Stuart & Stuart
[2008] FMCAfam 177
•5 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STUART & STUART | [2008] FMCAfam 177 |
| FAMILY LAW – Parenting – children – best interests – non-high-conflict – capable parents. |
| Family Law Act 1975, Part VII, Division 1, ss.60B, (1)(a) - (d), (2)(a) - (e), (3), 60CA, 60CC, (2), (2)(a), (b), (3), (3)(a) - (i), (l), (m), (3)(b)(i), (4), (4A) |
| Astor v Astor [2007] FamCA 355 (24th April 2007) B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context (Melbourne: Oxford University Press, 2008) T. Altobelli FM, “A response to `A Cautionary Tale’: Learning to paint with a fine brush,” presentation to the 8th Annual Family Law Intensive, Sydney House Standing Committee on Family and Community Affairs, Parliament of Australia, House of Representatives, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, 2003 |
| Applicant: | MR STUART |
| Respondent: | MS STUART |
| File Number: | CAC 1800 of 2007 |
| Judgment of: | Neville FM |
| Hearing date: | 12 February 2008 (Wagga Wagga) |
| Date of Last Submission: | 12 March 2008 |
| Delivered at: | Canberra |
| Delivered on: | 5 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms Godtschalk |
| Solicitors for the Applicant: | Walsh & Blair Lawyers |
| Counsel for the Respondent: | Ms Tonkin |
| Solicitors for the Respondent: | Capon & Hubert Solicitors |
ORDERS
The parties have equal shared parental responsibility for the children [A] (born in 2001) and [B] (born in 2005).
The children live with the parties as follows:
(a)with the Father:
(i)every Friday night until Saturday 9.00 am until 1 July 2009;
(ii)in each alternate week from Friday afternoon until Monday 9.00 am; and then
(iii)from 1 July 2008 from Friday afternoon until Tuesday morning 9.00 am;
(iv)from 1 January 2009 from Friday afternoon until Wednesday morning;
(v)from 1 July 2009 from Friday afternoon week about;
(vi)at all other times that are agreed between the parties;
(b)otherwise with the Mother;
(c)during school holidays for half of each school holiday period.
The Children spend time with the parties on the following special days:
(a)For the period 9.00 am Christmas Eve until 2.00 pm Christmas Day:
(b)in 2008 and each alternate year thereafter with the mother;
(c)in 2009 and each alternate year thereafter with the father;
(d)On the Children’s birthdays for at least 3 hours with each parent; and
(e)With the Mother on the Mother’s birthday from 5.30 pm the night before her birthday until 8.30 am the morning following her birthday; and
(f)With the Father on the Father’s birthday from 5.30 pm the night before his birthday until 8.30 am the morning following her birthday; and
(g)With the mother on the Mother’s Day from 5.30 pm the night before Mother’s Day until 8.30 am the morning following Mother’s Day; and
(h)With the father on Father’s Day from 5.30 pm the night before Father’s Day until 8.30 am the morning following Father’s Day; and
(i)At any other time as agreed between the parties; and
(j)Where applicable, for the purpose of spending time with the parties as set out in this order, the arrangements set out in Order 2 be suspended.
Each party notify the other as soon as practicable in the event of either child suffering a serious illness or having a serious accident.
Each party keep the other informed of their addresses, landline telephone number and contact details, including mobile telephone numbers where they will be otherwise un-contactable.
Each party keep the other informed in relation to all medical, dental or other health related treatments being undertaken by the children and the identity of the treating professionals.
IT IS NOTED that publication of this judgment under the pseudonym Stuart & Stuart is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 1800 of 2007
| MR STUART |
Applicant
And
| MS STUART |
Respondent
REASONS FOR JUDGMENT
Introduction[1]
[1] Nothing in these reasons is intended, nor should they be taken, as expressing any view in relation to the property proceedings involving the same parties, which have now settled by consent.
In the course of the trial, I was referred to a number of recent learned and important articles concerning shared care and the best interests of children in situations or circumstances where there is a significant level of conflict between the separated parents. I will reference and come back to those articles in due course.
In another recent article, to which I was not referred, there is a very helpful analysis of various cases that have been determined by the Family Court prior to the enactment of the important and substantial amendments to the Family Law Act1975 in 2006 regarding shared parental responsibility.[2] The analysis divided the cases into two groups: the first involved extreme patterns of physical violence and control, `long-running litigation, mostly necessitating numerous evaluations of the children’ and alienation and manipulation.[3] This was categorised as “the Severe Group.” The second group of cases was treated under the heading “Manipulation: the Less Severe Group.”
[2] R. Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation,” (2007) 29 Sydney Law Review 131.
[3] Ibid., pp.138-144.
In this “Less Severe Group” regarding “manipulation”, the author summarises particulars from one case as follows.
The mother claimed she had been subjected to physical violence and verbal abuse during the marriage which ended when the father attacked the mother’s car with an axe, causing her to fear for her life and those of the children.[4]
[4] Ibid., p.145.
The author then quotes from the judgment in the same case – which, of course, is not identified for the purposes of the study. The extract from the judgment reads:
[I]n my view, the husband is quite unable to separate his own feelings of antipathy [towards the wife] from the welfare of the children. He continually demeaned, besmirched and belittled her, the result of which has left me to speculate whether he could promote the mother to the children or act in a way as to foster their relationship with her. I have no confidence at all that he would properly and adequately nurture the children and in particular attend to their emotional needs were he to have residence of them.[5]
[5] Ibid., p.145.
Even though categorised as being part of the “less severe group” for the purposes of the study, by any other measure, such a matter could not unreasonably be categorised as a “high conflict case.” By any measure, and fortunately so, the current proceedings do not remotely approximate such a description. Such an assessment is made not only against the cases detailed in the Kaspiew study cited above but also against the criteria particularised in the studies by McIntosh and Chisholm, and Dr Altobelli, to which I will refer in some detail shortly, and which were cited by Counsel for Ms Stuart in the course of submissions. To be abundantly clear: although I was urged, on behalf of the respondent Mother, to accept that it should be so categorised, I do not regard the current litigation involving Mr and Ms Stuart as being a “high conflict case.” My reasons for this view are set out below. Because I do not regard it as such a case, and because I regard the parents of [A] and [B] as mature and very capable individuals (for reasons also set out below), I do not regard it as a case where the presumption of equal shared parental responsibility is displaced. Indeed, I regard its operation and implementation – and its consequences – as being in [A]’s and [B]’s best interests.
Proposals of the parties
The evidence:
The parties and Ms Connor (Family Consultant)
The Respondent in these proceedings, Ms Stuart, is the Mother of two young girls, [A] (aged 6) and [B] (aged 3). Their Father has brought proceedings by which he seeks orders that the girls live in a shared care arrangement with their parents, who were married in 1996 and separated in 2006.
In an Amended Case Outline filed on her behalf on 4th February 2008, Ms Stuart argued against the orders sought by Mr Stuart this way (par.23):
The mother does not agree that orders for equal shared parental responsibility should be made. If the father has equal shared parental responsibility he will use it to minimise the mother’s ability to raise the children in the values and manner to which she subscribes. The parties do not have a relationship or ability to communicate sufficient for that to be workable.
With typical and well structured force, Counsel for Ms Stuart,
Ms Tonkin, contended, and repeated on a number of occasions, that `this is a high conflict case.’[6] From this submission, and others like it, she grounded the conclusion set out in the previous paragraph in opposing orders for equal shared parental responsibility and similarly opposed that there be a shared care arrangement. I will address these submissions in due course.
[6] See for example Transcript (12th February 2008) pp.24 & 26. At p.24 there is the following: (Ms Tonkin) “… I’ll be putting to the family consultant that this is a high conflict case.” Interestingly, in the course of cross-examination of Mr Stuart, each time it was put to him by Ms Tonkin that there was conflict, in measured response, he almost invariably referred only to “difficulties” rather than “conflict.” See, for example, Transcript (12th February 2008) p.26.
Rather than set out a conclusion after traversing the evidence and the relevant legal principles – both of which I will do soon enough – I think it apt in this case to state my conclusion at the outset, or at least the foundation for my ultimate orders.
While there are some significant differences between the girls’ parents, notably in relation to their different world-views (evangelical Christian in the case of Ms Stuart; atheistic or agnostic in the case of Mr Stuart) and religious adherence (strong in the case of Ms Stuart, and essentially non-existent in the case of Mr Stuart), in my view, both parties are very meaningfully engaged with their daughters. In turn, it is clear from their remarks, and notably from the comments of the Regulation 7 Consultant, Ms Connor, that the girls have a meaningful relationship with both of their parents, thus satisfying (to the extent possible in the circumstances) the relevant provisions of the Family Law Act1975 (“the Act”) in Part VII.[7]
[7] Here I have in mind ss.60B(1)(a), (c) & (d); 60B(2)(a), (b), (c) and perhaps (d); 60CC(2)(a); 60CC(3)(c), (f) and (i). The “additional considerations” in s.60CC(3) will be considered in more detail in the course of these reasons.
Having watched and listened to both of them in the witness box,
I regard both parents as mature and highly capable individuals who have their young daughters’ best interests at heart. Moreover, from their evidence and their actions to date, they have been able, to a very significant degree, to put their own differences to one side and conduct their relationship in a manner that ensures the advancement of their children’s best interests. In my view, it is also not without significance that Ms Stuart has not sought specific orders, which has occurred in some cases, in relation to the religious upbringing of the children.[8]
[8] For a recent discussion of “religion” as a significant aspect of parental responsibility, in which (unlike here) actual orders were sought, see C v B (2008) 38 Fam LR 1 at pp.26-27 [110] – [115]. In the result, Altobelli FM made no orders in relation to “religion” (in a case where one parent was Catholic and the other Jewish), observing at [114]: “Perhaps it is not just advocates of children’s rights who need to reconsider the view that law somehow has the answer to all issues that might arise in relation to children. Perhaps many parents who have conflicts about their children also need to recognise the limits of family law.” His Honour concluded at [115]: I am confident that S’s parents, both of whom are highly intelligent and articulate, and who love him very much, are capable of resolving this issue [of religion] for themselves. It is not in S’s best interests for me to make this decision in terms of the orders sought.” Cf. the observations of Benjamin J in Elspeth and Peter (2006) FamCA 1385 and the discussion in B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context (Melbourne: Oxford University Press, 2008) pp.297-300.
As well, there is nothing in the evidence of the highly experienced Regulation 7 Consultant, Ms Connor, either in her Report of 24th January or in her oral evidence to suggest anything other than the conclusion I have reached regarding the competence and capacities of Mr and Ms Stuart, both as individuals and as parents. Ms Connor concluded her report summarily but significantly this way:
Both [Mr & Ms Stuart] were very committed to their two young daughters and their relationship failed because of fundamental value differences. In my opinion both were trying to work co-operatively now. [par.7.1]
Ms Stuart made very few criticisms of Mr Stuart. [par.7.2]
Mr Stuart impressed as concerned to do the right things by his daughters and wanted to co-operate with Ms Stuart. [par.7.3]
I agree with and accept Ms Connor’s conclusions.
As well, there is evidence from both parents regarding their acknowledgment of the other parent’s genuine and deep love for their daughters, and the desire of each parent to spend time with and care for their daughters. For example, in cross examination, Ms Stuart said: “He [Mr Stuart] loves them very much and he – he definitely wants to spend a lot of time with them.”[9] In the course of his cross-examination, Mr Stuart stated: “I want the children to – to love both of us, mum and dad.”[10]
[9] Transcript (12th February 2008) p.52.
[10] Transcript (12th February 2008) p.33.
While there are differences between the parties, none of them, in my view, are so momentous as to be insurmountable. Indeed, the evidence is that they are very much working out most day-to-day arrangements in the best interests of the girls, not always without difficulty, but nonetheless things are being worked out, including issues of communication. It is a self-evident fact of life that all relationships, at some time or other, have strains and difficulties. It would be highly unusual if persons who have been in a moderately lengthy marriage, such as here, and who then separate, do not experience some trials and tribulations as each adjusts to post-marital life. That may take some time yet to settle down, and in all likelihood not for some time until after the dust and emotion of litigation has quelled. And, this would seem especially to be the case where, as here, there are young children who are clearly well-loved by both parents who seek to care for them, and do so in ways that diverge and are dependent on different skills and talents.
It is instructive to quote again from Ms Connor’s detailed report. After noting that [B] was too young to be interviewed, Ms Connor commented [par.6.6]:
[A]’s test results … indicated that she was involved with and attached to both of her parents. She was confident of both her parents’ love for her and loved them both in return.
This and related matters are relevant to evidencing that the girls already have a meaningful relationship with both their parents.[11] Ms Connor’s conclusion is also relevant to a conclusion, which I readily make, regarding the significant capacity of each parent, perhaps especially Ms Stuart, to facilitate and encourage a close and continuing relationship between the girls and the other parent.[12] Ms Stuart does this notwithstanding her concerns about the different “world-view” that Mr Stuart brings to the parental relationship with the children.
[11] In my view, such a conclusion is relevant to considering and applying the objects and principles in s.60B, as well as the matters dealt with in s.60CC(2)(a) and s.60CC(3)(b), (f), (g), (i) of the Act.
[12] Such a consideration is set out in s.60CC(3)(c).
Ms Connor also recorded [A]’s view, expressed during the time with her that she live with her parents on a week-about basis.[13] While a relevant consideration for the purposes of s.60CC(3)(a), given her age, in my view, not a huge amount of weight should be given to [A]’s expressed view. That said, it cannot be totally ignored.
[13] See Ms Connor’s Report at par.6.3.
Mr Stuart’s evidence, in particular, I found to be especially candid. I accept his ready admissions that at times he has missed a number of home-work and other matters, not infrequently related to children’s parties. Without being entirely flippant, such enterprises can be fraught for many parents at the best of times. He admitted he had made mistakes in parenting; he also acknowledged that on one recent occasion Ms Stuart’s assessment was correct and his was wrong in relation to the girls. I need not go in to detail here other than to refer to the evidence recorded in the Transcript.[14]
[14] See Transcript (12th February 2008) p.14.
There are a number of other matters which confirm, in my view, that the parties here have a significant capacity to go beyond their differences for the sake of the care and welfare of their children. Perhaps most strikingly, and again to the credit of both parties, in keeping with an agreed position at the end of the relationship but prior to separation, Ms Stuart gives to Mr Stuart the first option to look after the girls, often at quite short notice, if her commitments curtail her availability to care for them. In a very large number of instances, Mr Stuart has been able to look after the girls. Being self-employed, he has been able to arrange his business commitments flexibly (not without difficulty sometimes) to accommodate the girls and Ms Stuart.[15]
[15] See Transcript (12th February 2008) pp.4-5.
Thus, the parties have been able, for quite some time, to communicate and to arrange their lives to provide the most appropriate care for their young children. Indeed, the following poignant exchange took place at the end of Ms Stuart’s cross-examination by Ms Godtschalk, Counsel for Mr Stuart:
[Ms Godtschalk] Ms Stuart, you talk about your lack of ability to communicate and cooperate. If you got on famously you probably would still be married, wouldn’t you? [Ms Stuart] Yes.
You’re separated parents trying to do the best for your little girl[s], aren’t you? I am, I certainly am.
And Mr Stuart also? Yes, I think he loves them and he’s trying, yes.[16]
[16] Transcript (12th February 2008) p.66. As with other evidence, this exchange reflects very well on both parents and their capacities to encourage a relationship between the children and the other parent. As well, it especially reflects very well on Ms Stuart to acknowledge the genuine relationship which the girls have with their Father.
Summary of evidence – the parties
In my view, I make formal findings (if that be necessary) that both parties are very capable parents who are committed to ensuring that their daughters’ interests are paramount in the organisation, routine and conduct of their respective lives. They arrange their work and other commitments, to a significant degree, to accommodate the various events that normally fill the lives of two young girls. I have already referred to, and I accept as genuine, Mr Stuart’s admissions that he has missed a number of things concerning the girls’ school-work and related matters. I accept that they were honest mistakes and that he is determined to ensure they are not repeated.[17]
[17] For the sake of completeness, I should also note that Ms Stuart confirmed in cross examination that she had not been verbally abused by Mr Stuart, nor had she ever been hit by Mr Stuart. She had nonetheless been fearful of him arising out of his long periods of angry silence in the course of their marriage. See Transcript (12th February 2008) pp.62 & 63. To the credit of both parties, Ms Stuart acknowledged that she and Mr Stuart had done their best to quarantine the girls from the difficulties in their relationship. See Transcript (12th February 2008) p.61. Such matters are clearly relevant to ss.60CC(3)(c), (i), s.60CC(4) & (4A).
I also accept, as I have already noted, that Ms Stuart, sometimes at short notice, not infrequently offers extra time to Mr Stuart to look after and care for the girls. I accept that this conforms to a pre-separation agreement between the parties. Her adherence to this agreement, notwithstanding her own concerns about the divergence in world-views between herself and Mr Stuart, reflects very well on her, not least in her capacity to foster and facilitate the girls’ relationship with their Father. As such, both parties regularly indicate their willingness to facilitate and encourage the girls’ relationship with the other parent. I accept their evidence in this regard – more of which is set out below. In my view, this evidence is relevant to ss.60B(1)(a), (c) and (d), 60B(2)(a), (b) and (c), as well as 60CC(2), 60CC(3)(b), (c) and (i), and finally 60CC(4) and (4A).
I accept that Ms Stuart considers that her communication with Mr Stuart has been and, from time to time, remains somewhat difficult. However, in my view, given the mature approach that both parties have exhibited in the past in their care of the girls, it is not sufficient – in any respect – to warrant categorising this case as a “high conflict” one. Moreover, as Ms Connor recorded in her Report, Ms Stuart acknowledged that – at a practical, day-to-day level – Mr Stuart was packing good lunches for [A] for school, and very significantly, that “[s]ince the separation, Ms Stuart believed [A] had really settled down.”[18] In the light of such evidence, it is even more difficult to conceive of this as a “high conflict case” where the children are acknowledged to be doing so well, as being `well settled,’ and that the parties readily acknowledge the positive parenting accomplishments of the other party.
[18] Report of Ms Connor, pars.5.14 & 5.15 respectively. See also the evidence of Ms Stuart: Transcript (12th February 2008) p.61. It should also be noted that Mr Stuart’s Mother regularly assisted him in some domestic duties, especially the washing of clothes.
In Astor v Astor, O’Reilly J observed:
An equal time order would allow the husband to have more direct involvement in and responsibility for the children’s educational, health and extra curricular activities than at present, but would also … allow the children to be “more settled” when in his household, in relation to “usual ordinary family things.”[19]
Her Honour continued:
… an equal time order may well serve to alleviate the pressure which the present unequal time plainly has presented….[20]
[19] [2007] FamCA 355 at [154].
[20] Ibid. at [155].
Taking on board the basic principle to which O’Reilly J referred, namely alleviating pressure on the households by bringing a certainty of routine to family matters, in my view, a shared care arrangement between the parties in these proceedings would bring a degree of certainty (which does not and should not exclude appropriate flexibility on the part of both parents) to the day to day living of the parties and to their daughters. In Mr Stuart’s case, he would be able to plan his business arrangements (which ultimately benefit the girls), it seems to me, in a more ordered way. Ms Stuart’s current circumstances are such with work and study as to require still a degree of flexibility, which the parties have been able, in large part, to accommodate. Such matters were canvassed in evidence.[21]
[21] For example, see Transcript (12th February 2008) at p.65, and Ms Connor’s Report, par.5.39.
Before leaving the evidence, I must deal with one other issue in a little detail although I have already referred to it. It relates to “religion”, the “world-view” of the parents and the respective values they each seek to share with their children. It is clearly relevant to the past history of the relationship between Mr and Ms Stuart, and to the parenting –past, present and future - of the girls.
The “religion”, “world-view” and “values” issues
For all practical purposes, these matters may be dealt with as one, with each of them seen as a dimension of the other. Early in his evidence at trial, Mr Stuart outlined that “religion” had become an issue in the course of the marriage with Ms Stuart. He said that she became more involved in her Christian faith after the death of their first child who was still-born, and that he had found Ms Stuart’s growth in faith particularly difficult.[22]
[22]There was summary evidence, largely uncontroverted, that Mr Stuart had referred to Ms Stuart on a number of occasions (usually it seems at times of some tension) as adopting or being on `the moral high ground,’ or referring to her as a “born again Christian.”[23]
[23] Ibid and at p.30. See also the Report of Ms Connor at pars.5.6-5.7, 5.27, 5.30 & 5.33. It was on the basis of the description of a “born-again Christian” that I described Ms Stuart earlier in these reasons as “evangelical Christian.”
On this subject, Ms Connor observed in her Report:
While Ms Stuart criticised Mr Stuart for conveying some of his non-religious views to the girls, this might well facilitate them better making up their own minds. Just as Ms Stuart asserted her right to tell the girls about her religion, Mr Stuart should have an equal right to convey his views, despite Ms Stuart’s belief that she is categorically right.[24]
[24] Report: par.7.1.
When this comment of Ms Connor was put to Ms Stuart, she denied the accuracy of it. She went on to say: “My objection to that paragraph is her statement that I do believe I’m categorically right. I am open to
[Mr Stuart] having a differing view to me and I in no way shape or form try to minimise that and I allow the girls to express that if they need to [in] my home.”[25] I accept readily Ms Stuart’s qualification of what is set out in Ms Connor’s Report. Her rider to Ms Connor’s statement is common-sense, exhibits both a toleration and charity that is congruent with her Christian principles, and is otherwise another positive reflection on her of her capacity to facilitate the girls’ relationship with their Father.
[25] Transcript (12th February 2008) p.60.
For his part, Mr Stuart gave evidence, which, like Ms Stuart’s noted in the previous paragraph, I accept that was to the effect that he does not stop the girls talking about God when they are in his care, that he has a little Bible at his place (presumably for the girls’ use), and that he is more than content to read Christian books for children with the girls.[26]
[26] Transcript (12th February 2008) p.31.
For her part, Ms Connor observed in relation to `the religion’ issue, in my view correctly, “… I think they would have to agree to differ in a respectful way…. I don’t think the difference [between their religious views] per se is critical. It’s how they – because obviously as the children grow up they’re going to be exposed to lots of different views in society. But it’s just how – how respectfully and tolerantly they’re presented to the children.”[27]
[27] Transcript (12th February 2008) p.72.
In many respects, the case between the parties (at least in relation to the children) seems to me to hinge around Ms Stuart’s concern about her role as Mother, and especially as the religious/values educator of the girls being minimised should a shared care arrangement be ordered by the Court. She said as much towards the end of her cross-examination. She stated:
… my big concern in a shared care parental responsibility arrangement is that because we can’t resolve conflict I won’t – my role is minimised and Mr Stuart, because he asserts his way so much and ends up getting his way, I actually effectively end up with very little say in the goings on of parenting decisions.[28]
[28] Transcript (12th February 2008) p.67.
I have no doubt that Ms Stuart genuinely feels this way. However, from the evidence presented in the case, I find it irresistible to conclude, as I have repeatedly noted, that the parties are very capable, responsible, mature parents who do put the girls’ interests before all else. They are attempting to get on with their post-marital lives –
Mr Stuart in his own business, and Ms Stuart in her work and studies, which will shortly lead her in to likely full time work as a [X]. Difficulties of one kind or another have been, and will continue to be, encountered. They have been resolved in the past: not always to everyone’s satisfaction, and not always as expeditiously as possible. But the girls remain – by every account – well settled and genuinely loved and at ease with each parent.
It is also the case that in any order made in these proceedings, neither parent should feel, let alone perceive, that it constitutes a victory of one over the other or that it is intended that one or the other’s parental role is or should be diminished. None of those propositions should be accepted.
Because of the findings I have made regarding the lack of conflict, and especially the significant capacities of the parties and the degree of co-operation patently in evidence, it makes somewhat otiose to consider, certainly in any detail, the submissions made in the light of the learned articles relied upon by Ms Stuart. However, it is convenient to do so in the light of the judicial authorities relied upon by the parties. I will deal with them now, and the articles cited.
Conflict and other things:
Jurisprudential and academic considerations
The articles relied upon by Ms Tonkin, on behalf of Ms Stuart are: “Shared Care and Children’s Best Interests In Conflicted Separation: A Cautionary Tale from Current Research;” the second article, in effect, a commentary on the first, is “A response to `A Cautionary Tale’: Learning to paint with a fine brush.”[29]
[29] The first article is by J. McIntosh and R. Chisholm, (2008) 20 Australian Family Lawyer 3-16; the second is by Dr T. Altobelli FM, being a presentation to the 8th Annual Family Law Intensive, Sydney. The articles will be referred to respectively as “A Cautionary Tale” and “Response.”
In the course of her cross-examination of Ms Connor, Ms Tonkin particularly mentioned the features of a high conflict parenting relationship as described by Dr Altobelli in his Response.[30] Those features are: intractable disputes (e.g. multiple and repeat users of the legal system; unwilling to listen to or respond to advice,[31] adopting fixed views or positions in negotiations); ongoing disagreement over day to day parenting practices; expressed hostility, verbal abuse, physical threats; intermittent violence; poorly concealed acrimony; on-going denigration of one parent by another; insidious embroilment in supporting the separate views of each parent.
[30] Transcript (12th February 2008) p.76; Response: par.5, p.7.
[31] In this regard, I note that Mr Stuart altered his application after receiving Ms Connor’s Report to reflect her recommendations. It was put to him in cross-examination that he did this as a tactical ploy and or because it reflected his lack of parental insight into [B]’s needs. He did not agree with either submission. See Transcript (12th February 2008) pp.5-6. The change in orders sought may also signify Mr Stuart’s capacity to take advice, which he acknowledged. Ibid.
In my view, the evidence establishes that there are none of these features in the parenting relationship of Mr and Ms Stuart. In such circumstances, in my view, it is therefore unnecessary to consider the academic articles further.
In addition to the academic articles, Ms Tonkin also relied upon a lengthy judgment by Ryan FM (as she then was) in T v N (shared residence).[32] She acknowledged that it is a decision quite some years before the important 2006 amendments to the Act regarding equal shared parental responsibility. It is sufficient to observe that the headnote to the case (at p.283) records that there was “fertile ground for open displays of hostility between the parents.” Such was never the evidence in the current proceedings, nor any of the other matters noted by her Honour in T v N.
[32] (2001) 31 Fam LR 281.
For her part, Ms Godtschalk relied upon a recent decision of O’Reilly J in Astor v Astor [2007] FamCA 355 (24th April 2007), which was delivered obviously after the 2006 amendments to the Act. It was a case in which there were a significant range of issues raised against the father having a shared care arrangement, including communication difficulties, a degree of harassment and intimidation, and that the Father did not have much familiarity with the children’s lives.
The Mother also alleged in that case that the Father had a history of work commitments that prevented him being available to the needs of the children.[33] The Report writer in the case noted that there were “polarised views” of the parents on most issues and events.
Her Honour ultimately decided that notwithstanding the communication difficulties, and the polarised views, a shared care arrangement was in the best interests of the children.[34]
[33] See pars.38-45 of the judgment.
[34] See par.193. I should note that in Astor, the children were rather older than the girls in the case before me.
Relying, in part, on a decision of Bryant CJ, when her Honour was Chief Federal Magistrate, in C & O’N,[35] O’Reilly J said:
I note that in C v O’N … the Chief Justice … despite the particular difficulties between the parties in that case, nonetheless concluded that an equal time arrangement would be in the children’s best interests. Thus, it is not as if, as soon as communication difficulties between the parties, or other difficulties between them are identified, the discretion ought not be exercised in favour of an equal time parenting order. Rather, the matter is one of balancing all relevant factors….[36]
[35] [2003] FMCAfam 154.
[36] [2007] FamCA 355 at [195].
In my view, the decision of O’Reilly J is more apt and decidedly more applicable to the circumstances of this case, rather than the earlier decision in T v N. I accept and adopt Her Honour’s remarks for the purposes of this case.
It remains, therefore, to consider the statutory regime prescribed by Part VII of the Act, described by the Full Court in Goode v Goode as the “legislative pathway” that must be followed.[37] Because of regular references in the course of these reasons to relevant sections of Part VII, the prescribed “pathway” can be somewhat shorter and more direct than might otherwise be the case.[38]
[37] (2007) 36 Fam LR 422 at p.455 [81]. The Full Court has recently repeated the centrality of the jurisprudence set out in Goode v Goode in Keach & Keach (2007) FLC ¶93-353.
[38] Judicial officers faced with ever-burgeoning trial and duty lists may well feel that this `legislative pathway’ is more arduous than, and more like, the remorseless Tolkien-scripted path into the barren wastes of Mordor than the judicial equivalent of the “yellow-brick road”. I make no comment on either of the artistic analogies.
The “Legislative Pathway”
Those sections of Part VII Division 1, which relate to the need to protect children from physical or psychological harm, and from being subject to, or exposed to, abuse, neglect or family violence, are not relevant or otherwise applicable to the facts of these proceedings.[39]
[39] The sections generally referred to here include: s.60B(1)(b), s.60CC(2)(b) and s.60CC(3)(j) & (k). Also not relevant to this matter are ss.60B(2)(e), s.60B(3) & s.60CC(3)(h).
I note the following in relation to the objects and principles in s.60B of the Act:
a)[A] and [B] already have the benefit of both of their parents having a meaningful involvement in their lives;
b)the evidence clearly establishes that [A] and [B] receive adequate and proper parenting;
c)Mr and Ms Stuart already fulfil and share their parental duties and meet their responsibilities concerning the care, welfare and development of the children;
d)the children already spend time on a regular basis with both of their parents, and with other significant people in their lives.
In determining what is in [A]’s and [B]’s best interests, pursuant to s.60CA, the evidence clearly establishes, for the purposes of s.60CC(2)(a), that both girls already have a meaningful relationship with both of their parents. The evidence in this regard is also clearly relevant to the Court’s consideration of s.60CC(3)(b)(i).
I have previously commented on the evidence of [A]’s expressed view to spend more time with her Father, but given her age, for the purposes of s.60CC(3)(a), not a vast amount of weight should be ascribed to it.
I have also commented on many occasions in the course of these reasons on the genuine willingness and ability of the parties to facilitate and encourage a close and continuing relationship with the children, as well as the parenting capacities of the parties.[40]
[40] The matters noted here, and canvassed in detail in the course of these reasons, are directly relevant to s.60CC(3)(c), (f), (g) and (i), as well as s.60CC(4) and (4A). Sub-paragraph (h) has no application in the current proceedings.
For the purposes of s.60CC(3)(d), the living situations of the girls would barely, if at all, change if a shared-care arrangement was ordered. It also follows from what has already been said that, for the purposes of s.60CC(3)(e), issues of practicality and difficulty in spending time and communicating with both parents do not arise.
In my view, and again because of the maturity and capacity of the parties, and their obvious and genuine desire to ensure that their daughters’ interests remain the paramount consideration, a shared care arrangement, in accordance with the recommendation of Ms Connor is in the children’s best interests and, therefore, the least likely to result in further proceedings in relation to them.[41]
[41] See s.60CC(3)(l) and (m).
Conclusion
The most recent academic treatise on family law begins its discussion of “decision-making in children’s matters” with two quotations, the second of which is taken from the parliamentary committee report, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation.[42] The quotation used states:
…[T]he goal for the majority of families should be one of equality of care and responsibility along with substantially shared parenting time. They should start with an expectation of equal care. However, the committee does not support forcing this outcome in potentially inappropriate circumstances by legislating a presumption (rebuttable or not) that children will spend equal time with each parent.[43]
In my view, the evidence clearly establishes that these are entirely appropriate circumstances in which a shared care arrangement should be made. Such an order, in my view, is decidedly in the best interests of [A] and [B].
[42] House Standing Committee on Family and Community Affairs, Parliament of Australia, House of Representatives, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, 2003.
[43] Ibid at [2.35] quoted in B. Fehlberg & J. Behrens, Australian Family Law: The Contemporary Context (Melbourne: Oxford University Press, 2008) p.225.
For all of the above reasons, the orders will be generally in accordance with the recommendations of Ms Connor, whereby the parties move gradually to a shared care arrangement, with special attention being paid to the needs of [B], as the younger of the two girls. In her case, the move to a shared care arrangement should be gradual indeed. That is reflected in the formal orders collected at the beginning of these reasons. In addition, I make formal orders that both parents have equal shared parental responsibility for their daughters.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Neville FM
Associate: Renee Davidson
Date: 5 June 2008
Transcript (12th February 2008) pp.6-8. I have already referred to the difference between the “world-views” of the parties. In this regard, see Transcript at pp.30-31. Regarding the difficulties for the relationship after their first child was still-born, Ms Connor recorded Mr Stuart acknowledging that he did not appreciate fully at the time how significant an impact it had had on Ms Stuart. Only some years later did he begin to appreciate the magnitude of it for Ms Stuart. See Ms Connor’s Report, pars.5.23 & 5.24. It is not for these reasons to explore, but at least to acknowledge, the self-evident reality that the death of any child is a traumatic experience. The capacity and manner in which parents in such tragic circumstances deal with it is, of course, highly individual and deeply personal. The impact of such an event may clearly and understandably last for many years. The impact on Mr and Ms Stuart’s marriage was not explored at any length at trial. Such matters are beyond the purview of these reasons and are otherwise dealt with in the medical literature, among other places, such as I. Maddocks, “Grief and bereavement,” (15 September 2003) 179 Medical Journal of Australia S6, and the works there cited, especially that by Professor B. Raphael. In citing this literature, I do not suggest that either
Mr Stuart or Ms Stuart are in any need of any kind of assistance in dealing with the loss of their first child.
2
2
1