Stein & Jacobova
[2008] FamCA 448
•10 June 2008
FAMILY COURT OF AUSTRALIA
| STEIN & JACOBOVA | [2008] FamCA 448 |
| FAMILY LAW – CHILDREN – LAT matter - interim hearing on whether orders should be further adjusted pending a final hearing – only minor changes made – relevant principles |
| Family Law Act 1975 (Cth) |
| Goode & Goode (2006) FLC 93-286; (2007) 36 FamLR 422 |
| APPLICANT: | MR STEIN |
| RESPONDENT: | MS JACOBOVA |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLF | 3450 | of | 2006 |
| DATE DELIVERED: | 10 JUNE 2008 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | BENNETT J |
| HEARING DATE: | 21 MAY 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR WEIL |
| SOLICITOR FOR THE APPLICANT: | SUSAN SYNDER |
| COUNSEL FOR THE RESPONDENT: | MS SMALLWOOD |
| SOLICITOR FOR THE RESPONDENT: | LEWENBERG & LEWENBERG |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | MS SPEHR |
| INDEPENDENT CHILDREN’S LAWYER | VICTORA LEGAL AID |
Orders
That the current regime of time spent by the husband with the child … born … November 2003 continue until further order save that:-
(a)The next weekend on which the husband is entitled to spend time with the child on a Saturday but not a Sunday, be suspended with the effect that, as between the husband and the wife, the wife has exclusive care of the child for that weekend;
(b)Commencing on 1 July 2008, the first weekend in each calendar month on which the husband is entitled to spend time with the child on a Saturday but not a Sunday, be suspended with the effect that, as between the husband and the wife, the wife has exclusive care of the child for that weekend;
(c)On Tuesday 28 October 2008 and Tuesday 4 November 2008 the time to which the husband is entitled be extended to the commencement of school on Wednesday when the husband is responsible for delivering the child appropriately prepared and provisioned for her day at school.
That liberty be reserved to all of the parties to arrange to have this matter mentioned before me in the event that any seek orders to facilitate any family dispute resolution event.
Otherwise, the matter be referred to Registrar Riddiford for case management purposes.
IT IS NOTED that publication of this judgment under the pseudonym Stein and Jacobova is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 3450 OF 2006
| MR STEIN |
Applicant
And
| MS JACOBOVA |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the parties’ daughter born in November 2003 and are in the Less Adversarial Trial stream of cases fixed for final hearing before me on 17 November 2008 (estimated to take five days).
The proceedings were first before me on 6 February 2008 when I made interim orders, including increasing the time that the father was entitled to spend with the child and adjourned the proceedings to this hearing with a view to adjusting the spend time and communication orders, if appropriate, prior to the final hearing. In the meantime, the wife was to have an opportunity to inspect the husband’s residence so as to be familiar with where the child would be accommodated when she is in the care of the husband, the parents were each to undertake a post separation parenting course and the parents were seen again and the child was seen for the first time by the family consultant, Mr A.
Mr A produced and child and parent issues assessment which is dated 14 May 2008 and has been released to all parties and is in evidence before me.
The husband seeks that his time with the child be extended between now and the final hearing and the wife seeks that it be reduced.
History
The father is 41 years old. His family of origin are in Israel. He is a company director and operates a restaurant. He deposes to a current income of $1,400 per week gross. His financial statement in these proceedings reflects that he owns 2 expensive cars, one Mercedes which is leased and which he values at about $125,000 although at this hearing he said that he does not drive it or pay for it. He also has a Mazda vehicle which he deposes is worth $65,000 and a motor bike which is worth about $16,000 and is encumbered. When the matter was first before me on 2 February 2008 he stated that he lived alone in a flat in R Street. The mother had misgivings about that abode being the father’s actual place of residence and of the amenity of that property in any event. Accordingly, the mother was given an opportunity to inspect the R Street property with the maternal grandmother, and did so the following day, on 3 February 2008. In oral evidence, the father deposed that he no longer lives at R Street but has moved back to live with his girlfriend, Ms V and her and her two sons, who are 16 years old and14 years old at N Street. The father’s girlfriend also works in the restaurant business.
The mother is now 42 years old. She has not repartnered. The mother’s father is 71 years old or thereabouts, and her mother is 66 years old or thereabouts. After separation the mother and the child moved back to live with the maternal grandparents at M Street. They still reside there. The mother’s parents support the mother financially and attend court with her. They present as a close knit and supportive family. Previously the mother worked at her father’s professional practice and was paid about $70,000 per annum. Since separation she has relinquished that employment and now only helps out for a few hours a week, on Mondays and some Thursdays on a voluntary and unpaid basis. The mother has very significant liabilities to credit card providers which she said were run up by the father without her knowledge, during the marriage for holidays and overseas trips for himself. The mother says that, if the father becomes bankrupt, she too will have to become bankrupt. The mother says that she is unable to be employed because she devotes a great deal of time to sorting out her dire financial circumstances and, her evidence indicates, looking after the child.
The parents met in Australia and within a few months moved in together and married in February 2000. They both worked in the maternal grandfather’s practice although the father was frequently absent overseas. The mother says that the father told her that he was an Israeli public servant who travelled all expenses paid but was required to be called away at short notice of, say, 4 or so hours. The father denies saying that he was employed by any government agency and says that he was travelling back to Israel to see his family of origin or holidaying in Malaysia. There was some evidence of one or two trips to Asia being in relation to a prospective business venture. The financial affairs of the parents were discussed at some length at the interim hearing on 6 February 2008. At this stage in the proceedings, I am not able to make a finding about the father’s overseas trips other than to record that it is agreed that he travelled very extensively and frequently and that it appears to be common ground that the cost of him doing so is represented by a substantial portion of the credit card debts for which the mother is now responsible. The father has not been able to travel since the Child Support Agency obtained a departure prohibition order against him under Part VA of the Child Support (Registration and Collection) Act 1988.
The parents separated in November or December 2006. The child was then 3 years old.
On 10 January 2007 orders were made by consent whereby the child live with the mother and live with the father each Tuesday and Saturday from 10.00 a.m. to 5.00 p.m. and on Jewish holidays, as agreed. The point of collection and return was the home of the mother’s parents, which continues to be the case. The child was placed on the watch list.
Pursuant to an order made on 5 October 2007 Victoria Legal Aid were requested to provide an Independent Children’s Lawyer. In due course Ms, Caroline Smith of Victoria Legal Aid was appointed as the independent children’s lawyer for the child under Division 10 of Part VII of the Act. As such, her role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what she believes to be the best interests of the child.[1] She is not a legal representative retained by the child and she is not bound by any instructions from the child.[2] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by [the child] are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[4]
[1] s 68LA(2) Family Law Act 1975 (Cth).
[2] s 68LA(4) Family Law Act 1975 (Cth).
[3] s 68LA(5)(d) Family Law Act 1975 (Cth).
[4] s 68LA(5)(e) Family Law Act 1975 (Cth).
On 6 February 2008 the time to be spent between the father and the child was increased and, together with an variation to which the parents agreed between themselves, the current and regular regime of the child living or spending time with the father is as follows:-
a)Each Saturday from 10.00 a.m. to 5.00 p.m.;
b)Each alternate Sunday from 10.00 a.m. to 5.00 p.m.;
c)Each Tuesday from 2.00 p.m. to 5.00 p.m. with the father collecting the child from school and returning her to the mother’s home.
It is from this regime that the parties, including the independent children’s lawyer, each seek variations to be implemented on an interim basis between now and the final hearing in November 2008.
There is also a financial dispute between the parties, in relation to child support and an alteration of property interests, which are not governed by Division 12A of Part VII of the Family Law Act 1975 and which have been allocated a discrete hearing before me on 14 and 15 August 2008 (estimated to take two days).
The proposals of the parties
The father proposes that he care for the child each alternate weekend and in addition:-
Cassie, please fix up par numbersa)In the first week and each alternate week thereafter from 3.30 p.m. on Tuesday to 9.00 a.m. or the commencement of school on Wednesday;
b)In the second week (which has not been immediately preceded the child spending the weekend with the father) and each alternate week thereafter from 3.30 p.m. on Monday to 9.00 a.m. or the commencement of school on Wednesday.
The mother proposes that the father spend time with the child as follows:-
a) Each alternate Sunday from 9.00 a.m. to 5.00 p.m.;
b) Each Tuesday from 3.30 p.m. at school to 6.30 p.m. at home;
c) Each Friday from 12 noon at school to 6.00 p.m. at home;
d)For one half of special days or Jewish holidays.
The independent children’s lawyer proposes that the father care for the child as follows:-
a) A continuation of each Tuesday from 2.30 p.m. to 5.00 p.m.
b) Each alternate weekend on a phased in basis so that:-
i)For the first two such weekends, time to commence at 10.00 a.m. on Saturday and conclude at 10.00 a.m. on Sunday;
ii)For the next two such weekends, time to commence at 10.00 a.m. on Saturday and conclude at 12 noon on Sunday;
iii)Thereafter (10 weeks hence), the child spend time with the father from 10.00 a.m. on Saturday to 5.00 p.m. on Sunday
The legal principles
The applicable law is Part VII of the Family Law Act 1975, as amended in July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006.
The Full Court in Goode & Goode[5] acknowledged that the procedure for making interim parenting orders should follow the same pathway as is applicable to final decisions but be an abridged process where the scope of the enquiry is “significantly curtailed” compared to the ultimate hearing. It said (at paragraph 68):-
“…..Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.”
That is how I will approach these proceedings. I note the comments of the Full Court in Goode’s case (at paragraph 72) that:-
“…..it can fairly be said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practical.”
[5] [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 FamLR 422
Pursuant to s 60CA, in deciding to make any parenting order in relation to the child, I must regard her best interests as the paramount consideration, and I do so.
Subject to the best interests of the child being the paramount consideration,
s 60B sets out the aims and principles of the legislation. It defines the objects of Part VII as to ‘ensure that the best interests of the 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.
Those objects may be regarded as the core values of the legislation. Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the 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).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.
The issues in dispute in the interim hearing
The family consultant identified the key issues in this case as follows:-
(a)where the child shall live.
(b)How much time the child will spend with each of her parents.
(c)The absence of a parental alliance and of a functioning communication mechanism to discuss the child’s needs-mediation has not occurred to date.
(d)The ongoing conflict which each parent blames the other for sustaining.
(e)A lack of confidence in [the father’s] care of the child whilst she is with him.
(f)A lack of confidence in [the mother] and the [maternal grandparents] capacity to promote a positive ongoing relationship with the child along with concerns that [the mother] exposes the child to the conflict by allowing the child to hear her views being expressed.
(g)Concerns that [the father] may be using cocaine, and alcohol to excess.
(h)Financial matters remain unresolved and appear to have a significant impact on proceedings.
(i)The parties agree that equal parenting responsibility should continue.
(j)Whilst the parties deny physical family violence [the mother] alleges that [the father] is verbally aggressive towards her. [6]
[6] Paragraph 2 of page 3 of the Child and Parents Issues Report dated the 14 May 2008.
Broadly speaking, the principal issue at the present hearing was whether the child should start to spend overnight time with the father. Both the father and the independent children’s lawyer propose that the child’s time with the father be increased to overnight. That is a significant alteration. The mother opposes any overnight time at this stage. In fact, her proposal represents a reduction in time between the child and the father from the current regime.
The law is clear. As was observed in Goode’s case:-
“…..where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.”
Furthermore, the Full Court the said (at paragraph 73):-
“That is not to say that stability derived from a well-settled arrangement may not ultimately be what the court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).”
The evidence
At this hearing the parties each gave oral evidence and were cross examined. Each relied only upon evidence of himself/herself. Each party has filed a financial statement but, as this is a Less Adversarial Trial there is no affidavit material filed by the parents. In addition to the vive voce evidence at this hearing, I also had the benefit of a completed questionnaire, hearing statements confirmed on oath, made by each party or on their behalf at the commencement of this matter on 5 February 2008.
In addition to the parties giving evidence, I permitted limited cross examination by all parties of the family consultant and ordered a transcript of that evidence which is now to hand.
This court has a long and fortunate history of being well served by the Child Dispute Services section of the Court (and its predecessors) in the provision of forensic assessments of families in litigation by psychologists and like social scientists. In this case, however, I was required to remind counsel for the parties that Mr A’s assessment of 14 May 2008 is not a forensic report. As Mr A described, it is no more than a preliminary view the purpose of which is to identify the relevant issues, what issues the parents can agree upon and to establish what options the parties have to avoid progressing further through the court system. It is to be used as a tool or opportunity for the parties to negotiate an outcome acceptable to them and to put on the record what they think their competing issues are. It is not is not intended to be a forensic family report and it is investigative only up to a certain point which is largely based on what the parents tell the family consultant.
There was no challenge to Mr A’s qualifications. It will become apparent that I largely accepted Mr A’s evidence, bearing in mind the limitations which he necessarily imposed .
Impressions of the husband as a witness
The father gave evidence in a nonchalant manner. For instance, in February 2008 one of the principal concerns which the mother had about the introduction of overnight or extended time for the child with the father was that the father said he was living by himself in a flat at R Street, but, in fact, he was residing with his girlfriend in N Street. The father denied this was so. Provision was made for the mother and maternal grandmother to visit the father’s flat at R Street, without the child, in order that both, but principally the mother could be personally familiar with that environment rather than to try to discern from the child the quality of the place where she spends time with the father. The women visited. The mother gave evidence that it did not appear that the father was actually living there. There was no bed linen, no clothes, no toys, no books, no washing machine or dryer. The bathroom and the cook tops appeared not to have been used. The refrigerator was empty but for a bottle of soft drink. The furnishings comprised of a bed, a television, a pool table and a couch. The father was present at the inspection and said that he did not need to cook as he had a number of chefs who were able to do so. Counsel for the father objected to the evidence on the basis that it had not been put to the father in cross examination, I ruled that the father could re-open his case to get evidence in response. He did not do so. Nor was the mother cross examined as to the detail of her allegations. She was cross examined as to whether her allegations were recorded in a letter and I am satisfied that, in that respect, they were alluded to.
In any event, returning to the father’s evidence, and my impression of him as a witness, he gave evidence that he had only taken the flat at R Street because he believed, on what the mother had said to him (which she denied) that she would agree to him having shared care of the child. He had, in fact, continued to pay the rent (or a share of it) for his accommodation with his girlfriend and her two sons in N Street. There was no suggestion of dual residences or him keeping his options open at the hearing in February 2008. In the financial statement sworn by the father he deposed that he only paid rent for the R Street property. He gave evidence that he vacated the R Street property in early April, 2008 and moved back to his current accommodation in N Street. He says that the rent of $452 per week for the R Street property, which is still under lease, is being paid by two of his restaurant staff living there and that those staff members will continue to do so until their contracts finish.
The father did not advise the mother directly of his change of residence in spite of seeing her at least twice a week. He did not notify the mother, via their respective lawyers, of his change of residence until by letter dated 5 May 2008 when the mother was advised of the father’s move and it was stated that she could attend and look at this residence as well. No part of the father’s evidence, including re-examination, indicated the slightest remorse or acknowledgement of what I am satisfied was deceptive conduct on his part and a dishonest description of his living arrangements which were a central issue in the case. Moreover, I did not observe any acknowledgement by him, even with the benefit of hindsight that his conduct would adversely impact on the degree of confidence which the mother has in him.
Impressions of the wife as a witness
The mother also gave evidence. She impressed me as being an honest witness albeit naive and impressionable. Her complaints include that the father does not take advantage of the time which he is already entitled to with the child, that she is returned hungry, dirty and tired and that she talks of spending time unoccupied at the father’s home and with waitresses at the restaurant, which leads the mother to believe that the father does not pay adequate attention to the child or even ignores her. The mother impressed me as a witness who is genuinely convinced that the child’s welfare will not be at all enhanced by spending more time with the father. She does not appear to me to be exaggerating or embellishing any of her concerns, including her concerns that the child is harmed by one of the sons of the father’s girlfriend. That said, and putting to one side any risk of harm by the father’s girlfriend’s boys or either of them, the mother’s demeanour in the witness box leads me to conclude that she has not considered that, within an acceptable range, parenting styles may differ and that the father may have positive things to offer the child.
I am satisfied that the mother’s disillusionment at the husband as a father is, at least subjectively, legitimately based on what she perceives as the father’s inadequate financial provision for the child since separation. In the context of the present hearing, I am not in a position to make any findings about financial matters and, indeed, the parties have not had the opportunity of putting their evidence before the court in that regard. My consideration of those issues will occur in August 2008 at the hearing in relation to child support and alteration of property interests. That said, the mother was in court and heard the father’s statements in February 2008 and his evidence in the present hearing. She is aware that in February 2008 the father said that he would pay half the school fees due to L School but that he has failed to do so. He gave evidence that he had to pay $6,000 to set aside a default judgment obtained by the maternal grandfather which funds he could have paid to the school.
The father confirmed under oath that he considers L School to be an excellent school for the child, that the school staff are welcoming of and are polite to him and that he feels comfortable when he attends the school each week. He gave evidence that that he will pay half of the school fees. When asked about the unsatisfied judgments which L School has against him for school fees, he responded:-
“I will solve the problem when the time comes. I will work harder. When I finish paying my lawyers, I will have money to pay [L School]”.
The father’s expressed intentions had elements of leveraging and calculation about them which do him no credit at all. The effect on the mother of hearing such evidence did nothing to enhance the family dynamics. In fact, it is very likely that they were destructive of it.
I can make no findings in relation to the extent to which the father has reasonably met his financial responsibilities to the child to date. It is possible that he has met his responsibilities in accordance with his actual capacity and deserves no criticism. However, I am satisfied from the standpoint of the mother that, currently, she feels bewildered and embarrassed by the apparent lack of regard that the father has for the wellbeing of their daughter, herself and her family. Viewed subjectively from the mother’s perspective, this is a fertile foundation for doubting the father’s bona fides and discounting the benefit of the child having a meaningful relationship with the father. It is not my objective assessment but a perspective of the mother which I accept as genuine at this time and which I am required to have regard to when assessing her evidence and her attitudes.
Agreed or uncontested relevant facts
I have already dealt briefly with the relevant history elsewhere in these reasons.
It is common ground that the father should continue to spend time with the child on Tuesday afternoons and that his involvement in her school life is beneficial.
It is common ground that the father has not availed himself (or the child) of all of the time to which they have been entitled under the current regime. There is a dispute about how many periods the father has missed but it is clear that there have been at least three weekend occasions and a couple of Tuesdays and that the father failed to provide the mother with adequate notice on those occasions. I am unable to make findings of fact about the extent to which the father has failed to avail himself of his time with the child. I get the distinct impression, however, that he has still sees the child frequently and there has not been more than 14 consecutive days when he has not done so.
It is common ground that the mother completed a post separation parenting course. It was envisaged that the maternal grandmother would do the course with the mother but an injury precluded her from doing so and that opportunity has now passed. The father failed to undertake a post separation parenting course.
It is common ground that the father failed to attend two scheduled appointments with the family consultant, on the 15 April and 21 April 2008 and that he gave no prior notice that he would not attend. As such, the father missed an opportunity for the family consultant to observe him with the child, who attended on 21 April 2008.
The Registry sent out letters to each party, directed to their residential address, notifying the parties of the appointment times with the family consultant. The family consultant identified copy correspondence on the court file to that effect. He described the appointment times in the letter as “at the bottom of the first page, and they’re bolded, your Honour. I think even to the casual observer, I might reasonably say that it’s pretty obvious that there’s appointments there.” The father’s evidence is that he did not get any such letter and did not know that he was required to attend. Counsel for the mother tendered correspondence from the father’s lawyer in which it was stated that the father had misread the notification of the appointments. That letter is inconsistent with the father’s sworn evidence. The result is that, it will be difficult for the mother to have confidence in communications from the father and his lawyers into the future. As far as the family consultant is concerned, he was left with the impression that the father could not attend the interviews because he was in Queensland.
A consideration of the section 60CC matters that are relevant
I must consider the s 60CC matters that are relevant, as to the child’s best interests, and if possible, make findings about them (although again it must be acknowledged that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place). Section 60CC(2) sets out the primary considerations, s 60CC(3), the additional ones.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents.
This is not a contentious issue. It is common ground that the child has, and will continue to benefit from having, a meaningful relationship with the father as well as with the mother. The contentious issue is how much time the father should spend with the child in the immediate future in order to maintain and extend the meaningful relationship she enjoys with the father.
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.
It is not alleged that the child is subjected to abuse, as legislatively defined, neglect or family violence. The concerns for the child are more subtle but no less concerning. The concerns were explained by the family consultant in certain comments he made about the impact on the child of a continuation of the parental conflict present in this case, which I have discussed elsewhere in these reasons.
The additional considerations
I will only discuss those additional considerations which I consider are relevant to this case.
Pursuant to S60CC(3)(g) I have regard to the child’s maturity, lifestyle and background (including lifestyle, culture and traditions) and of the parents, and any other characteristics of the child that are relevant
The family consultant described the child in the following manner:-
“[The child] is a four year old girl who is considered to be meeting her development milestones. [The child] is described by Ms [G], [L School] kindergarten teacher, (report dated 5 February 2008) as having age appropriate motor, language and cognitive skills. [The child] has an extensive vocabulary, uses complex sentence structures and is able to express her ideas and needs to others. Based on interview and observations of [the child], the family consultant supports this view.
[The child’s] father describes her as “amazing”, that he “adores her” and is impressed by how considerate she is of others. [The mother] is a similar manner considers [the child] is a “beautiful child” with a “great character”. [The mother] considers [the child] is “stable”. [The child] is fortunate indeed, in that without exception, the adults in her life speak about her in loving and glowing terms, all or whom offer broad smiles when discussing [the child]. It is clear that [the child’s] maternal grandparents both play a significant role in her life and care, this being evidenced by reports from the respective parties, [the child] herself, and also by Ms [G’s] kindergarten report; as is [the father’s] involvement in [the child’s] kindergarten.
At interview [the child] presented as a vivacious child. She was articulate, intelligent, independent and candid in describing her experiences to date. [The child] clearly identifies with her mother’s side of the family and identifies with her mother, maternal grandparents and a maternal aunt as her immediate family. Whilst drawing a picture of her family [the child] explained her father’s absence in the picture because “…..he has to work….” [The child] describes feeling happy when she is with her mother and grandparents, however feels sad about having to attend kindergarten because she has a “…nice time at home….”. In a similar manner [the child] described “happy” feelings towards her father indicating that she”…loves him…[and]…it’s pretty love with love hearts….”.[7]
[7] Paragraphs 1, 2 and 3 of page 3 of the Child and Parents Issues Report dated the 14 May 2008.
The child and the parents are of the Jewish faith. Both want an opportunity to have the child experience festivals and special days with him or her. In the case of the mother the cultural and religious observances involve the maternal grandparents and, it would appear from the above extract from Mr A, the wife’s sister. The wife’s family observe a Shabbat dinner on Fridays. The child’s school routine is imbued with the values and rituals of her faith.
In determining what is in the child’s best interests the court must consider, amongst other factors, any views expressed by the child and any other factors that the court thinks are relevant to the weight to be accorded to the child’s views[8].
[8] Section 60CC(3)(a)
The court may inform itself of views expressed by children by having regard to anything contained in a report given to the court by a family consultant[9] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer.[10] In the present case, the child is only 4 years old. She is in my view too young to articulate her views. Her views are going to be discerned by how she acts towards and relates with relevant adults. I can, and do, take note of her preferences but she is too young for her views, once discerned, to carry much weight.
[9] ss 60CD(2)(a), 62G(2) and 62G(3A) Family Law Act 1975 (Cth), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[10] ss 60CD(2)(b), 62G(2) and 68LA(5)(b) Family Law Act 1975 (Cth), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
I have regard to the fact that there is nothing in the child’s presentation to the family consultant which indicates that she has anything other than a positive relationship with the father from which I infer that, if asked, she would not be averse to spending longer periods of time in the father’s care. The father gave evidence of having told the child that he will take her to Queensland or other holiday destinations. I am puzzled as to why he would have discussed such holidays when he has no entitlement to do so or means of following through with the promise.
It is a pity that the child could not have been observed, even briefly, with the father. Such an observation may have been informative for the family consultant and, in turn, the court. I would expect that in the context of the preparation of a full family report the family consultant will interview members of the child’s family constellation extensively, including the father’s girlfriend, Ms V, and her two sons and have an opportunity to assess how each relates to the child and visa versa.
In the present case, I am satisfied that the child is positively disposed to the father.
The evidence of the family consultant was that the child has a “good relationship” or a “positive relationship” with her father. During the interview with the child, the family consultant reported that the child talked about her “dad’s love, that she loved her dad and that if was full of love hearts”.[11] The family consultant said “there was nothing to suggest that she [the child] was scared of him or concerned about that relationship”.[12] However, this evidence must be seen in light of the fact that the family consultant did not observe how the child interacted with or related to her father (because the father did not attend his appointments on the 15 March or the 21 of April 2008).
[11] Transcript 21 May 2008 p 4, line 40.
[12] Ibid.
The family consultant said that he did not believe it was necessary to interview the child and the father together because it would have meant that the child would have had to have been removed from kindergarten to facilitate the interviews and the family consultant believed there was enough evidence from the kindergarten and from the child’s point of view to suggest that the child had a good relationship with her father.[13] That position is understandable given that it was only to be a preliminary assessment of the issues rather than a forensic exercise.
[13] Ibid.
I have regard to the nature of the child’s relationship with each of the parents and other persons (including any grandparent or relatives)[14].
[14] Section 60CC(3)(b),
During cross examination the family consultant conceded that the child had a close relationship with her mother and acknowledged
“[The child’s] mum is her primary attachment, and she's fortunate indeed that she has that close association with the maternal side of the family’.[15]
[15] Transcript 21 May 2006 p 16, at line 10.
I have regard to the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between her and the other parent[16]
[16] Section 60CC(3)(c)
The parents’ relationship is highly conflictual. The family consultant was concerned that the continuing perpetuation of the conflict between the parents and their lack of insight of into the nature of their relationship would be harmful to the child. He said that unless “one or both parents” made a significant change in the way they viewed their relationship the child would “continue to be exposed to the ongoing conflict between her parents”. [17] Despite this, in cross examination, the evidence of the family consultant was that both parents showed some insight into their relationship. He said mother recognised there was a risk that she would be seen as paranoid and anxious mother about her fears and concerns about the father’s multiple passports and absences. However, he said she was still insightful in terms of what her child needed from her father.
[17] Transcript 21 May 2008 p 6, line 40.
The father, on the other hand presented to the family consultant in interview and in court in a rather laissez-faire manner. He described himself as a confident parent, more confident than the mother. He regards himself as an experienced and qualified carer of children because he has worked with children in the past.
The family consultant’s evidence was that the parents did not trust one another and this coupled with the unresolved financial matters, impacted and compounded upon the conflictual relationship of the parties. I accept the family consultant’s evidence.
He went onto say in cross examination
“…that whilst the parents maintain their respective positions as is currently the case, it’s [the child] who is going to wear the brunt of that, even if the parents don’t speak of each other in their respective homes about the other parent. [The child] is an intelligent, articulate child. She’s vivacious. I haven’t seen a child of her presentation for some time. She was a wonderful child, and the thing that bothers me is that while mum and dad continue to go down this path, it’s this bright light of a child that runs the risk of being diminished, and that really bothers me significantly”.[18]
[18] Transcript 21 May 2008 p 14, line 5.
It is as well to mention here that the conflict to which the family consultant referred is not verbalised in front of the child. The conflict appears to me to be one of a positive and abiding disregard by each parent of the other. That is, the father is disregarding of the mother’s role and responsibilities as a mother. The mother considers that the father has neglected to parent the child in fundamental ways such as by being absent on multiple and expensive trips abroad, by leaving the mother in financial ruin and by failing to provide for the child on an ongoing basis such as by payment of child support or school fees when it appears to the mother that he has money for other things. I do not know and cannot determine at this interim stage which views are validly held.
It follows that each parent lacks the ability to encourage the child’s relationship with the other parent because they, themselves, struggle to recognise the other as a legitimate parental figure let alone a parent with whom they can co-operate and work with for the benefit of their daughter. In this context it is to her credit that the child presented to the family consultant as positively disposed to the father. The family consultant agreed that, to date, the mother’s views of the father have not contaminated the child’s appreciation of the father.
I have regard to the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or other person (including any grandparent or other relative of the child), with whom she has been living[19].
[19] Section 60CC(3)(d)
The proposals of the father and the independent children’s lawyer involve the introduction of overnight time between the child and the father. The child has not spent any such time with the father in his new household or otherwise.
I am satisfied that, all else being equal, the child’s bond with the mother, as her primary carer, and the very positive and nurturing relationship with her maternal grandparents will equip the child well to spend some time away from her principal home. Overnight time is a natural progression in her relationship with the father. It is likely that the child will cope appreciably better than the mother with any such separation. I am informed that the mother will consider accessing some assistance and professional help. It would be timely for her to do so.
However, I am not going to accede to the application of the father at this stage. This is an interim hearing. The matter will be thoroughly investigated at the final hearing in 5 months time. Given the personalities of the parent, I am satisfied that I should proceed conservatively in a timely but not hasty manner.
I am satisfied that the well being of the child and both her parents would be enhanced by there being some overnight time just before the final hearing. This will allow the child and the mother to adjust to the concept. It will also have the collateral benefit of the fairly consultant being able to assess what benefits would flow to the child from regular and even more extensive time with the father.
Neither parent embraces the idea. The father says it is not nearly enough. The mother says it is premature but if I am going to make orders to that effect, then it should be on a Tuesday evening. Tuesday evening appeals to me because the child would be collected from and returned to school. She will have school as a buffer between the two households which is not necessarily desirable from an educational perspective but, on balance, is something which is generally good for the child. It should also provide some proof of the father’s ability to organise the child’s life on a day to day and regular basis rather than on a purely recreational basis.
I am also not going to accede to the wife’s request to reduce the time which the child can spend with the husband save for in one respect that I will discuss shortly. The wife seeks that time spent on Tuesday afternoon be delayed until 3.30 p.m. which is the conclusion of the child’s school (kindergarten) day. Currently, the child is collected at 2.30 p.m.
The child is used to being collected by the husband early on Tuesdays. There are reports from the school and none indicate that this early collection is anything but positive. That may change when her formal grades start. However, for the time being, I am satisfied that the child expects and would want the husband’s visits to continue to commence an hour before she would otherwise finish school. This likely provides her with an opportunity to show off her father to her classmates and allows the husband a privileged opportunity to see how the child’s class operates, a matter beneficial for both father and daughter.
The one alteration which I will make to the existing regime of time spent is to permit the wife a free weekend once a month. That does not represent a significant change for the child because the husband has, of his own volition, missed a number of periods of time to which he has been entitled and without any apparent adverse affect to the child. The difference is that the parents will now be able to plan around the fact that the child will be solely in the care of the wife and will not see the husband on some weekends. The husband’s position was that, if I was minded to make orders in these terms, the wife should have no more than two weekends between now and the hearing. The independent children’s lawyer’s position was more generous to the wife. The wife used the opportunity to advance an even more restrictive regime of time than that which I have outlined as the wife’s proposal earlier in these reasons. I am satisfied that the wife being able to plan ahead on the basis that for one weekend a month the child is exclusively in her care is consistent with the child’s best interests.
It is appropriate that the weekends which are to be the wife’s exclusively be the weekends on which the husband would only have be entitled to spend Saturday with the child.
I have regard to the capacity of each of the parents and any other person (including the child’s grandparents or other relatives) to provide for her needs of the child, emotional and intellectual needs[20].
[20] Section 60CC(3)(f)
This is a matter to which I have already given consideration in these reasons in the context of other matters.
There is no question that the child is very well cared for in the mother’s home by the mother and her maternal grandparents. The maternal grandparents are significant figures in the child’s life as is evidenced by Mr A’s comments extracted more fully above but including the following:-
[The child] is fortunate indeed, in that without exception, the adults in her life speak about her in loving and glowing terms, all or whom offer broad smiles when discussing [the child]. It is clear that [the child’s] maternal grandparents both play a significant role in her life and care.
The mother asserts that the father does not supervise, feed or entertain the child adequately whilst she is in his care. The mother alleges that the child returns to her dirty and tired and complaining of being hungry. The mother also alleges that the child complains of being mistreated by one of boys living with the father and that the child spends an inordinate amount of time at the father’s restaurant in the company of waitresses and other staff. The father denies that there is any basis for the mother’s allegations or the child’s complaints. At an interim hearing, I cannot determine such issues. However, with the exception of the allegation of mistreatment by one of the adolescent boys, the mother’s allegations are matters of degree and perception.
The child may be unkempt because she has been active and the father denies that he cannot be bothered presenting her well or that it suits him to ignore sensibilities of the mother and the maternal grandparents in this regard. The child may be tired because she has had a really enjoyable day which she omits to discuss with the mother. The child may say that she is hungry because it is her meal time or eating comforts her on her return home. She may not have liked unfamiliar food but that does not necessarily mean that she has been inadequately fed.
My assessment of the wife was that she had no tolerance about the child spending time in the father’s workplace and is too ready to be critical of it without considering what other experiences and outlooks it may offer the child. The wife’s attitude seems to me to be unrealistic and out of step with the level of involvement and familiarity that children of intact families involved in the hospitality industry have with the family business. The child has a right to enjoy and participate in the life of both of her parents and if the father’s life requires him to be at work then the child can share in that providing that she is safe and supervised in all respects.
I cannot say at this interim stage which parent is justified or more justified in their dim view of the other parent. However, the apparent inability of each of them to recognise that there is much good about the other parent represents a real deficiency in his and/or her capacity to parent the child.
One reason for reserving my decision was so that I could incorporate into it the family consultant’s evidence about the effect on the child of a continuation of the conflictual relationship between the parents. The father was not able to attend court on the second day of the hearing so he did not hear first hand the following evidence of the family consultant:-
“….. and the literature certainly supports the notion that children that are exposed to ongoing conflict have a significant risk or a heightened risk of mental health problems, and the figure that springs to mine, a one in four chance of actually having emotional health problems. The other aspect to it is that children will then start to sensor their experiences in each household, and the children will start to become responsible for filtering information and filtering their experiences in those respective households. In academic terms, the literature supports the view that children run the risk of having deterioration in their academic capacity. This would be of considerable concern in the case of any child, but particularly [this child]. She runs the risk of seeing her parents, in role modelling terms - just in simple role modelling terms, learning lessons about how to deal with conflict in the broader life. That would be in my opinion inappropriate, and I think it's important not to underestimate the impact of [the child] being exposed to the ongoing conflict in terms of her mental health, that she runs the risk of depression and so on and so forth. I declare that I'm not a psychiatrist, I'm not a psychologist, but I think any casual observer of the literature can see that it's of significant concern”.[21]
[21] Transcript 21 May 2008 p 14 lines 30-40.
I accept the family consultant’s expert evidence in this regard. I am satisfied that the child’s best interests require that the father have an opportunity to ponder those views and for the mother and her family to have an opportunity to reflect upon them.
I have regard to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents[22]. However, this matter is best examined at a final hearing when all of the evidence is to hand and has been appropriately tested.
[22] Section 60CC(3)(i)
In the meantime, I note the following:-
a)The husband has been assessed to pay child support for some time but has failed to make any significant payments to the Child Support Agency. On the morning of the February 2008 hearing, he handed over a cheque to the wife for $1,500. He estimates that he is about $16,000 in arrears of child support.
b)In February 2008 the husband stated that he would pay one half of the fees for the child’s attendance at L School. Those fees are about $12,000 per annum. However, the husband has failed to pay any fees at all. L School have obtained at least one judgment against the husband for unpaid fees.
c)The husband gave evidence that within 14 days he will petition for his own bankruptcy and that his affairs are in the hands of an insolvency expert, Mr L. The effect of the father’s bankruptcy will be to extinguish his liability to L School, which will then fall wholly to the mother, as well as to extinguish his significant liabilities to credit card providers, subject to whatever payment may be forthcoming from his bankruptcy trustee. The father acknowledges that once bankrupt, he will have to cease being a company director but gave evidence that his commercial partner, who has no active role in the day to day running of the restaurant, will merely incorporate a single director and shareholder company. Ms V works in the restaurant but the husband has previously identified his commercial partner as being one Mr D.
d)The husband gave evidence that he recently received a minimum assessment of child support from the Child Support Agency and that he queried same to his solicitor and asked her to look into it. The husband’s response was prima facie disingenuous in light of the fact that he has not paid on any assessment and evinced no intention to pay in the future. He did depose that the new, and minimum, assessment was not raised as a consequence of any information which he had provided to the Agency.
e)As indicated, the father has not attended a post separation parenting course. He gave evidence that, he was unaware of his obligation to do so until “probably a few days” after the hearing on 6 February 2008. He was in court in February 2008 when it was discussed and I pronounced orders requiring him to attend. He was represented by experienced counsel and a solicitor. If the father was oblivious to his obligations in this regard then he is paying insufficient attention to important matters and that does not reflect well on his ability to act as a responsible parent. The father gave evidence that he contacted a parenting course provider two weeks ago upon being told by his solicitor to do so.
The independent children’s lawyer sought that the husband undergo supervised urine testing to detect the use by him of illicit substances and drugs. The husband has consistently denied drug use. The wife’s case was not much more than speculation on her part. However, counsel for the husband submitted that, he was instructed that, if such testing was ordered, his client would interpret that order as the court having predetermined, unjustifiably, that he was a drug user. The husband’s response informs the court that the husband is principally concerned with himself rather than with his daughter. I ordered the testing for reasons given at the time.
As far as the wife is concerned, it would be responsible of her to subordinate her suspicion about, and bewilderment in relation to, the husband’s behaviour and to focus instead on the benefits for the child of a meaningful relationship with her father. Viewed subjectively, that may not be an easy task but it would be in the child’s best interests for the wife to attempt to do so. There was one incident that leaves me less than confident about the mother’s capacities. It involved the obligation on the mother to notify the father of any birthday parties to which the child is invited and which she should attend whilst in his care, principally on Sundays. Apparently there have been no such parties. The mother’s evidence was that after the hearing on 6 February 2008, she told other school mothers that any attendance by the child at a party which falls on a Sunday when the child is in the father’s care would see the child accompanied by the father rather than by herself. She accepted that invitations may not have been forthcoming because of this, as opposed to no parties being held in the last three months. The mother gave evidence that it was her belief that most of the school families would not welcome the father in their house and that had been the case for a long time. If the mother’s perception is correct, it is unfortunate that the school parents have such a shallow regard for the mother and the child that they could not tolerate the father’s attendance but that is not a purview with which I can be concerned at this time. What is striking is that the mother did nothing to ameliorate such a situation, infact, she has probably aggravated the consequences of it for her daughter.
In cross examination of the wife on behalf of the independent children’s lawyer it was put to the wife that, having regard to the allegedly unreliable and irresponsible conduct of the husband prior to separation, it does not behove the wife to now be critical of the husband’s allegedly irresponsible conduct, in particular, arriving late to collect the child on Saturdays or Sundays or cancelling without any or any reasonable notice. The wife’s response was that, during the marriage, she did not rely on the husband to provide care for the child in any respect and that she was on hand to ameliorate the effects of the husband’s behaviour. In any event, it was not a line of questioning which assisted my determination of the present dispute other than to inform me of certain perspectives of the independent children’s lawyer.
Should the child’s time with the husband equate to shared care or significant and substantial time?
The parents share parental responsibility for the child. The legislation is clear that consideration ought to be given to a shared care arrangement. That is, the court must consider making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable. In this case neither parent seeks such orders so I turn to consider making an order that the child spend substantial and significant time as defined in s 65DAA(3).
The evidence of the family consultant at page 5 of his report was that the child would benefit from her parents being able to agree upon where she will live and how much time she would spend in each parent’s care. He concluded that
“although a shared care arrangement is not seen as likely to be in [the child’s] best interest in light of the current conflict, and as, outlined above, [the child] will in the absence of the contrary, benefit from living with her mother, meanwhile spending significant time with her father”.
The family consultant expanded upon his explanation of what he meant by significant time and said it would mean “that there would be opportunities for extended periods of time for her, for overnights, for school holidays, for special Jewish occasions and so on and so forth”. He went onto say that his views were given “to provide the base….for the parents to consider how they might increase her time with the father”.
In cross examination the family consultant’s expert opinion was that:-
“unless there was evidence to the contrary, I would be suggesting that on balance, if [the father] not being found to be deficient in his parenting capacity, every second weekend, with some telephone contract, and maybe somewhere down the track that [the child] actually has some time with her dad on the off week to have a meal with him would be quite appropriate”.[23]
[23] Transcript 21 May 2008 p 11 lines 5-10.
He went onto say
“…..a four-and a half year old definitely needs consistency and predictability in their life. Coming into the realms of swapping over and handovers where there’s a conflictual situation raises the possibility that the child is going to be exposed to further conflict, and I would suggest that this child, if we speak specifically about [the child], she will benefit from consistency and predictability in terms of her life.”[24]
[24] Transcript 21 May 2008 p 7 lines 30-35.
The family consultant concluded that a child of an older age would be able to cope better with moving backwards and forwards between residences, particularly in circumstances where there is no conflict between the parents. Of course, the conflict in this family may endure. It was the opinion of the family consultant[25] that, at this juncture, the introduction of overnight time would not enhance the stability or predictability of the child’s life nor improve the conflictual situation between the parents. I accept that evidence. Moreover, I am confident that any significant extension of time spent by the child with the husband will have a greater chance if success if commenced whilst the child’s environment is stable. At this juncture, the child’s environment is far from stable. Unbeknownst to the wife the husband moved back into a flat with a partner and two teenage boys. To do so has enhanced the wife’s negative view of the husband, as a person who was prepared to mislead the court and herself in February 2008 as to where he intended to live at least until the end of his lease. Further, if the fees due to L School are not paid, I assume that the child may be withdrawn and placed in kindergarten elsewhere or remain at home with the wife until she is of an age to attend Preparatory class at a non-fee paying school. That would be a very significant disruption in the child’s life and a disruption that could easily be compounded by a change and re-arrangement in her routine at home, particularly when the advent of overnight time is going to excite the wife’s anxieties.
[25] Transcript 21 May 2008 p 29 lines 12-13
I accept also the family consultant’s observation that the introduction of overnight will not lessen the conflict between the parents.
I accept as correct the concession made by the family consultant that there is some merit in not pushing the introduction of overnight time at this stage, particularly having regard to a final hearing being held within the next five months. In this regard Mr A’s evidence was [26]:-
”At some point in time somewhere along the track, in the absence of agreement between the parents, [the child] has a right to spend overnight time with her dad.
[..].If it’s in her best interests […]Exactly, and to some extent some further time will actually tell about that”.[27]
[26] Transcript 21 May 2008 p 37 lines 26-34
[27] Transcript 21 May 2008 p 37 lines 25-30
Conclusion.
I have already made orders to ready the matter for a final hearing on parenting issues in November 2008. In this case, even more than in most other cases, all three parties are likely to be rewarded by a reassessment of their respective positions well prior to the commencement of the final hearing.
I am satisfied that the orders set out at the beginning of these reasons are in the child’s best interests.
I certify that the preceding one hundred () (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 10 June 2008
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Family Law
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