Searson and Searson
[2018] FCCA 4038
•30 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEARSON & SEARSON | [2018] FCCA 4038 |
| Catchwords: FAMILY LAW – Parenting – future care arrangements for young woman – enduring conflict between parents – consideration of benefit of meaningful involvement of both parents in child’s life – circumstances where child enmeshed in and exposed to adult conflict – where child’s views support continuation of relationship with both parents – where Father has determined he will not spend time with or communicate with child – incapacity of parents to communicate or resolve conflict. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(4); 60CA, 60CC, 61DA, 65DAA, 65DAC International Convention on the Rights of the Child |
| Cases cited: Ras Behari Lal v The King-Emperor [1933] AII ER 723 Rice & Asplund [1979] FLC 90-725 Other sources: |
| Applicant: | MR SEARSON |
| Respondent: | MS SEARSON |
| File Number: | BRC 10672 of 2016 |
| Judgment of: | Judge Harman |
| Hearing dates: | 27 & 30 November 2018 |
| Date of Last Submission: | 30 November 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 30 November 2018 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Ms Downes |
| Solicitors for the Independent Children’s Lawyer: | Life Law Solutions |
ORDERS
Discharge all prior parenting Orders with respect to the child X born in 2006.
The mother, Ms Searson, shall have sole parental responsibility for major issues decisions relating to X.
X shall live with her mother Ms Searson.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Searson & Searson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 10672 of 2016
| MR SEARSON |
Applicant
And
| MS SEARSON |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to future care arrangements for a young woman, X, born in 2006.
This determination follows many prior determinations.
The parties to the proceedings are X’s parents. Her father, Mr Searson, is the applicant and her mother, Ms Searson, the respondent.
The best interests of young X are represented by an independent children’s lawyer.
The parties are not strangers to litigation. They have been involved in relatively continuous litigation since 2012, a period now in excess of six years. Curiously, that litigation travels under different proceedings numbers, but in any event, it is in a continuum.
The proceedings will today be brought to a conclusion in somewhat unusual and regrettable, if not tragic, circumstances. To understand that, it is necessary to have some brief regard to the history of these proceedings.
The first Application in relation to the care of young X and her then minor brother, Mr Y, was filed on 29 May 2012. That litigation eventually concluded after a family report had been prepared and a myriad of documents filed.
These proceedings, together with those travelling under a separate proceedings number, occupy two large boxes. That reality embodies the time and energy that these parents have devoted to their litigation, but, regrettably, not to any therapeutic address of their circumstances, their child’s circumstances or their co-parenting relationship.
The proceedings came before the Court for hearing earlier this week, namely, 27 November 2018. On that date, the parties engaged in negotiation for some time with the assistance of the independent children’s lawyer.
Ultimately, the mother left the building, although returning after a time. The mother then left the building on a second occasion and the matter was presented as undefended.
Attempts were made on that occasion to contact Ms Searson. The phone was answered by someone other than Ms Searson. That person indicated that Ms Searson was not in a position to and did not desire to come to the phone. I do not relate the above matters as a criticism of Ms Searson - she has, this morning or shortly prior to today, filed an affidavit explaining those events, although impermissibly canvassing without prejudice settlement negotiation at times.
I do not accept all that is contained within that affidavit without question, but I do accept what Ms Searson indicates regarding her leaving the building and the phone call. Ms Searson corroborates that evidence by annexure of a medical certificate indicating that she was experiencing significant distress and had experienced a panic attack.
As the Mother was not present and as it was suggested that the Mother had indicated, upon leaving the Court, that the child could live with the Father, consideration was given to a conclusion of the proceedings on a final basis. A separate judgment was delivered on that occasion.
Ultimately, I was not persuaded that Orders should be made finalising the proceedings, particularly by reference to that discussed by Lord Atkin in Ras Behari Lal v The King-Emperor [1933] AII ER 723 at 726: “Finality is good, but justice is better”.
It was clear, having read and considered the material filed - particularly two reports in the proceedings, one by a clinical psychologist or psychiatrist, one by a family report writer – that there was a substantial history between these parents and that it would be imprudent, if not unsafe, to conclude the proceedings without affording to the mother a further opportunity to re-engage with the proceedings.
That has occurred. The mother has appeared today and participated.
The parties have spent some time today in negotiation - indeed, some hours. At the conclusion of those negotiations, there is no agreement between the parties, although the matter can now be disposed of. I do not use that terminology to suggest that the matter is like a bag of garbage taken outside and gotten rid of. It is merely that the matter will be brought to a conclusion, albeit in a most unsatisfactory - although perhaps inevitable, if not unavoidable - fashion.
Mr Searson, as the applicant, has indicated that he does not and cannot continue to endure with these proceedings. He indicates that whilst he is desirous of “protecting” X from events within the mother’s household, or perhaps from the mother herself, it is not something he can persevere or persist with and, accordingly, he will, to adopt his language, “walk away”. That, when unbundled, means that he would not oppose the child remaining in the Mother’s care and would not seek to pursue a relationship with her. That is regrettable for X, but I am not critical of Mr Searson. I understand that such decisions are made by parents for a variety of reasons.
It is regrettable in light of what is related in relation to X in the family report, particularly Part 6 thereof.
Young X is a talented young woman. She is heavily involved in dance. That, indeed, is one of the stressors and causes of dispute between the parents, both as to the extent of her participation and its perceived intrusion upon the time of the parents, each of them, as well as the costs associated therewith. There is very much an underlying theme of complaint and criticism in relation to financial issues connected with child support or X’s activities in this case.
X, when interviewed by the report writer, was observed as less animated then she had been when observed with either of her parents. That may well be explicable by reference to her desire to not become involved in the proceedings as a witness. That would appear the most likely explanation in light of the balance of the report.
It is quite clear from the interview with X that she experiences abdominal pain and health difficulties which have caused her to attend upon a gastrointestinal paediatrician to explore, with no cause having been found.
It is opined, by one or other of the parties in different portions of their evidence, that they believe the gastrointestinal complaints are psychosomatic. That would appear probable in light of the absence of any other explanation upon investigation.
Young X is very clearly involved in discussion of adult issues with her parents and is fully aware of the disputes between her parents and their views each of the other. At paragraph 6.3, she holds out a plea to her parents, if it might be so interpreted, which each parent would appear incapable of hearing at this point. She is reported as follows:
“She said she would like it if her parents got on better”
That is a euphemistic description by young X.
These parents do not get on at all on any level.
X is reported as continuing to say that she is aware that they prefer not to speak to each other and, when they do, they argue. She agreed that their avoidance of each other in the reception area on the day of the report had been typical of how they manage - not making eye contact or exchanging any greetings with each other. She estimated that this had been their way since she was about five years of age, when her other brother, Mr C, had also been living in the home.
Mr C is now 27 and lives very much separate from either of his parents.
The financial substratum of conflict between these parents is taken up and repeated by young X. She makes complaints, if her comments might be so interpreted, that she and her mother live in rented accommodation whilst her father and fiancée own a home.
X complains that she attends a school that she does not wish to attend. That would appear to have been a significant dispute between these parents. She confirmed that both of her elder brothers had moved out and that she lives alone with her mother, although at that point, spending five nights per fortnight with her father.
Sadly, and perhaps the basis upon which I describe that the conclusion of these proceedings is, at least, regrettable, if not tragic, X stated that she likes it the way it is. X stated that she gets on well with her mother, whom she describes as kind and who tries to fulfil her wishes. That statement is, perhaps, in contradistinction to the plea that the child requires rescue from the Mother.
At paragraph 6.6, X describes that her primary wish is to dance and become a dance teacher. That also is particularly tragic in light of the amount of dispute and confrontation that the activity, and its cost, generates between these parents.
At paragraph 6.9 X reports that she is aware of the cost of those activities and her mother’s inability to meet all of those costs. She raises complaint that her father does not contribute sufficiently to those costs. The child sees that as a criticism of her father, adding at paragraph 6.10, that her father has a lot more resources than her mother, and if he spent less on other choices, he could afford to pay for her lessons. She describes at paragraph 6.12 – again, tragically, in light of the amount of conflict it creates for these parents – that dance makes her happy, and that is why she does it. And yet, it is that very activity that seems to be at the heart – especially its cost and expense – of this dispute.
When the matter was dealt with earlier in the week, I had not read or considered Part 7 of the report - an interview with X’s older brother, Mr Y, now 18. That was a deliberate and conscious choice, as Orders could no longer be sought with respect to Mr Y, even though when the proceedings had commenced, Orders had been sought. Mr Y describes, at paragraph 7.9, that both of his parents are rash in the way they deal with each other and that they do not try to keep it from their children.
At paragraph 7.16, Mr Y describes that, from his perspective, both of his parents want to be seen as good and to paint the other as hateful and devilish. He describes that they do not want to talk to each other and that when they do communicate, they do so in a critical way and do not listen to each other.
Earlier in the interview, Mr Y describes that one of the reasons that his father does not attend or like to attend X’s dance recitals and practices as frequently as might otherwise be possible is because there have been so many things said about him to other parents at the group by his mother.
Mr Y describes insightfully at paragraph 7.17 that his parents would benefit from therapy to help them communicate and negotiate, he believing that in five years, they have made no progress. Sadly, that is the very period that any possibility of therapeutic benefit of such interventions would have occurred and after that period the probability of benefit is likely to be low. Thus, these parents would now appear to be fundamentally concrete in their thinking and unmoveable. That diminished their enjoyment of life but, more importantly, significantly impacts and saddens X and it will continue to do so.
Perhaps, a glimpse of the future for X, particularly if things continue as they have for the last five years, is found at paragraphs 7.18 and 7.19 of the report, wherein Mr Y reflects that he has probably been depressed since the parents’ conflict began. Mr Y states that he has recently been formally diagnosed with depression and is taking medication. There is nothing from the report that concretely draws a link of causation between that conflict and the depression, but the manner in which Mr Y describes it, particularly its onset, makes it somewhat attractive to assume that causative link.
Perhaps the parents might take heed of Mr Y’s experience.
Finally, young Mr Y concludes that he fears for his sister, not on the same basis as his father, (with X requiring rescue from her mother), but as a consequence of the conflict. He describes his wish that they “sort their fucking shit out” so that his sister, this child X, can experience care and kindness in both homes.
That is perhaps the germane point to turn towards the legislative provisions. Before doing so, it must be observed that the International Convention on the Rights of the Child is incorporated in its totality as an object of the Family Law Act 1975 (Cth) by section 60B(4). The preamble of the Convention is worth repeating:
Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.
That “atmosphere of happiness, love and understanding”, is, regrettably, and particularly by reference to Mr Y’s description, unlikely to be achieved for young X.
It may well be, and I do not doubt it, that both parents love X a great deal. That love, however, particularly when combined with the underlying and, it would seem, irresolvable conflict in relation to financial issues, deprives this child of happiness and understanding and of a family environment which contains those elements.
The Orders made on Tuesday provided that X would spend time with her father from the conclusion of school that day until 5 pm today. Without any further Order, the child would, accordingly, return to a practice of relationship with each parent in accordance with previously made Final Orders.
There have been quite a number of Orders made in relation to this child and in light of that which has fallen from Mr Searson - that he proposes to walk away - it is not necessary to strictly ascertain the Order that presently operates as it will be discharged, whenever it may have been made. A broad Order simply discharging all prior Orders will achieve that purpose.
The circumstances of young X must cause some concern to this Court. That is not necessarily to suggest that either parent is problematic for the child’s health, happiness and development simpliciter. What is harmful for X is the conflict between her parents. As Felstiner, Abel and Sarat commented in their seminal work on conflict,[1] disputes are not things, they are constructs between parties.
[1] William Felstiner, Richard Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming’ (1980-81) 15(3-4) Law & Society Review, 631, 631.
However, for some, particularly those who have been enmeshed in irresolvable conflict for five years or more, as these parents have, there is the very real potential that conflict becomes real, almost tangible. It becomes, as it were, “Harvey”, their pooka - a six foot three and a half inch rabbit that follows them about everywhere, that is invisible to all except these parents and, regrettably, this child.
These parents may as well set a place at their table for their pooka – their conflict. It is present with them at all times. It is, in reality, that conflict which parents X rather than either parent because this child cannot escape it and each parent is controlled by it.
X is fully aware of the conflict. She is made fully aware of it. She is involved in it.
Why parents of a child - a child they profess to love - would seek to enlist their child as an ally in their warfare against the other is beggar’s belief. And yet it happens so frequently and would certainly appear to have happened in this case.
Whilst it is tragic that the proceedings are brought to a conclusion as they are, with less than ideal arrangements for this child, it might, if nothing else, give this child some respite from conflict. That is not entirely likely as the conflict will continue to subsist and exist within the heart and mind of each of these parents. Accordingly, X will still experience the conflict in some form. It will mean, at least, that X will not have to see the active conflict between her parents play out daily, but whilst ever she continues to engage in the very activity, dance, that she experiences such love for, that conflict will continue as the parents will still have their financial dispute.
In 1989, when the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) were brought into being, it was intended that by splitting child support issues from other arrangements in relation to children, that parents would be spared the cost and misery of Court proceedings about such financial matters and that matters would be handled administratively in such a fashion that such matters would not be the cause of conflict and dispute between parents. That was perhaps an ill-conceived promise. It is one of the very real issues between these parents and without its address, their conflict will never abate.
The family report ultimately recommended an arrangement remarkably similar to that already in place and which had been ordered some time ago. X expressed satisfaction with its continuance. However, that is simply not possible if the parents do not wish to participate with it.
The family report had also recommended that certain changes be made to X’s participation in dance, particularly her withdrawal from Saturday performance as that was causing ongoing conflict between the parents as it fell on an alternating basis on the Mother’s and the Father’s time. Selflessness, clearly, is not to the fore in determining this child’s participation in activities that she derives joy from.
In any event, recommendations were also made for the parents to also seek some therapeutic assistance. That assistance cannot be achieved if the parties do not wish to engage in those processes. The Court can order a therapeutic intervention, but not a therapeutic outcome.
Dealing with the proceedings, there is, sadly, nothing that can be done but to dispose of them. That disposal must, however, be in accordance with the relevant legislative provisions.
Section 60CA of the Family Law Act (supra) reminds the Court that in all that is done, the child’s best interests are the paramount consideration. That is not something that would appear to trouble the parties a great deal other than their own construct of those interests enmeshed in their conflict and dominated thereby.
The Court must have regard to the objects and principles. The objects and principles do not form part of the substantive provisions to be applied to the facts of the case, merely to guide the outcome that should be arrived at by any Orders that are made and to assist in the interpretation of the substantive provisions.
That said, the Court must, pursuant to the objects, ensure that children’s best interests are met by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the child’s best interests.
That cannot be achieved in this case for whatever reason. Again, I do not criticise Mr Searson for the path that he has taken. However, his affidavit material, whilst ill-informed and plainly wrong in some aspects, (such as the suggestion that the Court “clearly prefers women over men”), describes his frustration over many years.
The Court must protect children from physical or psychological harm through exposure to abuse, neglect or family violence. Each raises such complaints and concerns, although the greatest risk to this child, which can be readily apprehended from the family report is the child’s enmeshment in conflict and exposure to adult issues that need not and should not trouble her.
The Court must make Orders that ensure that children receive adequate and proper parenting. This child is parented by conflict, not by the parents. That is far from adequate and proper. However, there might be some amelioration of the conflict if the parents do not have to deal with each other at all, although their child support commitments will ensure that that cannot be entirely severed each from the other.
The Court must also make Orders that ensure that parents fulfil their duties and meet their responsibilities. It simply cannot be apprehended how any Order could be fashioned that would assist in achieving that object when the parents have such concrete thinking and cannot apprehend, let alone express, any positive with respect to the other parent and cannot shield their child from their disdain for the other parent and their conflict with each other.
The principles underlying the objects create rights for this young child, X. The rights are not absolute. They are neither enlivened, nor practised, when to do so would be contrary to the child’s best interests. That caveat aside, children have the right to know and be cared for by both of their parents and to spend time and communicate with both of their parents and other people significant to their care. That is simply unattainable.
Children have a right to have their parents share duties and responsibilities and agree about future parenting. That right was trampled underfoot some time ago. The objects, thus, cannot assist the Court in achieving an outcome other than an aspiration, and an unachievable aspiration at that.
I must then have regard to the presumption of equal shared parental responsibility contained in section 61DA of the Family Law Act (supra). Whether the presumption applies or not is largely irrelevant. It clearly would be rebutted in this case.
If the presumption were to apply and the parents were thus presumed to have equal shared parental responsibility, section 65DAC Family Law Act (supra) would then operate to require that they make, or endeavour to make, decisions about major issues jointly and consensually, consulting with each other before the decision is made and making a genuine effort to come to that decision. One cannot envisage how that could occur, safely occur or occur in any fashion that would be productive to or of benefit to X. Accordingly, I am satisfied that the presumption is rebutted as contrary to X’s best interests.
That then leaves section 60CC of the Family Law Act (supra), section 65DAA of the Family Law Act (supra) (save for subsection (5) then being rendered irrelevant).
The primary considerations require that I must consider the benefit to this child of a meaningful relationship with both parents and the need to protect the child from physical or psychological harm.
It is perhaps apt that the matter is dealt with in the lead-up to Christmas, as an analogy to Dickens’ Christmas Carol would be apt. Mr Y is, for these parents, the “ghost of Christmas future”.[2] If the parents continue to parent their child in the warm embrace of their conflict, they can expect the same outcome for X as they delivered upon Mr Y - clinical depression.
[2] Charles Dickens, A Christmas Carol (Chapman & Hall, 1843).
It is difficult to understand how that is not clear and apparent to everybody. The child grows up in an environment of what is barely restrained and active conflict verging upon emotional warfare between these parents. They each blame the other, but there is little to be gained for the innocent civilians caught in a no man’s land between these combatants in seeking to apportion culpability. Civilians are not particularly concerned with whose bullet kills them, they only are concerned to avoid it.
Young X has lived with conflict since her parents separated and, in all probability, before, just as Mr Y did. I do not seek to in any way render criticism of Mr Y. He is a product of his childhood, the childhood which the International Convention suggests should involve his growing up in a family environment infused with happiness, love and understanding.
X, sadly, will not experience that environment either. Again, that is not to suggest that either parent does not love X, merely that they are distracted from their expression of it by their desire to perpetrate conflict and be “right”.
The criticisms that Ms Searson raises in relation to child support may be entirely valid. They may be not. I am not dealing with that issue and have no jurisdiction to do so, sadly, otherwise one would think that all controversies between these parents could be dealt with and they might then step away from the conflict and return to their enjoyment of this, no doubt, delightful young child. But even that is doubtful.
At this point, however, it cannot be achieved. There might be some basis to question the meaningful nature of the relationship between X and either parent. Certainly, as things continue, it is unlikely to improve unless circumstances change.
X needs to be shielded, indeed, protected from conflict, not from either parent, but that which plays out between them. Whilst it is tragic that the proceedings will conclude with X effectively picking a parent or having one picked for her, the potential benefit for her is that the conflict will no longer play out quite as actively for her.
The primary considerations do not aid a great deal, and particularly as the outcome of the matter is simply dictated by parental choice – abandonment of the relationship even if for valid reason.
Views
In turning to the additional considerations, I must commence with the views expressed by X. X and, indeed, Mr Y, even though he is no longer the subject of the proceedings because he has attained his majority, are very clear in their views.
It is, again, worth repeating and quoting Mr Y’s clear expression that his parents should “sort their fucking shit out”, because, until they do, the very reason that Mr Y expresses that this should be done cannot be achieved, his younger sister will not be permitted to experience care and kindness in both homes. Indeed, their failure to have heeded that advice has already led to the consequence physically demonstrated by Mr Searson absenting himself from the Court and, hence, X, will only experience one household, not two.
X’s views support a continuation of a relationship with both parents. She desires to continue a relationship with both parents. Notwithstanding the level of conflict between her parents that view might well suggest, returning to the primary considerations, the depth of meaning that her relationship with each parent has for X. Although, that will now be entirely frustrated.
Nature of the child’s relationship with each parent and other persons
I have already dealt with the relationship X has with her parents, difficult and fraught with difficulty that it is. She also has a relationship with her elder siblings and with the two children who are part of Mr Searson’s household, also her siblings. Sadly, those relationships, with Mr Searson’s withdrawal from her life, will also cease in all probability.
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spend time or communicate with the child
This is, perhaps, the crux of this determination. Mr Searson has determined that he will not spend time with or communicate with the child. He cannot be made to.
The extent to which each parent has fulfilled or failed to fulfilled their obligation to maintain the child
If only those issues did not exist between these parents, things might have worked out better. However, they do exist and all that is left for X are gradations of disadvantage.
I am in no position to make a finding as to whether Mr Searson has or has not failed, although I accept wholeheartedly, that it is Ms Searson’s perception.
It is so far removed from dispositive that it need not be further considered.
Likely effect of change including separation from either parent or other children
There will be a substantial change for this child, not imposed by the Court, but imposed by her father. Mr Searson has previously withdrawn from spending time with X. He will now do so again. That may well be connected with what is described in the second of the reports in these proceedings - that of Dr B. Therein, the father is described as experiencing depression. The Father, consistent with the balance of his evidence, expresses the opinion that that is caused by, and as a consequence of, quote, “the Mother repeatedly stopping him from having contact with the child.
The Father is then critical of the Mother for taking the child to numerous medical centres and doctors for exploration of the matters relating to the child’s gastrointestinal upsets. Again, psychosomatic causes would appear the most likely. The child must be significantly stressed and distressed by the circumstances in which she finds herself.
The Father complains to Dr B that the Mother uses the child’s dance commitments, the very thing the child describes as bringing her the greatest joy in life, as an excuse for why he cannot spend time with the child.
Beyond that, however, the likely effect for this child is potentially catastrophic. So far this week, she has found herself collected from school by the Father or his agent, unexpectedly and as a consequence of the matters which played out on Tuesday, and the Orders which were made in response thereto, no doubt expecting to have been collected from school by her father today, (she will now be collected by her Mother and the news broken to her, one would hope not joyfully, that she will no longer be practicing a relationship with her father).
All of those changes for this child in this week will be compounded into the future. She will simply practice no relationship with her father or her siblings who live in that household. That is not advantageous for her, but nor is it imposed by the Court. It is imposed by her father.
Practical difficulty
I incorporate section 65DAA herein.
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Consent orders
(6) If:
(a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b) the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.
The parties do not live any significant geographical distance apart. Certainly, there is cause of complaint for one or both parents but it is, in reality, trifling.
The real issue here, though, is not geography. It is the incapacity of these parents to communicate, resolve conflict or change. Rather than the time, effort and energy invested in creating two boxes of file in the six years of litigation in which these parents have been involved, their efforts might have been better spent engaging in some therapeutic assistance, in these parents being instruments of change for themselves and their children.
Perhaps this matter is emblematic of the shortcomings of an adversarial process in addressing what are, whilst categorised as legal issues, in reality more germanely health and social issues. Categorising the issues these parents have experienced and continue to experience as legal issues has been inaccurate and unhelpful. These parents, and through them their children, have experienced grief, trauma, loss and, ultimately, mental disorder. The legal process has compounded, not aided, those realities.
These parents simply needed to have heeded, probably many years ago, the advice of their son Mr Y, “to have sorted out their fucking shit”. They have not. They are unlikely to ever do so, and whilstsoever they do not, young X will continue to be the recipient of disadvantage.
The capacity of each parent to provide for the child, including her emotional needs
The child’s emotional needs are not met by Mr Searson’s actions in withdrawing himself. Those actions are, in fact, hurtful. They are disadvantageous for this child. She will be distraught.
The Court cannot make a parent participate in a child’s life. If it is Mr Searson’s choice - and, again, he may have very valid reasons for it - then nothing can be done to ameliorate that difficulty for the child.
Maturity, sex lifestyle and background of the child
Young X is described by the family report writer, Ms D, as being:
Quite a delightful and mature young lass. She is tall and athletic, and whilst less animated in the interview, during her observations is observed as being entirely comfortable with each of her parents.
Sadly, her parents cannot be comfortable within their own skin, particularly when it comes to dealing with each other. She described, at paragraph 6.2, that:
She is generally happy and including being happy with the current arrangement.
That is an arrangement which will now terminate completely. Hence, the tragedy which I have repeatedly described.
The background of this child, though, being raised in what is, effectively, a war zone between the two competing households, a level of tragedy of Shakespearean proportions. The Montagues and Capulets could not have done worse. This bodes ill for the child’s long-term prospects, but at least renders her some advantage through the actions that her father is now taking, whether selfless, valid or otherwise.
Aboriginality
This is not relevant as neither parent identifies as Aboriginal or Torres Strait Island. Indeed, both parents are born in England and emigrated together to Australia.
The attitude to the child and responsibilities of parenthood
This is addressed above. There are significant issues and concerns in that regard.
Family violence
Each alleges family violence by the other and in the household of the other. I do not need, for the purpose of this determination, dictated as it is by Mr Searson’s withdrawal, to canvass it further.
There are no family violence Orders in place between the parents.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
I am conscious that the Response filed by Ms Searson had sought to raise a Rice & Asplund[3] issue, suggesting that there had been no significant change in circumstances since the last Court hearing in June 2015, noting that these proceedings were commenced in October 2016, a little over a year after the last concluded litigation.
[3] [1979] FLC 90-725.
Sadly, Ms Searson is correct. There has been no significant change in circumstances. There has just been a continuation of the same disadvantage for this child, which has now led to the more significant disadvantage in that she will now be denied - albeit, by Mr Searson’s actions, rather than the mother’s or the Court’s - a relationship with her father and the other occupants of that household, including, importantly, her two siblings.
There is nothing that can be done to avoid future litigations, save and except to observe that at this child’s age, nearly 13, and in light of the fact that yet another determination is made by this Court, and thus setting a new benchmark from which Mr Searson will need to demonstrate a change in circumstances, that could possibly avoid future proceedings.
Accordingly, I make Orders as follows.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 9 October 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Appeal
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Remedies
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