Silas & Barry
[2009] FMCAfam 448
•8 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SILAS & BARRY | [2009] FMCAfam 448 |
| FAMILY LAW – Parenting – unilateral relocation by mother – whether children should return – impact of location of children on meaningful relationship – high conflict between parents – change of name of children. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| D & SV (2003) Fam LR 91 Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3. |
| Applicant: | MR SILAS |
| Respondent: | MS BARRY |
| File Number: | SYC 566 of 2008 |
| Judgment of: | Altobelli FM |
| Hearing date: | 16-17 March 2009 |
| Date of Last Submission: | 17 March 2009 |
| Delivered at: | Sydney |
| Delivered on: | 8 May 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Watkins |
| Solicitors for the Applicant: | Watkins Tapsell Solicitors |
| Counsel for the Respondent: | Ms Carr |
| Solicitors for the Respondent: | JNT Legal Solicitors & Conveyancers |
ORDERS
The parents have equal parental responsibility for the Children [X] born in 2004 and [Y] born in 2007 (“the Children”).
No later than the commencement of school term 3 2009, the Mother to do all things necessary to return the Children to live within a
25 kilometre radius of the [E] Post Office and thereafter to enrol the Children in a school/preschool within a 25 kilometre radius of the [E] Post Office.
Unless otherwise agreed, [X] is to continue to attend [Z] School until he relocates in accordance with this Order, and thereafter he is to attend a school that his parents agree to.
The Children live with the Mother.
The Children spend time with the Father as follows:
(a)Until the Mother has complied with Order 2 above, the Father to spend time with the Children each alternate weekend from 5.00pm Friday to 5.00pm Sunday (or Monday if a long weekend or a day when Children are not required to attend school) with changeover to occur at McDonalds at [S], unless otherwise agreed by the parties. The Father may elect to spend additional time with [Y] concluding immediately after the end of school for [X] provided he gives the Mother at least 72 hours notice of this by text message, and provided he returns [Y] to [X]’s school.
(b)Once the Mother has complied with Order 2, and commencing immediately until [Y]’s 5th birthday:
(i) From the end of pre-school/school on Friday to immediately prior to the commencement of pre-school/school on Monday each alternate weekend, with the Father to collect and deliver the Children to and from preschool/school; and
(ii) One overnight in the other week as agreed between the parties, but failing agreement from the end of pre-school/school on Monday to immediately prior to the commencement of pre-school/school on Tuesday with the Father to collect and deliver the Children to and from preschool/school; and
(iii) For half of each two-week school holiday period as agreed between the parents, but failing agreement, for the first half in odd numbered years and the second half in even numbered years; and
(iv) For two weeks of each Christmas school holiday period as agreed between the parents, but failing agreement for the first two weeks in odd numbered years and the last two weeks in even numbered years.
(c)Thereafter, commencing on [Y]’s 5th birthday:
(i) From the end of pre-school/school on Thursday to immediately prior to the commencement of pre-school/school on Monday each alternate weekend with the Father to collect and deliver the Children to and from preschool/school; and
(ii) One overnight in the other week as agreed between the parties, but failing agreement from the end of pre-school/school on Monday to immediately prior to the commencement of pre-school/school on Tuesday with the Father to collect and deliver the Children to and from preschool/school; and
(iii) For half of all school holidays as agreed between the parents, but failing agreement for the first half in odd-numbered years and the second half in even-numbered years.
(d)From 4.00pm Christmas Day until 4.00pm on Boxing Day commencing 2009 and each alternate year thereafter; and
(e)From 4.00pm on Christmas Eve until 4.00pm on Christmas Day commencing 2010 and each alternate year thereafter;
(f)Each Father’s Day from 9.00am to 5.00pm if the Children are not otherwise with the Father.
(g)At all other times as agreed between the parties.
On each of the Children’s birthdays, the Children are to spend time with the parent they are not residing with from 4.00pm to 6.00pm on a school day, or 3.00pm to 6.00pm on a non-school day.
The Father’s time with the Children is to be suspended from 9.00am to 5.00pm on Mother’s Day and the Mother’s time is suspended from 9.00am to 5.00pm on Father’s Day.
Orders for the Father to spend time with the Children during school term are suspended during school holidays and recommence thereafter on the first weekend after the resumption of school holidays as per the cycle that existed immediately prior to the holidays in question.
Unless the Children are being collected from and returned to their school and/pr pre-school, and unless the parents otherwise agree, changeover is to occur at McDonalds at [S].
Both parties have liberty to communicate with the Children by telephone at all reasonable times, such time to be not later than 7.00pm.
Both parties be at liberty to forward letters, emails, mail and other items and any items to the Children with the items to be given to the Children unopened.
In respect of [Y], the Mother be restrained from using as his middle name “[full name omitted]” in place of “[shortened form omitted]” to the intent that [Y] be known as [Y].
The parents provide to each other notice of their intention to take the Children on holidays at least one (1) month prior to departure, and provide the other party with contact details and, if applicable, a detailed itinerary at least ten (10) days prior to departure.
The parents inform each other about any change in residence or phone number seven (7) days prior to any such change.
The Mother do all acts and things necessary to authorise the Children’s pre-school/school to provide copies of all reports, newsletters and other documents pertaining to the Children’s schooling.
The parents notify each other as soon as reasonably practicable of any medical issue involving the Children whilst in their respective care wherein either of the Children are required to attend a hospital or a medical practice and should the Children be prescribed medication, it is the responsibility of that party to obtain such medication which is to be provided to the other party at changeover.
If at any time either party is unable to care for the Children due to work, illness or other commitments, the other party is to be consulted at the earliest occasion and provided with the first opportunity to care for the Children before any other person/persons are consulted.
Parties are hereby restrained from:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the Children’s hearing.
(b)Discussing any proceedings between the parents in the presence or hearing of the Children or permitting any other person to do so.
The Father must within 14 days contact Relationships Australia on (02) 8874 8010 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment as to suitability for an anger management program.
In making his appointment, the Father is to state that his attendance is pursuant to an Order of the Federal Magistrates Court.
The Father is to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable the Father must attend (as the provider directs) as soon as practicable.
The Father shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
Relationships Australia is to notify the Court within 21 days whether the Father has contacted them and made arrangements for the intake assessment appointment.
The parties must within 14 days contact Relationships Australia on (02) 8874 8010 to arrange an appointment as soon as practicable for an initial post-separation parenting assessment.
In making their appointment, parties are to state that their attendance is pursuant to an Order of the Federal Magistrates Court.
Parties are to cooperate with providing intake information and details to Relationships Australia and must attend the intake appointment at any reasonable location nominated by Relationships Australia and complete the assessment.
If assessed as suitable and Relationships Australia nominates counselling, mediation including child inclusive mediation or a post-separation parenting course to attend, the parties must attend (as the provider directs) as soon as practicable.
The parties shall comply with the requirements of the nominated program and the recommendations of the program coordinator including any referrals to complementary services.
Parties have leave to provide a copy of the Family Report in these proceedings to Relationships Australia.
Relationships Australia is to notify the Court within 21 days whether each party has contacted them and made arrangements for the intake assessment appointment.
That in the event the parents cannot reach a joint decisions about:-
(a)a major long-term issue involving the Child; or
(b)the interpretation of these Orders; or
(c)the implementation of these Orders; or
(d)the enforcement of these Orders; which involve the child,
each of the parents will do all things necessary to participate in Family Dispute Resolution at an Organisation recognised under the Family Law Act.
That before an Application is made to a Court for a variation of these Orders to take account of the changing needs or circumstances of the Children or of the parties, each of the parents is to take the following steps:-
(a)The Father and the Mother shall each do all things necessary to attend Counselling or Mediation with an Organisation recognised under the Family Law Act; and
(b)The Father and the Mother shall each participate in Family Dispute Resolution with an Organisation recognised under the Family Law Act.
IT IS NOTED that publication of this judgment under the pseudonym Silas & Barry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 566 of 2008
| MR SILAS |
Applicant
And
| MS BARRY |
Respondent
REASONS FOR JUDGMENT
Introduction
All decisions that are made in the Family Law Courts about the parenting of children involve, to some extent, a degree of predicting the future. It is, therefore, a very imprecise process. Future predictions are based on both present and historical facts and evidence. A decision is made at one point in time and assumes, in the highly artificial environment of the courtroom, that the family is static. In reality the family is dynamic. Both parents and children change. Children grow up. Even parents change, sometimes for the better, but not always. Decision making in parenting cases is very difficult even when there is clear evidence. But all decision making in parenting cases involves the Court trusting parents to do the right thing, particularly into the future.
If a parent, or both parents, are found to be untrustworthy based on past events, a Court must take that into account in considering the future, and all of this influences the orders that are made in a particular case.
The present case relates to [X] who was born in 2004 and who will soon turn 5 years old. The case also relates to his brother [Y] born in 2007 who is 2-years old. The applicant is the children's father. He is 35 years old and is a [occupation omitted] by trade. He lives in [E], a far southern Sydney suburb. The respondent in the proceedings is the children's mother. She is 33 years old and currently lives at [K], a far north-western Sydney suburb.
The geographical distance that separates the parents is one of many issues that makes this case a difficult one to decide. The dispute is one about with whom the children with live and for what period of time they will spend with the other parent.
Background
In March 2004 the parents commenced a de facto relationship and the mother moved into the father's property at [E]. This is the property that the father continues to occupy. The first child, [X], was born shortly after they commenced their de facto relationship. The parties separated in November 2006. There was a dispute between the parents as to when separation occurred and I deal with this in my reasons below. [Y] was born in 2007 and at that time the parents had already reached an informal agreement about the father spending time with [X].
Both the children and the parents are very fortunate to have had grandparents on both sides of the family who are ready, willing and able to assist with the care of the children from time to time.
On 15 May 2008 the first orders were made whereby the children lived with their mother and spend time with their father. Pursuant to this order the father would spend time with the children each week from 10 am Saturday to 5 pm Sunday and each alternate Sunday from 5 pm to 5 pm on Monday, as well as each alternate Wednesday from 4.30 pm to 6.30 pm. In addition, the order provided for special days.
The order of 15 May 2008 also provided for the father to undergo random urinalysis, as his alleged consumption of narcotic substances was an issue in the case at that time. There were previous orders made on 11 February 2008 and 20 March 2008, but the orders of 15 May 2008 were those in force as at the time of the hearing.
It is important to record that the wife's response initially sought orders permitting her to relocate the children and herself to the Hunter Valley, a region several hours north of Sydney. On the 15 May 2008 the mother's counsel, Ms Carr, indicated that the mother was not pursuing her application to relocate the children and the matter was set down as a dispute which was, in effect, about the division of the children's time between their parents.
However, the father's application which was filed on 4 February 2008 does raise as an issue where the children would be living in a geographical sense, in that he sought an order restraining the mother from removing the said children from the metropolitan area of Sydney. Thus, where the children were going to live, as a geographical matter, was very much an issue in these proceedings from inception.
The mother abandoned her claim to relocate the children to the Hunter Valley. However, in September or October 2008 the mother and the children moved from [B], a southern Sydney suburb, where she had been living with her own father after separation, to [K] in rented accommodation. As a result of this the father now seeks orders that the children be returned to live within 25 kilometres of the [E] post office.
When the mother moved to [K] the geographical distance between the father's residence in [E], and her residence in [K], made it quite impractical to comply with the orders made.
There is a very high level of conflict between these parents. There is little trust between them. Communication between them is problematic, and sometimes lapses into being a toxic. The ill feeling between them has extended to other significant persons in the children's lives including the maternal grandfather, the mother's partner and the father's partner. The parents were unable to reach agreement about where [X] goes to school, and they are still unable to reach agreement about [Y]'s name.
At the final hearing, therefore, the father sought orders that restrained the mother from residing with the children other than within 25 kilometres of the [E] post office, and that the children live with the father from 9 am Saturday until the commencement of preschool or school on Wednesday in one week, and from 5 pm Sunday to the commencement of preschool or school on Wednesday in the alternate week, or in other words equal shared care of the children. Other orders are sought in relation to holidays and special days, and an order is sought in respect of [Y]'s middle name.
At the hearing the final orders sought by the mother were that the children live with her, that there be equal shared parental responsibility, that the children's surname be changed and that the father spend time with the children each alternate weekend from 5 pm on Friday until before school on Monday together with one week in each school holiday period, and special days. In addition, until [Y] commences school he could spend the alternate Monday with his father.
The evidence in the father's case was provided by his de facto partner, Ms S, and himself. The evidence in the mother's case was provided by her father Mr B, her partner Mr F and a friend, Ms D. In addition in evidence was a Family Report prepared by a Regulation 7 Family Consultant, Dr Lucia Vardanega. Dr Vardanega's report was released to the parties on 11 March 2009. Dr Vardanega also gave oral evidence.
The issues
A number of issues arise on the facts of this case. The issues may be described by reference to a number of the considerations that are set out in the Family Law Act. I set out the issues framed as questions, having regard to these considerations.
1.Do any of the proposals and/or recommendations of the father, mother or Family Consultant give rise to any issues about the children having a meaningful relationship with both parents? (s.60CC(2)(a))
2.Are there any issues that gives rise to concerns about protecting the children from harm? (s.60CC(2)(b)).
3.Have the children expressed any views to which weight might be given? (s.60CC(3)(a)).
4.What is the nature of the relationship that the children have with their parents, maternal and paternal grandparents, and the parent's de facto partners? (s.60CC(3)(b)).
5.Are there any issues about the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the children and the other parent? (s.60CC(3)(c)(iv)).
6.Having regard to the proposals and recommendations what would be the likely effect on the children of changes associated with implementing such proposals, particularly in terms of the effect of separation from parents? (s.60CC(3)(d)).
7.Having regard to the proposals and recommendations, are there any issues about practical difficulty and expense relating to spending time and communicating with the other parent, such that this will substantially affect the children's right to maintain a personal relationship and direct contact with that parent? (s.60CC(3)(e)).
8.Are there any issues about the capacity of the parents and/or their de facto partners to provide for the needs of the children? (s.60CC(3)(f)).
9.Are there any relevant issues about the maturity, sex, lifestyle and background of the children and the parents? (s.60CC(3)(g)).
10.Are there any attitudes of the parents to the children and to the responsibilities of parenthood that are demonstrated by each of the children's parents? (s.60CC(3)(b)).
11.Has there been any family violence, or a family violence order, relating to a child or to a member of the child's family? (s.60CC(3)(j) and (k)).
12.Is there an order that is least likely to lead to the institution of further proceedings in relation to the children? (s.60CC(3)(l)).
13.Having regard to the fact that each parent seeks an order for equal shared parental responsibility, is equal time or substantial and significant time in the best interests of the children and/or reasonably practicable? (s.65DAA).
14.Having regard to all of the above, on the evidence of this case, what is it the order that is in the best interests of these children?
Applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Significance of Time
Like many disputes relating to children, this is a dispute about dividing the child’s time between the parents. A leading Australian researcher has reflected on this phenomena in an article entitled “Time to rethink time? The experience of time with children after divorce”[1]. Smyth refers to the notion of time as part and parcel of the ‘custody wars’ between parents. He says about time at page 4: “…Parents fight about it, courts divvy it up, and children long for it.” Smyth goes on to say some important things about time at page 9 of the article:
A solid body of data also suggest that it is the quality of relationships between parents, and between parents and children, that exerts a critical influence on children’s wellbeing, not the amount of time per se (Amato and Gilbreth 1999; Pryor and Rodgers 2001). Of course, an emotionally close and warm relationship between parents and children requires time to sustain it. “Quality time” needs time.
According to Kelly and Lamb (2000), the greater the range of contexts for interaction between parents and their children, the better. They suggest that different contexts facilitate children’s social, emotional and cognitive development, as well as afford greater opportunities for parents to build emotional bonds with their children.
It is the intermingling of different activities and the different experiences of time that diverse contexts bring that form the hub of family life, and which are critical for family wellbeing. For instance, overnight stays allow for the experience of mundane everyday routines, as well as special moments – such as putting children to bed, reading to them, saying good night, and starting the day together over breakfast. Focused one-on-one together time (such as playing a game, talking in the car, reading a book together, or helping with homework) sends a clear signal to children that they matter. Outdoor time (such as fishing, netball, or hiking) provides opportunities for children’s emotional, physical, social and cognitive development, and give parents the chance to mentor, and to remain engaged with, their children. Fun time (such as long-weekends and school holidays) or special time (such as birthdays, Mothers’ or Fathers’ Day, and Christmas) foster the pursuit of mutually rewarding experiences for children and parents, help create bonds between each and symbolise those bonds, and can create positive life-long memories.
But while these, and other, types of time are important for children’s and parent’s wellbeing, one type of time warrants special attention: being-in-the-moment time. This type of time involves unstructured, spontaneous, intimate time where a parent and child are free to “hang out”, talk about things, or engage in activities that are important to them (such as a teenage daughter talking about boyfriend problems while her father peels potatoes). Post-separation parenting arrangements that involve thin slices of parent–child time, such as daytime-only contact each Saturday afternoon, work against the experience of “being” time as this sort of time needs to feel natural and unimpeded to create the conditions for free-flowing interpersonal engagement.
[1] Bruce Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No. 76, Winter 2005 page 4
This is a social science perspective on time, and its significance in the context of children’s relationships with their parents. Section 65DAA(3) is the Family Law Act’s attempt to incorporate this social science perspective into law. The definition of substantial and significant time sets a high benchmark (“…only if…”) for the very diverse forms of cumulative interaction between a parent and child described in paragraphs (a), (b) and (c) of that section.
Parental conflict and shared parenting
Some recent Australian research has urged caution about shared parenting arrangements in families where there is a high level of parental conflict. McIntosh J and Chisholm R in ‘Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research’ (2008) 20(1) Australian Family Lawyer 3 report high levels of anxiety in children for families exhibiting certain characteristics. They conclude as follows:
Neither the general conditions for children’s healthy emotional development nor the specific new findings described above contradict the core principle underpinning the new legislation, namely that most children will benefit from having both parents actively and cooperatively involved in their lives after separation. The data reported here suggest, however, that a group of children are liable to slip through the safety net of considerations designed to ensure that children do in fact benefit from shared parenting. The findings sound a strong cautionary note about applying the new presumptions to cases characterised by ongoing high conflict between parents. We have shown how, in living between and within climates of ongoing dispute and emotional pre-occupation, the mental health ‘benefits’ of substantially shared care accrued by children are questionable.
By implication, then, the ‘safety net’ of considerations through which we filter the ‘best interests’ questions attached to shared physical care needs to be more tightly woven. The task is to sensibly guide ourselves through the socio-legal and often highly emotive contexts that surround the issue, in order for developmentally appropriate decisions can be made in each case.
The research outlined here suggests that substantially shared care arrangements may entail risks for children’s healthy emotional development in families that have the following specific factors, especially in combination:[2]
Parent factors:
Low levels of maturity and insight;
A parent’s poor capacity for emotional availability to the child;
Ongoing, high levels conflict;
Ongoing significant psychological acrimony between parents;
Child is seen to be at risk in the care of one parent.
Child factors:
Under 10 years of age;
The child is not happy with a shared arrangement;
[2] Whether a factor should be treated as a contra-indication or a caution will be determined by severity, chronicity, and the capacity for change. (endnote from article)
The child experiences a parent to be poorly available to them.
In keeping with the findings of Johnston et al (1989), the new Australian data suggest that shared physical care is an arrangement best determined by the capacity of parents to exercise maturity, to manage their conflict and to move beyond egocentric decision-making in order to adequately embrace the changing developmental needs of their children. When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight should be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security. Here, the capacity of parents for ‘passive cooperation’[3] and the containment of acrimony may prove to be central benchmarks.
[3] Personal communication, Bruce Smyth, October 2007. (endnote from article)
This research is consistent with earlier research undertaken by Johnston J “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Family and Conciliation Courts Review 415 at 420:
A small minority of divorcing parents remain in ongoing high conflict. This subgroup constitutes about 10% of all divorcing families (Maccoby & Mnookin, 1992). Ongoing high conflict is identified by multiple criteria, a combination of factors that tend to be, but are not always, associated with each other: intractable legal disputes, ongoing disagreement over day-to-day parenting practices, expressed hostility, verbal abuse, physical threats, and intermittent violence. Research findings to date indicate that high-conflict divorced parents have a relatively poor prognosis for developing cooperative co-parenting arrangements without a great deal of therapeutic and legal intervention. Those parents who met the multiple criteria of high conflict at the time of divorce were likely to remain conflicted over a 2-to 3-year period. At best, they became disengaged and non communicative with one another; they were less likely to become more cooperative over this period of time (Johnston, 1992; Maccoby & Mnookin, 1992).
The studies, as a group, consistently concluded that ongoing and unresolved conflict between divorced parents has detrimental effects on children, especially boys. Children are particularly hurt by witnessing physical violence between their parents (Johnston, 1992). In divorced families where there was ongoing conflict between parents, frequent visitation arrangements and joint custody schedules were likely to result in increased levels of verbal and physical aggression between parents, compared to similar families who had sole custody arrangements, especially at the times of transitions when children moved between their parents’ homes
Of even greater concern was the finding that more frequent transitions and more shared access between high-conflict parents were associated with more emotional and behavioural disturbance among children, especially girls. These children were likely to be more depressed, withdrawn, and aggressive, and to suffer from physical symptoms of stress (such as stomach aches, headaches, etc.); they were also likely to have more problems getting along with their peers, compared to children with fewer transitions and typical sole custody access plans.[4]
[4] Ibid at 420.
Johnston then provides a general principle to guide decision making in high conflict families at 423:
… recognizing that highly conflictual parents (as defined above) have a poor prognosis for becoming cooperative, custody arrangements for this special subpopulation should allow parents to disengage from each other and develop parallel and separate parenting relationships with their children, governed by an explicit legal contract (a parenting plan) that determines the access schedule. A clearly specified, regular visitation plan is crucial, and the need for shared decision making and direct communication should be kept to a minimum.
This research is background material to my judgment. It is not evidence. It is not material in respect of which I take judicial notice, and I make no findings of fact as a result of this material. It is background material, and it assists in understanding the expert evidence provided by the Family Consultant. One also lives in hope that parents might learn from it.
Is this a relocation case?
There was some discussion in this case about whether the legal principles to be applied should be those applied in the context of relocation cases, or whether it should be a more generalised application of Part VII of the Act having regard to the competing proposals advanced by the parents. There is no doubt that the mother has only relocated a short distance compared to the majority of other relocation cases.
The Full Court considered this issue in D & SV (2003) Fam LR 91 and held that in cases where “residence”, as it was then so described in the Act, was not seriously in issue, the focus should be on alternate contact or shared residence arrangements. Ultimately the court’s role is to ascertain the order that is in the best interests of the children.
The Full Court also considered this issue in Morgan & Miles [2007] FamCA 1230 and stated at paragraphs 90-92
90. The focus in this appeal has been on what may be described as a “local” move of approximately 144 km and whether this constitutes “a relocation”.
91. The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.
In the end result I must consider the impact on these children of the move undertaken by the mother, and the move back that is inherent in the father’s proposal, having regard to the matters set out in s.60CC of the Act. Arguably that is the law anyway, whether the case is categorised as a relocation case or otherwise.
Meaningful relationships
There is no dispute between the parties that these children enjoy a meaningful relationship with each of their parents. The relevant issue, for present purposes, is whether the mother's proposal would adversely impact on the meaningful relationship that the children have with their father. There is no suggestion that the father's proposal, which involves the mother and children relocating closer to what was once the family home, would have any adverse impact on their meaningful relationship with the mother. The mother indicated in her evidence that she would move with the children if required.
On the mother's proposal once both children commence school they would spend time with their father each alternate weekend from 5 pm on Friday until before school on the following Monday. If Monday were a Public Holiday or, presumably, a pupil free day, that time would be extended until 5 pm on the Monday. Until [Y] commences school, the mother would propose that he spends time with his father on Monday until the conclusion of [X]'s school.
Putting aside the issues about whether the mother's proposal constitutes substantial and significant time for the purposes of s.65DAA of the Act the concern I have is whether the time as proposed by the mother has the capacity to undermine the meaningful relationship that exists between the children and their father.
The mother agreed in cross-examination that her proposal for the children to spend time with their father was based on the realities of distance between where she presently lives, and where the father lives. She lives in [K] and he lives in [E]. [K] is a north-western Sydney suburb set in what appears from the evidence to be a delightful rural setting. [E] is a far southern Sydney suburb which borders on the Royal National Park. I do not have evidence about the precise distance between the two residences, either as the crow flies, or by the most direct road.
The mother gave evidence that on a Saturday it would take about an hour to travel from [K] to McDonald's at [S] which is the agreed changeover point. [S] is a southern Sydney suburb, but not as far south as [E]. The mother gave evidence that it would then take about 15 to 20 minutes to get from McDonald's at [S] to the former family home at [E]. This estimate was not challenged.
It was put to the mother in cross-examination that the travel time between [K] and [S] would be longer if such travel were taken during peak hours and school hours. Specifically, it was put to her that the travel time could be as much as two hours during this period. The mother insisted, however, that it would still only be about an hour.
I think it is important in these cases not to get bogged down in the technicalities of trying to establish travel time between two points. And yet commonsense indicates that one must not ignore the impact of travel time on children, young children in particular, and indeed on their parents. Sometimes common sense has to prevail even over the evidence that is presented. The Court cannot ignore a lifetime of practical experience that might be derived, for example, from having spent most of one’s life living and working in Sydney.
I stress this is the application of common sense, it is not the application of judicial notice. Travel times vary depending on road and traffic conditions, as well as the time of travel. It may well be correct that on a Saturday it only takes an hour and 20 minutes for the children to travel between [K] and [E]. It is very difficult indeed to accept the mother's evidence that the travel time would be no longer during peak traffic periods and school times.
Common sense must apply in these situations and hence the Court has a healthy scepticism about the mother's insistence that the travel time would not be different during these peak periods. Moreover, the relevant question is travel time having regard to the mother's proposal. She proposes collection from 5 pm on Friday, and return to school on Monday morning. Clearly, these are amongst the busiest traffic periods of the week. Again, this is common sense, not judicial notice.
It is highly likely, therefore, that the children would face travel time of up to two hours each way. The concern is not, however, just about the impact of travel time on the father's meaningful relationship with the children, but also the reality that on the mother's proposal collection is at 5 pm which is well after the completion of school and then return before school on the Monday.
This means that the father's only interaction with the children's school would be on a Monday morning which is hardly ideal on the facts of this case, given the travelling time in peak hour conditions, the early start that it involves for the children, as well as the pressure of the school bell ringing to signal the commencement of class. It should be noted that these difficulties exist irrespective of whether the father is expected to actually deliver the children to school, or deliver them to an agreed changeover point. Indeed, the father's concerns about meaningful relationship would be exacerbated by never having the opportunity to have some form of physical contact with the children's school.
But do the difficulties referred to above go to the issue of meaningful relationship, or are they more properly considered in the context of whether the mother's proposal amounts to substantial and significant time? The definition of meaningful relationship has been considered in a number of cases. To put this into context, the issue can be framed as whether meaningful relationship is a quantitative concept, or whether it is a qualitative concept. If the focus of the concept is the quality of a relationship between a parent and children, then merely reducing time does not necessarily mean there is no meaningful relationship. On this scenario the mother’s proposal does not necessarily impact on the meaningful relationship between the children and the father.
This was an issue that I considered in Garvey & Eccles [2008] FMCAfam 1218 at paragraphs 90-112:
90. The issue here is not whether these children have a meaningful relationship with both of their parents, but the potential impact on this meaningful relationship of each of the proposals. On behalf of the father it is submitted that the mother's proposal to relocate to Bathurst with the children would undermine the meaningful relationship that both of the children have with their father. On behalf of the mother it is asserted that none of the proposals would have an impact on the meaningful relationship.
91. There is a significant quantitative difference between the father's proposal for him to spend time with his children, and the mother's proposal. Indeed, there is a significant quantitative difference between the existing arrangements for the father to spend time with the children, and the mother's proposal. But, does a change in the quantitative arrangements necessarily mean that a qualitative concept such as meaningful relationship is adversely affected?
92. On behalf of the mother Mr Schonell strongly submitted that the concept of meaningful relationship was about quality, and not quantity, and therefore it was not necessarily the case that less time between the father and the children means a lesser form of meaningful relationship. Moreover, the context of the first of the primary considerations is the "benefit to the child" of having a meaningful relationship. Thus, Mr Schonell submits:
On the facts of this case one must consider the benefit to the children of the mother being able to parent in a less stressful environment due to the circumstances of her health.
93. There are, however, two problems with this submission. Firstly, the submission focuses on the benefit to the child of having a meaningful relationship with the mother, but the primary consideration looks at the benefit to the child of having a meaningful relationship with both of the child's parents. Secondly, and as I have indicated above, the evidence does not establish on the balance of probabilities that there is a link between the mother's health and stress.
94. I think the stronger of Mr Schonell's submissions about this primary consideration is that its focus is on quality and not quantity and thus it is not necessarily the case that less time between the father and his children means that he has any less of a meaningful relationship with them. This submission deserves close consideration.
95. Mr Schonell firstly referred me to the decision of the Full Court constituted by Kay J in Godfrey & Sanders (2007) FamCA 102. This was relocation appeal from a decision of the Federal Magistrate who had refused the mother's application to relocate from a small town outside of Melbourne to Brisbane with two children aged seven and 11. The children had a good relationship with the father and saw him regularly.
96. The mother believed the move would have a number of advantages but at first instance the learned Federal Magistrate held that the relocation would not be in the children's interests. Kay J, sitting as the Full Court, allowed the appeal, re-exercised the discretion, and allowed the relocation. Kay J said that there was no evidence to suggest that a meaningful relationship could not be maintained between the children and their father in the circumstances of the proposed relocation. He went on to say:
Even if the move results in a diminution of quality of the relationship what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
97. A close reading of Godfrey & Sanders indicates that it was clearly influenced by an earlier decision of Dessau J in M & S [2006] FamCA 1408, another relocation decision, where her Honour made certain comments at paragraph 45 of the judgment about the nature of the meaningful relations.
98. Dessau J said:
I am conscious that a long distance relationship, with longer but less frequent time spent together, is inevitably different from a relationship where people live closer together with regular face to face contact. But it does not in itself mean it cannot be meaningful. The likely impact of the relocation on O's relationship with her father is integral to my decision in this case. It is important for her overall wellbeing and healthy development that she is able to enjoy their relationship, to experience his input into her upbringing, and to develop her own sense of identity through him and the paternal family.
99. The effect of Dessau J’s decision was to say that if a child could visit with a parent every few months, provided there was electronic communication in between visits, that would sustain a meaningful relationship. Such an interpretation about meaningful relationship is highly problematic insofar as it depends upon electronic communication. The term "virtual visitation" has been used to describe such forms of electronic communication.
100. The problem with the use of "virtual visitation" as a basis for sustaining a meaningful relationship between a parent and a child is that it does not sit comfortably with the statutory scheme set out in Pt VII of the Family Law Act. For example the objects and principles set out in s.60B do not sit comfortably with virtual visitation. Section.60B2(b) refers to children having a "right to spend time on a regular basis with, and communicate on a regular basis with, both their parents".
101. The paragraph does not say "spend time on a regular basis with, or communicate on a regular basis with" both their parents. The paragraph makes a distinction between time and communication and does not allow room, in my opinion, for a form of communication (as technologically advanced as it may well be), to replace time.
102. Another example is additional consideration (s.60CC(3)(e)). Again, this paragraph refers to "a child spending time with and communicating with a parent". It does not say "a child spending time with or communicating with a parent". Moreover, it goes on to emphasise "the child's right to maintain personal and direct contact with both parents on a regular basis".
103. Thus, I have reservations about the use of virtual visitation to sustain a meaningful relationship. In any event Dessau J in M & S was dealing with children aged eight. Kay J in Godfrey & Sanders was dealing with children aged seven and 11. Dessau J was dealing with children who had already had quite extensive experience of electronic communication.
104. I further note that in Godfrey & Sanders Kay J did not have the benefit of a contrary argument at a very early stage in the interpretation of this provision in Division VII of the Act.
105. In the present case I am dealing with two children aged four and three. Quite apart from all the other matters I have referred to above, in my opinion that alone would be enough for me to distinguish Kay J’s decision in Godfrey & Sanders.
106. Mr Schonell also referred me to a decision of Brown J in Mazorski & Albright (2007) 37 Fam LR 518 where her Honour conducted a detailed review of dictionary definitions of "meaningful" and concluded at paragraph 26:
What these definitions can convey is that "meaningful" when used in the context of "meaningful relationship" is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
107. Brown J’s decision certainly confirms that the concept of meaningful is a qualitative adjective, not a strictly quantitative one. But whilst this is strictly true from an adjectival sense the context in which the word appears must be considered. When the context is considered, the relationship between the quantitative aspects of how much time, and the qualitative aspects of what actually occurs when time happens, becomes more apparent.
108. Thus, for example, as has been noted above s.60CC(3)(e) specifically refers to "spending time" with a parent in a context that, in my opinion, makes it hard to avoid an interpretation that the paragraph refers to time in the quantitative sense. In Oakley & Reid [2007] FamCA 1520 Moore J makes this observation at paragraph 74 of her judgment:
Obviously there are many ways of sustaining a meaningful relationship but there can be no doubting the importance of spending time together in a mix of settings where experiences can be shared and bonds developed.
109. The implied reference by Moore J to s 65DAA of the Act is articulated explicitly by Brown FM in P & P [2006] FMCAfam 518 at paragraphs 257 - 258 as follows:
The practical underpinning of how a relationship for a child with one or either of his or her parents is to be rendered "meaningful" in the context of a parenting order, is provided by s.65DA. The emphasis is on time, but not merely on the extent of that time, but rather on its quality and the manner of its utilisation with the child or children concerned. In this context, the Court is to consider the parent concerned spending time that falls on weekends; holidays; weekdays; and perhaps most importantly, time that allows that parent to be involved in the child's daily routine and occasions of particular significance both to parent and child.
The rationale of s.65DAA is that children benefit, in an emotional and developmental sense, from feeling that their parents are involved in all aspects of their care, which flows from being exposed to their parents in a variety of settings. These settings include "fun" activities on holidays and weekends - essentially interacting with their parents in a relaxed setting; as well as the day to day reality of the child's life, such as supervising homework and bed times, imposing day to day discipline, collection and delivery to school and sports training - essentially spending time with parents in more mundane situations. In this way, the child is likely to have a more balanced and so richer relationship with the parents concerned.
110. In M & K [2007] FMCAfam 26 I adopted the above passage and added the following observation about the concept of meaningful relationship at paragraph 48:
It is a multi faceted concept, spanning more than one dimension. For example, as Brown FM correctly points out, it is both quantitative and qualitative in nature. The concept is not a "one size fits all" concept. What is "meaningful" to a baby, toddler, school aged child and teenager may, indeed probably will, be different in each case. The concept needs to not only take into account the capacity, developmentally and otherwise, of a child to receive the benefits of meaningful relationships and involvement, but the capacity of a parent to actually provide the same as well. Accordingly, the concept also takes into account the history and quality of the relationship between parent and child, and the quality of parenting. The past and present are often the only reliable indicators of the future.
111. In D & T [2007] FamCA 1383 Cronin J said at para.169:
In a case such as this, it is therefore important to examine not so much whether the relationship will change but rather whether the proposals will enable the children to have a significant, purposeful and constructive benefit from their association with their father. Will he still be able to influence and direct their development? Will he be able to show them how to live responsibly? Will he be able to teach them things that we all expect of parents? Will the children be able to look up to and admire him as the person from whom they should seek both solace and guidance?
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be a part of a family, albeit in two households, where they can have a feeling of being wanted and appreciated.
112. Having regard to all of these authorities it is clear to me that the concept of meaningful relationship, and indeed meaningful involvement, the term used in s.60B(1)(a) is primarily qualitative but its meaning and application in a particular case is influenced by quantitative factors. Each case will be determined by reference to its specific facts.
On the facts of this case, whilst the mother’s proposal reduces the quantity of the father’s time with the children, does it necessarily reduce the quality of it? The answer must be in the affirmative. The effect of the mother’s proposal is to greatly restrict, if not completely exclude, the father from his children’s school life. The children’s school life is a very significant part of their life. The effect of the mother’s proposal would be to relegate the father to a weekend parenting role. In my opinion, on the facts of the case, it undermines the father’s meaningful relationship with the children. In this regard the mother’s proposal is problematic.
Protecting the children from harm
By the time of the final hearing, any concerns about the father's consumption of marijuana appears to have abated, principally because he was able to provide a series of urinalysis results which tend to indicate he is no longer consuming the same. This issue was clearly not the focus of the mother's case at the final hearing, and quite properly so. Whilst there are several other issues that the Court would describe as complex in this case, none were argued on the basis that it presented a risk to the children.
These other issues will be dealt with below but, for present purposes, I find that there are no issues that give rise to concerns about protecting the children from the risk of abuse or harm.
Children’s views
There was some evidence about the views expressed by [X] but I simply cannot accept the same in the circumstances of this case. [X] is so young, and there is ample evidence from which I would conclude that both he and [Y] have been exposed to the very high level of conflict that exists between the parents. Indeed, I cannot rule out the possibility that [X] has been directly involved in these proceedings by either parent, but all of this means that anything he says, that might be characterised as an expression of a view, could not be reliable. Accordingly, I find that there are no views expressed by the children on which any reliance could be placed.
The nature of the children’s relationship with parents and significant others
The evidence indicates that the children have a good relationship with their parents, and all of the significant other adults in their lives including their parent's partners as well as grandparents. Each of the significant others have also played a role in the care and upbringing of the children, and that is a very positive thing.
On behalf of the father the argument is that on the mother's proposal, which reduces the father's time to once a fortnight as compared to at least once a week, has the potential to undermine and/or make more distant the nature of their relationship not just with the father, but the other significant adults in the children's lives on the father's side.
There is some substance to the father's concerns in this regard. This is not a weighty consideration, but certainly one I take into account. It is interesting to observe the impact of the mother's move from [B] (where she was living with her father after separation), to [K], had on the children's relationship with their maternal grandfather. He commented on this. The impact of distance appears to have been ameliorated by the grandfather's heavy involvement in facilitating the children's travel from their mother's home to the changeover point at [S].
The grandfather gave evidence at the hearing and one of the things that struck me was his frustration about the amount of travel that he himself was having to undertake just in the context of this case. The context of this was travel he undertook on behalf of the mother at the conclusion of the first day of the hearing. There is no doubt in my mind, as he described this travel for me, that he was very frustrated by it. But as frustrating as it was, it was a single journey. Indeed, as I will refer below, there was an unfortunate incident at changeover on this occasion and this is a good example of the potential for ongoing problems when high conflict parents, polarised extended families, and long distances combine on the facts of one case.
On the father's proposal, of course, there are no adverse impacts on the children's relationship with either of their parents or any of the other significant adults because they all live in much closer proximity to [E], than to [K].
Facilitating and encouraging as close and continuing relationship
The consideration is a significant one in the father's case, but forms no part of the mother's case. I commence the exploration of this issue with setting out some of the relevant evidence contained in the Family Report. I extract paragraphs 38 and 39 of the report in this regard:-
38. This assessment raises questions about Ms Barry’s insecurities and fears about Mr Silas and Ms S and the extent to which these fears might have, since the separation, impeded the children from using her as a safe, emotional attachment base to facilitate their confident engagement and interaction with the world beyond the mother child relationship. The latter is essential for children in order to achieve the developmental milestones and mastery over the insecurities, centred very much on resolving separation anxiety, which prevail for younger children. Importantly it impacts on Ms Barry’s capacity, willingness and ability to facilitate and encourage a close relationship between the children and Mr Silas. In a nutshell, Ms Barry finds it difficult to identify anything positive that might accrue for the children by having a relationship with their father and Ms S and she has a strong need to control any interaction the children have with them. Given the level of hostility Ms Barry feels towards Mr Silas and Ms S it is questionable to what extent she can project a positive image of their father and his partner to the children. Unless there is a significant shift in her current position, it is probable that the future for this family holds further allegations, inter-parental conflict and on-going litigation. Ms Barry may find it useful to avail herself of post-separation counselling in order to obtain a deeper appreciation of how her distrust towards Mr Silas and how her behaviour might be impacting on children.
39. Ms Barry’s choice to continue to make decisions for the children, for example moving to [K] and then enrolling [X] in school without consultation, could be construed by Mr Silas as attempts to put distance between himself and the children and only serves to inflame the inter-parental conflict. Although disputed by Mr Silas and Ms S as misrepresentations of what happens in their household, if it is the case that the children have observed intra-familial conflict in Mr Silas’ household, some of Ms Barry’s concerns are valid and protective, and it would be essential that any conflict the children observe whilst with their father be redressed.
The mother's Counsel did not challenge the Family Consultant's evaluation as set out above, and I accept the Family Consultant's evidence in this regard.
The father's case about the mother's lack of willingness and ability to facilitate and encourage a close and continuing relationship between the children and himself is focussed on a number of issues, but particularly the circumstances of her relocation from [B] to [K]. The term "relocation" is not used in any technical context here. It merely describes the fact that the mother and the children moved from [B] to [K]. This had a number of cascading effects.
The father asserts that, firstly, the mother unilaterally decided to send [X] to school in circumstances where, he says, they had previously agreed that he should not go to school until 2010. Secondly, the father asserts that his consent was not sought and that in any event he did not agree to the enrolment of [X] at [Z] School. Thirdly, the move from [B] to [K] resulted in the mother being unable to comply with the existing parenting orders and the father being forced into a situation where he had to agree to a change in the parenting orders, or otherwise deprive [X] of school.
As part of the father's case in this regard, he directly attacked the mother's credibility. In short, and these were not necessarily the words used by his counsel, Mr Watkins, the father's argument was that the Court cannot trust the mother to facilitate a future relationship between the father and the children when the evidence indicates that she has acted unilaterally to impede such a relationship.
I propose to deal with the issues about the mother's credibility first, as this influences my later findings not only about the present consideration, but other ones as well.
I find that the mother lied in her evidence about the date of separation. In her affidavit and, indeed, initially in her oral evidence, she insisted that separation took place at about Father's Day 2007 i.e. September 2007. The father asserts that separation was in November 2006. The mother agreed that she moved out of the family home in November 2006, but said that it was based on her doctor's advice in view of difficulties she was experiencing in her pregnancy with [Y].
She moved in with her father in [B], as this was much closer to the [omitted] Hospital where [Y] was later born. In cross-examination she was confronted with the fact that she had applied for child support in December 2006. She agreed that she had, and that this was on the basis that she and the father were separated. She then, in effect, changed her evidence and said that between November 2006 and September 2007 she and the father were "considering reconciliation", which, I note, presupposes that separation has occurred.
Moreover, she agreed in cross-examination that she did not advise either Centrelink or the Child Support Agency that she had in fact resumed cohabitation with the father after November 2006. The date of the separation does not have much impact in the present proceedings, although it may well be more important in the de facto property proceedings between the parents, something in respect of which I take no notice or place any weight. It is, however, a clear example of the mother lying in her evidence.
I find that the mother also lied in her evidence about the assistance that her partner, Mr F, would provide if she were allowed to relocate to the Hunter Valley, in an affidavit filed prior to her abandoning that claim. She asserted that he would provide financial assistance if necessary. She also indicated in her affidavit that Mr F would be intending to move in with her in the Hunter Valley. But when Mr F gave evidence, he indicated that he never intended to move to the Hunter Valley, he never intended to move to New South Wales to live with the mother and he never even discussed with the mother providing financial assistance to her.
I find that the mother was saying things in her affidavit of 13 March 2008 that were designed to assist her in her claim to relocate, but which were completely false.
The third example asserted by the father which demonstrates the mother's lack of credibility is that he alleges that she forged his signature on the birth registration papers for [Y]. The mother dealt with this in evidence-in-chief, and by leave. She applied for, and was granted a certificate under section 128 of the Evidence Act (Cth) 1995. She agreed that she had forged the father's signature, that she knew it was unlawful and that she now regrets her actions.
She explained that at the time of [Y]'s birth it was a very turbulent time in their relationship and she was very frustrated about the inability of both parents to reach an agreement about [Y]'s name. This incident, if viewed in isolation, would not be significant. When considered in the context of the two other matters referred to above, as well as other aspects of the mother's evidence, it does tend to indicate the mother's willingness to deceive in a context which she believes it is necessary to take a certain action i.e. register [Y]'s birth. The mother appears not to have considered other ways of dealing with the dispute about [Y]'s name.
There are other less dramatic aspects of the mother's evidence that leave the Court wondering about her credibility. For example, she was cross-examined about her ownership of a number of horses and, in my opinion, was evasive about the fact that she actually owned four horses. Another example of her evasiveness, in my opinion, is her refusal to acknowledge and concede the travelling times would be longer during peak periods.
There are, therefore, aspects of the mother's evidence that lack credibility. It means I need to be very cautious about the evidence she gives. By no means does this mean that I do not accept any of her evidence. It does mean that where her evidence conflicts with that of the father I need to be very cautious in assessing her evidence.
The next part of the father's case about this consideration relates to the circumstances of the move from [B] to [K]. The evidence indicates that the father certainly knew about the mother's proposed move to [K], as well as her proposal to put [X] into a school in that area, from at least early October 2008. Not only had the mother given to the father paperwork relating to the school which she proposed to send [X] at the mediation they attended at the Family Relationships Centre, but the father also received correspondence from the mother's solicitors specifically seeking his consent to the move.
It is clear that the father did not give his consent, and simply maintained the position he says that he adopted at mediation which was, so far as school is concerned, that [X] was not to go to school in 2009. The father's attitude was unhelpful and unresponsive. He even instructed his solicitors not to respond to the correspondence. There was even correspondence from the solicitors seeking to vary the existing Court orders because, as both parents rapidly realised, the mother and children's move from [B] to [K] made the Monday contact, as well as midweek contact, quite impracticable.
What is interesting from this correspondence is that it reveals that the mother was clearly aware that her move to [K] would involve a breach of the orders that had been made in May 2008, and yet demonstrated a willingness to carry through with it notwithstanding. The father's response to this situation was not impressive. He, in effect, sat back and ignored what the mother was suggesting, and simply relied on what he says was agreed at mediation at an earlier date, namely that [X] would not start school.
But the mother's attitude is hardly better and, indeed, I find it to be worse. From her solicitor's own correspondence with the father's solicitors seeking to vary the existing order, it is hard to escape the conclusion that she knew fully that the consequences of her move would be to render the existing parenting order impracticable. She also clearly knew that she did not have the father's consent. Whilst, technically, it could be said that she did not need the father's consent to move from [B] to [K], she certainly did need his consent to a variation of the orders, and she certainly did need his consent to enrol [X] at school. It is clear that she knew she did not have that consent.
The mother gives as her reasons for the move a number of considerations. First and foremost she says the relationship between her father and herself was strained as a result of the children and her living with her father at [B]. The premises were used by the father as a home office as well as his home and I have no doubt that the presence of two young children as well as the mother would have placed a measure of strain, even on a very understanding and supportive maternal grandfather.
But why the move to [K], rather than somewhere where the impact of the move would not be so great on the existing parenting orders? The mother explained that her preference was [K] was so that she could continue her interest in horses and dressage, as well as return to an area where she had friends. She insisted, for example, that she still retained links to the area in which [K] is located even though she had not lived there since before 1994, 14 years before the move.
She was closely cross-examined about the availability of both friends and equestrian facilities in the [omitted] Shire area, in which [E] is proximate. Her answers were quite unresponsive and unconvincing. I am sure that the mother believes that both she and the children would have a better lifestyle in [K] where she lives in a granny flat which is part of a large home on a small acreage.
If the mother had asserted that the main reason for leaving [E] was to get away from the ongoing conflict she was experiencing with the father then, quite frankly, she would have been far more convincing in her evidence as compared to her assertion that she was moving to [K], rather than somewhere more proximate to [B], because of connections with the area and her passion for horses and dressage, etc. The mother did not run her case on the basis of escaping conflict or family violence.
In evidence, late in the proceedings, and in response to a question I had asked, the mother's counsel tendered the mother's residential tenancy agreement in respect of her accommodation at [K]. The agreement was made on 24 January 2009 and is for a period of one year. In response to a further enquiry from me, counsel for the mother conceded that when the mother and children first moved into her accommodation at [K] it was pursuant to an earlier residential tenancy agreement that she had taken an assignment of.
This evidence is significant. Before the 24 January 2009 it was clear to the mother that her move had rendered impracticable the orders that were made in May 2008. It was clear to her that the travel time and distance would mean that the children could not spend as much time with their father as they had before she moved to [K]. It was also clear to her that the father was not consenting to her enrolling [X] at school in the [K] area.
As at 24 January 2009 the final hearing of this matter was less than eight weeks away. Notwithstanding all of those factors the mother entered into a fresh residential tenancy agreement committing her and the children to remain in the premises for 12 months.
Another important factor that has not been specifically mentioned so far in these reasons is this. At all relevant times the mother was aware of the fact that the father had Mondays off work. That is what makes the alternate weekend time from 5 pm Sunday to 5 pm Monday in accordance with the order of 15 May 2008, so significant for the father and the children. Of course [X] was going to lose the benefit of this once he started school, but it was certainly the father's position that that should not happen until 2010.
From the father's perspective, the mother's move deprived him of the opportunity to spend time with his children on the alternate Mondays that he had off work. In his closing submissions counsel for the father submitted that the mother had orchestrated events, namely her move to [K], to suit her own purposes and thereby placed her own interests above that of the children. In cross-examination he put it to her that she had orchestrated events so that the father could not spend time with the children, and that she wanted to put in place events to assist her in her Court case.
Whilst the mother disagreed with this in cross-examination, from the Court's perspective her reasons for moving to [K] are unconvincing and her willingness to proceed notwithstanding a clear understanding of the impact of the move on the father and the children all creates a very serious doubt in the mind of the Court about her willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father.
In the oral evidence given by Dr Vardanega, the Family Consultant, I explored with her the possible consequences on the mother and children of being ordered to return closer to the former family home. Dr Vardanega expressed concerns about the mother being angry and resentful about having to return, such anger and resentment either being overt or covert. Dr Vardanega was concerned about the mother's capacity to contain these feelings, as well as her hostility towards the father.
I specifically asked Dr Vardanega whether there was a risk that the distance that the mother had created will erode the father's relationship with the children. Her response was that: "The chess pieces are in place for that to happen. The long travel is not workable." But counsel for the father cross-examined the mother about how she would respond if she were ordered to return closer to the family home. She said she would comply with the order and that she would not be angry or resentful, and that she would not drag any adult issues onto the children. The specific concern that the mother identified was changeovers but she assured the Court that she would always encourage the children to go to their father.
It is difficult to know what to make of this evidence from the mother. There are other aspects of her evidence that I find completely unreliable, as I have indicated above. Whilst I am reassured by this evidence, should I decide to order the children to return, the mother's response to being ordered to return is still a factor I need to take into account in these proceedings.
Likely Effect on Children of Changes
The impact of the mother's move in terms of the changes on the children has already been noted. They are spending less time with their father than was ordered by this Court. They are spending more time in travelling to and from contact. [X] is in a new school, and they are both living in different, albeit very pleasant, accommodation and surroundings.
The proposal that presents the option for less change is the mother's, subject to the Court being willing to accept that the amount of contact the mother proposes is in the children's best interests.
The father's proposal would mean the greatest change for the children in that they would, in a timeframe as determined by the Court, move back to an area where they are closer to the former family home and where the father lives. The benefit of change is that the children return to an area where it is more practicable for the father to spend more time with them. Indeed, conceivably a move as suggested by the father means the children are brought back closer to the maternal grandfather, as well as the mother's only sister who also lives in [B], and who has at recent times assisted with facilitating contact.
The Family Consultant was cross-examined by the father's counsel about the impact on the children of a move back closer to the former family home. The Family Consultant explained that much depended on how the parents themselves, particularly the mother, would handle the move, and how it was conveyed to [X]. She acknowledged that there would be a disruption to [X]'s routine, as new as it was, but she emphasised that it was more important to consider how the adults managed that situation. The mother has given assurances to the Court about these issues, and I have referred to these above.
This consideration invites the Court to consider the impact of change, particularly in terms of effect of separation from parents. The mother's proposal involves the least change, but the greatest impact on the relationship between the father and the children. The father's proposal involves the greatest change, but the least impact on the children's relationship with their parents. At the end of the day, in the exercise of my judgment, I will need to consider this factor together with all the other relevant factors.
Practical Difficulty and Expense
The mother's proposal involves the more significant issues about practical difficulty and expense, and these have been adequately referred to above. The father's proposal, which involves the children moving back closer to [E], would greatly minimise the issues of practical difficulty and expense and enables the children to maintain their personal relationship with the father, and have direct contact with him. Of course the mother would have to move back to the southern suburbs of Sydney. This will necessarily involve changing [X]’s school, and either terminating or assigning the existing residential lease she has entered into. These are significant issues of practical difficulty and expense, but heed to be weighed up against all other relevant factors and considerations.
There will always be issues of practical difficulty and expense, even with a move to within 25 kilometres of [E], as the father proposes. It is all a matter of degree.
Capacity to Meet the Needs of the Children
There is no issue in this case about the capacity of either parent to meet the physical needs of the children and, indeed, neither makes any serious allegation against the other in this regard. However, the Court has concerns about the capacity of each parent to provide for the emotional needs of these children given the intensity of the conflict that exists between them. Of greatest concern is that this conflict seems to continue to escalate, has spilled over to involve each de facto partner, as well as the mother's own father.
Some of the events in question occurred in very close proximity to the final hearing at a time when one would normally expect parties to parenting litigation to be hyper-vigilant about how what they say and do might be used in Court.
In her Family Report, Dr Vardanega makes some important observations about this consideration, as well as a number of other considerations to which I will shortly turn. At paragraph 36 Dr Vardanega notes that this is a complex family situation where the difficulties that have arisen seem to be very much attributable to adult issues. At paragraph 37 she observes that the level of trust between the parties has become seriously eroded and the suspicions they have of each other are concerning and palpable.
I extract paragraphs 41 to 45:
41. This gives rise to a scenario where all the adult parties are investing considerable emotional and material resources into their dispute. Unfortunately it is often the case the direction of energy into adult conflict often divests attention and energy for parenting and attending to the children’s needs. It also constitutes very poor grounds on which to base any shared parental living arrangements for the children particularly considering their ages. In this case, the geographical distance that now separates the parties makes this even more impractical.
42. What is highly significant in this matter is the level of on-going inter-parental conflict on the children. Certainly 2007 seemed to be a troubled year for the parties and, at the time the conflict began to escalate, say September 2007, [X] was 3 years and 5 months and [Y] 9 months. Essentially the children have been exposed to a discordant relationship between their parents for the greater part of their lives. Exposure of children to such conflict is damaging on many grounds and certainly this assessment suggests that there are already signs that [X] is becoming pathologically implicated in his parents’ dispute. Both parties reported [X] as a talented, bright and special child, who is popular with his peers, and there were certainly indicators of [X]’s strengths in this assessment. Unfortunately however, there were also marked and alarming signs of his distress and the extent to which he has become involved in the adult issues.
43. [X] seems to be identifying with the anxiety manifest by both parents but especially by his mother. It is not uncommon for children to identify with their parents’ over-protectiveness and overt as well as covert anxieties and to internalize them as their own and then reflect them back to the parent. [X]’s alleged comments to both his parents as well as to me in the assessment that his father and his partner are the “baddies” are a reflection of such identification (Slade, 2005). This is highly problematic for [X]’s longer term emotional well being since children of his age often do not understand the role the adults play and that the conflict over their living arrangements is the result of divergent goals of the adults. Rather they consider themselves to be responsible and feel guilty for the difficulties they perceive to be occurring in their family.
44. Exposure to conflict between their parents can have both emotional and developmental detrimental effects on children including adverse consequences in their emotional and cognitive development (Johnston, 1995; McIntosh & Chisholm, 2008; Altobelli, 2008). It has been found that depression, anxiety and temperament problems are commonly seen in such children (Maker, Kemmelmeier & Peterson, 1998; Edleston, Mbilinyi, & Shetty, 2003). There are also studies that suggest that such children sometimes manifest disorganization of planning and organizing functions using “working memory”, hypervigilance and inhibition of inappropriate responses and attention to distractions resulting in symptoms not unlike A.D.H.D.(Glaser, 2007). Even though this is not apparent in the case of [X], his imminent adjustment to school considering that he is also seemingly one of the youngest in his class, may be jeopardized if his home environment does not provide stability and security at one level but also the opportunity to move unproblematically between the significant persons in his life. [Y] on the other hand is still very much in the stage of forming secure attachments. Research (Glaser, 2003) suggests that the maladaptive responses referred to above are even more likely to occur in children who have not formed secure attachments which offer them some protective effect in the face of stress. In the case of both children, their vulnerability is exacerbated by the fact that both parties have referred to them suffering from medical conditions, namely asthma and weakened immune system responses. These conditions have been found to be triggered by exposure to stress (Straub, 2007).
45. In spite of the difficulties referred to the parties, the observations of the children with their father and Ms S suggest that that there is an affectionate bond between the children and the adults. More pressing in this family situation than the dispute over the amount of time the children spend with each parent, seems to be the adults’ acrimonious relationship with each other and the need for the children, especially [X], to be released from the involvement in that parental conflict. If this does not occur as a matter of urgency the children are likely to suffer significant emotional damage.
The seeming inability of both parents to disengage from their conflict with each other is of deep concern for the children and reflects very poorly on the parental capacity of each of them. Indeed, Dr Vardanega was not made aware of events after her report was prepared that provide an even more disconcerting picture of the nature and extent of the parental conflict.
For example, the mother's partner, Mr F, deposes to the fact that on
25 February 2009, shortly before this hearing, the father provided to him two photographs of the mother including one where she was totally nude, and one where she is topless. In cross-examination the father did not deny that he provided the photos to Mr F but disagrees with the version of what was said.
I found the father's explanation for why he handed over the photos to be quite unconvincing and his denial that he so acted with the intention of damaging the mother's relationship with her partner to also be unconvincing. The incident reflects very poorly on the father. Even if the purpose of handing over the photos was simply to upset the mother, it shows a remarkable lack of insight because of the potential impact on the father's own children.
The father was also cross-examined about a text message he sent to the mother the night before the first day of this hearing. He wanted to know who would be collecting the children. The mother responded that it would be one of her parents. The father responded by texting to the effect that he needed to know which of the grandparents, or the children would not be handed over. He explained that he wasn't prepared to allow the children to be handed over unless the precise name and identity of the person who was going to collect them was known.
He described this as simply being protective of the children. And yet, the mother had told the father that one of her parents was going to collect the children. Given the involvement of grandparents in the lives of these children it is hard to understand, let alone accept, the father's technical, indeed belligerent approach to resolving this issue.
But the matter escalated even further when the mother telephoned the father to clarify the changeover arrangements. When she called her call was placed on loud speaker and the evidence of both the father and
Ms S was that this was standard practice when the mother called. The mother asserts that Ms S said words to the effect: "Who is looking after the fucking kids, you stupid bitch?" Both the father, and Ms S, denied making these comments but neither of them were impressive or convincing in terms of their denial.
However, the mother agreed in her cross-examination that she called Ms S, "the babysitter," which one would have thought is a highly provocative term under the circumstances of the heightened conflict that exists between the parents. That this incident occurred at all provides an insight into the level of conflict between the parents, and their appalling low level of insight about the impact of all of this on the children.
The extent to which this conflict has spilled over also became obvious from the evidence of Mr B, the maternal grandfather. He gave evidence on day 2 of the proceedings that on the previous night he went to collect the children and said to their carer, "[Mr Silas] is a dickhead." He agreed that he said these words and that the children were in the vicinity at the time he said the words. When it was suggested to him in cross-examination that "dickhead" is a word he has previously used in the presence of the children his response was strangely ambivalent, saying "not really."
It would be quite easy to catalogue further examples from the evidence of the lack of insight and concerns I have about the capacity of both parents to meet the emotional needs of these children. The mother's actions in moving from [B] to [K], and enrolling [X] at school, each in full knowledge of the impacts this would have on the children's relationship with their father reflects very poorly on her level of insight and capacity to meet the emotional needs of the children.
The circumstances of the father's relationship with Ms S, his retaining the children for a longer period over the Christmas holidays, and the incident that occurred at Westfield Shopping Centre are further examples of his lack of insight.
This consideration looks at capacity of the parents to provide for emotional needs and, on the evidence before me, it is hard to separate the parents in terms of their deficiencies in this regard. Both come out from a consideration of this issue with an appalling track record. One can only hope that the resolution of these proceedings by the making of final parenting orders will lessen the level of conflict that exists between them.
Maturity, sex and lifestyle
There are no matters arising under this consideration that cannot be conveniently dealt with under other headings.
Attitudes to the children and to the responsibilities of parenthood
This consideration involves, to some extent, a revisiting of many of the issues that were discussed under the heading of capacity of the parents to meet the needs of the children. I will not do so, in detail, for the reason that it has been canvassed above.
It is clear from the Family Report, however, that the Family Consultant was deeply concerned about not just the conflict between the parents, but of the inability of the parents, especially the mother, to shield the children from her feelings about the conflict. The Family Consultant refers to this at paragraphs 43 and 44 (referred to above).
There can be no doubt that responsible parenthood involves managing parental conflict in such a way that there is no, or minimal fallout, on children. Responsible parenthood also involves actively protecting children from such conflict as cannot be adequately managed. The Family Consultant seems to be concerned about both parents, in this regard, but more so the mother.
The mother was critical of the father for what she considered excessive punishment of [X], and they are both critical of each other in terms of an indifference about treating of the children's medical conditions. There is substance in each of the criticisms that they make of each other but I do not regard any of the events in question as being so significant as to have anything other than minimal impact on the exercise of my judgment in this case.
Family Violence
The mother is very critical of the father because of the violence that he perpetrated on her in 2007, and his controlling and aggressive behaviour generally, whether in person, by telephone, or even texting. The mother gave evidence about an incident of family violence on
14 March 2007, and the father was cross-examined about this. He agreed that this incident involved grabbing the mother by her shirt, tearing her collar, and sitting on her while she was on the bed, holding her arms down. He agreed that the police were called and that it led to an apprehended violence order to which he consented.
This incident occurred after separation, but during the period which, according to the mother, they were attempting to reconcile. In cross-examination the father agreed that sometimes he has difficulty controlling his temper. He was cross-examined about an incident in November 2007 when, at changeover, the mother declined to sign a statutory declaration that he wanted her to sign and as a result the mother alleges that the father closed the car door on her.
He insists that he had not lost his temper and that the closing of the door on the mother was a mere accident. I did not find the father's evidence about this incident credible or convincing and it is more likely than not that it happened as the mother describes.
The father was cross-examined about violence in his relationship with his de facto, Ms S. He agreed in cross-examination that there was an incident in February 2009 which resulted in Ms S taking her children and travelling up to the Central Coast. The father insisted that it was not a violent incident, that the purpose of Ms S's trip was to visit her sister, and that this was as a result of a discussion that they had had which led to Ms S wanting "time out."
Ms S's evidence about the same incident was consistent with that of the father's and in particular they did not argue as such but did have a dispute which was nonetheless sufficiently upsetting for her to go see her sister. The evidence in relation to this dispute between the father and his de facto partner does not allow me to make any findings about family violence.
There was also an incident involving a set of scissors which were thrown into the sink and which bounced up and broke a window following a dispute between the father and his de facto partner arising out of parenting issues in their household. Again, the evidence does not lead me to conclude that there was family violence.
The father was cross-examined about an incident in May 2008 when he was in his car with his de facto partner and her daughter. It was put to him that he and his de facto partner had had an argument about the mother and that during the course of this agreement he has raised his fist and broke the windscreen. The father agreed that this had taken place and that he had cracked the windscreen with his fist. He agrees that he was in a rage and that there was an argument.
Whether or not any of the incidents after 14 March 2007 lead me to find that there has been family violence, those incidents certainly do give an insight into the father's character. He clearly has problems managing his temper and the impression formed is of a man with a fairly volatile personality. Many of the other incidents to which I have referred in the course of these reasons for judgment also support the findings I make about the father.
Nevertheless, there has been no family violence since March 2007 and whilst the father's relationship with the mother since March 2007, and possibly even his relationship with Ms S, might be described as volatile at times these relationships could not be described as violent ones. The mother did not conduct her case on the basis that family violence was such that, for example, the presumption of equal shared parental responsibility was rebutted.
The mother conducted her case on the basis that family violence was a consideration to be taken into account, particularly in terms of framing the orders for the father's time with the children. The family violence needs to be considered in the context of dealing with the very high levels of conflict that exists between the parents, and the impact that this will have on the children.
Clearly this is a case where, when and if possible, contact has to be carefully managed to avoid the parents coming into direct contact with each other.
The order least likely to lead to the institution of further proceedings
In a case like this where there is such a high level of conflict between the parents, with low distrust and communication levels, this particular consideration becomes highly problematic. The reality is that whatever order the Court makes there is a high chance of ongoing conflict between these parents, and a high chance of re-litigation. This ongoing conflict and litigation will, of course, harm the children and it is entirely within the control of the parents to be able to do something about this.
At a very simplistic level, it may well be that the mother's proposal involves the least chance of further litigation in that the level of contact between the father and the children is so low that there is lesser scope for ongoing conflict. However, as the Family Consultant has acknowledged, having regards to the concerns I have about the mother's commitment of facilitating an ongoing relationship between the children and the father "the chess pieces are in place" for that relationship to be further eroded.
And yet, to accept the father's proposal is equally problematic in that there would be much more time with the children accompanied by greater opportunities for interaction and therefore greater opportunities for conflict. This is a difficult case where a decision has to be made which is in the best interests of the children and where the risk of
re-litigation is but one of many factors to be taken into account in this regard.
Equal Time or Substantial and Significant Time
The Family Consultant was opposed to equal time because of the high level of conflict between these parents, a matter which I completely accept exists. I find that equal time is not in the best interests of these children. For the reasons that I have set out above, based on the many examples from the evidence, the level of conflict between these parents is too high, their trust in and ability to communicate with each other is so low, that equal parenting does not stand a chance of success.
Despite the use by the parents of a communication book for some time now, even this has not addressed the fundamentals issues of communication. The communication book is merely the means by which quite routine information is conveyed. Communication between parents involves far more than simply being able to transmit information. In any event, equal time would not be reasonably practicable on the mother's proposal because of distance considerations.
I am therefore required to consider substantial and significant time, as is defined in the Act. Whilst the mother's proposal would technically meet the definition of substantial and significant time as set out in paragraph (a) of s.65DAA(3) I am not satisfied that it meets the definition in paragraph (b) of the same subsection. On the mother's proposal the father collects the children from 5 pm on Friday i.e. after the end of school as opposed to collection from school, and then the children are returned before school.
The mother proposes that changeover is to be at an agreed mid point by road between the respective party's residences or, at McDonald's at [omitted]. But if I were to accept her proposal the father's interaction with the school would be negligible or non-existent and accordingly I am not satisfied that it would give him the opportunity to be truly involved in the child's daily routine.
For all practical purposes the mother's proposal would limit the father to weekend parenting, a concept that is quite inconsistent with the concept of substantial and significant time as defined in s.65DAA(3) of the Act.
The Court can only assume that the mother's proposal at the final hearing was carefully considered having regard to the evidence and having regard to the practical realities of the distance that separates these parents. The Court can only assume that the mother herself decided that it was not reasonably practicable for there to be any midweek contact.
The father's proposal involves the children being returned to within 25 kilometres of the [E] post office and for the children to live with him, in effect, on an equal time basis. I have ruled that out as not being in the best interests of the children. However, a lesser period of time that does fall within the definition of substantial and significant time may be another option in this case.
The order in the best interests of the children?
This is a difficult case with much complexity arising out of my finding that the parents are unable to contain and properly deal with their conflict, thus leaving their children very much caught in the metaphorical crossfire of parental conflict. The mother's proposal is problematic because it does not meet, in my opinion, the statutory criteria of substantial and significant time.
The father's proposal of equal time is not in the best interests of the children for the reasons I have set out above. There are a number of considerations that I have examined above that work effectively against each of the parents. However, the most influential consideration in this case is the concern I have that if I accept the mother's proposal, having regard to the findings I have made about her lack of willingness and ability to facilitate and encourage a close and continuing relationship between the children and their father, there is a real risk that if I accepted a proposal that involves the children and her remaining where they are, and very limited contact with the father, there is a real risk that the children's relationship with their father will be eroded, and over time lost. Distance makes greater contact impractical.
This is a risk that was acknowledged by the Family Consultant in her evidence. Despite the complexities of this case and the concerns that I have as regards each of the parents in their own way, I think there is a real risk that the children would lose their relationship with their father unless the children are returned to a closer proximity to their father.
I appreciate that this will cause considerable dislocation on the mother particularly in a financial sense. She has assured the Court that she will be able to cope with the emotional consequences of returning to an area closer to [E]. The Court is surprised that she would enter into such a long term lease commitment at the time she did. She will have to try to get out of the lease, or assign the lease, as best she can.
The interests of these children warrant a return to the area from whence they came sooner rather than later, but certainly not before the commencement of school term 3 this year. The mother must be given a reasonable time to make other arrangements for her accommodation. Until then the current contact arrangements are to be as the parents agree, or otherwise each alternate weekend.
The issue remains, however, how much time should the children spend with their father. I asked the Family Consultant in her oral evidence about her views on what this should be, if the children were ordered to return? The Family Consultant emphasised that equal time was not appropriate, but that an extended alternate weekend, for example Thursday to Tuesday, plus one overnight in the alternate week might work.
She emphasised the need of the children for stability in the midst of the parental conflict. To be fair to the Family Consultant, I doubt very much whether she appreciated the possibility that the Court would order the children to be returned when she prepared her report. When I put the question to her it is clear she had not given it consideration in advance. In effect, I put her "on the spot."
I accept the concept of an extended alternating weekend plus an overnight in the other week. However, I think that having regard to the very young ages of these children to commence with five nights one week and one night on the other week would be to provide for too long an absence from the mother.
Accordingly, I intend to make orders to the effect that until [Y] turns 5 both children should spend time with their father from immediately after school/preschool on Friday to immediately before school/preschool on Monday together with one other overnight in the other week as the parties agree, but failing agreement, from after school/preschool on Monday to before school/preschool on Tuesday.
When [Y] turns 5 the father's time can increase to five nights per fortnight, commencing from after school on Thursday. The orders will take into account the objective of keeping the parents apart at changeover, but of course recognise the reality that until [Y] commences preschool and/or school this may be problematic. Had there not been such a high level of conflict between these parents I would have considered more time.
I will make orders for special days and for school holidays, but in relation to the longer school holidays i.e. the Christmas holidays; until [Y] turns 5 the children's time with their father should be for no longer than two weeks. Thereafter, it should be half all of the school holidays.
The Family Consultant made recommendations about counselling and I consider that appropriate. I believe the father does have ongoing anger management issues and so I will direct him to attend an appropriate program in this regard.
The name issue
One of the issues that emerged during this hearing related to the names by which the children would be known. The mother seeks an order that the parties do all things in order that [X] family name be amended to Barry-Silas and [Y] family name be registered as [Y Barry-Silas].
The father opposes this application and seeks an order that the mother be restrained, in respect of [Y], from using the middle [full name omitted] in place of [shortened form omitted].
In the mother's counsel's closing submissions she submitted that as the parents were not married, and as it was likely that the children would live with the mother, the use of the hyphenated surname Barry-Silas was the one that would be put before the public the names of both parents. The mother's counsel questioned, as a matter of policy, why the father's surname should have priority.
Counsel also advised the Court that the mother was not pressing her application for [Y] to be known as [full name omitted] rather than [shortened form omitted], in terms of his middle name.
The father's counsel submitted that there was no evidence before the Court that would enable it to make a decision in relation to a change of name. He submitted that the onus of proof was at all times on the mother, and that she had failed to discharge that onus. Accordingly, there was no need to change the children's names.
There is very little primary evidence from either parent that deals with this issue. Any cross-examination on the topic did not add to the evidence about this issue, in any constructive sense. I agree with counsel for the father; there is not enough evidence before me to grant the mother's application and I accordingly decline to make the order she seeks.
However, as the mother did not press for [Y]'s middle name to be [full name omitted], I am going to assume that she does not oppose to him being known as [shortened form omitted]. Thus I propose to make the orders sought by the father in this regard.
Schooling
There was an issue in this case about whether [X] should be at school in 2009. The father says that in 2008 the parents agreed that he should not go to school until 2010. The mother contends otherwise and in any event has enrolled [X] in school. By the time my reasons for judgment are published he will have been at school for one term. What evidence there was before me about how he is coping tends to suggest he is coping quite well. Thus, unless the parents otherwise agree, he should continue school this year, albeit in a different school once these orders are implemented, one which is more proximate to where he was previously living.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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