Simons & Fraser
[2008] FMCAfam 10
•24 January 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SIMONS & FRASER | [2008] FMCAfam 10 |
| FAMILY LAW – Children – equal shared parental responsibility – presumption – father seeks equal time – child’s best interests – poor communication between parents – child’s strong relationships with sibling and paternal grandparents – social science research not supportive of father’s proposal. |
| Family Law Act1975 (Cth) ss. 60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode (2006) FLC 93-286 H and H (2003) FLC 93-168 |
| Applicant: | SEAN LUKE SIMONS |
| Respondent: | ELAINE KELLY FRASER |
| File number: | LNM1310 of 2005 |
| Judgment of: | Roberts FM |
| Hearing date: | 17, 18 and 19 July 2007 |
| Date of last submission: | 19 July 2007 |
| Delivered at: | H |
| Delivered on: | 24 January 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Crotty |
| Solicitors for the Applicant: | James Crotty |
| Counsel for the Respondent: | Ms E Daniels |
| Solicitors for the Respondent: | Dobson Mitchell & Allport |
| Counsel for the Independent Child’s Lawyer: | Mr P Fitzgerald |
| Solicitors for the Independent Child’s Lawyer: | Legal Aid Commission of Tasmania |
ORDERS
That all previous orders are discharged
That JANE JOANNE FRASER born` June 2003 (“the child”) live with ELAINE KELLY FRASER (“the mother”).
That the mother and SEAN LUKE SIMONS (“the father”) have equal shared parental responsibility for the child.
That until the start of the 2009 school year the child is to spend time with the father as follows:
(a)In week one and in alternate weeks thereafter from 9.00 a.m. on Friday (or after kindergarten if applicable) until 9.00 a.m. on the following Monday (or the start of kindergarten if applicable);
(b)In week two and in alternate weeks thereafter from 9.00 a.m. on Thursday (or after kindergarten if applicable) until 9.00 a.m. on Friday (or the start of kindergarten if applicable);
(c)For three hours on the child’s birthday;
(d)From 11.00 a.m. on Easter Sunday until 5.00 p.m. on the following Tuesday;
(e)On Fathers’ Day from midday until 5.00 p.m. (if the child is not otherwise spending time with the father);
(f)If Thursday 25 December 2008 falls in week one pursuant to sub-paragraph (a) above, then the time that the father spends with the child will commence at 3.00 p.m. on 25 December 2008 and not at 9.00 a.m. on 26 December 2008 as otherwise provided for in sub-paragraph (a) above; and
(g)If Thursday 25 December 2008 falls in week two pursuant to sub-paragraph (b) above, then the time that the father spends with the child will be commence at 3.00 p.m. on 25 December 2008 and not at 9.00 a.m. on that Thursday as otherwise provided for in sub-paragraph (b) above
Commencing at the start of the 2009 school year the child is to spend time with the father as follows:
(a)During school terms in week one and in alternate weeks thereafter from after school on Friday until the start of school on the following Monday;
(b)During school terms in week two and in alternate weeks thereafter from after school on Thursday until the start of school on Friday;
(c)For the first week of each of the May/June and August/September school holidays;
(d)For the first half of the Easter school break in even numbered years and the second half of the Easter school break in odd numbered years:
(e)For half of the summer school holiday period on an alternating weekly basis (or as otherwise agreed) commencing at 11.00 a.m. on 1 January in 2010 and in alternate years thereafter and commencing at 11.00 a.m. on 25 December in all other years;
(f)For three hours on the child’s birthday; and
(g)On Fathers’ Day from midday until 6.00 p.m. (if the child is not otherwise spending time with the father);
That if Mothers’ day coincides with any of the periods referred to in Orders No. 4 and 5 hereof then the time that the child is to spend with the father is to be suspended between 9.00 a.m. and 6.00 p.m. on that day.
That if the child’s birthday coincides with any of the periods referred to in Orders No. 4 and 5 hereof then the time that the child is to spend with the father is to be suspended for three hours on that day.
That for the purposes of these Orders the following shall apply:
(a)The father shall be responsible for the collection and return of the child except as provided for in sub-paragraph (b) below;
(b)The mother shall be responsible for the collection of the child from the father’s residence at the end of a period of spending time with the father if that is not at the start of kindergarten or school and the mother is then the holder of a valid driver’s licence.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
LNM1310 of 2005
| SEAN LUKE SIMONS |
Applicant
And
| ELAINE KELLY FRASER |
Respondent
REASONS FOR JUDGMENT
The issues
In this matter, the court must decide:
·how much time JANE JOANNE FRASER born June 2003 (“the child”) should spend with SEAN LUKE SIMONS (“the father”), as compared with the time that she spends with ELAINE KELLY FRASER (“the mother”); and
·whether the parents should equally share parental responsibility.
The father would like the child to spend equal time with each of her parents on a weekly rotational basis. The mother is opposed to that and seeks orders that will result in her spending less time with him than is currently the case.
The father seeks an order for equal shared parental responsibility, whereas the mother wants to “have sole parental responsibility for making decisions about major, long term issues concerning the child”. However, the mother also seeks orders that will require her to consult with in relation to major long term issues and if no agreement is reached they must seek the assistance of a Family Dispute Resolution Practitioner. Further, she seeks an order that will require her to keep the father informed of any treatment of the child by health professionals, with the father not being permitted to have the child treated by health professionals without the mother’s consent other than in an emergency.
Background
The father is aged 42 years and the mother is 26 years old. In 2001 they travelled together on the mainland. After they returned to Tasmania, the father obtained employment on the Spirit of Tasmania, which required him to work four weeks on and four weeks off.
The parties separated in March 2003. Their child was born in June 2003.
The parties had a brief attempt at reconciliation shortly after the child’s birth, which was not successful. Thereafter the father visited the mother and the child from time to time.
In July 2004 the mother commenced a relationship with Mr Bolton. He is the father of her son, Dean, born April 2006. The Mother has since separated from Mr Bolton. I will refer to that more below.
In about October 2004 the child started having overnight contact the father for up to two nights at a time.
On 7 April 2005 the father filed an application seeking contact with the child while he was on shore leave from 3 p.m. each Friday until 3 p.m. on the following Monday, for half the school holidays and on certain special occasions. The mother responded by seeking orders that the father had contact with the child from 3 p.m. on Friday until 3 p.m. on Sunday in alternate weeks.
By this time the father had obtained different employment as a merchant seaman which required him to be at sea for periods of up to six weeks at a time. In addition, for security reasons associated with his employment, there were times when he was unable to let the mother know when he was going away or when he would be returning to shore.
In June 2005 the mother consulted the child’s doctor, Dr Jackett (“the general practitioner”), with concerns about the child's behaviour, particularly after the child visited her father. The mother was referred to C for social worker and psychologist assistance.
On 7 July 2005 after an interim hearing, I made orders that provided for the father to have overnight contact for up to three nights each week while he was on shore leave.
On 21 July 2005, the paternal grandmother made an application (with the assistance of the father’s solicitors) seeking contact with the child from 11 a.m. until 4 p.m. on each Wednesday when the father was away at sea. On 5 December 2005 the proceedings by the paternal grandmother were consolidated with these proceedings and interim orders were made for the paternal grandmother to have defined contact with the child. (However, the paternal grandmother has since discontinued her application.) At that time an order was made for the child to be separately represented.
On 16 August 2005 the mother returned with the child to the general practitioner. The staff at C had considered that a paediatric opinion was more appropriate. The child was referred to Dr Hallam (“the paediatrician”). Her opinion was that it was very likely that the child was experiencing a degree of separation anxiety. The paediatrician concluded a report to the mother’s solicitor by saying that this “should not preclude access to her father but should be done in a way that minimises the child's anxiety”.
On 2 February 2006 orders were made by consent, which included the following:
·that the child have contact with the father when he was not at sea on a fortnightly basis pursuant to a formula that provided for varying periods from three days to five days on a six week cycle;
·that both parties were to attend a Parents in Contact course prior to any trial of the matter; and
·that a family report be prepared.
At that time the mother was to be living on the north-west coast of Tasmania but she has since returned to the south of the State.
A family report by Mrs Zacks dated 20 June 2006 (“the first family report”) was released to the parties on 21 June 2006. The matter was set down to hearing in September 2006. However, that listing was vacated because the father was to be at sea. A subsequent listing in November 2006 was also vacated for the same reason.
The father ceased his employment as a merchant seaman later in November 2006. He has since purchased a hedge cutting business.
The child has continued to spend time with the father in accordance with the consent orders of 2 February 2006.
The matter was then listed for hearing in January 2007. However, the parties agreed to allow the mother to take the child to New Zealand and the mater was adjourned until March 2007, at which time the matter was set down for hearing before Lapthorn FM in May 2007.
In May 2007 father filed a Further Amended Application seeking orders that the child live with each of the parents on a week and week about basis. He also sought equal shared parental responsibility.
When the matter came on for hearing in May 2007, the hearing was vacated again because of the need to obtain a further family report. That further family report by Ms Fowler (“the second family report”) was released to the parties in early July 2007 shortly prior to the final hearing before me.
The mother filed an amended response on 17 July 2007 seeking orders that:
a)she have sole parental responsibility for the child;
b)the child live her; and
c)the child spend time with the father as follows:
i)in week one from Friday morning until the following Monday;
ii)in week two from Wednesday morning until Thursday morning;
iii)for periods of four days and nights during school holidays until the child starts school; and
iv)after the child commences school, for half the school holidays on a weekly rotational basis.
Those orders sought by the mother were essentially in accordance with the recommendations of Ms Fowler in the second family report.
At the hearing in July the father was still maintaining his position as set out in paragraph 21 above.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[1].
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
· 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
· protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
· ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
· ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
· children have the right to know and be cared for by both their parents; and
· children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
· parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
· parents should agree about the future parenting of their children[3].
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[4].
[4] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[5].
[5] Subsection 60CC(3)
There has been some academic debate about the relative weight to be given to “primary considerations” and “additional considerations”.
I feel sure that the debate will continue. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in child abuse or family violence[6]. 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.[7]
[6] Section 61da
[7] Subsection 61DA(4)
However, if the presumption is applicable, it does not necessarily follow that equal shared parental responsibility will be ordered. Similarly, if the presumption does not apply, it does not follow that sole parental responsibility will automatically be ordered. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
If the court is going to order that the parents are to have equal shared parental responsibility, then the court must:
· consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
· if it is, consider making an order to provide for the child to spend equal time with each of the parents.[8]
[8] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[9]
[9] See subsections 65DAA(2) and (3)
The court must follow the legislative pathway that is provided by the Act[10].
[10] See Goode & Goode (2006) FLC 93-286
The evidence
The father relied upon two affidavits by himself and one his mother. He and his mother were both were cross-examined.
The mother relied only upon two affidavits by herself and was cross-examined. Because she had separated from Mr Bolton, she no longer relied upon his affidavit.
The Independent Child’s Lawyer (“ICL”) had filed affidavits by the paediatrician and the general practitioner. Neither was required cross-examination so their evidence was not challenged.
Initially, there was some debate about whether the first family report should be before the court. However, that “debate” was eventually resolved and both family reports formed part of the evidence.
Ms Fowler, the author of the second family report, was also cross-examined.
Credit
It was suggested in submissions that neither parent was entirely candid in giving their evidence.
On 1 June 2006 the father stated to the author the first family report that he wanted at least “50/50” in order to keep an eye on the child. However, he conceded in cross-examination that he had not given up his job at that time (which took him away to sea for six weeks at a time). He said that he continued in that employment because the Child Support Agency had told him that he would have to pay 12 month’s child support in advance and further, that if he did not do so, they would force a sale of his house.
I gained the impression that that answer was fabricated by the father in order to patch what was an obvious hole in his evidence. It is a matter of history that he did not give up that employment until the end of November 2006 and that he has since sold that house in order to purchase his business and fund these proceedings.
In the second family report Ms Fowler stated that she had asked the father whether he had ever read anything about child development or attachment or picked up a flyer on that topic. She stated quite clearly: “He replied that he had not”. In his oral evidence the father challenged that and stated that he had obtained some flyers.
I agree with the ICL’s submission that the evidence of Ms Fowler is to be preferred when it conflicts with that of the father.
However, I find that the father’s evidence was generally truthful in relation to events pertaining to the child and he made some candid admissions in the mother’s favour. For example, when he was asked directly whether he wanted the court to believe that the mother was unable to care for the child, his answer was: “I think she is able to care for her.”
The mother's failure to be candid with the court was more significant. In this regard, it is very clear that the mother deliberately omitted to inform the court of the extent of Mr Bolton's violent behaviour. It was only in an affidavit sworn by her on 27th of June 2007 that she revealed any difficulties in her relationship with Mr Bolton. However, in that affidavit she still minimised the extent of his behaviour. For example, she stated only that Mr Bolton “lost his temper again and I ended the relationship”. That account differed significantly from the evidence that she reluctantly gave in response to cross-examination by the father’s counsel. Indeed, reference to applications for Family Violence orders and her evidence reluctantly given suggests that Mr Bolton was violent towards her and/or destructive of property on at least four occasions:
·once in October 2005;
·twice in October 2006; and
·once in June 2007.
On at least one of those occasions, the child was in relatively close proximity, even if she did not actually observe the violent behaviour.
The mother explained her failure to refer to Mr Bolton's violence in her at earlier affidavits by saying that she did not initially tells her solicitor or the father about Mr Bolton's problems because she did not want people to pre-judge him because of his bipolar disorder. She went on to say that she wanted to work on the relationship and Mr Bolton's illness had not impacted upon the children.
I do not accept the mother's explanation. It is far more likely that she was less than candid with the court because she felt that it would adversely impact upon her case, and she only made admissions when she had no other option.
While it is not difficult to understand why a party to court proceedings such as these might not reveal information adverse to his or her case, that does not make it appropriate and there is an obligation upon parties to tell the whole truth “warts and all”. However, I accept that the mother's other evidence was generally truthful, particularly in relation to the child’s behavioural difficulties as observed by her.
I should also mention that I found the maternal grandmother's evidence to be less than truthful in one detail. She told Ms Fowler that the child drank three to four cups of tea and honey a day at her house. However, the paternal grandmother changed her story when she gave her evidence, and she admitted that she had discussed the cross-examination of the father with him before giving her own evidence. It was clear that she had been made aware that the child’s dental history may be an issue and that too much tea and honey could have contributed to her tooth decay. However, the paternal grandmother’s evidence in relation to that did not detract from the obvious love that she has for the child.
Should the parents share parental responsibility equally?
As stated above, unless there are reasonable grounds to believe that a parent (or a person who lives with a parent) has engaged in child abuse or in family violence, the court must apply a presumption that it is in the best interests of children for their parents to equally share parental responsibility.
It is not the case of either the father or the mother that the other has engaged in any child abuse or family violence, but it is now clear that Mr Bolton did engage in violent behaviour. However, the evidence is that Mr Bolton is no longer living in the mother’s household, so at first glance, it appears that the presumption should be applied. However, the presumption may be rebutted if the court is of the view that it is not in the child’s best interests for the parents to equally share parental responsibility[11].
[11] Subsection 61DA(4)
Section 65DAC of the Act makes it clear that, if the parents are to equally share parental responsibility, any decision about a major long-term issue in relation to the child must be made jointly. Further, any such order is taken to require each parent to consult the other in relation to the decision to be made and make a genuine effort to come to a joint decision.
When she was cross-examined by counsel for the father, the mother conceded that the father should be involved in making decisions about the child's welfare. That specifically included decisions in relation to:
·the school she should attend;
·the sport she should play;
·the studies she should undertake;
·the holidays she could go on; and
·the medical treatment she should receive.
In giving that evidence, it seemed to me that the mother was conceding that she and the father should be equally responsible for the child's long-term best interests. I see little difference between that and equally sharing parental responsibility. Further, I am of the view that the effect of the orders sought by the mother as summarised at paragraph 3 above is not much different from an order for equal shared parental responsibility, which would require the parents to consult each other and make genuine efforts to arrive at joint decisions.
Consequently, I am of the view that the section 61DA presumption is not rebutted and that the parents should equally share parental responsibility for the child.
Should the child spend equal time with the parents?
If the court is going to order that the parents are to have equal shared parental responsibility, then the court must consider whether spending equal time with each of the parents would be in the best interests of the child and be reasonably practicable[12]. In order to determine whether that would be in her best interests, I must consider the evidence in the light of any relevant provisions of section 60CC of the Act.
[12] See subsection 65DAA(1
Federal Magistrate Ryan (as she then was) gave a very useful summary in H and H[13] of some factors that the court should consider in relation to equal time. Her Honour said at paragraphs 47 and 48:
[13] (2003) FLC 93-168
47. Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
· The parties' capacity to communicate on matters relevant to the child's welfare.
· The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
· Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
· Whether or not the parties respect the other party as a parent.
· The child's wishes and the factors that influence those wishes.
· Where siblings live.
· The child's age.
48. This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s.65E nor s.68F(2). Each factor fits comfortably within s.68F(2).
The section 68F(2) that her Honour referred to has since been repealed and the matters set out in that repealed section are now incorporated (and expanded upon) in section 60CC. Consequently, I will keep her Honour’s comments in mind when considering the evidence in the light of section 60CC.
Primary considerations
The Benefit of having meaningful relationships with both parents
It was clearly the father's position that the mother had tried to prevent the child from forming a close relationship with him, but a close relationship between them had developed even in spite of that. (I shall refer to the father’s views about that further below.) It was also his position that the court should find that the child has a close relationship with her mother.[14]
[14] Father’s Case Outline, page 7
I have no difficulty concluding that the child has meaningful relationships with both parents. In the second family report,
Ms Fowler stated that the child “clearly has a close and loving relationship with both of her parents”.
Protecting the children from harm from abuse, neglect or family violence
I accept the mother's evidence that she has ended her relationship with Mr Bolton and given that Mr Bolton is no longer living in the mother's household, there do not appear to be any current issues which will require the child to be protected from harm arising from abuse, neglect or family violence.
Relevant additional considerations
The child’s views
In my view, the child is too young to have any relevant views about the major issues that I must decide. However, it is clear that she enjoys spending time with both parents.
The relationships of the child with the parents and other people
I have already referred to the close and loving relationships that the child has with each of her parents.
Ms Fowler reported that the child “clearly has a strong bond with her brother Dean and tended to smother him on their reunion”.
Ms Fowler confirmed that when cross-examined by the mother’s counsel. Consequently, I have no difficulty in concluding that the child has a normal, close and loving sibling relationship with Dean. Naturally, I must keep that sibling relationship very much in mind in any decision that I make.
Ms Fowler reported that the child was obviously loved and indulged by the father and his parents, and that she “engaged well in this comfortable role”. Further, I have no difficulty in accepting the evidence in the paternal grandmother’s affidavit about the obviously close relationships that the child has with her and her husband.[15]
[15] Paragraphs 28 to 30
It is perfectly clear to me that the child’s strong relationships with her wider family should be continued. In Bright and Bright v Bright and Mackley[16] the late Treyvaud J said:
Kay J, in a decision to which I was referred, of Stevens and Lee (1991) FLC 92-201, made remarks which are similar to those which others may have made and certainly which I have made on occasions.
His Honour was at pains there to point out, as I do now, that it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
[16] (1995) FLC 92-570 at page 81,658
Those are sentiments that I wholeheartedly endorse. However, the paternal grandfather needs to be aware that he could jeopardise his good relationship with the child if he continues the negative comments about the mother that he very clearly made to Mrs Zacks[17].
The willingness and ability of the parents to facilitate and encourage the relationship with the other parent
[17] Paragraph 33 of the first family report.
In his main trial affidavit the father said:
(The mother) has failed to facilitate and encourage a close and continuing relationship between the child and I. (She) has tried to disrupt my contact with the child ….
The paternal grandmother continued that theme even more forcefully by stating her belief that the mother had taken the child to the general practitioner and the paediatrician in order to reduce the amount of time that she spent with her father rather than as a result of any behavioural problems.
Those views are quite clearly wrong. The mother has consistently referred to the behavioural difficulties displayed by the child and she has taken appropriate measures to have them investigated. However, it is unfortunate that the mother and the father were unable to communicate to a sufficient degree which resulted in the father and his family being mistrustful of the mother's motives.
When she was cross-examined by the ICL, the mother said: “It’s always good for her to spend time with her father. I’ve always encouraged her relationship with her father”.
Section 60CC refers to both “willingness” and “ability” to encourage the relationship of the child with the other parent. In my view, it has not been the parents’ willingness to encourage the relationship that has been a problem, but their ability to do so has clearly been hampered by the past failures of communication between them.
A classic example of difficulties caused by their failure to communicate was what became known as “the dental incident”. The mother informed the paternal grandmother of the child's dental problem on an occasion when she delivered the child. That dental problem clearly got worse during the time that the child was with her father. Quite appropriately, he took the child for some dental treatment. Unfortunately, he failed to tell the mother immediately and the first that she knew about it was when she was contacted by the hospital about an appointment. Because the mother had already made an earlier appointment, she declined the hospital's invitation. Unfortunately, she had failed to provide the father with details of that earlier appointment. The whole matter then caused additional mistrust and a feeling on the part of each parent that the other did not have the child's best interests in mind. In my view the father’s mistrust of the mother was exacerbated by his unfortunate misinterpretation of advice given to him that the child’s dental difficulties were somehow life threatening.
As I indicated during the hearing, I did not see any inappropriate action on the part of either parent during that particular weekend, apart from their failure to communicate.
The father cannot blame the mother entirely for any failure of their communication. As was stated by Ms Fowler, “it takes two to tango” in relation to communication and the father has quite deliberately chosen not to communicate on occasions. In this regard, I refer to his stated refusal to use a communication book because his legal advice was that anything he wrote in that book could be used against him. (If that was advice that he received, it was clearly unsound advice.)
On the other hand, is clear that the mother failed in her obligation to inform the father about the child's behavioural difficulties and consult with him about taking her to the general practitioner and the paediatrician. While she cannot be criticised for seeking professional assistance, that should have been in consultation with the father.
Having said all this, I have some confidence that the parties’ communication will improve. That confidence arises from the following:
·the father has finally attended a Parents in Contact course and he stated that he got some benefit from it;
·on the Sunday before the hearing the parties met at a local park in the presence of the child, which suggested to me that the party's relationship may have improved and that their communication was also improving. (Such informal meetings are only to be encouraged because the child observes them acting civilly towards each other.);
·both parties sat through a lengthy hearing and will each have seen that the other has the child's best interests at heart;
·the tension of contested proceedings has now ended; and
·an order for equal shared parental responsibility will require the parties to communicate.
The likely effect of any change in the child’s circumstances
As mentioned above, the child is currently spending time with her father on a fortnightly basis for varying periods from three to five days. An increase in that time to week and week about would therefore be a significant change in her circumstances.
It is perfectly clear that Ms Fowler considers five days away from her mother to be excessive, and an increase to seven days to be even more adverse to the child's best interests. She bases that upon social science research. She says that the orders sought by the father “are contradictory to the large body of knowledge relating to child development and attachment”. At no time was she challenged by counsel about that large body of knowledge, so I must conclude that her expertise in social science is accepted.
When she was cross-examined, Ms Fowler indicated that the child would be unlikely to cope with the time that the father is seeking before she is seven years old. She will not reach that age until June 2010.
In my view, the parents’ communication problems are also a factor that would militate against the child spending equal time each parent. While their communication may be at a level to make equal shared parental responsibility possible, it is my view that the level of their communication will need to be significantly improved for equal time to become a viable proposition. In this regard, I refer again to what her Honour said in H and H.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
At the time of the hearing the parties were living in country towns that are approximately thirty minutes apart by car. In his affidavit filed 13 October 2006, the father indicated that such a drive did not present any significant problem.[18]
[18] Paragraph 59
The mother indicated that, having separated from Mr Bolton, she would prefer to move to the northern suburbs of H.
The mother's reasons for wanting to make such a move are sound:
·the road between the northern suburbs of H and the father’s residence is safer;
·she would be closer to child care facilities; and
·she would be able to consider employment or further study.
Such a move would put the mother’s home closer to the father, so there will be even less difficulty and expense associated with the child spending time with each of her parents.
The capacity to provide for the child’s needs
This factor includes physical, emotional and intellectual needs.
I have no doubt that both parents are quite capable of providing for the child's physical and intellectual needs. However, I have some concerns in relation to her emotional needs.
My concerns are not in relation to the mother's capacity to provide for her needs. In my view, the mother has demonstrated her capacity by consulting professionals when she had concerns about the child's behavioural problems. Her actions in taking the child to a general practitioner and then to the paediatrician were sensible and appropriate.
On the other hand, the father has demonstrated an inability to put the child's needs before his own. In this regard, Ms Fowler reported that on four separate occasions she told the father that even the current regime would not be supported by professionals with knowledge of child development and attachment. Notwithstanding this, the father has persisted with his application to increase the time that the child spends with him. In relation to that, Ms Fowler commented as follows:
Despite all of the information that (the father) has been presented with he is still seeking that (the child) spend time with him for six or seven nights in one block for the purpose of seeking employment in the alternative week. Despite all of (the father’s) good intentions for his daughter, he is clearly demonstrating that he currently does not have the capacity to promote (the child’s) needs over his own and is therefore not in a position to make decisions in (the child’s) best interests.
In my view, this is yet another indicator why the child should live predominantly with her mother.
The attitudes of the parents to the child and parental responsibilities
In some respects there is some overlapping between this factor and the factor referred to immediately above.
There appeared to be attempts by both parties to criticise the other’s attitude to parental responsibility in relation to “the dental incident”. However, I have commented that both parents acted responsibly in the circumstances that presented to each of them at the time. Unfortunately, their inability to communicate gave the incident proportions that it did not deserve.
Family violence and family violence orders
I believe that I do not need to say more about these factors than have said above.
Conclusions
Having considered this matter very carefully, I conclude that the child should not be spending as much as five days away from her mother, who has been her primary carer since her birth. Consequently, it follows that she should spend less time with the father overall than she is currently spending with him.
I note that the child will not commence school full-time until 2009. She is likely to attend kindergarten only on a part-time basis this year. Consequently, school holidays will not assume the importance this year that they will assume next year. I therefore intend to make orders that do not take school holidays into account until 2009.
In my view it is in the child’s best interests for there to be orders as set out at the start of these Reasons.
The orders that I make will also allow the child to spend time with both parents on important occasions such as Christmas Day and the child’s birthday. They also provide for substantial and significant time as defined by subsection 65DAA(3) of the Act.
I do not believe that I need to make an order about which school the child should attend. However, it is clear that it is usually in a child's best interests to attend a school that is relatively close to where the child lives. This is particularly applicable to kindergarten. While I accept that the father may have an emotional attachment to the school that he attended, that is not a good reason for the child to attend that school if it involves excessive travelling. I presume that the parties will take notice of this comment when they confer about enrolling the child in school.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 24 January 2008
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