Simon and Simon
[2010] FMCAfam 1171
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMON & SIMON | [2010] FMCAfam 1171 |
| FAMILY LAW – Parenting – two year old child currently living with her mother and spending significant and substantial time with her father – father seeking an increase in time – parents found to have highly conflicted relationship – in light of child’s young age and developmental needs and the parties’ highly conflicted relationship orders made for the current arrangement to remain in place, for the father’s time with the child to increase by one night upon her turning three years of age and for the parties to attend mediation to review the child’s living arrangements no later than six months prior to her commencing school. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Applicant: | MR SIMON |
| Respondent: | MS SIMON |
| File Number: | BRC 9853 of 2009 |
| Judgment of: | Bender FM |
| Hearing date: | 25 October 2010 |
| Date of Last Submission: | 25 October 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 25 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | In person |
ORDERS
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for their daughter [X] born [in] 2008 (“[X]”).
[X] live with each of her father and mother as follows:
(a)with her father:
(i)Week 1: Wednesday from 12.00 noon until Friday at 3.30pm commencing 27 October 2010 and each alternate week thereafter;
(ii)Week 2: Friday from 12.00 noon until 3.30pm Sunday commencing 5 November 2010 and each alternate week thereafter;
(iii)upon [X] turning three years of age, [X] shall live with her father in Week 2 from Thursday from 12.00 noon until 3.30pm Sunday;
(iv)for two periods of seven consecutive nights in each calendar year, provided that the father gives the mother not less than 28 days notice and the arrangements in orders 3(a)(i), 3(a)(ii) and 3(a)(iii) herein are suspended to enable [X] to spend two periods of seven consecutive nights in each calendar year with the father;
(v)from 12.00 noon Christmas Eve until 2.00pm Christmas Day in 2011 and each odd-numbered year thereafter;
(vi)from 2.00pm Christmas Day until 5.00pm Boxing Day in 2010 and each even-numbered year thereafter;
(vii)for four hours on [X]’s birthday in each year (if [X] is not already in the father’s care), such hours to be agreed, and failing agreement between 10.00am and 2.00pm;
(viii)for four hours on the father’s birthday in each year (if [X] is not already in the father’s care), such hours to be agreed, and failing agreement between 10.00am and 2.00pm;
(ix)from 5.30pm the night before Father’s Day until 5.00pm on Father’s Day in each year (if [X] is not already in the father’s care); and
(x)as otherwise agreed between the parties;
(b)with her mother:
(i)Week 1: Sunday from 3.30pm until 12.00 noon Wednesday commencing 7 November 2010 and each alternate week thereafter;
(ii)Week 2: Friday from 3.30pm until 12.00 noon Friday commencing 29 October 2010 and each alternate week thereafter;
(iii)upon [X] turning three years of age, [X] shall live with her mother in Week 2 on Friday from 3.30pm until 12.00 noon Thursday;
(iv)for two periods of seven consecutive nights in each calendar year, provided that the mother gives the father not less than 28 days notice and the arrangements in orders 3(b)(i), 3(b)(ii) and 3(b)(iii) herein are suspended to enable [X] to spend two periods of seven consecutive nights in each calendar year with the mother;
(v)from 12.00 noon Christmas Eve until 2.00pm Christmas Day in 2010 and each even-numbered year thereafter;
(vi)from 2.00pm Christmas Day until 5.00pm Boxing Day in 2011 and each odd-numbered year thereafter;
(vii)for four hours on [X]’s birthday in each year (if [X] is not already in the mother’s care), such hours to be agreed, and failing agreement between 10.00am and 2.00pm;
(viii)for four hours on the mother’s birthday in each year (if [X] is not already in the mother’s care), such hours to be agreed, and failing agreement between 10.00am and 2.00pm;
(ix)from 5.30pm the night before Mother’s Day until 5.00pm on Mother’s Day in each year (if [X] is not already in the mother’s care); and
(x)as otherwise agreed between the parties.
For the purposes of order 3(a) and 3(b) herein, the father shall collect [X] from the mother’s home or an otherwise agreed location at the commencement of his time with [X] and the mother shall collect [X] from the father’s home or an otherwise agreed location at the commencement of her time with [X].
The parties are to attend mediation no later than six months prior to [X] commencing school with a view to reviewing [X]’s living arrangements and in particular what, if any, additional time she is to live with her father.
The parties shall complete a Parenting Orders Program with Relationships Australia (telephone 1300 364 277) or Foundations (telephone 1300 854 733).
The parties, within seven days, contact the Parenting Orders Program co-ordinator (or their nominee) for a program provider referred to above for intake into the program.
The parties shall comply with any reasonable direction of the program
co-ordinator and in particular:
(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the Program;
(b)attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the program co-ordinator (provided that either party may refuse at their election to participate in joint sessions);
(c)if considered appropriate by the co-ordinator:
(i)attend a Triple P Parenting Program or equivalent parenting program as nominated by the program co-ordinator;
(ii)attend an anger management counselling program as nominated by the program co-ordinator;
(iii)attend such drug and alcohol programs as may be nominated by the program co-ordinator.
(d)in the event that either party refuses or fails to attend the program or any part thereof without reasonable excuse or refuses to accept a reasonable direction of the program co-ordinator, then the matter may be relisted by either party on the giving of 24 hours notice.
For the purposes of the program:
(a)a copy of these orders shall be provided by the parties to the program co-ordinator; and
(b)the parties are at liberty to supply to the program co-ordinator with a copy of any Family Reports that have been prepared for these proceedings.
Each party keep the other informed of any change to their home address, landline, telephone number, mobile telephone number and email addresses.
Each party keep the other informed in relation to all medical, dental or other health related treatments undertaken by [X] and the identity of the treating professionals.
Each party authorise [X]’s kindergarten, school and/or educational facilities and treating medical professionals to provide all information relating to [X] to the other parent.
Each party shall be at liberty to attend [X]’s kindergarten/school and extra-curricular activities, including parent/teacher interviews, concerts, speech nights and all such other events that are usually attended by parents.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of the [X], and from permitting any other person so to do.
AND THE COURT NOTES:
A.Orders 3(a)(iv) to (ix), 3(b)(iv) to (ix), 4, 10, 11 and 12 herein are made with the consent of the parties.
IT IS NOTED that publication of this judgment under the pseudonym Simon & Simon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 9853 of 2009
| MR SIMON |
Applicant
And
| MS SIMON |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
This matter relates to the parties’ competing applications as to the weekly living arrangements for their much loved daughter [X] who was born [in] 2008 (“[X]”) which means [X] has just turned two years of age.
The father is seeking orders that [X] live with him as follows: in Week 1, from 12.00 noon Wednesday to 3.30 pm Friday and in Week 2, from 12.00 noon Wednesday to 3.30 pm Sunday, which is a total of seven days and six nights each fortnight.
The mother is seeking that the existing arrangements for [X] continue whereby [X] lives with her father as follows: in Week 1, from 10.00 am Wednesday to 3.30 pm Friday and in Week 2, from 10.00 am Friday to 3.30 pm Sunday, and that [X] otherwise live with her.
To their credit the parties have been able to agree to what arrangements should be in place for [X] in relation to holidays and special days such as Christmas, birthdays, Father’s Day and Mother’s Day, and I will be making orders in accordance with the agreement that they have reached.
Background
By way of background, the father was born in 1980 which makes him 30 years of age. He is a [occupation omitted] working full-time at [omitted]. He has re-partnered with Ms S and she has two children who I understand to be aged 15 and six. The father and Ms S are currently not living together but intend to do so in the new year.
The mother was born [in] 1976 which means she is 34 years of age. She is a [occupation omitted] working part-time Monday to Wednesday at [omitted]. She has not re-partnered.
The parties commenced co-habitation in 2000 and married [in] 2004. They finally separated on 28 July 2009 when the mother and [X] left the former matrimonial home in [omitted] and moved to Brisbane.
Whilst the father deposes to some difficulties in initially spending time with [X] following separation, after mediation he began spending regular time with her.
Interim consent orders were made in December 2009 which provided for [X] to spend overnight time with her father in each week, subject to him providing clean drug screens. The father did provide clean drug screens.
On 30 April 2010, further interim consent orders were made which put in place the current living arrangements for [X] as set out previously in this judgment.
The father’s evidence
As set out earlier in this judgment, the father is seeking an extension of the time [X] lives with him so that in the second week of the two week cycle [X] lives with him from 12.00 noon Wednesday to
3.30 pm Friday, an additional two days a week with her dad.
It was the father’s evidence that he believes this would be in [X]’s best interests because it would enable her greater consistency as she would spend every Wednesday and Thursday with him each week, it would enhance his relationship with [X] and allow [X] to experience equally both of her parent’s lives and extended families.
The father conceded that such an arrangement would not be feasible in the long term especially when [X] started kindergarten and school as he and the mother currently live over an hour from each other, he on the Gold Coast and the mother in Brisbane.
However it was his evidence that in the new year, he and Ms S will be moving to Brisbane to enable a more shared care arrangement to work.
In relation to his employment, it was the father’s evidence that he is currently required to work 19 x 12 hour shifts in each six week period involving a combination of day and night shifts. In practical terms, this means he works three shifts in each week.
It was the father’s evidence that there is a high degree of flexibility in relation to his roster and he is able to manage his roster such that he can accommodate the time that [X] lives with him.
It was the father’s evidence that when he moves to Brisbane, he will seek alternative employment in Brisbane. It was his evidence, based on previous work experience in Brisbane, that he will have the same high degree of flexibility in respect to his work roster in any new work environment such that he is confident that any change of employment will not impact on his capacity to have [X] live with him.
In the mother’s affidavit material she raised serious concerns in relation to the father’s use of marijuana during the relationship and indicated that it was his ongoing use of that drug which had lead to the breakdown of the marriage.
The father gave evidence in response to a specific question from me that he no longer uses marijuana and had not done so since the breakdown of his marriage.
When asked why he had ceased using marijuana, it was his evidence given quite simply:
“My daughter means too much to me.”
Whilst conceding that he and [X]’s mother have difficulty in communicating with each other, it was the father’s evidence that they were able to communicate with each other in relation to [X] and, by way of example, he referred to their ability to reach agreement as to where [X] goes to day care; agreement as to a recent health intervention she required and their ability to change arrangements to enable [X] to attend special family events.
In contrast to the father’s evidence, however, it must be noted that the parties’ interaction in the court room today did not show a great ability to communicate. They were argumentative, they interrupted each other, they failed to listen to each other and became silent and non-responsive when challenged by the other. This was, I feel, indicative of how they usually communicate and interact and it is and will be a major concern if not addressed by them.
Having said that, the one time the parties were in complete accord before me was when asked to discuss or describe [X] to the Court. Their demeanour changed completely, they were both smiling and able to describe her in positive, glowing terms that showed a thorough knowledge and understanding of their daughter.
The father willingly confirmed that [X] loves both her mum and dad and spoke very positively of the mother in her role as [X]’s mum and of her care of [X].
The father impressed as someone who clearly adores his little girl and who wants to be an active and involved father who is able to spend as much time with her as he can.
The mother’s evidence
As set out earlier in this judgment, the mother is seeking that the existing living arrangements for [X] continue, at least until [X] is older and, in particular, in contemplation of her starting school which is a good three years away.
It was the mother’s evidence that despite the difficulties in the adult relationship between herself and the father, both of them are making the current arrangements work.
It was her evidence that [X] is thriving under the current routine, she has settled well to her current living arrangements, is happy and secure.
The mother expressed concerns that any further changes will cause [X] confusion and upset and that given [X]’s very young age, she needs to have a safe secure home base with her mother as her primary carer and to spend significant time with her father who she loves.
It was the mother’s evidence that she has real difficulty in accepting the father is now drug free but had to concede he had produced three clean drug screens when requested to do so and there was nothing in his behaviour since separation that supported her concerns, save his refusal to tell her what he does, particularly when with [X].
It was the mother’s evidence that she and the father are unable to communicate, save on the most superficial level. She sighted his refusal to tell her anything of what [X] does when with him as of real concern.
By way of example, the mother told the Court it was [X]’s birthday last week and when the father returned [X], just yesterday, she asked him what [X] had done at her party on Saturday and what she had been given. The mother’s evidence was the father refused to reply and all he did was to quote her:
“give her the bird”.
Whilst the father denied “giving her the bird”, though might I say, not very convincingly, and denied receiving a text sent to him in which the mother asked him to clarify what [X] had received, it was apparent that the father did not tell the mother what had happened at [X]’s birthday or what presents she had received.
Of greater concern was the fact that the father had not allowed [X] to bring any of her birthday presents back with her to her mother’s home. His justification for this was [X] had not brought any of her presents from her mum with her to his place. It was apparent [X]’s main present from her mum had been an easel which would not have been easily transported.
The father’s present to [X] had been, to use [X]’s words, “a baby,” which was clearly a very special doll. The father’s lack of insight in not letting such a special present move between the homes is very sad for [X] and has long term implications that I will comment on later in this judgment.
The mother conceded that [X] loves her father very much. Because of the father’s refusal to tell her, save in the broadest of terms, what [X] does in his care coupled with her concerns as to his ongoing drug usage, the mother was unable to speak positively of [X]’s care with her father but conceded that there had been no issues of concern since the parties separated and she was unable to provide this Court with any evidence other than that [X] is well cared for when she is with her father.
Mr M
Pursuant to rule 15.09 of the Federal Magistrates Court’s Rules 2001, Mr M was appointed by the court as a single expert to prepare a family report in relation to this family.
His report was released on 13 September 2010. Neither party sought to cross-examine Mr M or challenge his report.
In paragraph 11 of his report, Mr M described the father as follows:
11.Mr Simon presented in an amicable manner. He was thoughtful and reflective over most of his account. Over issues relating to his judgment he made comments indicative of an acceptance of responsibility.
In paragraph 21 of his report, Mr M described the mother in the following terms.
21.Ms Simon presented in an amicable manner, speaking in an articulate fashion. She is emotive in some of her views, expressing these strongly.
In paragraphs 55 and 56 of his report, Mr M described [X] in these terms:
55.[X] presented as a happy and vibrant little girl. She went back and forth between her parents without any undue concern or anxiety. Her parents were able to conduct handovers relatively amicably and [X] did not appear anxious or stressed over this.
56.There are no developmental or health issues regarding [X] and both parents express happiness about her health and her social personality. They each speak engagingly about [X]’s relationship with each of them and separately the parents reinforced the view that [X] has a sound relationship with each and that they would like to see this continue.
This accords with the description of [X] given by both her parents.
In his conclusions and recommendations contained in paragraphs 61 to 71 of his report, Mr M made particular recommendations and observations. Of particular relevance are the following paragraphs.
62.The relationship between the parents currently is dysfunctional to the extent that they are unable to speak about pressing issues regarding [X] in any more than a superficial manner. At the moment there is a greater tendency towards conflict than not, this conflict inevitably leading to an absence of communication between them until they are able to resolve those difficulties.
63.The reasons for the current problems are entrenched in the marital history. The history provided by both parents is that there were problems in the marriage that were never resolved over time.
66.It is important to note that progress has been made over time. [X] is only now two years or age and at the point of separation she was a very young child, such that it required a graduated arrangement of time from the point of separation until now. The parents have largely made these changes, albeit with some difficulties and with the assistance of mediation and the Court.
67.Currently there appears to be a viable arrangement in the sense that [X] is going between her parents with few apparent difficulties in her behaviour and she largely appears to have settled into the current arrangements.
In paragraph 70, Mr M makes the following recommendation:
I am of the view - given [X]’s age and development, the tensions between the parents, and the practicality of the current arrangements - that the current time with her father is in her interests. The question as to whether that time between [X] and her father should be increased is one which relies upon the future conduct of the parents over the time between now and approximately when [X] is to commence her schooling. I do not think that the father moving to Brisbane is a factor that would change this view.
I will now turn to the law applicable to how a determination is to be made by this Court when asked to determine what living arrangements should be put in place for a child.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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).
The objects of the Act quite simply are to ensure that the child has the benefit of a relationship with both his or her parents, is protected from physical or psychological harm, is given the appropriate parenting that allows them to achieve their full potential and ensures that their parents fulfil all their duties and obligations.
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 61da of the Act makes reference to there being a presumption of equal shared parental responsibility when making parenting orders. Subsections 1 and 2 of that section provide as follows:
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.
Despite the parent’s obvious communication problems, they have and continue to speak to each other in relation to arrangements for [X]. They have been able to decide on the important matters relating to [X] to date including what day care she should attend, what health interventions she should have and the importance of her being able to participate in extended paternal and maternal family arrangements.
I am satisfied that they will continue to be able to do this and that it is in [X]’s best interests that an order be made for equal shared parental responsibility.
Where parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent.
It provides as follows: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.
Sections 65daa (2) and (3) of the Act provide as follows:
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;
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.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Both parties’ proposals, in my view, would have [X] spending significant and substantial time with her father as defined under the legislation, albeit that the father’s proposal is very close to an equal time arrangement.
When determining what arrangements should be put in place for a child, the Act, as I indicated, clearly requires that the orders made be in the best interests, in this case, of [X].
In order to determine what is in [X]’s best interests, the Court must consider the matters set out in sections 60cc(2) and (3) of the Act. Each of the parties proposals or such other proposal as the Court determines must be considered and assessed in the context of the relevant provisions of subsections (2) and (3) of section 60cc and the orders made must be in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Both parties agree that [X] has a close and loving relationship with each of them. Whilst the father argues his proposal would enhance [X]’s relationship with him, I am of the view that this is more an expression of his desire to spend more time with [X] than there being any deficiency in his relationship with [X] at this time.
I am satisfied that the father has realised that he cannot be an effective, competent or involved parent if he is drug affected and that he does not care for [X] when he is under the influence of marijuana. Quite bluntly, if he was, and this matter was to come back before me, he would not be caring for [X]. I have a “no drugs” attitude to parenting.
Having said that, I am satisfied that the father is drug‑free, and that [X] is safe and well cared for by both of her parents.
In relation to the additional factors, which are set out under subsection (3) of the Act, I will go through each of those in turn where relevant.
Section 60cc 3(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
Clearly, [X] has just turned two years of age and, whilst I get the impression from her parents that she has strong views on most things, she is clearly far too young to be expressing any views other than she loves her mum and dad, as I have already commented on previously in this judgment.
Section 60cc 3(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)
As I have already noted, [X] has a close and loving relationship with both her mum and dad who, in turn, clearly adore her. It would also appear that [X] is comfortable with Ms S and her children, and sees them as part of her father’s household. It is unfortunate that the mother has refused the invitations to meet and get to know Ms S. Whilst this is understandable in the context of the circumstances in which the father’s relationship with Ms S has developed, being very soon after separation, I would encourage her to try and work through those issues and put aside her feelings, quite simply, in [X]’s best interests. Ms S will be part of [X]’s life and, for [X]’s sake, it will be important that [X] knows that her mother and Ms S know each other and, ideally, are able to deal civilly and well with each other.
It is also apparent that [X] is close to her extended maternal and paternal families. She spends considerable time with these very important people when she is with both her parents. I have to say it was most pleasing to hear that the parties are able to be flexible in their arrangements, so that [X] is able to attend all the important family occasions which, I imagine, include birthdays, anniversaries, cousins’ birthdays, etcetera, and I trust that that is going to continue into the future.
Section 60cc 3(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
In considering this factor, the court must also take into account sub-s.60cc(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A. If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
To their credit the parties, with some assistance from mediation and the Court, developed a sensible, age‑appropriate, graduated approach to [X]’s living arrangements. They also speak positively of [X]’s relationship with and love for each of them.
However, the parties’ inability to communicate easily or appropriately with each other has been commented on previously in this judgment and was my observations of the parties’ interactions before me in Court today. The problem was also noted and commented upon by Mr M in his report and, in particular, in paragraph 62, where Mr M described the parties’ relationship as being “dysfunctional” and made quite negative comments about their inability to communicate.
Because of [X]’s young age she has, to some extent, been shielded from, and oblivious to, her parents’ discord. Also to their credit, both parents seem to have shielded her from their conflict. By way of example, their strategy in making handover easier for [X] by taking her for a walk before the changeover occurs shows the parents have made an effort to allow [X]’s experiences of them together to be positive.
However, as [X] gets older, and unless her parents accept responsibility for this issue, [X] will start to take on board and be impacted by her parents’ conflict. There has been an enormous amount of research conducted on the impact of separation of parents on children. The outcome of those studies are compelling. Children of separated parents thrive where their parents are able to either genuinely be conflict‑free and co‑operatively co‑parent, or where the parents are able to put the interests of their child ahead of their own self‑interest, and ensure that whatever their adult issues might be, they ensure their children are shielded from any conflict.
Where the parents are unable to shield their children from their conflict, the long‑term impact on the children is, quite bluntly, disastrous. The children develop long‑term emotional and behavioural problems. They have difficulty concentrating and learning. They are unable to form intimate relationships and this continues into adulthood. They are more likely to develop alcohol and drug dependency issues, as well as long‑term mental health issues.
You have described to me an absolutely delightful, slightly precocious, gorgeous, intelligent, young two‑year old. Her capacity to realise her full potential, quite bluntly, is entirely in your hands. If both of you do not accept responsibility for how you act, each towards the other, and actively do everything necessary to address these issues, you will be placing your daughter’s future in serious peril. I cannot put it more strongly. Because of this, I will be ordering you to each attend a post‑separation parenting course, with a view that you are assisted in learning how to better communicate with each other, so that you can be better parents for the daughter that you adore.
Section 60cc 3(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
The father is seeking orders at this time which would have [X] spending four nights away from her mother I am satisfied the mother has been [X]’s primary carer to date. The father submitted that this change would not impact on [X] as she already spends considerable time away from her mother. I do not agree with that. To date, [X] has spent, generally speaking, no more than two nights away from her mother at any one time. She is only two years of age.
Developmentally, in order for [X] to develop the necessary attachments which will enable her to grow and be secure in her relationships into the future, the literature suggests that, until the age of three, the child needs a home with her primary carer and to spend significant and substantial time with those adults who are also central to her life and development. In this regard, I would refer you to the considerable research and papers of Professor Jennifer McIntosh.
In these circumstances, such a variation in [X]’s living arrangements as is proposed by the father are contra-indicated at this time. This view is supported by Mr M’s recommendations.
Section 60cc 3(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
The parties have managed the current arrangement well and both agree [X] is thriving in the current circumstances. The father’s proposal to move to Brisbane will make any future arrangements even more manageable.
Section 60cc 3(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
I have already commented on [X] having two parents who adore her and who care and look after her admirably. However, I reiterate how important it will be that they learn to better deal with each other to ensure that [X] is protected from the potential harm that will occur if she is subjected to ongoing conflict between her parents. In this regard, I am encouraged by Mr M’s observations of the parents, contained in paragraph 71 of his report, where he said:
“I did find that both were capable of insight and reflection on their past behaviours such that some confidence might be expressed about their capacity to improve the quality of arrangements over time, and hopefully, develop some flexibility.”
Section 60cc 3(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
Not relevant.
Section 60cc 3(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;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that both of these parents are committed, loving and responsible parents. However I again reiterate just how important it will be that they learn to better communicate with each other to ensure that they can be the best parents for [X] that they can be.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
Not relevant
Section 60cc 3(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
Not relevant.
Section 60cc 3(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
[X] is only two years old. It is not possible for this Court to make orders today that will put in place arrangements for [X] into her teen years. Her circumstances, her needs, what she is like as she matures cannot be known at this stage, nor can the parties’ circumstances be known, because they’re not set in concrete. Our lives all change and move on and develop. Accordingly, I intend to make orders that will put in place arrangements up to about six months before [X] is due to start school.
I am intending to make orders that at that time, the parties are to attend mediation, with a view to reviewing [X]’s living arrangements in the context of her being that much older, that much more secure in her attachments, the parties being more settled, and most importantly, hopefully having moved on in their relationship and improved their capacity to communicate with each other.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
To their credit, the parties have resolved arrangements for [X] in relation to holidays and special occasions, and as I previously indicated, my orders will reflect that agreement.
They have also, despite their interpersonal difficulties, generally agreed on the arrangements for [X], including her day-to-day care, and have shown flexibility around those arrangements in order for [X] to be able to enjoy important family events. It is hoped that this will not only continue, but improve with the passage of time.
Conclusion
This matter involves two parents who adore their young, two year old daughter [X]. Unfortunately, at least at this time, theirs is a conflicted post-separation relationship, with each continuing, might I suggest, to push the other’s buttons, so that communication between them is fractious and shallow. The father is seeking orders that will extend [X]’s time with him, from the current arrangement of effectively six days and four nights in each fortnight, to seven days and six nights per fortnight. The mother seeks that the current arrangement stay in place.
Having considered the parties’ proposals in the context of what arrangements are in [X]’s best interests, in accordance with the principals under the legislation, and the matters to be considered under section 60cc of the Act, I have formed the view that given [X]’s very young age, her developmental needs, and the highly conflicted nature of the parental relationship, orders in the terms sought by the father are not appropriate. I am of the view that the living arrangements that are in [X]’s best interests are for the current arrangements to remain in place until she turns three, and I am satisfied at that time, [X] should spend further time with her father. Accordingly at that time she will commence spending an additional day and night with her father each fortnight.
As indicated earlier in my judgment, I do not feel it is appropriate for the Court, at this time, to try and make orders as to what further time [X] should spend with her father beyond that period, and my orders will provide that no less than six months prior to [X] starting school, the parties are to attend mediation with a view to reviewing [X]’s living arrangements at that time. I am also ordering that each party complete a post-separation parenting course to assist them to better communicate with each other into the future.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 8 October 2010
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