TAVARES & TAVARES

[2019] FCCA 726

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAVARES & TAVARES [2019] FCCA 726

Catchwords:
FAMILY LAW – Interim arrangements for care of child aged 12 years – father alleges mother’s parenting capacity compromised by alcohol abuse and mental illness – mother alleges father’s parenting capacity compromised by lack of insight – mother alleges father has neglected child – allegations of exposure of child to family violence – each party assert he/she has been child’s primary carer – nature of interim hearing – lack of evidence regarding child’s view – best interests – presumption of equal shared parental responsibility – consideration of equal time regime.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC, 60B, 61DA, 65DAA

Cases cited:

Zahawi & Rayne [2016] Fam CAFC 90
Deiter & Deiter [2011] FamCAFC 82
Slater & Light [2013] FamCAFC 4
Goode & Goode [2006] FLC 92-286
Mazorski v Albright (2007) 37 FamLR 518
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712
Taylor & Barker (2007) FLC 93-345
MRR v GR (2010) 240 CLR 461

Applicant: MR TAVARES

Respondent: MS TAVARES

File Number: ADC 464 of 2019

Judgment of: Judge Brown

Hearing date: 18 March 2019

Date of Last Submission: 18 March 2019

Delivered at: Adelaide

Delivered on: 22 March 2019

REPRESENTATION

Counsel for the Applicant: Ms Tinning

Solicitors for the Applicant: BBS Family Lawyers

Counsel for the Respondent: Ms Dansie

Solicitors for the Respondent: Duncan Basheer Hannon

ORDERS

UNTIL FURTHER OR OTHER ORDER

1. The parties have equal shared parental responsibility for the child of the marriage [X] born … 2006 (hereinafter referred to as “the child”).

2. The child live with each of her parents on an equal time basis moving been her parents’ respective homes each week, during school terms, on a day to be agreed between the parties and failing agreement to be at the commencement of school each Monday.

3. The child spend time with the parent with whom she is not living pursuant to order (2) hereof each week for the purpose of sharing an evening meal and other incidental activities on a weekday to be agreed between the parties and failing agreement to be each Wednesday from after school until 7.30 pm that day.

4. In addition the child spend time on the occasion of her birthday with the parent with whom she is not living pursuant to order (2) hereof  at a time to be agreed between the parties and failing agreement to be from after school until 7.30 pm that day.

5. The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so or discussing the proceedings with the child.

BY CONSENT IT IS ORDERED

1. That the child spend time with the parties during the April School Holidays as follows:

   (a)With the mother from the conclusion of school on the last day of school in Term 1 until 5pm on the middle Saturday, subject to order 6(c).

   (b)With the mother from 3pm until 7:30pm Wednesday in the second week of the holidays.

   (c)With the father from 3pm until 7:30pm Wednesday in the first week of the holidays.

   (d)With the father from 5pm on the middle Saturday until the commencement of School on the first day of Term 2, subject to order 6(b) herein.

2. Pursuant to section 11F of the Family Law Act the parties and child attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 7 May 2019 at 9:30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto.  The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

3. Pursuant to Section 26 of the Federal Circuit Court of Australia Act1999 the parties and their legal representatives do attend a Conciliation Conference with a Registrar of the Court on 7 June 2019 at 9:15am.

4. Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee in accordance with the Family Law (Fees) Regulation 2012 twenty eight (28) days prior to the Conciliation Conference.

5. The applicant an amended application regarding property orders file and affidavit in support within 28 days of today’s date.

6. No later than 17 May 2019 the parties exchange informal discovery of all relevant documents as specified in Order 24 Rule 4 of the Federal Circuit Court Rules.

7. No later than 24 May 2019 the parties exchange all valuations or appraisals of any assets of property in dispute between them both real and personal together with all relevant financial documents as specified in Rule 24.03 of the Federal Circuit Court Rules.

8. Further consideration of this matter be adjourned to 14 June 2019 at 9:30am.

IT IS NOTED that publication of this judgment under the pseudonym Tavares & Tavares is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 464 of 2019

MR TAVARES

Applicant

And

MS TAVARES

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Tavares “the father” and Ms Tavares “the mother” are the parents of [X] born … 2006.  The parties cannot agree on arrangements for [X]’s parenting following their recent separation.

2. The parties married on … 2003 and separated on 11 January 2019, when the mother and [X] left the former family home, located at Suburb A and moved to Suburb B, which is approximately 8 kilometres away.

3. Two days before the separation, the mother had returned from a three week holiday in the Country C.  During this time, [X] had been in the care of her father in the Suburb A home. 

4. As I understand matters, this property had been the parties and [X]’s home for a significant period of time.  Recently the mother has joined property proceedings to the case.  Although the focus of these proceedings is on [X]’s care.

5. From the father’s perspective, the fact the mother left [X] in his care provides ample evidence that he is able to care for her adequately and the mother is well aware of this state of affairs and, axiomatically, has confidence in his parenting ability, otherwise she would not have left [X] with him.

6. It is the father’s case that since separation, the mother has restricted the time he can spend with [X] for no valid reason other than the parties have separated.  Prior to their separation, he asserts that he and [X] enjoyed a close and loving relationship and to all intents and purposes, he can be described as her primary carer”. 

7. In addition, in his notice of risk document and his supporting affidavit, the father has alleged as follows:

   The mother suffers from depression and anxiety.  The mother is also a self-admitted alcoholic.  The mother mixes alcohol with her prescription anti-depressant medication, against medical advice.  The mother’s alcoholism severely compromises her ability to provide care for the child and transport the child in the event of an emergency.  The child is at risk of psychological harm as a result of exposure to the mother’s alcoholism.

8. In all these circumstances, the father seeks that [X] live predominately with him or in the alternative the child live week about with each of her parents, with a catch up dinner date, with the other parent, during the school term fortnight.  From his perspective, this would balance issues of risk raised, not only by him, but by the mother in her material.

9. It is effectively the father’s case that the mother’s alcoholism precluded her from parenting [X] effectively during the parties’ relationship.  In this context, he deposes as follows:

   ·He performed the vast majority of parenting duties during the parties’ relationship;

   ·He got [X] ready for school;

   ·He cooked dinner;

   ·He attempted to protect [X] from the worst aspects of the mother’s alcoholism, which led her to behave in a verbally abusive and erratic and disruptive manner on a regular basis.

10. [X] commenced her secondary education at School D High School on 29 January 2019.  It is the father’s position that given this major development milestone, for [X], it is imperative that she has as much stability, in her life, as is possible, at this difficult and emotionally challenging time for her. 

11. He is suspicious that the mother’s trip to the Country C, which from his perspective occurred precipitously, was inspired by her wishing to pursue an internet relationship.  He asserts that [X] was distressed by her mother’s actions and the circumstances surrounding the overseas trip are indicative of the mother’s reactive and unstable personality.

12. The mother is a public servant by occupation and holds an important position at the Employer.  She refutes any suggestion that she has performed any subsidiary role in respect of [X]’s care.  To the contrary, she describes herself as having being [X]’s primary carer.

13. In addition, she denies that she is in the grip of alcoholism or has any untreated psychiatric or mental health issues.  She further denies that there was anything inappropriate about her trip, which was to visit family and friends there and coincided with her annual vacation.

14. She disputes that the father is capable of caring for [X] properly.  To the contrary, when she returned to Adelaide, she alleges that she found that [X] had not been properly cared for exemplified by her having been given a substandard diet consisting of stale bread. 

15. Prior to her trip, she had understood that the father would be taking [X] to visit his family in Melbourne, where she anticipated [X] would have been properly cared for.  However this did not eventuate and what actually happened, when [X] was in the care of her father, was substantial neglect.

16. In this context, it is her case that the father is essentially disinterested in [X]’s care being more interested in pursuing his interests such as playing video games; watching television; and attending sports matches.  She asserts that [X] is well aware of her father’s disinterest in her and has stated to her that she ([X]) wishes to remain in her (the mother’s) care.

17. In her notice of risk, the mother has alleged that [X] is at risk of neglect as a result of her father not properly feeding her and of psychological abuse because of her father’s negative and denigratory view of her (the mother), which he expresses to [X].  In addition, she alleges that she has been the victim of family violence by the father.

18. In these circumstances, it is the mother’s position that [X] should live predominately with her and spend alternate weekends with her father, from after school on Friday until Sunday evening; as well as having two catch up dinner dates, with him, during the school week concluding at around 7:30pm.

19. Accordingly, as is clear from this brief summary, the positions of the parties are extremely polarised.  This is not surprising given their recent separation, which clearly has precipitated strong emotional reaction in each of them.  Although I cannot be certain, it is also likely to be the case that the time since her parents separated has also been a very difficult period of time for [X] herself. 

20. Neither party has defined, with any precision, what they mean by the expression primary carer.  [X] is nearly 13.  She is a keen sports person.  Given her age, she is likely to be able to attend to her own ablutions; have her own friends and interests; and attend to some of her own physical needs.  She is not dependant on her parents, in the same sense, as would be a baby or a toddler.

21. [X] does however need the structure of family support to ensure that she gets to school on time; does her homework; goes to bed appropriately; does not engage in too much television or social media; and eats healthily.  She needs parental support and structure.  The current conflict, between her parents, is not helpful for providing the level of support and predictability, which she requires.

22. A more nuanced enquiry, in respect of who has been [X]’s primary parent, if indeed she does have one parent who is to be considered preeminent to the other, is likely to turn on where and from whom [X] derives her main sources of emotional support and resilience. 

23. The resolution of this issue is likely to turn on the answers provided to the following types of questions.  Does [X] confide more in one parent than the other; does she feel that one parent is more interested in her sporting activities and schooling than the other; in general terms, is she more simpatico with one parent than her other parent.

24. These are extremely difficult issues to resolve at this interim hearing stage.  Each parent has prepared documents hastily, against a background of family crisis.  The crisis has been informed by the following controversies:

    ·The father has been concerned about the circumstances surrounding the mother’s trip to Country C and its motivation;

    ·For her part, the mother has been concerned that the father was intent in taking up a position in Brisbane and taking [X] with him there, whilst she was away.

25. Against this background, it is clear that the parties do not trust one another.  As such, in their respective affidavit material, each party has raised many criticisms of the other, both as a parent and a person.  Some of those criticisms must now be regarded as largely historical in nature.

26. In these circumstances, it would seem to me to be the most logical starting point for the court, in determining the best outcome for [X] is to enquire of [X] herself, if she has any preferences or wishes in respect of how she is cared for and where she lives. 

27. After all, [X] is the person who will be most affected by whatever decision the court makes.  In addition, the court has responsibilities to protect [X] from the worst aspects of adversarial proceedings between her parents.[1]

    [1] See Family Law Act 1975 (Cth) at Part VII Division 12A

28. Against his background, I made enquiries as to whether it was possible for [X] and her parents to take part in what is known as a child inclusive family dispute conference.  This, as the name implies, would be a meeting involving not only the parties themselves but also [X], in which a neutral and professional person could canvas [X]’s views and provide feedback, not only to [X]’s parents but also the court.  The earliest available date, for this to occur, was 7 May 2019, at 9:30am.  On my calculations, this is approximately seven weeks away.

29. I was hopeful that, in these circumstances, the parties themselves might be able to put in place a consensual arrangement, for [X]’s care, which would provide her with some level of certainty and stability until the family dispute conference could be convened. 

30. Perhaps naively, I thought it might be useful if the parties could find themselves in a position where they could go jointly to [X] and tell her that they had agreed on such a regime.  However, this was not possible, although the parties, to their credit, did agree that [X] should spend time, with each of her parents, on an equal basis, during the forthcoming Easter/end of first term school holiday.

31. Accordingly, it falls to the court, to determine what should happen, for [X], for the next few weeks, given the impasse between her parents, until the court is provided with, I hope, some independent and objective appraisal of how [X] is currently travelling emotionally and what her views, if any, are.

The legal principles

1. At the interim hearing stage, the court is not in a position to make findings of fact arising from contested evidentiary issues.  There are many such evidentiary issues arising in this case, which centre on who has been [X]’s primary source of parenting support; and issues of risk, arising from either the mother’s alcoholism and mental health; or the father’s neglectful and un-insightful parenting.

2. These issues cannot be resolved at this interim hearing stage.  Rather, the court must assess the degree of risk arising from each such allegation and put in place orders which are proportionate to the degree of risk as so assessed.

3. In addition, at this stage, there has been insufficient time to commission any detailed and independent assessment of the dynamic of the family, which will include an assessment of [X]’s connection with each of her parents and what are her views, particularly any factors which influence those views and her degree of maturity to express them.  At this juncture, the most pragmatic vehicle to assess [X]’s views is the child inclusive conference scheduled for early May.

4. Although the nature of the hearing at the interim, as opposed to the final hearing stage, is different, the same legal principles apply. The court is directed to ensure that whatever order is made it will serve [X]’s best interests [see section 60CA].

5. As the Full Court of the Family Court has recently remarked,[2] the simple fact that a judge must determine what is in a child’s best interests is axiomatically not in that child’s best interests, particularly if the decision must be made against the background of incomplete evidence, largely centring on allegations of parental failure.

   [2] See Zahawi & Rayne [2016] FAM CAFC 90

6. The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.

7. The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.

8. There are two primary considerations, which are as follows:

   a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence. 

9. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings. 

10. Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations.  Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.

11. Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.

12. The father asserts that the mother is currently restricting his level of relationship, with [X], so that it is not sufficiently meaningful, given his past involvement with [X]’s care.  He asserts that [X] is not currently receiving the necessary benefits, to which she is entitled, as a consequence of having a close and loving relationship with him.  The father also seeks orders, which are directed towards protecting [X] from what he asserts are the risks arising from the mother’s abuse of alcohol and past history of mental illness.

13. On the other hand, the mother asserts that [X] is content with the current arrangements, which she contends provide an appropriately protective framework for [X]’s care.  Accordingly both parties rely on considerations relating to the need to protect [X] from coming to harm, as result of being exposed to neglect, abuse or exposure to family violence.  The father also points to what he asserts is his close relationship with [X] and asserts that there are risks if this relationship is artificially curtailed.

1. In this context, as with many cases which arise at the interim stage, against a background of urgency and controversy, the task for the court is to assess risk.  Essentially, each parent asserts that the other poses a risk for [X].  Clearly those risks cannot be ignored but at the same time the issue of what is the nature of the risk concerned and its potency is difficult to quantify at an early stage of proceedings.

2. At the interim stage, where the hearing concerned must be truncated and proceed on the basis of a consideration of affidavit evidence alone, the court cannot make definitive findings about past allegations of misconduct, if that misconduct is denied.  In addition, there is invariably, as in this case, a dearth of independent and objective evidence relating to the overall dynamic of the family concerned.

3. In Deiter & Deiter[3], the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.

   [3]  See Deiter & Deiter [2011] FamCAFC 82

4. Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved.  Risk arises in every aspect of human endeavour.  No individual’s life, including the life of a child, can be rendered entirely free of all risk.  In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis. 

5. The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it.  These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a parent’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.

6. The Full Court in Slater & Light expressed the task of assessing risk in the following terms:

   “The nature of the risk is best expressed by the term ‘unacceptable risk’.  It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [4]

   [4]  Slater & Light [2013] FamCAFC 4 at [37]

7. The legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [section 61DA]. 

8. The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.

9. The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].

10. The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].

11. Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].

12. Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.

13. By application of section 65DAA, if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.

14. If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents.  Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality. 

15. The expression “substantial and significant time” is defined in the Family Law Act [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.

16. More significantly, it is time which enables a parent to be involved in a child’s daily routine and in occasions and events, which are of particular significance to the child concerned. 

17. Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings. 

18. Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.

19. The legislative pathway, to be followed by the court, was delineated by the Full Court in Goode & Goode[5] can be summarised as follows:

    [5]  See Goode & Goode [2006] FLC 92-286

    ·Bearing in mind the truncated nature of an interim hearing, which necessarily precludes the ready finding of facts, the court should consider any relevant section 60CC matter it deems relevant and make what findings it can;

    ·Thereafter, decide whether the presumption in section 61DA should be applied or, if it is rebutted because;

    Ø there are reasonable grounds to believe abuse or family violence has occurred;

    Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;

    ·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;

    ·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;

    ·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);

    ·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.

    ·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

20. Although counsel for neither of the parties has explicitly referred to this pathway, it would appear to the father’s position that, given the close nature of his relationship with [X], the presumption should apply and is not rebutted by any credible allegations regarding his neglect of [X] and thereafter the court should give earnest consideration to an equal time regime in the lead up to the child inclusive conference.

21. On the other hand, the mother’s position is that the presumption is rebutted by her evidence of the father’s neglect of [X] and a consideration of the best interest factors, particularly what she asserts is [X]’s preference regarding what time she spends with her father and who has been her historical carer favour the outcome proposed by her.

Discussion

1. [X] has shared a household, with her parents, since she was born.  In these circumstances, it seems more likely than not that she knows both her mother and father well.  As such, it would seem to me to be likely that she will benefit from maintaining a meaningful level of relationship, with each of them, at this difficult time.

2. As previously indicated, the mother has qualifications as a public servant.  The father has also held responsible professional positions with firstly Employer and then, more recently, Employer.  Accordingly, the evidence indicates that both the father and mother are able to maintain employment and have hitherto provided the prerequisites of a comfortable middle class lifestyle for [X].

3. In this context, I appreciate that what happens outside the home is not necessarily indicative of what occurs within its walls.  Essentially, the father portrays the mother as a person who has concealed her alcoholism, from the world at large, drinking to excess, whilst at home but able to keep it together outside. 

4. The mother makes similar allegations regarding the father’s coercive and controlling behaviour towards her, which she happened within a domestic setting and involved verbal abuse and financial control.  She characterises the father as a domestic bully and asserts [X] is well aware of these unfortunate aspects of her father’s character.  The mother also asserts that the father’s account of himself as being a competent domestic person is a chimera. 

5. In response to the father’s allegations regarding her alcoholism and mental infirmity, the mother has provided a report, from her treating psychologist, Ms E, dated 29 January 2019.  Ms E indicates that the mother was referred to her in mid-2018, by her general health practitioner, in respect of symptoms of depression and anxiety, arising from: the death of close relatives; relationship difficulties; and work stress.

6. Ms E diagnosed a major depressive episode.  She also confirmed that the mother had reported excessive alcohol use, in the context of dealing with her feelings of depression and loneliness.  In this context, Ms E has prescribed a program of cognitive behaviour therapy, which she believes has been successful for the mother.  In this context, Ms E opines as follows:

   …Mrs Tavares’ level of functioning and ability to parent effectively is not currently impaired by her depressive and anxiety symptoms, or by alcohol use.

7. The father does not accept this opinion.  However, at this juncture, he is not in a position to provide any definitive evidence to refute Ms E’s view.  In my view, Ms E’s opinion, in the absence of other cogent evidence regarding her conduct, must be given significant weight.

8. Similarly, apart from her allegations of neglect of [X], by the father, whilst she was in Country C, the mother is not in a position to provide definitive evidence supportive of her allegation that [X] was malnourished.  There is no medical evidence to support this serious allegation.

9. In addition, it would appear unlikely that the mother would have entrusted [X] to the father, even if the period of time had involved [X] travelling interstate to spend time with extended family, if she had believed that the father was incapable of meeting the child’s basic nutritional needs.  The evidence does suggest that it is more likely than not the father has, at least, some basic proficiency as a parent.

10. In this context, the evidence does not indicate that the mother had any pressing need to go to Country C other than her personal preference.  Her return to this country seems to have precipitated the crisis which has engulfed the family.  The crisis also seems to have involved powerful issues regarding parental relocation.  It is against this background, the various competing allegations of poor parenting have arisen.

11. There remains the complex issue of family violence and the consequences, for [X]’s psychological wellbeing of both being previously exposed to it and potentially being re-exposed to family violence in the future.  Again, this is a difficult issue to resolve at this interim stage.

12. In this context, I must bear in mind that family violence frequently occurs and, as such, its independent verification may prove problematic.  In addition, family violence is not homogeneous in its aetiology.  It may be impulsive and reactionary to difficult emotional circumstances or, more corrosively, it may stem from a power imbalance, between the parties concerned, in which one spouse coerces and controls the other.

13. In the present matter, until recently, the parties have been able to parent [X] without involvement from any external agencies or coming to the notice of police.  As previously indicated, ostensibly at least, the parties and [X] have hitherto led an unexceptional life, involving both parents working and [X] herself attending school.

14. In all these circumstances, at this stage, particularly bearing in mind the limited time involved until [X]’s views are canvassed independently, I do not assess either parent to constitute a risk, to [X], which is of such a magnitude as to be characterised as unacceptable, in either the context of family violence or neglect.

15. I am not in a position, at this stage, to assess what are [X]’s views, in respect of her future living arrangements.  In particular, I am not able to assess the veracity or otherwise of the mother’s assertion that [X] has told her that she feels she is ignored, whilst in her father’s care and prefers to live with her mother.

16. In any event, in my view, it is probable that some light will be thrown onto [X]’s preferences, as a consequence of her interview with the relevant family consultant.  It is a pity that the parties were not able to agree, in the short term, as to some holding orders, until this intervention could occur.

17. Again, I am unable to characterise what is the nature of [X]’s relationship with each of her parents.  In particular, I am not in a position to ascertain whether one parental relationship is qualitatively superior to the other.  In addition, it is not beyond the balance of possibility that the relationship [X] has, with each of her respective parents, is different in nature, but still remains meaningful and beneficial for [X] herself.

18. It seems likely that [X] loves both her parents.  I would certainly hope so.  As such, by dint of their different personalities and backgrounds, each party has much to bring to their respective relationship with [X] and add meaning to it in the sense of being able to provide to [X] a sense of identity and who she is as a person.  Parents are important to children as a source of love, encouragement and support.

19. The expression meaningful is not specifically defined in the Act.  It is an ordinary English word.  In Mazorski v Albright[6] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.

    [6]  See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]

20. The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives.  As a verb, involve means to participate or share experience. 

21. Accordingly, in my view, the rationale of Part VII of the Family Law Act is that children derive benefits from feeling that their parents are involved or participating in their lives.  A child’s life is, by necessary definition, every activity in which the child takes part.  Literally, it means the child’s existence, as an individual.

22. It is the underpinning of the mother’s case that the father has essentially been a disinterested parent, so far as [X] is concerned.  The father refutes this assertion and to the contrary alleges that the mother’s abuse of alcohol has made her an absent parent, so far as [X]’s care has been concerned.  Again, these issues cannot be resolved definitively, at this interim stage.

23. The court is required to consider the impact, on [X], of any changes in her circumstances, including the likely effect on her of being separated from one or other of her parents.  This is a significant plank of the father’s case.  It is his position that [X] will be confused at his abrupt removal from the normal orbit of her activities.

24. As I indicated at the outset, I accept that it is more probable than not that [X] herself is feeling unhappy and unsettled by what has recently occurred in her life.  She, like her mother and father, will also be undergoing an adjustment to her change of circumstances.  Given her age, it is to be anticipated that she will want to be able to express some view about what she considers is likely to be best for her.

25. In my experience, arising from working in the area of Family Law, is that it is part of the zeitgeist of the age that children have an expectation that they will be consulted about important decisions pertaining to them.  It is often said that children have a right to be heard.  Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[7]

    [7]  See H v W (1995) FLC 92-598 at 81,944

26. It has not always been so.  However, given [X] is the person who will be most affected by the court order, it seems only right that some mechanism should be put in place, sooner rather than later to canvas her views. 

27. Regrettably, the parties do not currently agree on what [X]’s views are.  In this context, it is not beyond the bounds of possibility that she has provided different impressions to each of her parents in order to prevent them from being upset or otherwise to avoid becoming embroiled in controversy.

28. These are difficult issues to resolve and potentially confronting for [X] herself.  On the one hand, her view are significant and must be given appropriate weight in the court’s deliberations.  On the other hand, it is not likely to be helpful to her emotional equilibrium if she feels she must choose between her parents or otherwise perceives she has become the untrammelled author of her own destiny.  After all, she is still a child.

29. The applicable legislation requires me to consider any views expressed by the child concerned and any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding.  The legislation speaks of views rather than wishes.  The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[8]

    [8]  See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 at paragraph 56

30. Accordingly, a child is not required to make a decision about what is the appropriate outcome for him or her in any particular case.  Nor is he or she required to express an explicit wish as to which parent or other significant person he or she wants to live with or spend time with. 

31. However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her.  Very often these perceptions will be ambivalent and difficult to express or quantify.  This is particularly so with younger children.  This does not mean that a child’s view should be disregarded.

32. It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case.  Matters of individual preference are idiosyncratic but no less important for that.  It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”.  What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[9]

    [9]  See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724

1. At this stage, given [X]’s age and the likelihood that she is a bright child, her views have the potential to be very important.  However, at this stage, I simply do not have the material to assess what her views are, even provisionally.  I do not want her to feel that she is not important or is likely to be disregarded in the court’s processes.

2. However, the fact remains I have put in place a mechanism to canvas her views in an objective and professional manner, which involves her parents.  That process is not a long time away.  In this context, whatever order is made at this stage must be characterised by a provisional nature.

3. Other relevant considerations relate to parental capacity and the idiosyncratic characteristics of the child concerned.  Again, the court is not in a position to make any assessment of these delicately calibrated issues at this stage of proceedings, where evidence is scarce and incomplete.

Application of the presumption of equal shared parental responsibility

1. As indicated above, neither party elected to address the application of the presumption in any detail. In my view, the legal pathway is central to how the court should determine this difficult and finely balanced case, at the interim hearing stage. After having considered relevant factors arising under section 60CC, the court must, in every case, turn to the presumption of equal shared parental responsibility. Before turning to the presumption in this case [section 61DA], I turn to consider the mechanics of the legislation.

2. The exercise of the presumption is mandated by section 65DAA(1) & (2). If the presumption applies, I am required, by these provisions, to consider an equal time arrangement first. It is only when that arrangement is ruled out, on the basis of a proper consideration of the best interests of the children concerned and/or reasons of practicality that the court is directed to turn to consider a substantial and significant time arrangement.

3. The applicable terminology used in the sections is must consider. Accordingly, the ambit of the court’s considerations, pursuant to section 65DAA, is strictly stated. This is in keeping with the overall legislative intent of the Family Law Amendment (Shared Parental Responsibility) Act 2006, which favours the substantial involvement of both parents in their children’s lives. 

4. The Full Court in Goode & Goode has made it clear that this process of consideration is an active task, rather than a tokenistic or mechanical one, which must be undertaken within the overall legislative framework of Part VII of the Act.  It is of significance that the applicable legislation requires[10] that the court must first consider making an order for equal time before turning to consider substantial and significant time.

   [10]  This occurred because of the word “must” in the relevant part of the section

5. In Goode, the Full Court found the meaning of “consider” in section 65DAA:

   “… [suggested] a consideration tending to a result, or the need to consider positively the making of an order, if the conditions in s 65DAA (1)(a), being the best interests of the child, and s 65DAA (1)(b), reasonable practicability, are met. The same considerations apply to s 65DAA(2).”[11]

   [11]  See Goode & Goode (2006) FLC 93-286 at 80,898 [paragraph 64]

6. Accordingly the intellectual process required by section 65DAA is more than an active thought process in the abstract sense. Rather it is one which is to be directed to the consideration of a specific objective, namely an order resulting in either equal time or substantial and significant time.

7. This interpretation suggests that it is to be taken that it is the intention of the legislation that the exercise of the discretion, in the broad sense, will more often than not lead to such an outcome.  Essentially an equal time arrangement is the normative outcome from proceedings brought pursuant to Part VII of the Act.

8. In Taylor & Barker[12] the Full Court indicated that the options of children spending equal time or substantial and significant time, with each parent, must be given separate and real consideration by the court. As such, the court must be careful not to potentially devalue the legislative imperative placed upon it, to consider the alternative outcomes arising under section 65DAA, in cases where the presumption applies.

   [12]  Taylor & Barker (2007) FLC 93-345 at 81,916 [83]

9. Turning to section 61DA, for the reasons already provided, I am not satisfied that there are reasonable grounds to lead me to believe that either party would abuse [X] or has engaged in family violence. Clearly, the present topography between the parties is extremely difficult. However, I do not consider that this factor alone renders the application of the presumption necessarily inappropriate.  In these circumstances, in my view, the presumption is not rebutted.

10. Accordingly, it must fall to the court to consider, on the basis of the evidence available to it whether firstly an equal time regime is both calculated to be in [X]’s best interests and secondly reasonably feasible to implement given the reality of [X]’s familial situation. 

11. The court is directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable, in the sense of facilitative of the child’s best interests alone, that an order for equal time to be spent by the child with each parent.  Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[13] 

    [13]  See MRR v GR (2010) 240 CLR 461 at [13] & [15]

12. At this stage, it is difficult for me to assess that one parent is undisputedly better qualified, than the other, to satisfy [X]’s best interests.  This conundrum arises in the context of both her parents having been involved in her life for a significant period of time.  In the absence of overriding protective concerns, I have come to the view the court must give some emphasis to the benefits [X] will derive from having a meaningful level of relationship with each of her parents, particularly in their idiosyncratic controversy about who of them has been her primary carer.

13. In all these circumstances, in my view, whether there should be the interim equal time regime, as advocated by the father or the more restricted outcome advocated by the mother must turn on what is logistically practicable in the case.

14. In this context, I bear in mind the limited timeframe until the child dispute conference.  Necessarily, until [X]’s views are more clearly articulated, there must be something of an ad hoc flavour to arrangements for her care.  In this context, it is a significant criticism raised by the father that the mother has unilaterally imposed the current care arrangements, for [X], upon him.

15. As previously indicated, at the stage of this preliminary assessment, I can see no inherent risk in [X] spending extended periods of time, with each of her parents.  This is not a case where one parent has no aspects of risk attached to him or her. 

16. Rather, each asserts that the other is a highly compromised parent.  However, there is a distinct lack of probative evidence to support each parent’s allegations in this regard.  I must guard against stereotypical assumptions regarding care arrangements.  In these circumstances, there is an attraction in one parent not being granted pre-eminence over the other on the basis of such contentious and untested evidence.

17. The parties live in reasonable proximity to one another in suburban Adelaide.  The child’s school is in between.  Both parents work and necessarily must utilise OSHC care for [X].  As such, they each must confront the demands of balancing parenting responsibilities with the requirement to earn an income.  These issues also characterised their marriage, it being agreed that the father was involved in taking [X] to school.

18. In all these circumstances, in my assessment, the plain logistical issues, arising from [X] living in each of her parents’ homes, in the short term, are not insurmountable.  Rather, as they have done before, the difficulties confronting the parties, fall within the commonplace reality of many working parents, who live and are employed in a medium sized urban centre such as Adelaide.

19. More problematic are the parties’ communication skills and their capacity and willingness to implement such a regime.  Each parties’ preference is for [X] to live predominately with him or her.  The conflict, as is evident from their inability to reach consensus in regards to holding orders for a period of weeks, until [X]’s view could be canvassed, is extreme.

20. Accordingly, neither party will be entirely happy with such an arrangement.  In addition, given the proximity of their separation and the difficult emotions which it unleashed, it is to be expected that their communication skills will remain compromised for some significant period.  These are not auspicious harbingers for an equal time regime.

21. However, both are clearly intelligent individuals and it would seem that they are likely to have some facility to communicate, with one another, through electronic means, in respect of [X]’s needs and commitments. 

22. In this context, in my view, it is noteworthy that the parties have been able to manage arrangements for [X]’s care, since their separation, in mid-January, until the matter came into court in mid-March.  This period is of comparative length to that which will ensue until the child dispute conference.

23. A more problematic issue is what effect such a regime will have on [X] herself.  At this stage, this is not ascertainable.  However, in my view, it would not be unhelpful for [X] at least to have a tryout with it, in a controlled manner, prior to having her views about such an arrangements canvassed.

24. In all these circumstances, I have come to the conclusion that following the application of the presumption, it is more likely than not to be in [X]’s best interests for her to spend equal time with each of her parents, pending further enquires being made and it is feasible, in the short term, for this regime to be implemented until further evidence comes to hand.

25. At this juncture, I hasten to point out to the parties that these reasons for judgment do not indicate that this will be the long term outcome of the case. Rather, in difficult circumstances, I have attempted to balance the relevant s60CC factors and follow the applicable pathway provided by the Act.

26. I will make the orders for school holiday arrangements, as earlier agreed between the parties.  I will confirm the already foreshadowed date for the child inclusive family dispute resolution conference.  [X]’s thirteenth birthday is imminent.  I am sure the parties will be able to arrange something focussed on [X]’s enjoyment of the day, but in the event there is a problem, I will make a default order to ensure she spends time with each of her parents on this important day. 

27. I will also make an order for a catch up meal date, with the non-residence parent.  Again the date to be agreed between the parties after consideration of their and [X]’s commitments but in default to be each Wednesday from after school (or 4.30 pm) until 7.30 pm 

28. I suspect, having made these orders, which deal with the minutiae of caring for a soon to be thirteen year old child, who no doubt has her own life with commitments in it, as do each of the parties themselves, who each hold down onerous jobs, that there is a significant level of artificiality in me making these orders, which have implications for how others are to conduct their lives. 

29. I do so only because of the dispute between the parties.  In this context, I urge both of them to focus on [X]’s best interests, when they attend, with her on the appointed family consultant and do their upmost to protect [X] from the controversies arising between them, which obviously also intimately affect her and have the potential to be emotionally damaging to her.

30. For these reasons, I will also make the usual order in respect of the parties not denigrating the other, either directly or indirectly to [X] or from discussing the gravamen of the proceedings with her.  After all the dispute between the parties is their dispute, not [X]’s and although the court case is about [X], it is the parties themselves who own it.

31. For all these reasons the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date:     22 March 2019