Tanberg & Remmy (No 2)
[2021] FedCFamC2F 530
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tanberg & Remmy (No 2) [2021] FedCFamC2F 530
File number(s): CAC 2420 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 5 November 2021 Catchwords: FAMILY LAW – parenting – final hearing – limited issues – previous agreement between parents for shared care arrangement for young child – how and when to transition child to week-about – consideration of child’s best interests. Legislation: Family Law Act 1975 (Cth), s 60CA Cases cited: CDJ v VAJ (1998) 197 CLR 172
Tanberg & Remmy [2021] FamCAFC 49
Division: Division 2 Family Law Number of paragraphs: 38 Date of hearing: 22 October 2021 Place: Canberra Counsel for the Applicant: Ms M. Davis Solicitor for the Applicant: Alliance Legal Services Counsel for the Respondent: Mr C. Othen Solicitor for the Respondent: Farrar Gesini Dunn ORDERS
CAC 2420 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TANBERG
Applicant
AND: MR REMMY
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT NOTES THAT:
A.On 22 October 2021 Final Orders were made by consent, and judgment in relation to three outstanding issues in dispute was reserved; accordingly,
THE COURT ORDERS THAT:
Issue I: Transition time-with arrangements
1.Absent any other agreement in writing between the parties,
(a)From 11th July 2022 until 31st December 2022, X shall live with her Mother for 9 nights per fortnight and with her Father for 5 nights per fortnight, configured as proposed by the Mother of 3/2, and perhaps then 2/3, but whichever is the least disruptive and most practical;
(b)From 1st January 2023 until 31st December 2023, X live with her Mother for 8 nights per fortnight and with her Father for 6 nights, configures on a 4/4/2 (or as otherwise agreed);
(c)From 1st January 2024 until 10th July 2023, X shall spend equal time with each parent on a ‘week about’ basis, save that the child shall spend one overnight with the other parents in the off-week; and
(d)From 11th July 2024, X shall spend equal time with each parent on a ‘week about’ basis.
Issue II: “Pick up agent”
2.Any family member of either parent may pick up the child in any circumstances where the scheduled parent is unable to do so.
3.Neither parent shall attend day care or the child’s school when the other parent is scheduled to pick up the child.
Issue III: First option to care
4.In the event either parent is unable to care for X for a period of 3 days or longer, then the other parent shall have the first option to care for the child during the period that the first parent is unavailable.
THE COURT FURTHER NOTES THAT:
B.Regarding any other issues that may arise in the future, before attempting to bring the matter back before the Court, the parties are to attend mediation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Tanberg & Remmy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
The final hearing in this matter took place on 22nd October 2021. Noting the prodigious personal and financial costs already incurred, which has already included an unsuccessful appeal in 2020, the parties have sensibly now resolved the majority of the parenting issues between them regarding their daughter, now almost 4½ year old, X (so-called in her Mother’s household), and called X in her Father’s.[1]
[1] Oral reasons regarding three discrete issues were delivered on 5th November 2021. Regrettably, the Father was unable to be present when the reasons were delivered. His solicitor assured the Court that he would be apprised of them. Had he been present it may be the case that the parties will have saved themselves further expense and other things. What follows is those reasons revised from the transcript. The revision of them for possible future publication was advised to them at the time of delivery. It does, however, somewhat beg the question: why try to get reasons out as early as possible so that parties can get on with their lives but then one or both of them do not turn up (or are unable to do so) to hear the reasons – unless there is perhaps an ulterior motive (which I do not suggest here) for one party to use subsequent procedures to bring pressure to bear on the other party to secure what is perceived as a more favourable outcome.
Notwithstanding a very significant degree of micro-management already undertaken, there remain outstanding, however, three discrete matters: (a) how best to transition the child, who will turn 5 in July 2022, into living in a week about arrangement between the parties, (b) whether the nominated agent, for the purposes of changeover, needs to be agreed in writing between (and thereby notified to) the parties prior to changeover, and (c) whether the Court should make a “first option to care” Order.
In the various submissions, set out below, neither case law of any kind, nor any section of the Family Law Act 1975 (Cth (“the Act”) was cited, such as s.60CA regarding “best interests.” I mention this not as any criticism but simply to highlight (if such be needed) (i) the narrowness of the contest now, and (b) within such narrow confines but still in the exercise of a wide discretion, the ambit of the largely factual (and/or logistical) dispute hardly requires the recitation, or engagement, of detailed legal or statutory principle. As always, the simple point of reference is the “best interests” of this young and otherwise flourishing child over whom the parents both dote, and tragically fight, almost like a spoil of some gargantuan battle. One hates to contemplate what the parents might otherwise be doing with their time, energy and funds, apart from expending all of that on X rather than on the lawyers. Such is so often the nature of family law litigation – win at all costs, but neither family nor the child really wins at all. A genuine but common lament.
Again by way of general observation only, if the art of parenting invariably operates best on the basis of, for example, simplicity of arrangements and Orders, the Orders proposed by the parties are, in large part, anything but straight-forward. That said, regularly they seem to have been able to make complicated arrangements, including multiple (and doubtless exhausting) changeovers, work. Fortunately indeed, most happily, X seems to be thriving whatever and however the level of contest between her parents.
Before proceeding further, I remind at least myself of the broad discretion exercised by Courts that deal with family law matters. Although I have referred to it already in general terms, and do so again later in these reasons, I recall the hardly novel but important proposition from the High Court in CDJ v VAJ, now a few decades ago even if for some they seem still to be almost like yesterday.[2] Regarding the exercise of discretion in family law litigation, the plurality in the High Court (McHugh, Gummow and Callinan JJ) said at [152]:
It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897-898, Lord Fraser of Tullybelton pointed out:
"The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."
[2] CDJ v VAJ (1998) 197 CLR 172.
Orders Sought
The parties provided to the Court a Minute reflecting the Orders sought by each of them in relation to these discrete matters. Those respective Minutes were as follows. In the course of the hearing, other configurations of alternative time-with arrangements were canvassed and submissions made, which I need not here recount further.
MINUTE OF ORDERS SOUGHT BY THE MOTHER
1.That from 25 October 2021 until 10 July 2022, the child spends equal time with each parent at times to be agreed between the parties or, failing agreement, on a fortnightly rotating basis as follows:
a.In week one:
i.With her Father from after day-care (or 4:00pm) on Monday until after day-care (or 4:00pm) on the following Wednesday;
ii.With her Mother from after day-care (or 4:00pm) on Wednesday until after day-care (or 4:00pm) on the following Friday; and
iii.With her Father from after day-care (or 4:00pm) on Friday until after day-care (or 4:00pm) on the following Monday.
b.In week two:
i.With her Mother from after day-care (or 4:00pm) on Monday until after day-care (or 4:00pm) on the following Wednesday;
ii.With her Father from after day-care (or 4:00pm) on Wednesday until after day-care (or 4:00pm) on the following Friday; and
iii.With her Mother from after day-care (or 4:00pm) on Friday until after day-care (or 4:00pm) on the following Monday.
2.That from 11 July 2022, the child live primarily with the Mother and spend 5 nights per fortnight with the Father at times to be agreed upon between the parents but, failing agreement, on a fortnightly rotating basis as follows:
a.In week one: From 4.00pm on Friday until 9.00am on Monday.
b.In week two: From 4.00pm on Wednesday until 9.00am on Friday.
3.From the commencement of Term 1, 2024, Order 2 above shall be suspended and the child shall then spend equal time with each parent on a ‘week about’ basis with changeovers to occur each Friday at the conclusion of school, or 3.00pm, save that the child shall spend time with the other parent from the conclusion of school, or 3.00pm on Wednesday until the commencement of school, or 9.00am on Thursday.
4.From the commencement of Term 1, 2025, Order 3 above shall be suspended and the child shall then spend equal time with each parent on a ‘week about’ basis with changeovers to occur each Friday at the conclusion of school, or 3.00pm.
5.The child shall communicate with each parent by telephone/Skype/Facetime as follows:
a.From the date of the Orders until the commencement of Term 1, 2025, on one occasion each week on Saturday from 5.00pm until 6.00pm, with the parent that does not have care of the child to initiate the call and the parent that does have care of the child to ensure that the child is available to receive such calls.
b.From the commencement of Term 1, 2025, on two occasions each week, being each Wednesday and Saturday between 5.00pm and 6.00pm with the parent that does not have care of the child to initiate the call and the parent that does have care of the child to ensure that the child is available to receive such calls.
6.The child shall be at liberty to telephone/Skype/Facetime each parent at all reasonable times, and the parent who has care of the child shall facilitate such calls.
7.That changeovers shall take place at the child’s day care/pre-school/school where possible or, if the child is not at day care/pre-school/school at the time of changeover, then the Father, or a nominated agent as agreed upon between the parties in writing, shall collect the child from the Mother’s residence at the commencement of the child’s time with him, and the Mother, or a nominated agent as agreed upon between the parties in writing, shall collect the child from the Father’s residence at the commencement of the child’s time with her.
8.That in the event either parent is unable to care for X for a period of 24 hours or longer then they shall provide at least 14 days’ notice to the other parent, or as much notice as practicable in the event of any urgent situations arising, and the other parent shall have the first option to care for the child during the period that the first parent is unavailable.
MINUTE OF ORDERS SOUGHT BY THE FATHER
Routine Time and Term Time Arrangements
1.That, during school terms, X shall live with each of her parents as agreed between them in writing, but failing agreement, as follows:
(a)From the date of these Orders until 10 July 2022, on a fortnightly rotating basis as follows:
(i) In week one:
(A)With her Mother from after day-care/preschool/school (or 4:00pm) on Monday until after day-care/preschool/school (or 4:00pm) on the following Wednesday;
(B)With her Father from after day-care/preschool/school (or 4:00pm) on Wednesday until after day-care/preschool/school (or 4:00pm) on the following Friday; and
(C)With her Mother from after day-care/preschool/school (or 4:00pm) on Friday until after day-care/preschool/school (or 4:00pm) on the following Monday;
(ii) In week two:
(A)With her Father from after day-care/preschool/school (or 4:00pm) on Monday until after day-care/preschool/school (or 4:00pm) on the following Wednesday;
(B)With her Mother from after day-care/preschool/school (or 4:00pm) on Wednesday until after day-care/preschool/school (or 4:00pm) on the following Friday; and
(C)With her Father from after day-care/preschool/school (or 4:00pm) on Friday until after day-care/preschool/school (or 4:00pm) on the following Monday.
(b)From 11 July 2022 until 30 January 2024, on a fortnightly basis as follows:
(i)With her Mother from after day-care/preschool/school (or 4:00pm) on Monday until after day-care/preschool/school (or 4:00pm) on the following Wednesday;
(ii)With her Father from after day-care/preschool/school (or 4:00pm) on Wednesday until after day-care/preschool/school (or 4:00pm) on the following Friday; and
(iii)With her Mother from after day-care/preschool/school (or 4:00pm) on Friday until after day-care/preschool/school (or 4:00pm) on the following Wednesday; and
(iv)With her Father from after day-care/preschool/school (or 4:00pm) on Wednesday until after day-care/preschool/school (or 4:00pm) on the following Monday;
(c)From 31 January 2024, on a week about basis, with changeover occurring after school each Friday (or 4:00pm if X does not attend school that day).
Changeovers
2.That, for the purposes of these Orders, changeover is to occur at X’s day-care/pre-school/school where possible, and otherwise the Father or his nominated agent shall collect X from the Mother’s residence at the commencement of X’s time with him, and the Mother or her nominated agent shall collect X from the Father’s residence at the commencement of X’s time with her.
FaceTime Communication
3.That each parent shall facilitate X having FaceTime and/or telephone communication with the parent with whom she is not living, or that parent’s family as follows:
(a)From the date of these Orders until 31 January 2024 on one occasion per week, at times to be agreed between the parents in writing, and failing agreement, between 4:30pm and 5:30pm;
(b)From 31 January 2024 on two occasions per week, at times to be agreed between the parents in writing, and failing agreement, between 4:30pm and 5:30pm.
4.That each parent shall facilitate X having FaceTime and/or telephone communication with the parent with whom she is not living at all other and additional times as reasonably requested by X.
5.That, for the purposes Orders 3 and 4 above, the communication shall be initiated by the non-resident parent and the resident parent will ensure that X participates in the communication.
Evidence – generally
The parties and the Court have had a long Report from Mr B, dated 13th March 2020. There is also a more recent Report from the Family Consultant, Ms E, dated 17th August 2021, which became Exhibit A. Ms E gave some brief oral evidence at the trial. Given the narrowness of the dispute and, given the discretion involved, Ms E could not and did not offer much more other than what was in her Report, not least because there was (and is) no fixed answer to any of the remaining issues. Indeed, there are arguable grounds to support the positions of either party.[3]
[3] Again for ease of reference, annexed to these reasons is the Evaluation section of Ms E’s Report, dated 17th August 2021, Exhibit A.
There is also before the Court, attached to one or both of the party’s Affidavits, certain records from the child care centre the child attends every day. Together with the Reports referred to, those records show how well she is doing. Likewise, the Family Reports referred to confirm that X has a good and close relationship with both of her parents. Such a critical matter is not in contest. It follows that there are no relevant issues of “risk” regarding the child in the care of either parent. Of course, this is not the first family law matter where the crux of the unresolved issues is not with the child per se but rather with the parents and their co-parenting relationship – or the regular hiccups in it.
The final Orders agreed between the parties provide, most notably, for the parties to have equal shared parental responsibly for X. The agreed Orders also deal with matters such as school holiday time, special occasions, FaceTime communication, and travel. During the course of the Final Hearing, the parties also agreed to interim “time with” arrangements of a 2/2/3 configuration that will continue until 10 July 2022.
At the conclusion of the Final Hearing, and in the light of some concern if not trepidation (feigned or real is not known) by the Mother’s Counsel, the Court managed to indicate that it thought that a judgment on the outstanding issues could or would be reasonably comfortably managed prior to July 2022! To assist the parties to bring a relevant degree of closure to their long-running parenting dispute, and to enable them to move on with their lives with a degree of greater certainty than has perhaps been the case over the last few years due to ongoing Court involvement, the abbreviated oral reasons sought somewhat summarily to provide both an outline of the parties’ respective positions, and to set out the Court’s reasons and decision in relation to the limited issues that remain unresolved. Because that has now proved to be insufficient for the Father’s purposes, it has become necessary, as already noted, to put the reasons into written form.
Without rehearsing in too much detail the arguments/submissions of the parties, in my view, the following Orders are in X’s best interests pursuant to the statutory requirement in s.60CA of the Act. For convenience and overview, however, the general written submissions of the parties taken from their respective Outline of Case Documents are annexed to these reasons at Annexures B and C. This is also to indicate generally that, as with most family law parenting matters, there is regularly no simple, black and white answer, primarily because life is more often than not made up of all manner of colours, shades and hues. It follows that, absent abundantly clear evidence one way or the other, there are reasonable arguments on both sides for the propositions and Orders advanced by both the Father and the Mother. As is usually the case in family law matters, Orders regularly involve a balancing act of sorts, with as much delicacy as is possible in all of the circumstances.
It is important to note that X has been in a shared care/equal time arrangement with the parties since consent Orders were made on 12th December 2019, thus, when she was very young. Although it is highly unusual to have a shared care arrangement for such a young child, and notwithstanding the Mother’s not infrequent contention that this arrangement was effectively imposed upon her by the Father who would not accept anything else, for a number of reasons, some being pragmatic considerations, the parties agreed upon a shared care arrangement more than 2 years ago. Such matters were canvassed in the Court’s judgment in October 2020, which decision was not disturbed on appeal in April 2021.[4] In no pejorative or hyper-critical way, I hope all of that time and the resources expended with the hearing/appeal were worth it. I mention these matters only to record the Court’s genuine concern about the time, delay and consumption of resources that so regularly characterise family law litigation.
[4] See the Full Court’s decision (Aldridge J) in Tanberg & Remmy [2021] FamCAFC 49.
To add further force to these observations and those that follow, I need only note that in the Mother’s Outline of Case Document (filed 15th October 2021) she stated (p.4, “Parental Responsibility”: par.2):
This matter is relatively straight-forward. The Court is faced with two good parents each with a good relationship with the child. They have fundamentally different views of what time arrangement best meets her best interests.
In my view, this fairly describes the situation that confronts the parents, and the Court. It also reflects the reality of the High Court’s comments in CDJ v VAJ noted earlier in these reasons. However, as is often the case in family law litigation, one or other parent in the current matter has insisted on his or her view as being paramount and “best” because each, in his or her own way, knows better than the other parent. One or other of them insists that he or she is “right”, and therefore the other parent is “wrong.” Unfortunately, such a hard-line approach is less than conducive to good co-parenting. It often means that one or other parent misses (or mistakes) the proverbial wood for the trees.
Issue I: Time-with arrangements
The Mother’s position in relation to the time with arrangements was as follows.
She seeks that from 11th July 2022 the parties move to a 9/5 arrangement, with the child living primarily with her and spending 5 nights per fortnight with the Father at times to be agreed. She further seeks that this time be configured on a 3/2 basis to ensure that the child is not separated from either parent for too long a period. This arrangement would continue until Term 1 in 2024 at which point the parties would move to a week about arrangement, but with one night in the off-week with the non-resident parent. The parties would subsequently move to a week about arrangement in Term 1 of 2025 but with no single night in the off-week with the non-resident parent. At this stage of course, the child will be 7½ years old. Doubtless quite the young lady.
The Mother contends that this transition will best manage X’s developmental needs and slowly grow the period of time that the child spends away from her Mother, who also contends that she is the primary carer for the child. The Father disputes the Mother’s primary care contention.
The Mother has previously, and continues, to raise concerns about the child’s unsettled behaviour (e.g. being clingy and upset at the end of her time with the Mother) in this equal care arrangement. She contends that these concerns were raised prior to the commencement of Court proceedings, and even prior to the Mother connecting them to the impact on the child of the equal time arrangement. It should be noted that neither the Father, nor Ms E (the Family Consultant), reports observing such behaviour in the child.
The Mother submitted that her proposed Orders address any risk of possible future harm arising from the child of having spent this alleged unsettled period of equal time as a very young child. Such matters were briefly raised by the Family Consultant, who also agreed that there was no evidence to support any such matters at this time. Her comments were necessarily rather speculative, as she also agreed that the child may ultimately suffer no such concerns or issues. In the Mother’s view, her Orders provide for a period of consolidation to ensure that any latent or other attachment issues that may arise in the future are relevantly resolved.
The Father’s position in relation to the time with arrangements was as follows.
He seeks that from 11th July 2022 until 30th January 2024, the child live in a shared care, 5/2/5/2 (or similar) arrangement. Following that, the child would move to living with the parties in a more conventional, week-about arrangement.
As noted already, the Father disputes the Mother’s contention that she is the child’s primary carer, as the child has been in the equal care of both parents since separation and therefore the child has a close, loving and secure attachment with both parents. The Father contends that the hypotheticals raised in the Family Report regarding the risks to the child of being removed from their primary care giver is not available on the evidence.
Counsel for the Father also submitted that the 5/2/5/2 arrangement is in X’s best interests. The Father’s perspective is that the child would not be ready to transition to an extended period away from the Father, as the Mother’s 5/9 arrangement would seek him have. The Father contends that there is a real risk of the child feeling a deep sense of loss if that arrangement were to be implemented.
Counsel for the Father also noted that there is no independent evidence that the child could (or would) be able to cope spending extended periods away from the Father but not able to cope spending a similar time away from the Mother.
The Father saw no merit in not transitioning immediately to week about in 2024, and thought the inclusion of the overnight time in the off-week imposed an extra level of complication that was not necessary. Further, by that time, on either of the parties’ proposal, the child would have spent a significant period away from each parent. As an observation only, given how the child and her parents have endured so many changeovers over the years, it is difficult to see how a mid-week overnight in the of-week would be very disturbing at all – for anyone, least of all X.
I simply note again that the issue is not whether there should be a transition in the time-with arrangements; the only issues are when and how. In my view, perhaps unsurprisingly, the better course is for the following regime of transitioning, which seeks to strike a measured balance, in the light of the paucity of evidence (other than the most recent Report of Ms E and her very limited oral evidence), and in the light of the brief oral submissions of Counsel for each party. I note too that the Court has obviously taken account of (a) the age of the child, (b) the long-standing arrangements where she has transitioned often between her parents, and (c) she spends very regular time in child care, thereby suggesting (especially in the light of the reports from the day-care centre) that she spends significant periods of time away from both of her parents and that she has adapted, apparently well, to regular engagement with others. It almost became a question of the perception of each parent was to what was/is best for the child, noting again how well she is generally doing. Again, and in no hyper-critical way, there was little evidence referred to in Counsels’ submissions, and no relevant “principle” other than general references as to what is or would be best for the child.
In the light of the above, absent any other agreement in writing between the parties, in my view, the following Orders are in the child’s best interests, which are, effectively, little more than a variation on a theme, albeit two competing “themes” by each of the parents:
(a)From 11th July 2022 until 31st December 2022, X shall live with her Mother for 9 nights per fortnight and with her Father for 5 nights per fortnight, configured as proposed by the Mother of 3/2, and perhaps then 2/3, but whichever is the least disruptive and most practical;
(b)From 1st January 2023 until 31st December 2023, X live with her Mother for 8 nights per fortnight and with her Father for 6 nights, configured on a 4/4/4/2 (or as otherwise agreed);
(c)From 1st January 2024 until 10th July 2024, X shall spend equal time with each parent on a ‘week-about’ basis, save that the child shall spend one overnight with the other parent in the off-week
(d)From 11th July 2024, X shall spend equal time with each parent on a ‘week about’ basis.
Issue II: Pick up agent
This is not an issue out of a James Bond movie! In terms of what will be called the “pick-up agent issue”, the Mother seeks that the parties agree prior to changeovers that occur in person on who any pick-up agent will be. The Father submitted that he did not see the need to be that restrictive, as the only people attending changeover (presumably in the vast majority of circumstances either at day care or at school) would be the parents themselves, his partner or perhaps other family members from time to time.
Respectfully, not for the first time, as apparently anxious as one or other parent might be, perhaps most notably the Mother, given how robust the child is, and that the real issues most regularly relate to the parents’ almost regular and fierce inability to work things out and therefore spend money on lawyers to do so, accepting that actually many things have been worked out more than satisfactorily over the years, in my view, this is an issue in search of a genuine foundation. In my view, the overwhelming majority of parents never see this aspect of co-parenting as an issue. It should not be so here. It is, at its highest, nothing more than (and nothing less than) basic courtesy to let the other parent know if there is a problem in the child being picked up and that it will occur with the assistance of another member of the family. There are no so-called risk issues set out in any of the material regarding either of the parties or any member of their respective families. As children get older, so-called helicopter parents only end up causing more problems than solving them.
In my view, to the degree that the Court can or should get involved in more micro-management of daily decisions regarding the child, any family member of either parent may pick up the child that would otherwise occur or be undertaken by the other parent. The Court should not have to legislate for basic issues of courtesy such as informing the other parent of another member of the family to pick up the child from day care or school. Absent some identifiable issue or relevant “risk”, any member of each party’s family may pick up the child in any circumstance when the scheduled parent is unable to do so.
Lest it also be necessary to state: that singular but often missing quality, usually called “common sense”, would dictate that neither parent shall attend day care or the school when the other parent is scheduled to pick up the child. Distance between parents is usually a practical course to avoid the risk of unnecessary tension – or worse.
Should it also need to be said: this issue highlights the astonishingly obdurate levels to which these parents – at times – will descend in their contests. Unless they work out some much better co-parenting options, it is going to continue to absorb, if not ultimately consume and exhaust, ever more of their financial, and all other, resources.
Issue III: “First-option care”
In relation to the “first option to care” Order, the Mother seeks such an Order be made. She addressed the fact that historically there have been periods of time where the Father has travelled for work and the Mother did not want an instance to arise where the child was spending substantial periods away from both parents, while the other is available. The Father submitted that such an Order was inappropriate and a matter for the parents to sort out between themselves, rather than needing the intervention of the Court.
There is more than a touch of irony (other words are also apposite) where one parent submits to the Court that the parties can and should work out the particular issue at hand, but they have, thus far, not been able to resolve it – hence the Court’s continued involvement!
Given how the parties have something of a history of not sorting things out from time to time, I see no major issue if there is a first care option order as proposed by the Mother, save that only if the Father happens to be unavailable for more than 3 days will such an Order operate. This is also to acknowledge that the Father’s Wife, who is well-known to X and has a good and close relationship with her (which historically may lurk somewhere, subterraneanly, behind some of the adult angst along the way), is more than capable of looking after the child in the Father’s absence. I note in this regard that the Father advised the Court during the hearing that he does not now travel regularly as he once did and now essentially remains in the ACT precisely to be available to spend time with his daughter.
Again, one would hope that common sense would prevail and something akin to a middle-east peace negotiation would not be necessary to accommodate and resolve situations, however unlikely, that might arise in this regard.
Regarding any other issues that may arise in the future (one hopes earnestly not – for everyone’s sake), as a notation only, the parties are to go to mediation before attempting to bring the matter back to the Court. Everyone, most especially X, needs a rest and to be able to get on with her life (and likewise her parents to get on with theirs) free from the third-wheel of the Court. To mix metaphors: the unrelenting and often financially and emotionally destructive litigation chariot needs to be put away and the dust and din of the battle allowed to settle.
One final observation is apposite. Over the course of her young life, X/X has shown that she will pretty much thrive whatever the arrangements her parents set up for her. Therefore, in almost all respects, particularly given how much was finally agreed between the parents at trial, and given that few Orders are in fact “perfect”, the Orders sought by either parent in relation to the discrete issues outstanding will more likely than not be suitable and appropriate. It follows similarly that Orders that approximate one or other set of Orders sought, or some combination of them, will likewise be satisfactory and meet the “best interests” requirement under the Act. As already stated, the real issue is not so much what is best for the child and what the Court determines in this regard because history shows that she will sail on regardless of the grandness or pettiness of the disputes between her parents. Rather, the real issue remains “the parents.” There is no “best practice” there. It is for them to work out how to co-parent better, and without dragging each other back to Court. Time alone will tell whether they will continue to expend all manner of their resources on lawyers rather than on their beloved daughter.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 10 December 2021
Annexure A
Excerpt from Family Report by Counsellor Ms E
EVALUATION
69. This assessment considers the future living and time-spending arrangements for X, aged 3 years and 10 months. Since X’s parents ceased cohabiting in July 2018, when she was approximately 12 months old, somewhat unusually for a child of her age, she has lived in an equal shared care parenting arrangement. This type of arrangement is uncommon for such a young child, because most children by the age of about 9 months, have formed clear attachments, and thereafter may experience separation anxiety from their primary carer. Whilst a child can have more than one attachment figure, it is likely that those attachments will be hierarchical.
70. The mother claimed that she has been X’s primary carer since birth. The father disagreed with the mother’s assertion, and he claimed that the parents were equally X’s primary carer. This is despite the father seemingly acknowledging that X spent substantially more time with the mother in X’s early months of life, including whilst he was away from the family home on at least two separate occasions for two weeks, in the first six months of X’s life. Given the father’s admissions about the time he spent away from X when she was a young baby, it appears that X may have formed a primary attachment to her mother as a baby. In these circumstances it is questionable whether the decision for X to live in an equal shared care arrangement after the parents had separated was an ideal arrangement. Furthermore, equal shared care parenting arrangements are normally best suited to family situations where there is no conflict in the child’s presence, and no conflict communicated to the child in any way. The narratives that both the mother and the father provided suggest that X witnessed conflict between the parents when they were a couple, and post-separation.
71.If it is accepted that the mother was X’s primary carer at the point when the parents ceased cohabiting, the post-separation parenting arrangements may have placed X at risk of suffering repetitive stress by being separated from her mother. If an infant, is difficult to settle, clingy or withdrawn for extended periods, in either parent’s home, this is could suggest that the child is excessively stressed. Recurring stress can reduce a child’s resilience, and result in regression; it can also disrupt a child’s ability to form a secure attachment with each parent. Disruptions in a child’s primary attachment may have adverse outcomes for a child across their lifespan, such as a child developing mental health issues. It is concerning that, the mother alleged that the father bullied her into agreeing to an equal shared care arrangement, and stated that X has never coped with it. If the mother’s report that the father forced her into an equal shared care arrangement is accurate, this seems to suggest that he may have failed to prioritise X’s needs. Nonetheless, the father denied the mother’s allegations, and asserted that an equal shared care arrangement has worked well for X. During this assessment, there was no overt information to suggest that X had been harmed by the post-separation parenting arrangements. If the Court were to find no current evidence that X has been psychologically harmed by the post-separation parenting arrangements, it does not mean such harm will not manifest itself as X matures, perhaps in problematic relationships with her peers, or in the development of mental health issues (e.g. depression and anxiety). It is noted that around X’s age (nearly 4 years old), children often become less anxious about separations from their primary caregiver(s), and consequently, this may have been a factor in the smooth transitions that the author witnessed between X and her parents.
72.The current parenting arrangements, whereby X spends equal time with her parents arguably provides X with the opportunity to have a meaningful relationship with each of her parents. However, this arrangement also seems, on occasions to expose her to parental conflict, which, if it persists, could magnify the problems the mother reported with regard to X’s clingy behaviour.
73.The mother’s allegations of family violence by the father seem to indicate a pattern of power and control, and her narratives were consistent with a survivor of family violence. Although the mother advised that the father has not allegedly abused her since litigation commenced (in November 2019), it is concerning that she reported continuing to fear that he will psychologically abuse her, as this could impair her ability to focus on X’s needs. Notwithstanding, the father mostly denied the mother’s allegations, therefore, this will be a matter for evidence. The father alleged psychological abuse and threatening behaviour by the mother, nevertheless, he said that her alleged behaviour did not cause him to feel unsafe. It is concerning that the father alleged that, there have been about six occasions, when the mother has been aggressive towards him since the parties’ separated, with the most recent occasion being in March 2021, when she allegedly yelled at him and pushed him. The mother made some limited admissions of occasional aggression towards the father.
74.Clearly, it seems that X, during her infancy, when she most needed safe and warm parenting, may not have been adequately protected from parental dispute. The experiences that X has had of the parenting dynamic may shape her capacity to enjoy safe and secure relationships throughout her lifespan. The mother’s admissions of occasional hostility seem to indicate that, at times, she may have struggled to control strong emotions. If either parent is unable to contain their emotions, X could be at risk of witnessing, or being subjected to aggression whilst in each parties’ care. As a result, X learn to believe that aggression is an acceptable response.
75.The father alleged that the mother has exposed X to the parental dispute. The father also alleged that, historically, the mother clung onto X at changeover and this caused X distress. The mother denied the father’s allegations. If the father’s allegations are correct, the mother’s behaviour may have caused X confusion, and exacerbated the security issues, which the mother reported that X’s experiences.
76.The father’s admission that he introduced the step-mother to X, only a couple of months after the parents ceased cohabiting is concerning, as it appears insensitive to X’s needs. This is particularly because, at the time X was only about 14 months old, and having to deal with the potential anxiety of frequent separations from the mother, exposure to the parental conflict, whilst also trying to meet critical infancy milestones (e.g. learning to walk and talk). Furthermore, the father’s actions seemed to have fuelled the conflict between the parents.
77.The father denied the mother’s allegation that there are times when he consumes alcohol to excess, and asserted that he has never consumed alcohol above the legal limit to drive when X has been in his care. Despite this, given X’s young age, it is suggested that each party is restrained from consuming alcohol above the legal limit to drive when X is in their care.
78.The mother reported that, after X’s birth she had post-natal anxiety. The mother denied the father’s allegation that she has anger issues; however, she said that she accesses counselling due to the father’s alleged psychological abuse of her. It appears that the mother feels affronted by the father’s engagement in a relationship with the step-mother soon after the parents separated, and as such she is likely to benefit from ongoing counselling, to help manage these emotions. The observation of the mother with X, indicates that there might be times when she seeks reassurance from X regarding her efficacy, and it is possible that X may find the mother’s behaviour intrusive. However, if the mother’s allegation is correct, that the father has bullied her, her self-esteem may have been negatively effected, and she might need assistance rebuild a sense of self-worth. It is suggested that, if this is the case, then the mother works on this issue with her counsellor.
79.The father denied the mother’s allegation that he has PTSD, and, at interview, there was no overt information to suggest that he has an acute mental health problem, therefore, this will be a matter for evidence. The step-mother confirmed that she has anxiety, but indicated that her mental health is stable. The step-mother’s description of the mental health issues that she has experienced in the past, suggests that, if those issues were to arise again in the future, then she may struggle to meet X’s needs.
80.The mother described the parents as having a limited effective co-parenting relationship, and presented as frustrated with the father’s allegedly bullying and dishonest behaviour towards her. The father’s decision to take X to Brisbane in January 2020, without the mother’s consent, was not conducive to supporting a trusting relationship between the parents. While the father claimed that the parents generally have an effective co-parenting relationship, his narratives did not entirely support this assertion. One example of this is his allegation that the mother has, on about six occasions, been aggressive towards him at changeover, another is his allegation that she has threatened to incur him additional legal fees. It seems that the parents may each benefit from participating in a post-separation parenting course, to help improve their co-parenting relationship.
81.The mother’s proposal that X lives primarily with her, seems founded on her desire to provide X with stable living arrangements and the opportunity to recover from the alleged stress the equal shared care arrangement has caused X. The main advantage of this proposal appears to be that it may reduce X’s exposure to the conflict between the parents and reduce the frequency of transitions between the parents’ homes. A major drawback of this proposal is that X may feel a sense of loss, if her time with the father is reduced, since she has been living in an equal shared care parenting arrangement for almost three years.
82.The father’s proposal that X continues living in an equal shared care arrangement, seems to be based on his assertion that it is generally working well for X. The chief benefit of this proposal appears to be that it would provide stability of the amount of time X spends with each parent, and it may allow X to consolidate and strengthen her relationship with each of her parents. A disadvantage of this proposal is that equal shared parenting arrangements generally provide the best outcomes for children when both parents agree to such an arrangement, and there is an effective co-parenting relationship. This does not seem to be the case in this matter.
83.A key concern in this case appears to be that X has witnessed conflict, and possibly violence between her parents since she was a baby, yet despite this, arrangements were made for her to live in an equal share care arrangement after her parents ceased cohabiting. The conflict that X witnessed may have made it a challenge for her to form a secure attachment with each parent. Meanwhile, the frequent separations from her parents may have been confusing and stressful for X. Notwithstanding, currently there does not appear to be any independent information to indicate that X has been harmed by these apparently sub-optimal parenting arrangements. However, it is suggested that each parent is likely to benefit from participating in the ‘Circle of Security’ parenting course to assist strengthening their parenting skills.
84.If the father’s assertion is correct, that X has coped well with the seemingly sub-optimal shared care parenting arrangement, there could be various reasons why this is the case. Those reasons could include; X being securely attached to both parents when the parties’ ceased cohabiting, and/or that she is an innately resilient child, consequently these factors may have acted as a buffer against her potentially stressful situation. Alternatively, there might also be other unidentified reasons as to why X has coped with the post-separation parenting arrangements.
85.If the Court is satisfied that the current equal shared care arrangement is not causing X significant emotional stress, it is considered to be in her best interests to live in the “2/2/3/2/2/3” fortnightly cycle that the father proposes. This is because it seems to provide a more consistent routine than the three night about arrangement, particularly with regard to allowing X to alternate between spending weekends with each parent. Another advantage is that it will allow most changeovers to occur at childcare, and therefore reduce the likelihood of X being exposed to the parental dispute. It is suggested that, upon X starting full-time formal education (in 2023), and providing no major issues have arisen with regard to her living in an equal shared care arrangement, that during the school holidays, she transitions to living in a week about arrangement with her parents. It is suggested that upon X commencing Year 1 at school (in 2024), providing no significant issues have arisen with regard to the parenting arrangements, that she transitions to living in a week about arrangement with her parents. It is suggested that, upon X commencing Year 2 at school (in 2025), providing no substantial issues have arisen, each parent be at liberty to spend a block of two weeks with X during the Term 4 school holidays. It is suggested that while X spends time with her parents under the “2/2/3/2/2/3” arrangement, X continues to have video communication with the parent with whom she is not living each Saturday. Upon X commencing spending blocks of one week or more with each of her parents, it is suggested that she has video communication with the parent with whom she does not reside twice a week.
86. The father proposed that, upon X turning 10 years old, each party be at liberty to travel overseas with her. The mother stated that she is unsure whether she agrees to the father’s proposal. Given that X is only 3 years old, it is difficult to know whether the father’s proposal is in her best interests, as much will depend on X’s capacity to continue enjoying a positive relationship with each of her parents. However, it is noted that overseas travel can have benefits for children, such as giving them the opportunity to experience different cultures. In these circumstances, it is beyond the scope of this assessment to make a recommendation regarding international travel.
Annexure B
Applicant’s Outline of Case Document filed 15th October 2021
Parental Responsibility
1.The parents each seek equally shared parental responsibility.
2.This matter is relatively straightforward. The Court is faced with two good parents each with a good relationships with the child. They have fundamentally different views of what time arrangment best meets her best interest.
Best interests – primary considerations
Meaningful relationship (section 60CC(2)(a) of the Family Law Act)
1.The Mother’s Orders sought provide for the child maintaining a meaningful relationship with her Father.
2.The Father seeks to continue the equal time arrangement.
3.The Mother contends that a continuation of equal time presents significant risks to the child’s develepment, including long term risks to the child’s future mental health.
4.The Family Consultant notes that the Court may find no current evidence of psychological harm, but that does not mean that such harm will not manifest [71].
5.The Family Consultant also notes that equal time arrangements work best when the parents agree and have an effective co-parenting relationship, something she did not find existed here [82].
6.Notwithstanding the Mother has been raising her observations of a detrimental impact on the child of equal time since shortly after the arrangement commenced, those concerns have been wholly dismissed by the father leading to the current court proceedings.
7.The Mother contends that the Father’s dismissive attitude towards her is an ongoing risk to the child in an equal time arrangement.
8.The Family Consultant’s recommendation for a continuation of equal time is qualified by two things [A]: the court is satisfied the current arrangement is not causing the child significant emotional distress; and [B] there being no major issues arising from the equal time arrangement for the child [85].
9.Effectively, this is an experimental recommendation. If issues were to arise, the history of this matter indicates no agreement is likely to be reached without further litigation.
The need to protect the child from harm (section 60CC(2)(b) of the Family Law Act)
10.The Mother asserts a history of coercion and control by the Father. The Father denies this.
11.The Mother contends that the Father’s complete disregard for her reasonable and rational concerns as to the equal time arrangement over a period of years is a manifestation of his negative attitude towards her.
12.The Father’s unilateral actions in relation to the child in spite of any conversation, concern or agreement reached with the Mother provide a clear picture of that attitude.
13.A continuation of equal time further invalidates the Mother’s experience of the arrangement with a likely negative impact on her.
14.The impact of upon the Mother can have a flow on effect to the child.
15.On either partes’ evidence, the child is exposed to conflict between her parents, particularly at handovers. As is clear in the report, that conflict has a greater impact on the Mother than on the Father.
Best interests – additional considerations
1.Few of the s60CC(3) factors will be relevant to the Court’s determination of this finely balanced matter.
2.The Mother contends that consideration of the evidence with reference to subsections (c)(f)(i)(j) and (l) lead to the Court making Orders as sought by her.
Annexure C
Respondent’s Outline of Case filed 15th October 2021
Parental responsibility
1.The allocation of parental responsibility relates only to major, long-term decisions affecting X. There is evidence from both parties about the parties' respectful and productive communications in relation to these issues, despite the other difficulties between them.
2.The presumption as to Equal Shared Parental Responsibility in s61DA ought to be applied and is not rebutted by any evidence that it would not be in X’s best interests. The exceptions to the presumption do not apply and therefore an order for equal shared parental responsibility should be made.
Best interests – primary considerations
Meaningful relationship (section 60CC(2)(a) of the Family Law Act)
3.If the orders sought by the Father are made, X will have a meaningful relationship between both parents, as is observed by Ms E in her report in saying that “the current parenting arrangements, whereby X spends equal time with her parents, arguably provides X with the opportunity to have a meaningful relationship with each of her parents”.
The need to protect the child from harm (section 60CC(2)(b) of the Family Law Act)
4.Neither party seems to suggest that the other suffers from any serious parental incapacity, or that the need to protect X from harm is a relevant consideration. Accordingly, the Court’s primary consideration should be the benefit to X of having a meaningful relationship with both parents.
Best interests – additional considerations
(a) Views of the child
1.Both parties depose to having a close relationship with X, and to X expressing her love and affection for the other parent. Notwithstanding that, the Court’s ability to consider X’s views is limited by her age.
(b) Relationship with the child’s parents and other persons
2.The Father gives extensive evidence about his relationship with X. It is submitted that it is one that X derives benefit from and that it is meaningful. It extends to the mundane daily tasks of preparing meals, brushing teeth, and night time routines (F35), and to meaningful life moments, such as conversations about X’s emotions and educational development (F39).
3.The Father’s evidence is that X’s relationship with her stepmother and stepmother’s family (F44) being positive and well-established. The step-mother has resided with X and the Father since July 2019, when X was aged 2. There is no plausible challenge to that evidence by the Mother. Similarly, the step-mother has family in the Canberra and Suburb F area who have developed a familial relationship with X (M20).
4.The Father’s position is that the Mother is not willing or able to facilitate X’s relationship with her step-mother.
(c) Opportunities taken in relation to X’s parenting
5.The Father’s evidence is that both parents have remained significantly and equally involved in X’s care since separation.
6.The likely effect of the changes sought to be put in place by the Orders of the mother is to significantly disrupt her relationship with both her Father and step-mother. X is significantly accustomed to the current arrangement, it having been in place since shortly after separation. It is clear on the Father’s evidence that such a significant lessening of the time she spends with the Father shall be detrimental to X. Such finding is supported by Ms E, at paragraph 81 of her report, “A major drawback of the proposal is that X may feel a sense of loss, if her time with the father is reduced, since she has been living in an equal shared care parenting arrangement for almost three years”.
7.Conversely, the Father’s proposal is not a significant change in X’s circumstances. X has not yet started school and has maintained a consistent living arrangement for almost 3 years. The Father’s proposal also brings two attractive benefits:
a.The ‘2/2/3/2/2/3’ fortnightly cycle would limit the number of changeovers between the parties that occur at the parties’ homes, so too would the week-about arrangement that the father proposed from the time X begins year 1 at school.
b.X would have greater consistency of routine, in that the changeover days would be fixed on a fortnightly basis.
(e) Practicability
8.The relevant locations in the case seem to be the Mother’s home, the Father’s home, and X’s day-care. Those places are all close by to one another in Suburb F, NSW. The Father has some flexibility around his work and support from Ms C (F78). The Father’s proposal is therefore practicable.
9.While communication between the parties has at times been fraught, the Father deposes to the acrimony between them being sporadic. He points to various examples where the parties have been able to communicate in good humour and in such a way that facilitates decisions being made in a productive way about X’s wellbeing (F50).
(f) Capacity
10.There is nothing to suggest that the capacity of either parent mitigates against an equal time arrangement. Implicit in each party’s proposal is an acceptance that the other is capable of looking after X. Any suggestion by the Mother that restricting the Father’s time would allow X to better meet her developmental needs is not corroborated.
(g-k) Not relevant
(l) Lest likely to lead to institution of further proceedings
11.Both parties have demonstrated a willingness to comply with the Orders of this Court, and the Father’s proposal marks no significant change to those Orders.
12.The only substantial issue that the parties have required court intervention to resolve is that of the living arrangements for X.
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