block of time allocated to him, and he will advise the mother of the details of the travel and relevant contact details.
That periods of overseas travel be limited to no more than seven (7) days until the child [Y] is 8 years old (2022) and thereafter for periods of up to twelve (12) days.
The father be at liberty to apply for passports for the children, at his expense and will hold the passports.
That the parties attend community based mediation when [Y] turns 7 years of age (2021) to discuss future parenting arrangements for the children, specifically whether it is appropriate that there be a more equal allocation of parenting time between the parties.
IT IS NOTED that publication of this judgment under the pseudonym Sander & Abbey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2749 of 2016
| MR SANDER |
Applicant
And
| MS ABBEY |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Mr Sander “the father” and Ms Abbey “the mother”. They are the parents of [X] born 2012 and [Y] born 2014.
Mr Sander was born in 1980. Ms Abbey was born in 1982. They met in Town A in 2005. Mr Sander’s family live in New South Wales, whilst Ms Abbey’s family live in South Australia.
The parties married on 2008. Initially, both had careers in the (employer omitted) in Canberra. The mother did not like living in Canberra. In late 2014, the family relocated to Adelaide, so that Ms Abbey could be closer to her family.
It is Mr Sander’s case that the parties’ marriage became increasingly strained whilst the parties lived in Canberra, because Ms Abbey appeared to him to be becoming mentally unstable. He hoped that if they moved to Adelaide, she would be happier and the marriage could mend itself.
Mr Sander deposed as follows:
“From 2014 Ms Abbey’s behaviour changed in that she started accusing me of having affairs and being unfaithful to her. Ms Abbey’s behaviour was becoming so detrimental to her overall functioning that it was starting to affect her performance at work due to personality clashes with her manager’s in a couple of positions. As we were soon planning to move to Adelaide I thought that the cycle would soon break in that Ms Abbey would be happy in Adelaide with our own home and her family nearby.”[1]
[1] See affidavit of Mr Sander filed 26 July 2016 at [9]
However, Mr Sander’s hopes in this regard proved to be misplaced. He has disposed that, from his perception, Ms Abbey’s behaviour rapidly deteriorated once the family moved to Adelaide and he found her to be increasingly erratic and aggressive towards him, to such a degree that he could no longer cope.
By this stage, the parties had acquired a family home located at Suburb1, in suburban Adelaide. The parties separated under the one roof at these premises, in April 2016. Mr Sander vacated the home in July of 2016.
Mr Sander commenced these proceedings shortly thereafter. Later in August of 2017, he amended his application to institute proceedings for the settlement of matrimonial property. These proceedings have subsequently been settled consensually.
The pool of property involved was modest in value and neither party could afford to retain the Suburb 1 home, which has been sold. It appears probable that the circumstances surrounding the sale of the home and the resulting straitened financial circumstances of the parties was emotionally traumatic for all concerned.
Accordingly, with the settlement of property issues, the main emphasis in the case has been on what are the appropriate arrangements for the care of [X] and [Y]. The proceedings have produced a large number of documents and consumed much time and energy, on the part of the parties concerned.
In my assessment, both the mother and father are good and caring parents, who are each clearly devoted to [X] and [Y]. Unlike many cases which come before the court, this is not a case concerned with issues of serious antisocial behaviour, such as drug or alcohol abuse.
However, the parties present as quite different in temperament and their relationship is one which is marked by an extreme level of mutual antipathy. The mother is a somewhat anxious person and is highly protective of both the children and the significant role she has played in caring for them, since the dates of the respective births. Up to this stage, the children have not spent extended periods of time away from her care, either during the school week or in the holidays.
The father aspires to be as fully involved as possible in caring for the children and wishes to have a relationship with them, which can properly be described as being meaningful – that is one which enables him to engage with the children in a variety of contexts and settings, both mundane and recreational. Essentially, Mr Sander does not want to be a weekend “dad” or one who only spends time with the children in fun settings. He wishes to play an integral part in the children’s day to day lives.
In order for the children’s paternal relationship to satisfy the descriptor of being a meaningful one, it will be necessary for [X] and [Y] to spend a sufficient amount of time engaging with their father so that all three feel comfortable and relaxed in each other presence and, as such, there is no suggestion of any artificiality in this central relationship for the children.
In these circumstances, it is a case which calls for the court to make significant decisions, about future parenting arrangements for the children concerned, which their parents, because of their difficult past history with one another, are simply incapable of doing. This stems from their extreme difficulty in communicating effectively or empathising with the position of the other – problems no doubt exacerbated by their difficult separation and the powerful emotions precipitated by it.
For obvious reasons, it is not desirable for the court to make decisions in respect of much loved children, in cases in which the parents concerned are capable individuals. This is particularly so in respect of issues which can be characterised as zero sum games – that is the court must simply chose between the preferred options presented by the parties concerned – effectively electing to adopt either option A or option B.
The danger being that, in making such binary decisions, one party is likely to feel vindicated, whilst the other will be left feeling aggrieved or hard done by and this, of itself will sow fresh seeds of resentment between the parents concerned, with adverse emotional consequences for the children concerned.
However, that is the position in the current matter. The parties are simply incapable of reaching any compromise or agreed position in respect of four discrete areas of parenting, which are of great personal importance to each of them. Accordingly, it falls to the court to resolve these issues so that all concerned – [X] and [Y] included – can move on.
At present, the children spend time with their father, during school terms, for 9.00 am Saturday to 6.00 pm the following Sunday; and on each Wednesday from the conclusion of school until 7.30 pm. In school holidays, the time is extended to three consecutive nights, in alternate weekends from 9.00 am Friday until 9.00 am the following Monday.
The parties have agreed that they should be allocated equal shared parental responsibility for [X] and [Y]. This is significant when the applicable legal considerations, arising under the Family Law Act 1975 are considered.
It has also been agreed that the father’s time with the children should be extended from 1 July 2018 onwards so that, during school terms, the father will spend time with the children, in alternate weeks, from the conclusion of school on Friday until 6.00 pm the following Sunday.
However significant areas of controversy remain. The major areas of dispute can be summarised as follows:
·The father wishes to extend his time with the children, during school terms, from 1 January 2020 onwards so that:
ØIn week one of each fortnight the time remains as currently, but in the other week the Wednesday period is extended to Thursday morning; the mother does not agree.
·The parties have agreed that between 1 January 2019 and 1 January 2022, the children’s holiday time with the father should be extended by one night in each alternate week.
ØIn this context, the father seeks that his time start, if it is a school day, from after school; the mother does not agree, wanting the father to collect the children from her home later on that day.
·The parties cannot agree as to what should be the arrangements for the significant holidays of Christmas.
ØThe father wishes to be able to take the children to Northern New South Wales from 9.00 am on either 23 or 24 December, in alternate years until either 29 or 30 December, so that he and they can spend time with their paternal family there;
ØIn the alternative, the mother proposes the children should always spend Christmas time in Adelaide and the time should alternate between the parties so that the father gets from 3.00 pm on Christmas Day until 10.00 am on Boxing Day in 2018 and each alternate year thereafter and from 6.00 pm Christmas Eve until 3.00 pm on Christmas Day in 2019 and each alternate year thereafter. She is vehemently opposed to the children spending Christmas time in New South Wales.
·The father wishes to utilise nominees, in appropriate circumstances to exchange the children between their parents. In this context, he proposes his current partner or members of his family, particularly his parents or his sister. He also wishes that there be a degree of flexibility in the location of handover so that it can be changed from the children’s school or the actual homes of each of the parties, in appropriate circumstances.
·The mother does not agree, asserting she does not have any proper degree of relationship with any of these individuals, whom she does not trust. She also seeks an order that the father be significantly present during all periods of time, the father spends with the children. She is also vehemently opposed to the prospect of the children being left in the care of their paternal aunt, whom she characterises as suffering from a severe level of psychiatric dysfunction.
·From the father’s perspective, such a regime is unduly controlling and onerous and stems more from the mother’s need to exert authority over him rather than having anything to do with any legitimate objective safety concerns the mother may have.
·The father wishes specific orders to be made so that the children spend time with their parents on the occasion of their (the children’s) respective birthdays.
·The parties have agreed on a regime to divide Easter other than the specific time the children are to be exchanged. The father wants 5.00 pm; the mother wants 6.00pm.
·The father wishes orders to be made so that the children can travel interstate for holidays forthwith and that his time be extending to facilitate this to a period of at least five days.
·The mother does not agree. Her position is that the other parent should be required to consent to any interstate travel until the children are aged 12 and must be accompanied by a parent until they are aged 16. She also seeks that itineraries and contact details be provided.
·Although neither party has any specific plans for international travel for the children, they cannot agree on its terms on a prospective basis or where the children’s passport will be kept.
·The father wishes the parties to be referred to community based mediation, around the time [Y] turns seven years of age (late 2021) to discuss future parenting arrangements for the children, specifically whether it is appropriate that there be a more equal allocation of parenting time between the parties. The mother does not agree.
These issues, of no great moment in themselves, have assumed emblematic significance in the struggle between the parties. In my view, it is extremely regrettable that I must determine them. As indicated above, I have a sense of disquiet that in making the decision required I will create more, rather than less tension between the parties.
Given the significance the parties attach to these matters, particularly the prospect of [X] and [Y] possibly travelling to New South Wales, at Christmas time, to spend time with their paternal family – an occurrence which Ms Abbey greets with disapprobation and dismay because it will mean that the children’s customary arrangements for the celebration of Christmas will be changed – I decided not to determine the issues by reading the papers prepared by the parties alone.
Rather, I decided that I should hear directly from each of them so I could make my own assessment of their respective personalities and motivations and so be better informed as to why they had each adopted their particular positions. These reasons for judgment arise following that hearing, which involved some cross examination.
Background
It is the father’s position that he was a caring and involved parent, during the parties’ marriage. He asserts that, due to her psychiatric issues, the mother is not capable of supporting a proper level of relationship between him and the children.
On the other hand, the mother disputes the father’s characterisation of her as being mentally unstable and refutes his assertion that he was and remains a hands on dad.
Rather, she would characterise him as a psychologically abusive and manipulative person, who represents an inappropriate role model for the children and from whom they need to be protected.
In these circumstances, over the last two years, the proceedings between the two parties have generated a significant number of lengthy affidavits, in which each of the parties has outlined their view regarding the failings of the other, as a parent and a person.
As indicated above, although the parties remain in vehement dispute about many issues and have extreme difficulties in communicating effectively with one another, they have been able to agree on a raft of issues to do with the ongoing care of the children. This is to their great credit. However, the issues, which remain are intractable, despite the best efforts of the parties and their respective legal advisers.
At an early stage of the proceedings, in an attempt to see if the parties could avoid some of the worst aspects of adversarial proceedings concerning their children, the parties were referred to family consultant Mr T, pursuant to section 11F of the Family Law Act 1975. This section authorises the court to obtain advice, from suitably qualified experts, as to the best means of conducting child related proceedings.
In his memorandum to the court, dated 27 October 2016, Mr T reported as follows:
·There was no viable working relationship between the parents, between whom trust was virtually non-existent;
·The case had all the hallmarks of one which would become increasingly complex and toxic, with direct implications for the emotional wellbeing of the children concerned.
The major focus, for Mr T, was on the parties competing claims that the other was mentally unstable and, as a consequence, represented a risk to the children. In this context, he reported as follows:
“Mr Sander alleged that Ms Abbey has significant mental health issues. His discussed this information in non-sensational terms. His detailed affidavit allegations are matters for evidence. If they are accepted by the court they are significantly concerning.
Ms Abbey denied these allegations, and reframed them as a form of family violence against her. Her presentation in interview gave some cause for concern.
Ms Abbey expressed the belief that Mr Sander has undiagnosed mental health issues, believing that “there is something wrong with him” and he is “a pathological liar”.
Mr Sander’s interview presentation did not give cause for concern.
Mr Sander believed that there is potential risk to the children in their mother’s care as a result of what he believes to be her mental health issues.
Ms Abbey believed that there is potential risk to the children in their father’s care, portraying him as “neglectful”. She saw the children “always coming back sick”. It is noted that Ms Abbey appears to have taken the children for medical assessment on their return from their father’s care on several occasions.”
In these difficult circumstances, Mr T recommended that a family report be commissioned. Such a report was subsequently prepared by Mr S, a social worker by profession, whose report was released to the parties in February of 2017. This report followed a number of orders, which had regulated the care of the children since the institution of the proceedings.
On 12 September 2016, it was directed that the children should live primarily with their mother and spend alternate weekends from 9:00am Saturday until 5:00pm the following Sunday, with their father, as well as a weekly afternoon session, each Wednesday from 2:00pm until 7:30pm.
Ms Abbey was content for this regime to continue. However, Mr Sander sought that the children should live for equal periods of time, with each of their parents, or at the very least, should spend substantial and significant time with him.
At the time of Mr T’s report, Ms Abbey had moved into rented accommodation in Suburb 2. [X] was in reception at a private school, whilst [Y] was still at home. Ms Abbey was on unpaid maternity leave, from her (occupation omitted), based in Canberra.
Mr Sander was employed as a (occupation omitted) in the (employer omitted) on a full-time basis. He described his employer as being supportive of his family situation. In particular, he was able to leave work early on Wednesdays, which allowed him to see the children on this occasion. He was living at Suburb 1, which was a relatively short drive away from the mother’s home.
In his report, Mr S described the children as being immediately settled … happy and responsive in their father’s care. Play between father and children was described as being spontaneous and enjoyed. As such, in Mr S’s view, there was copious evidence of physical affection between [Y], [Y] and their father.
Mr S observed the children to be initially distressed when observed with their mother, it being the case that they had initially been seen with their father, which perhaps had been unsettling. In these circumstances, the children were returned to Mr Sander and were later observed with their mother. On this second occasion, both children were observed to be slightly more settled than before, but physically comfortable with their mother.
As with Mr T before him, Mr S noted a high degree of conflict between Mr Sander and Ms Abbey in their parenting relationship with one another. As such, he conjectured it was unlikely the parties would able to agree on any significant orders to do with the children’s parenting. Mr S also noted that there were no relevant matters relating to drug or alcohol misuse or children protection issues arising in this case.
In this context, he described Mr Sander and Ms Abbey as being “child focussed and genuine in their concern for the well-being of the children.” As such, he considered that both brought something of value to the parenting of the children. I agree wholeheartedly with this sentiment, which accords with my own impression of the parties.
In these circumstances, Mr S reported as follows:
“Observation of interaction suggest the children are to be well attached to both parents. The children were unsettled and mildly distressed during the observation requiring flexibility in arrangements. Mr Sander was child focused, age-appropriate and emotionally available to the children with no concerns arising. Ms Abbey similarly engaged well with the children, albeit she struggled with limit setting and could have been more proactive in regards to managing [Y] and throwing a ball against the office wall. It needs to be kept in mind that [Y] behaviour is typical of his age group. Management of these type of behaviours are part of the parenting journey and will be work in progress.
With regard to future directions it is assessed that it is in the children's best interests that they have involvement with both parents. The issue at hand is perhaps to what degree and at what pace this is best achieved.”[2]
[2] See Family Report dated 17 February 2017 at [75] – [76]
However, it was also obvious to Mr S that the parties had quite different personalities and in these circumstances, it was likely to be problematic as to the means by which [X] and [Y] accessed the benefits of having both their parents significantly involved in their lives. In large part these concerns centred on issues surrounding the mental health of the parties.
In respect of these difficult and controversial issues, at an earlier stage of the proceedings, it had been agreed between them that each would undergo an independent forensic psychiatric examination. Both parties were examined by Dr E, a psychiatrist. Mr S had access to these reports prior to preparing his family report.
Dr E observed no psychiatric abnormalities in his examination of Mr Sander, who was not found to be clinically depressed or anxious. Dr E also administered a battery of personality tests, which revealed that Mr Sander might have some unhelpful personality traits.
Similarly, Dr E found that Ms Abbey was not suffering from any psychiatric illness or condition. However, he described her as follows:
“Ms Abbey has some unhelpful personality traits and in particular she seemed excessively obsessional and somewhat suspicious and paranoid. I think her counter-productive personality traits have been exacerbated as a result of the unhealthy relationship between herself and her husband. Her unhelpful personality traits are probably less problematic now she is separated from her husband.”[3]
[3] See report of Dr E dated 7 February 2017 at page 16
Mr Sander reported to Mr S his concerns that Ms Abbey’s behaviour towards him and the children, was characterised by a need to exert an usual degree of control over him and the children. Some examples provided by him included the children being excessively medically examined at Ms Abbey’s instigation and a fear that they might be subject to computer spyware.
So far as Mr Sander was concerned, Mr S viewed him as most probably suffering a mild adjustment disorder following the end of the parties’ relationship. Like Dr E, Mr S did not view Ms Abbey as suffering from any major psychiatric disorder but he found her to have some personality traits, with some paranoid features, which were likely to become more pronounced, if she felt herself to be under pressure or challenge of some kind.
In this context, it would appear to be the case that issues relating to the children spending more time with their father than was then currently countenanced by Ms Abbey, were considered by Mr S. He reported as follows:
“Ms Abbey, however, does not endorse the notion of the children having school holiday time with Mr Sander for several years. Her concern for the children is understandable but considered overly cautious as there is no risk to the children from Mr Sander. From a developmental perspective the children can tolerate up to several days absence from Ms Abbey. As the children mature this intolerance will increase”[4]
[4] See Family Report (ibid) at [73]
Mr S was well aware that the transition of children to overnight time away from a primary carer had the potential to be stressful, particularly for a parent with Ms Abbey’s sensitivities. However, he regarded it as a normal dynamic and not something which should unduly prevent a child, even one of [Y]’s tender years, from having a proper level of meaningful relationship with his father.
As a consequence of these matters, Mr S considered the current care arrangements for the children to spend time with their father to be at the minimum level of what was preferable. In these circumstances, he favoured a measured and incremental increase in the time both children spent with their father, away from their mother, noting that ]X], given his greater maturity, could tolerate longer periods away that [Y], but a different approach for the two children was not advocated.
In these circumstances, Mr S made the following recommendations:
·the parties have equal shared parental responsibility for [X] and [Y];
·the children live primarily with their mother;
·the father’s time with the children remain as it was, namely an alternate week overnight and a weekly afternoon occasion, until [Y] was three and a half years of age, in around mid-2018;
·when [Y] was aged around five, 2019, a Wednesday night sleepover be implement for both children;
·Mr Sander and/or his parents spend time with the children, during each long and short school holiday, building up incrementally to an equal division of the holidays, when [Y] was seven years of age (2021);
·the children have time with their parents on special occasions, as the parties negotiated, from time to time. However, Mr S noted that the court “may need to stipulate arrangements for Easter and Christmas”;
·handovers occur at a mutually agreed upon location, with the facility for handovers to be conducted by known trusted adults in the absence of either parent;
·no restriction on telephone communications with either parent;
·[X] and [Y] have the facility to travel interstate, with each of their parents, provided adequate notice is given;
·Mr Sander attend all school and sporting activities, in which the children participate, which are routinely attended by parents;
·The arrangements for the care of the children be reviewed in December of 2021, when [Y] is aged seven and, at this stage, an extension of Mr Sander’s time with the children be considered.
The evidence
In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[5] I have tried to reach my conclusions on credibility and reliability on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.[6]
[5] See Evidence Act1995 (Cth) at section 140
[6] See Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ
Neither Mr S nor Dr E was required to attend at court for cross-examination. As such, their respective opinions and the methodology on which they are based has not been subject to any extensive scrutiny. However, I have no difficulty in accepting the evidence of either experts, particularly Mr S.
Mr S has a significant advantage over me in this case. He was able to see the subject children interacting directly with each of their parents. I have not had such an opportunity. I have only read about [X] and [Y].
In this context, Mr S’s observation that the children were happy and affectionate in the care of their father is significant. As such, I am satisfied that the children currently have a meaningful level of relationship with their father.
Accordingly, given the structure of the Act, it is important that the children’s paternal relationships continue to be facilitated subject to both protective concerns and any other relevant best interest factor.
Although it appear apparent that Ms Abbey was not particularly happy with the content of Mr S’s report, she did not elect to critique it. Rather the focus of each parties’ case was on why his or her position was to be preferred.
In this context, the mother’s position is easy to elaborate. She is the children’s mother and has been their main provider of care, since the time both [X] and [Y] were born. As such, she knows the children better than anybody else and, as such, her views should be given a great deal of weight, given her relationship and knowledge of the children.
In her presentation in court, Ms Abbey presented as extremely strong minded and somewhat dogmatic in her views in respect of what was likely to be best for the children. She did not strike me as a person with any great capacity to see the point of view of others.
Without wishing to be disrespectful to her in any way, in my assessment, she was a person who sees things in black and white terms and as a consequence finds it difficult to reach a compromise, particularly in respect of any issue of importance to her.
The parties’ separation was an extremely traumatic event for both parties. In this regard, I extend my commiserations to them each. In her evidence, Ms Abbey made it plain that it was her perception Mr Sander separated from her rather than vice versa. Her perception is that she sees herself as the victim of Mr Sander’s unforgiveable conduct. Currently, as a consequence, in my view, she views Mr Sander through a prism of hostility, which has implications for the objectivity of much of her evidence.
In short, in my assessment, she finds it very difficult to see anything of a positive nature in Mr Sander and his engagement with the children. She views herself, somewhat self-righteously, as being much more important for the children than their father. This attitude, in my view, is at odds with the evidence available to me in the case, particularly Mr S’s observation of [X] and [Y]’s interaction with their father.
Regrettably, it is my impression that Ms Abbey sees Mr Sander as something of a hindrance in what is her entitlement to parent the children as she views it appropriate. She described herself as providing “82% primary care”. In these circumstances, I am concerned that much of her objections to the orders proposed by Mr Sander are because she perceives him and his family to be enemies, whose aspirations are to be thwarted, if at all possible.
On the other hand, Mr Sander presented as a more measured and reasonable person. He did not seem to me to be unduly demanding. Rather, he appeared far more conciliatory than Ms Abbey and, as such, willing to compromise if it made things easier for everyone concerned.
It was my impression that he wished to have a better relationship with Ms Abbey and, as a consequence, was prepared to make concessions. However, so far as the central issues are concerned in this case, it is his position that he has already made sufficient concessions and there is no logic to many of Ms Abbey’s objections to his proposals, which are motivated by considerations not relevant to the children’s best interests.
In essence, he wishes to have a proper level of relationship with [X] and [Y], whom he loves dearly, without undue interference from Ms Abbey from whom he is now separated. I did not gain the impression that he was dismissive or disparaging, in any way of Ms Abbey’s parenting of the children, which was not the view I took of her, vis-à-vis Mr Sander.
Rather, he wished to be able to be parent [X] and [Y] with some degree of autonomy from Ms Abbey and engage in activities with the children, which he considered had the potential to be important to them. In this context, the most important thing was to ensure a proper degree of relationship with their paternal family.
I acknowledge that the issues arising in this case are subtle and have arisen over many years. I also accept that it is artificial for the court to make findings about credibility through the artificial medium of the witness box. It is not uncommon for decent individuals to find the process of cross-examination deeply unsettling and, as a consequence, not to present as well as they otherwise might do in evidence before the court.
However, on balance, I found Mr Sander to be the more reasonable person. Certainly, in my assessment, he was not advocating any of the orders, which he favours, with a view to frustrating Ms Abbey or for any other ulterior motive, such as to get the upper hand over her. Rather, I accept that his proposals are genuinely motivated by what he considers will be best for [X] and [Y].
I also accept that Ms Abbey is a devoted mother of [X] and [Y]. As such, it is to be expected that she will be highly protective of them. In addition, I accept that the circumstances surrounding the parties’ separation were particularly traumatic for her. However, in my assessment, her particular personality, which leads her to be suspicious of the motivations of others, has implications for the overall objectivity of her evidence.
The application legal considerations
Part VII of the Family Law Act 1975 is the part of the Act which deals with arrangements for the care and parenting of children. How the court makes such arrangements is through the making of a parenting order. Pursuant to section 64B of the Act, a parenting order can deal with the following types of issue:
·the person with whom a child is to live;
·the time a child is to spend with other individuals, including parents;
·the allocation of parental responsibility for a child;
·how a child communicates with other individuals, including parents;
·how parental disputes are to be resolved;
·and significantly, in a case of the current nature, any aspect of the care, welfare or development of a child or any other aspect of parental responsibility for such a child.
Pursuant to section 65D, subject to other provisions of the Act, the court is authorised to a make whatever parenting order it considers proper. It is clear, that the power residing in the court to make a proper parenting order is subject to what lawyers describe as the paramountcy principle.
This principle is enshrined in section 60CA of the Act, which provides that in deciding whether or not to make any particular parenting order, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration.
Accordingly, it is not the court’s obligation to resolve every dispute, which arises between parents in proceedings brought under the Family Law Act. It should only make any particular parenting order if satisfied that it will serve the best interests of the child who will be affected by the order concerned.
In VR & RR [7] the Full Court put it as follows:
“Whilst the word “proper” connotes a very wide area of discretion, in our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
In our view it is not the role of the Court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The Court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference.”
[7] VRR & RR (2002) FLC 93-099 at 88,940 [28] – [29]
In the case, the Full Court also endorsed the notion that, following relationship breakdown, each parent concerned had an entitlement to a private life and territory in which to raise children without unreasonable interference from the other parent.
In this particular case, the parties have consensually agreed that they will have equal shared parental responsibility for [X] and [Y]. In essence, they have agreed they will each have an equal share of the powers, duties, responsibility and authority [see section 61D] relating to the parenting of their two children. As such, one parent is not to be conferred with a superior level of authority, in respect of [X] and [Y], to the other.
In this context, in VRR the Full Court said as follows:
“In our view there is much to be said for extending that parental autonomy principle to disputes between separated parents. We think it is a sound principle that the Court, when determining issues of parental responsibility, should avoid unnecessary interference with the powers delegated to each of the parents.”[8]
[8] Ibid at 88,941 at [36]
Accordingly, in my view, it a relevant consideration for the court, that the parties be granted some latitude to engage in whatever activities they wish to do, with the children, whilst they are in each of their parent’s respective care, without undue or unreasonable interference from the other parent, subject, of course, to the overriding best interests of those children.
As Kirby J sagely pointed out in AMS v AIF[9] one of the often over-looked purposes of the Act is to enable the parties to a broken relationship to move on and form new lives, both as individuals and separated parents, without unnecessary interference from either a former partner or the court. Kirby J also recognised that such interference was likely to be a source of potential resentment and so embitter post separation parenting relationship, with possible adverse consequences for children.
[9] AMS v AIF (1999) CLR 160 at 208
At the commencement of Part VII is a list of aims and principles, which the court is directed to consider to ensure that a child’s best interests are met through any parenting orders it makes. The list of objects or aims of the legislation is set out in section 60B(1). They are as follows:
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principals or code of ideas, which underpin those objects, are set out in section 60B(2) and are as follows:
“(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
It is Mr Sander’s position that the various orders advocated by him will assist the children having a meaningful level of relationship with him, including allowing them to spend time with him and their paternal grandparents in an area of Australia which is important to him. From his perspective, it is an unwarranted intrusion into his sphere of parental responsibility for the children that Ms Abbey should be able to dictate to him the terms and conditions on which he interacts with the children.
Issues relating to a parent’s level of autonomy in respect of some aspects of parental authority come into sharper focus when the distinction between major parenting issues and other issues, which fall with the more generic purview of parenting decisions. Underpinning Mr Sander’s position, in the case, is his desire to do things, with the children, during his periods of time with them, independently from any direction from Ms Abbey.
A parenting order may deal with the allocation of responsibility for making decisions about major long-term issues arising in respect of any child [see section 64B(3)]. Major long-term issues, in respect of a child, include issues related to that child’s long term care, welfare and development and specifically includes issues to do with the child’s:
·Education (both current and future);
·The child’s religious and cultural upbringing;
·Issues pertaining to the child’s health;
·The child’s name; and
·Changes to the child’s living arrangements which are likely to make it significantly more difficult for the child to spend time with a parent [section 4].
Pursuant to section 65DAC of the Act, parents, who share parental responsibility, are directed to make decisions regarding major long-term issues, in respect of their children, jointly. The onus placed on such parents by the provision being to consult with one another and make a genuine effort to come to a joint decision about any major long-term issues pertaining to their child [section 65DAC(3)].
I do not regard any of the issues raised by the parties, in the present proceedings, which require the court’s adjudication, to have the quality of major long-term issues relating to [Y] and [X], although I concede that they are of very great personal significance to each of them, particularly Ms Abbey.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or other of them. This is to ensure that the myriad decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made and, in my view, to ensure that such decisions are made without undue involvement form the other parent concerned. As indicated above, parental autonomy is an important consideration for the court
In Bartel & Schmucker (No 3) Cronin J said as follows regarding the nature of parental responsibility:
“Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.” [10]
[10] See Bartel & Schmucker (No 3) [2012] FamCA 1094, at [18]
Given the importance, which the applicable legislation places on the co-involvement of parents in their child’s life and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the specific allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has recently considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from s.65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[11]
[11] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care and the child concerned gains the benefits of this involvement.[12]
[12] Goode & Goode (2006) FLC 93-286 at 80,901
In this case, Mr Sander and Ms Abbey have agreed that the presumption of equal shared parental responsibility will be applied their parenting of [X] and [Y]. This, in my view, is a significant thing. As a matter of law, one parent is not prioritised over the other in the exercise of parental authority for the two children.
However, at the same time, they are unable to agree about very many specific aspect relating to the on-going care of the children. Essentially what arrangements will be in the best interests of the children and reasonably feasible to implement.
Clearly, as time unfolds and the children become more mature and their relationship with each of their parents continues to evolve, considerations relating to both these categories of matter will also change. However, the ethos of the Act remains committed to parents being significantly involved in care arrangements for their children.
The specific matters, which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
The section creates two classes of considerations which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a) & (b) namely:
(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.
Clearly, these criteria pick up on the objects and principles of the Act as set out in section 60B. Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It appears to be Ms Abbey’s position that the children are at some appreciable level of risk of suffering some form of either psychological harm or physical harm, emanating from their father, if her position in the case is not acceded to and, as such, this should be the main focus of the court’s endeavours, namely protecting the children from coming to harm.
On the other hand, Mr Sander places greater emphasis on the benefits [X] and [Y] are likely to derive from having a meaningful level of relationship with him. Clearly protective concerns are very important for children and indeed are to be given some level of priority over issues to do with parental relationships. However, in my view, this does not mean that the court should not give significant regard to the beneficial aspects of such relationships for children, given the contents of section 60B.
Benefit is a common English word. It means a favourable or helpful factor or circumstance; advantage, profit.[13] In Mazorski v Albright[14] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned. At present, by dint of the parties’ shared history with one another, and they with [X] and [Y] it is, in my view, clearly the case that the children currently have a meaningful relationship, with each of their parents.
[13] See the Australian Oxford Dictionary
[14] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Family Law Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
The aspects of a child’s life, in which a parent can be meaningfully involved, are therefore multifarious. They include “fun” activities on holidays and weekends – essentially interacting with their parents in a relaxed setting, as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations.
In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents. It is these types of interactions, which add significance and value to parent/child relationships and so add meaning to them.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced. I accept that to be meaningful parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better, if a parent spends more time with a child but, for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”.
It also seems to me that parental relationships will become more meaningful, for the children concerned, if they entail a greater degree of involvement of the parent concerned in a variety of aspects of the life of the child concerned. In my view, it is significant that the legislature has elected, in section 60B(1)(a), to speak, in unconfined terms, of parental involvement in children’s lives.
In my view, by dint of their different personalities and attributes, the parties are likely to add meaning to the children’s lives in different ways. They are of different sexes. Clearly they approach many aspects of life differently. Sadly, some aspects of the differences between them, led to the demise of their marriage. In this context, I place significant regard on the following observation of Mr S:
“Both parties bring to the parenting equation differing skills and abilities. The combination of this mix ultimately augurs well for the children given that both parents are child focussed and genuine in their concern for the well-being of the children.”[15]
I thoroughly endorse this sentiment.
[15] See Family Report (ibid) at [72]
These are important considerations, when the overall framework of Part VII is considered. The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the children concerned being as involved as fully as possible in their children’s lives.
In Goode & Goode[16] the Full Court said as follows:
“In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.”
[16] See Goode & Goode (2006) FLC 93-286 at 80,901 [72]
This statement encapsulates Mr Sander’s position. It is his position that, with the end of the parties’ marriage, previous care arrangements for [X] and [Y] can no longer be regarded as a preeminent consideration in determining on-going arrangements for their care.
Rather, in the changed circumstances prevailing since the parties separated and on-going into the future, the court must be focussed on the enhancement, for the children, of the benefits of a continuing and growing level of relationship with each of their parents.
This means that, with all due deference to the children’s current tender years and the undoubted importance of their relationship with their mother, the court must be focussed on extending important relationships for the children, rather than merely on their maintenance.
In this case, in general terms, I am unable to reach any conclusion that indicates that one parent is more significant than the other to the two children concerned. In my view, they are each likely to be integral to ensuring the best interests of [X] and [Y] are safeguarded, both now and into the future.
Other specific criteria relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.
Of particular relevance in the current matter are the following considerations:
·Section 60CC(3)(b) – the nature of the children’s relationship with each of their parents and significant others, including grandparents.
As indicated above, I accept the children have a very close relationship with each of their parents. It would be trite and condescending for the court to attempt to assess who of the parties loves [X] and [Y] more. On any view, these relationships are central to the wellbeing of the children.
I also accept the evidence of Mr P, the paternal grandfather [17] that he and his wife have a close relationship with [X] and [Y], which was interrupted when the parties separated because Ms Abbey was not well disposed to them. Mr and Mrs Sander Senior live at Town B, in New South Wales. They plan to visit Adelaide regularly to see the children but would like to interact with them where they live at Town B.
[17] See affidavit of Mr P filed 30 April 2018
Grandparents are important to children. Not only are they a source of love but they are also able to provide family history to their grandchildren and give them a sense of where they fit in. The same can be said of cousins and uncles and aunts. [18]
·Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances.
[18] See Bright v Bright (1995) FLC 92-570
In this case, the parties have sensibly and to their credit agreed on a resume which will incrementally increase the children’s time with their father over the next three to four years culminating in a regime which will see them spending a block of around five nights per fortnight, during school terms with their father.
In addition, the time will also increase incrementally during school holidays. This is in keeping with the recommendations of Mr S. As such, I am satisfied that the children will not be subject to any destabilising levels of change or uncertainty. The issues in dispute between the parties, in my view, are more germane to issues of parental control and preference.
As indicated above, given the high degree of conflict between the parties, I consider that I must give significant weight to issues of parental autonomy – that is one parent should not perceive that he or she is being unduly controlled by the other parent when the children are in their respective control.
·Section 60CC(3)(e) – practicality of time spending arrangements
With the sale of the former family home, Ms Abbey and the children have moved to live in Suburb 3, a suburb of Adelaide, not far from where they previously lived. It is also very convenient for [X]’s school in Suburb 4. Mr Sander and his partner Ms M live in Suburb 5, which is to the Adelaide CBD. The two suburbs are about thirty kilometres apart.
From the mother’s perspective the distance involved, particular when it takes place in peak traffic times, calls into question the viability of the Wednesday afternoon time spending arrangement being either maintained or extended to an overnight period. She argues that the children will have to get up too early to get to school on time on Thursday morning. She is also concerned that it will be disruptive of the children’s friendship groups, which are based around where they go to school, not in Suburb 5.
Mr Sander has given evidence that his employer is very supportive of his family responsibilities and has allowed him to flex off work on Wednesday afternoons. In these circumstances, he does not believe the distance involved is insurmountable to his proposal or will prevent him being able to collect the children on Wednesday afternoons or get them their breakfast before school. He contends that he will be largely driving against the traffic.
In addition, he denies that his work commitments will prevent him taking up the opportunity to spend time with the children. Ms Abbey does not accept that this is so. She believes that it is inevitable Mr Sander will have to work and therefore Ms M will be enjoying the time with the children rather than their father. This, in part, founds her desire that the court make an order that the father be substantially present during all periods of time the children are directed to be in his care.
The parties are the individuals best placed to gauge the practical difficulties arising from the distance between Suburb 3 and Suburb 5 given where Mr Sander works. For obvious reasons, the mother is likely to emphasise the degree of difficulty, whilst the father will see the problems as an inconvenience at worst.
Given the parties are now separated and, as a consequence, have elected to live different and distinct lives, it not likely to be the case that the residential decisions required to be made by either of them will be easily synchronised. I acknowledge that the distance involved is significant but given the nature of modern urban life it cannot be regarded as being a barrier to the children spending significant and substantial time with either of their parents or indeed an equal time regime.
Mr Sander does however concede that it is inevitable the unforeseen exigencies will occur from time to time, which will require existing arrangements to be revised, perhaps at short notice. On this basis, he wishes the parties to be able to utilise agents for the exchange of the children between them. He envisages Ms M being his most usual such agent.
Ms M has not provided any evidence in these proceedings. As such, I am not in a position to assess her level of insight into the difficult parenting relationship between the parties and so whether her involvement is likely to either lessen or extenuate these problems.
I would hope that, as time passes, the parties will be able to manage the necessary arrangements for the exchange of the children between them more easily. The difficulties arising from the need to balance family and professional responsibilities is a common cause of concern in this day and age, particularly with the feminisation of the workforce. In my view, considerations of this kind militate in favour of the father’s proposal to allow agents to be involved in exchange arrangements from time to time.
·Section 60CC(3)(f) & (i) – parental capacity to provide for emotional and intellectual needs & attitude to parental responsibilities.
The parties are both good and capable parents, who are emotionally in-tuned to the needs of the children. They are each well educated. In particular, I do not consider that it is probable that Mr Sander would willingly expose the children to any significant risk of harm. Nor would Ms Abbey.
If her parenting can be criticised it would be that she is unduly protective to the children and this renders her somewhat anxious in her parenting. However, having said this, I appreciate that being protective is part of the duty statement of being a parent.
In this context, Ms Abbey wishes Mr Sander to be substantially present during all periods of time the children are in his care and wishes a specific prohibition made in respect of the children interacting with their paternal aunt, Ms R. She suffers from some form of obsessive compulsive disorder, which is manifested by the pulling out of her hair (trichotillomania).
It is Ms Abbey’s position that [X], in particular, has been distressed by her behaviour and is frightened of her. Ms Abbey herself has not engaged with Ms R since 2015. She did not give evidence in these proceedings. Mr Sander characterises his sister as a (occupation omitted), who has previously cared for [X] on her own.
In my view, this issue is emblematic of the various difficulties arising in the parties’ difficult post separation parenting relationship. Ms Abbey wishes to exercise a degree of control over what Mr Sander can and cannot do, with the children when they are in his care. Essentially, she wishes to retain this power of veto because she does not trust the judgment of Mr Sander in this respect and regards herself as the more insightful and protective parent.
For his part, Mr Sander resents this level of imposition into his parental autonomy so far as arrangements for [X] and [Y] are concerned, when they are in his care. He asserts that he is perfectly well placed to make any necessary protective decision, regarding the children, if and when it is necessary to do so, without the interference of his former partner.
In my assessment, the restriction sought by Ms Abbey is unwarranted, given my assessment of the parental capacity of Mr Sander. I do not consider that he would knowingly place the children in a situation in which they were at risk or unduly emotionally upset. I do not consider that his parental judgment is flawed, as suggested by Ms Abbey.
·Section 60CC(3)(g) – maturity, sex and background of the children concerned.
The parties have been in dispute with one another since July of 2016, when [X] was four and [Y] not yet two years of age. Their separation was emotionally challenging and resulted in the sale of their former family home. There is nothing easy about this process, which necessarily involves a difficult process of emotional adjustment.
At the time, as is the case now, Mr Sander was engaged in the full time workforce. Ms Abbey, of her own volition, elected to describe herself as a “stay at home mother”. She had been able to take extended maternity leave in order to discharge her family obligations.
These factors, for obvious reasons, have dictated the practicality of the parenting orders, which have been made in the period since the parties separated. It was neither practical nor calculated to be in the children’s best interests for there to have been an equal time regime implemented for the children.
It is to the parties’ mutual credit that they have been able to agree on a regime which sees the children’s time with their father increase annually by gradual amounts. In my view, this in keeping with the obvious fact that, as time unfolds, the children will both become more mature and their relationship with each of the parents will evolve. It is also congruent with their agreement that they will have equal shared parental responsibility for [X] and [Y].
·Section 60CC(3)(l) – preferability of making a final order.
Finality is generally preferable in children’s cases. Litigation is expensive in both financial and emotional terms and does little to encourage an easy parenting relationship between the parties concerned. In addition, so far as children are concerned, it is usually desirable that arrangements for their care are stable and constant and not subject to the threat of further litigation.
It is also the case that one of the frequent consequences of litigation, including that between parents, is to lead to the polarisation of the positions of the parties concerned. As these proceedings eloquently demonstrate, if a forum is provided in which to ventilate their disagreements, it will be utilised.
Children are usually best parented by parents who trust one another and who are able to respond empathetically and mutually to the changes which will inevitably occur as their children change and develop. After all change is a corollary of life. Good parents must be able to adapt to such change without utilising it as an opportunity merely to disagree about its implications.
The parties have been able to agree very many of the issues in dispute between them. In my view, this is attributable, in large part, to Mr Sander’s child focus and willingness to compromise. Due to her personality, Ms Abbey has some difficulties in letting issues go and working towards the middle ground. Dr E believes that with the resolution of these proceedings, it will be easier for her to work constructively with Mr Sander in future.
I hope this is the case, but it cannot be guaranteed. Over time, Mr Sander wishes to extend his degree of involvement in the care of [X] and [Y]. He wishes to parent the children in an equal time regime but only when the children are sufficiently mature to be able to cope with it. It is highly possible that the parties will disagree as to what the appropriate stage will be for this to occur.
Given the parties’ difficult relationship and the differences in the personalities and parenting orientation, the risks of future litigation between them cannot be under estimated. Each party has been willing to contribute significant resources, in the current proceedings, to issues which are not, in my view, central to the overall emotional integrity of the two children concerned.
Regardless of whether they holiday in New South Wales in alternate years or not, [X] and [Y] are likely to be happy, well cared for children. In this context, both Mr Sander and Ms Abbey must be regarded as determined individuals, perhaps with some level of deficit in being able to focus on the bigger picture.
It would be in the interests of [X] and [Y] that, if there is any possibility at all that future litigation between their parents could be avoided, it should seized with alacrity and the energy of the parties directed towards solving problems mutually rather than on focussing about what they disagree. Considerations of this kind militate in favour of the father’s proposal for community based mediation, when [Y] is seven, when the inevitable issue regarding equal time coalesces.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[19]
[19] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[20] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[21]
[20] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[21] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
Consideration
I have attempted to reflect on some of the issues in dispute between the parties, as I have delineated the various legal considerations, which I am required to apply to the resolution of those disputes. I have done this so that the parties will be able to appreciate the complex matrix in which decisions, ostensibly relating to individual preference, must be determined.
It is now necessary for me to make the various decisions required of me. In so doing, I hope that I will not add to the difficulties currently existing between the parties in their parenting relationship with one another. One of the grave dangers in the kind of litigation arising in this case is that its resolution had the inevitable consequence that one parent feels vindicated by the court’s decision, whilst the other feels unheard. In these circumstances, it is only to be expected, human nature being as it is, that the potential for conflict to remain being the parties concerned is enhanced rather than diminished.
That is not my intention. Each party’s preferred outcome in this case is readily understandable and has factors in its favour. As such, it is highly regrettable that I must make the various decisions required. However, all ordered societies require a mechanism to resolve disputes between their citizens, including between those who are unable to agree about how their children are to be parented.
a)Extension of Wednesday Time
In my view, the extension of time proposed by Mr Sander will add a level of meaning to his already significant level of relationship with the children. I do not accept that either his work obligations or the distance between the parties’ respective homes should act as a bar to his proposal.
I will make an order that the father’s time with the children be extended to include a fortnightly sleepover on Wednesdays from the start of 2020. This is in keeping with Mr S’s recommendations. In my view, this is a modest increase in time. I also accept Mr Sander’s evidence that he is able to make it work in practical terms.
b) Father to be substantially present during all times
In my assessment, Mr Sander is not the kind of parent who would be neglectful of the children or one who would entrust them to any person in whom he did not have the highest degree of trust and confidence. In my view, he is the person best placed to determine whether [X] and [Y] can be safely left in the care of his parents, Ms M or indeed their paternal aunt.
Given the parties have agreed to share parental responsibility for [Y] and [X], it is not warranted that Ms Abbey attempt to control what Mr Sander does with the children when they are in his care. In my view such an outcome is not in keeping with principles of parental autonomy. I do not propose to make the orders sought by the mother in this regard.
c) Presence of agents at handover
It is important, I think, that all reasonable steps be taken to ensure that unforeseen exigencies do not derail future parenting arrangements for the children concerned in this matter. I appreciate that Ms Abbey does not approve of Mr Sander’s parents or of Ms M. She is entitled to her views but I should give heed to them only if they have the potential to directly impact on the best interests of the children concerned.
Modern life is complex, particularly if it entails a mix of family and work responsibilities. Inevitably unforeseen events and commitments crop up, even in the most methodical and ordered of lives and diaries. I do not regard Mr Sander as the sort of parent who would be cavalier in respect of his obligations to spend time with the children. I accept that he sees the collection and return of the children as fundamentally his responsibility.
However, at the same time, he has his living to earn, which also contributes to the economic support of [X] and [Y]. In my view, it is more likely than not to be in their best interests if the father is able to approach prospective handovers with as much flexibility as possible, including the facility to have assistance from other at them.
d) Holidays in New South Wales at Christmas
I acknowledge that Christmas is an important time for the vast majority of Australians, particularly the parents of young children. For obvious reasons, parents wish to share every aspect of Christmas – present opening; Christmas trees and stockings; and the festive meals of the season – with those whom they hold dear, their children. So do grandparents and other relatives, so far as their kith and kin are concerned.
In addition, Christmas is a time at which family traditions are created. Children, as they grow to maturity and beyond, remember their various Christmases and who was present at them. These memories have the potential to be important. As such, Christmas is a time at which familial relationships are both extended and solidified. Most importantly, children gain a sense of where they fit in their wider family. This can be significant if that family is a separated one.
It is not my role to determine whether the Christmas traditions on one side of [X] and [Y]’s family are likely to be more significant for them, in the longer term, than on the other. In my view, both the paternal and maternal celebrations, at Christmas, are likely to be important for the children. In addition, in my view, it is likely to be helpful for the children to gain an appreciation that Christmas is a time to be shared with others with whom they share ties.
The underpinning of the mother’s case is that [X] and [Y] will be emotionally devastated, if they do not share some aspect of Christmas with her because she is more emotionally significant to them than is the father. This assertion cuts both ways and also suggests, in my view, to some extent, the emotional neediness of the mother herself.
The father’s Christmas celebrations are centred on his family, particularly his parents, who live in New South Wales. In these circumstances, it is not logistically possible for the celebratory days of Christmas to be divided on an annual basis, so that the mother gets Christmas Eve and Christmas morning/lunch and the father gets Christmas dinner and Boxing Day, with the positions reversed in alternate years. Such an outcome will preclude the ready involvement of Mr and Mrs Sander Senior.
The parties have agreed that they will share parental responsibility for the children equally. As a consequence of the application of this presumption, the court is directed to consider, in an active way, parenting regimes which envisage either an equal or substantial involvement of both parents in the lives of their children.
Christmas is one of the occasions, which parents and families share with children, which adds to meaning in parent/child relationships, particularly within the context of the sharing, by parents, of responsibility for their children. In these circumstances, I have reached the conclusion that it is counter-productive for the court to consider whether Christmas has the potential to be more important for the mother or for the father. It is important for them both.
In these circumstances, I have reached the conclusion that the most practical means by which both meaning can be added to each of the children’s parental relationships, vis-à-vis the celebration of Christmas, including in the context of the children’s relationships with other members of their family is through the medium of the orders proposed by Mr Sander.
At this juncture, I can see no potential drawbacks for the children, apart from their mother’s disapproval of [X] and [Y] being able to spend regular periods of the agreed holiday blocks, interstate, with their father. I accept that such opportunities have the potential to add meaning to the already significant relationships which the children share with their father and indeed with other members of his family.
I consider it unduly restrictive of Mr Sander’s parental autonomy, arising as a consequence of the parties’ separation that the children not undertake any interstate travel until they are aged at least twelve. I consider that Mr Sander is appropriately placed to determine whether it is appropriate for the children to travel interstate, in the time currently allocated to him provided he advises Ms Abbey of where he intends to travel with them together with relevant contact details.
In respect of generic travel interstate, Ms Abbey seeks that the children not travel unaccompanied until they are aged sixteen years of age and must agree to such travel after they are aged twelve. In my view, this is unduly restrictive and for the children to have to agree to such travel, when they are twelve and older, has the potential to place them at the centre of potential issues of parental conflict, which is not likely to be in their best interests. In any event, I decline to enter into any discussions about the importance or otherwise of these children’s views, which are unknown to me, about issues several years in the future.
e) The children’s birthdays
As with Christmas, birthdays represent significant rites of passage for children. As such, it is important that they have an opportunity to celebrate birthdays with each of their parents. After all, the children have only one birthday each year. It should not be a logistically challenging issue to ensure that both parents are able to wish the children many happy returns on the day in question and present gifts. The same is true of Mother’s Day and Father’s Day each year.
f) International travel
Neither party has any specific plans to travel overseas with the children, who do not hold passports. The mother wishes any such travel to be restricted until the children are aged at least twelve (2026) and the time away be restricted to no longer than seven days.
The parties have different views as to where any passports for the children are to be lodged, if they are issued. In a spirit of apparent even handedness, Mr Sander proposes he hold [X]’s; whilst Ms Abbey holds [Y]’s. Ms Abbey proposes that she hold both.
It is the father’s position that it is a commonplace incidence of parenthood that relatively well resourced parents, such as himself, routinely take overseas holidays with their children to anodyne destinations such as (countries omitted) and in these circumstances, it makes sense for the court to resolve such issues prospectively to avoid further expense and controversy, when the issue inevitably raises its head and he wants to take the children overseas.
In these circumstances, he seeks the ability to travel overseas with the children, once [Y] has turned eight years of age (2022) for periods of up to twelve days, provided that the country of travel is a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and a detailed itinerary of the travel proposed is provided.
The mother agrees that the issues should be resolved prospectively. Where she differs from the father is the length of time away and the age of the children at which such travel can be contemplated. She also wishes that there be only one such trip annually. The mother agrees that the issue should be resolved prospectively. It is also common ground that only travel to a Hague Convention country should be contemplated
The strength of the ties of each party to Australia cannot be called into question. As such, there can be no unacceptable concern, at this stage, that either of the parties will relocate the children out of Australia on a permanent basis. In these circumstances, I can see the pragmatic appeal of determining the issue now to avoid the parties incurring future expense.
In her affidavit material, Ms Abbey has raised her concerns that the children are not old enough and so sufficiently emotionally robust to withstand the rigours of international travel. In her words “sometimes…you just want your mum and no one else will do.” She fears that if the children become ill or something goes wrong, Mr Abbey will not be able to cope without her input into the children.
Mr Sander regards Ms Abbey’s position as unduly alarmist and unreasonable and based more on her disdain for him, as a parent, rather than any realistic concerns. His position is that [X] travelled to (country omitted) when he was an infant and he would not propose travel to any outlandish destination. In these circumstances, he contends that it is unreasonable to postpone overseas travel for close to eight years.
Again, in my view, the issue is emblematic in the differences in the parties’ outlooks and aspirations, rather than being focussed on specific issues to do with [X] and [Y]’s best interests. It as an issue more about parental control and priority than whether an overseas holiday will be potentially enjoyable for the children, broaden their horizons and experiences and so be of benefit to them sooner rather than later.
Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the children’s best interests according to the criteria specified in section 60CC, within the overall matrix of objects and principles set out in section 60B. Different minds are likely to have different views about the travel concerned depending on what location is proposed.
The difficulty of course is that the actual circumstances surrounding travel in the future cannot be known with certainty now, although in general terms I accept the well-known aphorism travel broadens the mind. As Cronin J said in Gin & Hang:[22]
“Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.”
[22] Gin & Hang [2010] FamCA 617
Ms Abbey adopts the position that it is more likely than not that something will go wrong, if the travel takes place too soon. It is her position that the children currently struggle if separated from her for more than three days. She deposes as follows:
“The scenario facing us now is the said children being taken away from their mum and primary carer for an extended period of time…to a foreign country where I will not be able to get to them I a timely manner if they need me.”[23]
[23] See Mother’s affidavit at [38]
There is no right answer to the question posed by the parties. It is sad firstly that it is of such moment to them, when the travel is entirely prospective in nature and secondly that they cannot formulate some mechanism to resolve it without recourse to expensive court proceedings. I will attempt to resolve the issue by focussing on efforts to reduce parental conflict. Accordingly, I will strike a balance between the competing claims of the parties.
I propose to resolve the dispute by limiting any overseas travel to periods of no more than seven days, until [Y] is eight years of age (2022) and thereafter for periods up to twelve days. I will further direct that this travel can occur from January 2020 onwards, which I note is the time envisaged for five consecutive nights of holiday time is to commence. As Mr Sander will be travelling he can apply and pay for the children’s passports and hold them when issued.
g) Other issues
I am of the view that holiday time can start immediately after school has finished. I reach this view because I consider it more likely than not that a school handover is the best mechanism to provide the children with an emotionally seamless transition into the father’s care. So far as the time for Easter transitions is concerned, it can be at 5.30 pm, which is the midway point between each party’s respective preference.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 17 August 2018
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