Tourna and Tourna
[2010] FMCAfam 584
•11 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TOURNA & TOURNA | [2010] FMCAfam 584 |
| FAMILY LAW – Parenting issues – joint parental responsibility – no order for equal shared parenting time where order for shared parental responsibility – weight to be given to wishes of child aged 6. |
| Family Law Act 1975, ss.60B, 60CC, 61B, 61DA, 65DAA, 65DAC, 65DAE |
| Applicant: | MR TOURNA |
| Respondent: | MS TOURNA |
| File Number: | ADC 115 of 2009 |
| Judgment of: | Mead FM |
| Hearing dates: | 3 & 4 March 2010 |
| Date of Last Submission: | 4 March 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 11 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Berman |
| Solicitors for the Applicant: | Angela Ferdinandy |
| Counsel for the Respondent: | Ms Dickson |
| Solicitors for the Respondent: | Cardone & Associates |
ORDERS
That all previous orders made herein with respect to children’s issues SAVE AND EXCEPT for the orders made herein by consent on
28 October 2009 be and the same are hereby discharged.
That the father and the mother have equal shared parenting responsibility for [X] born [in] 2003.
That [X] live with each of her parents as follows:-
(a)with her father:-
(i)from the conclusion of school Thursday to the commencement of school Friday in each alternate week commencing 17 June 2010;
(ii)from the conclusion of school Thursday to 4pm Sunday in each alternate week commencing 24 June 2010;
(b)with her mother at all other times.
That the parties be restrained and injunctions are hereby granted restraining each of them from abusing, criticizing or denigrating the other of them or the partners of the other of them or members of the immediate family of the other of them to or in the presence of [X] and from allowing any other person to do so.
That prior to filing any further applications relating to [X]’s care the parties attend for Family Dispute Resolution with an approved practitioner or agency.
That all extant applications with respect to children’s issues be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Tourna & Tourna is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 115 of 2009
| MR TOURNA |
Applicant
And
| MS TOURNA |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr and Ms Tourna are unable to agree on how to share parenting responsibilities for [X] who is 7 years old. They are also not agreed as to the amount of time that [X] should spend with each of her parents.
Background
The father is Mr Tourna. He is 27 years old and is [occupation omitted]. His regular work hours are 8am to 5.30pm, but he can apparently start earlier and leave later, suggesting some flexibility. At the time of trial he was employed by [omitted].
The mother is Ms Tourna. She is aged 25 years and at the time of trial was about to start new employment with [omitted] on a part time basis from 9.15am to 2.30pm five days per week. The employment is on a casual basis. There may be some overtime.
The parties met when the mother was in year 11 at school and the father had recently commenced attending at university. She was approximately 17 years old and the father was about 18 years old.
The parties were both living with their respective parents when they commenced their relationship, and it appears that the mother fell pregnant in the latter part of 2002, although she did not consult a doctor about the pregnancy until [date omitted] 2003.
The mother’s evidence was that the doctor estimated that she was some 16 weeks pregnant, and arranged for her to have an ultrasound a few days later. After input from her parents an ultrasound was arranged for later that day at [omitted] Hospital. On the way to that appointment the mother started having contractions and [X] was born at 3.37pm on [date omitted] 2003. The mother’s father telephoned the father and asked to meet with him, at which stage the father was informed about [X]’s birth. The father then attended at the hospital and stayed overnight at the hospital with the mother and child.
The mother and child remained in hospital until [date omitted] 2003, during which time it appeared that the father regularly spent time with them and assisted with nappy changes and feeds. [X] was not breastfed.
Some three weeks after [X]’s birth the mother returned to work and to her TAFE studies, with the father and the mother’s mother caring for [X] when the mother was working or at TAFE, with the father’s grandparents also assisting and the father’s mother assisting during school holiday periods.
The mother and [X] stayed overnight at the father’s parents home where he lived on one or two nights per week in the months following [X]’s birth. Although the father shared evening meals at the home of the mother’s parents he did not stay overnight, apparently because of the refusal of the maternal grandfather to allow the parents to sleep together in the mother’s room.
By late December 2003 the mother had commenced working at [omitted] working four to five hours per day, four days per week. She had also commenced working in [occupation omitted].
During this time the father was studying at TAFE and also working long hours as a [occupation omitted].
The father conceded in cross examination that he was working as a [omitted] at nights when [X] was very young. He was not prepared however to concede that [X] was in the primary care of the mother in the early years of her life.
In paragraph 72 of the father’s affidavit filed on 23 September 2009, he deposed to [occupation omitted] and working long hours in order to support the mother and the child.
The parties married in 2004 at which time [X] was ten months old.
Following upon their marriage they moved into rented accommodation owned by the wife’s father, for which they paid $100 per week rent.
I am satisfied on the evidence overall that it was a feature of [X]’s life up until the time that her parents separated in December 2008 that she had a close and loving relationship not only with her parents but with both her maternal and paternal grandparents. They assisted the parents significantly with [X]’s day to day care to accommodate both their studying when she was very young and later their respective work commitments.
It was unfortunate that by the time these proceedings came to trial there seemed to be little ability on the part of either of the parents or [X]’s grandparents to appreciate the benefits to [X] of maintaining a close and continuing relationship with each side of her family, without the need to feel she has to please all the adults around her and be “fair” to them all equally.
Very little of the evidence adduced by either of the parties was forward looking from [X]’s perspective but rather consisted of a litany of complaints and criticisms each of the other of them. The desire of each party to succeed in obtaining the orders they sought with respect to [X]’s care seemed to be of paramount importance, rather than [X]’s best interests. This is not to suggest in any way that [X] is not a dearly loved child.
After the separation in December of 2008 [X] and her mother took up residence at the home of the maternal grandparents. The parties then entered into discussions to try and resolve issues about how [X]’s care would be shared between them, and the father instituted proceedings on 14 January 2009 wherein he sought that [X] primarily live with him and spend time with her mother for approximately 3 ½ hours on Tuesday and Thursday afternoons, and from 9am to 5pm on each alternate Saturday and from 9am to 5pm on each intervening Sunday. Alternatively he sought that she live with each of her parents on a week about basis but spend time in the household of the other of them for about 3½ hours on each of the Tuesday and Thursday afternoons after school. His alternative proposal was conditional upon the mother providing assurance of appropriate sleeping arrangements for [X].
The first return date of the father’s initiating application was 2 March 2009.
On 26 February 2009 the father filed an amended initiating application wherein he sought an extensive raft of orders in respect of [X]’s living arrangements including orders for [X] to live with each of her parents on a week about basis commencing at 10am on Fridays and spend time in the household of the other of them from 3pm or after school to 7pm on Tuesday of each week, as well as specific times for [X] to spend with each of her parents on the parents’ birthdays, Christmas Eve, Christmas Day, Boxing Day, Greek Orthodox and Catholic Easter, Father’s Day and Mother’s Day and other special occasions relating to birthdays and the like of extended family members on both sides.
In the mother’s original response she sought that [X] live with her and spend time with her father from after school on Friday to 11am on the Sunday morning of each alternate weekend, in the intervening week from 11am on the Sunday to 8am on the Tuesday, and on each alternate Wednesday from after school until 8pm. In her amended response filed on 2 October 2009 she sought that during school term time [X] spend time with her father from the conclusion of school Thursday to 4pm Sunday in each alternate week, and in the intervening week from the conclusion of school Thursday to the commencement of school Friday. The mother also sought specific extensive orders in relation to school holidays, Christmas, New Year and Easter, and special occasions.
Both parties sought extensive orders with respect to issues such as telephone communication, handovers, schooling issues, medical issues, interstate holidays, the use of a communication book, and on the part of the husband, [X]’s participation in extra curricular activities, as well as various other specific issues to do with aspects of her day to day care.
The matter first came before the court on 2 March 2009, when orders were made that [X] live with her father from 11am Sunday to the commencement of school Tuesday in each alternate week and in the intervening week from the conclusion of school Friday to 11am on the Sunday. It was also ordered that during school term time she live with her father from the conclusion of school Wednesday to 8pm and for half of the April 2009 school holiday period. [X] was to live with her mother at all other times. It was a condition of the time that [X] lived with her father that involved school attendance on Mondays and Tuesdays in each alternate week that the father personally take [X] to school on those occasions.
The matter was adjourned to 30 June 2009 and orders were then made that pending trial [X] live with her father from the conclusion of school Thursday to 4pm Sunday in each alternate week, and in the intervening week from the conclusion of school Thursday to the commencement of school the next morning. There were also orders for her to live with her father for approximately half of each of the July and September/October school holiday periods in 2009 and from 9am to 5pm on Father’s Day. [X] was to otherwise live with her mother pending trial. There were orders to enable regular telephone communication between [X] and the parent with whom she was not living.
On 2 March 2009, both property settlement and children’s issues were given a trial listing on 28 October 2009.
On 6 October 2009, final orders were made by consent between the parties with respect to property settlement.
On 28 October 2009, extensive final orders were made with the consent of both parties in respect of [X]’s time with her parents during school holidays, special occasions including the parents’ birthdays, Christmas Eve, Christmas Day and Boxing Day in each year, [X]’s birthday, Greek Orthodox Easter and Catholic Easter, Mother’s and Father’s Day and on the birthdays of extended family members including the paternal grandparents and the father’s sister, the maternal grandparents and the mother’s brother. Final orders were also made with respect to [X]’s telephone communication with each of her parents, handover arrangements, provision of relevant information in relation to medical and schooling issues and the use of a communication book. Orders were also made in respect of the parties’ ability to take [X] interstate for holidays.
The trial date was then adjourned to 3 March 2010, and orders were made that pending trial [X]’s day to day living arrangements during school term time were to continue in terms of the order of 30 June 2009.
At the time of trial, the mother sought orders that [X]’s living arrangements during school term time continue in the same manner as ordered pending trial, namely that [X] live with her father in week 1 from the conclusion of school Thursday to 4pm Sunday, and in week 2 from the conclusion of school Thursday to the commencement of school Friday.
At the time of trial, the father sought an order that during school term time [X] live with each of her parents on a week about basis starting at 10am on Friday of each week, and providing for [X] to have an evening meal in the household of the parent with whom she is not living for any particular week by way of spending time with that parent from the conclusion of school until 7pm on Tuesday.
The father sought an order for equal shared parental responsibility, with the mother seeking an order for sole parental responsibility.
The father relied on his amended application filed on 26 February 2009, and his trial affidavits filed on 23 September 2009 and 1 March 2010 respectively. He also relied on the affidavit of his mother Ms T who was not required for cross examination.
The wife relied on her amended response filed on 2 October 2009, and on her trial affidavits filed on 2 October 2009 and 10 February 2009. She also relied on the affidavits filed by each of her Mr & Ms G, neither of whom were required for cross examination.
At the first hearing on 2 March 2009, an order was made for a Family Assessment to be prepared by a single expert at the joint and equal expense of the parties and directed to [X]’s best interests.
The assessment was undertaken by Ms Megan Jones, psychologist, and was filed in these proceedings attached to an affidavit of the father’s solicitor on 30 June 2009. An updated assessment was sought from
Ms Jones, and was filed attached to an affidavit of the father’s solicitor on 10 February 2010.
Both parties were cross examined, and Ms Jones was cross examined by each of the parties’ counsel.
Relevant legal principles
Part VII of the Family Law Act 1975 (as amended) provides the legislative framework within which the court determines the parties competing parenting proposals. Section 60B (1) sets out the objects of the Act as regards children’s orders, namely to ensure that the best interests of the children are met by:-
(i)ensuring that the children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child; and
(ii)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(iii)ensuring that the children receive adequate and proper parenting to help them achieve their full potential;
(iv)ensuring that parents fulfil their duties and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying the object are set out in section 60 B (2) and provide that, except when it is or would be contrary to the child’s best interests:-
(i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(ii)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(iii)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(iv)parents should agree about the future parenting of their children; and
(v)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The best interests of the child are the paramount consideration in determining whether to make a particular parenting order, and in determining what is in the child’s best interests the court must consider the matters in s.60CC(2) and (3) of the Act. The court must also consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and in this regard considering in particular events that have happened and circumstances that have existed since separation.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility, but this does not relate to the time that the child spends with each parent. In the event that an order is made for equal shared parental responsibility however, the court must then consider whether it is in the child’s best interests to spend equal time with each of his or her parents and whether it is reasonably practical for this to occur. If an order is not made for equal parenting time, the court must consider whether it would be in the child’s best interests to spend substantial and significant time with each parent and whether that is reasonably practicable. The Act defines what is meant by substantial and significant time and specifies that the court must have regard to certain issues when deciding whether orders are reasonably practicable. The presumption of equal shared parental responsibility may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for such an order to be made.
All of these issues must be considered against a backdrop of the requirement that the parenting order be in [X]’s best interests as determined in accordance with the provisions of s.60CC of the Act (both primary and additional considerations), being mindful of the objects of the Act and the principles underlying those objects.
Evidence and findings
It is convenient to deal with the areas of dispute in this matter by way of considering the parties’ evidence as it applies to the relevant provisions of the legislation.
Section 60CC (2) (a) – Primary considerations
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents.
The orders proposed by both of the parties would mean that [X] would spend significant time in the care of the other of them.
On the father’s proposal she would be in each of her parents’ households for seven days and nights out of each fourteen. On the mother’s proposal she would be spending three whole days and several hours on a Thursday afternoon in the father’s household and four overnight periods in every fourteen in that household.
In paragraph 53 on page 18 of the first report of Ms Jones, Ms Jones stated “it is considered that [X] will benefit from substantial time with not only her mother and extended maternal family but with her father and extended paternal family in which her father is able to parenting input (sic).”
She expressed concern in that first report about [X] demonstrating some signs of stress, and made particular reference to [X] experiencing separation anxiety from her mother and being confused and concerned about information provided to her by each side of her family as well as her awareness of the views of various family members as to her living arrangements.
She was concerned at that time about [X] having been placed in a position of providing information to each family that she thought they would want to hear, with this contributing to the ill-will between the households.
Ms Jones considered that as [X] was, at the time of that report
(3 June 2009), still at young school age, although it was important that she spend meaningful time with her paternal family it was also important for her to have a stable base and that there not be what
Ms Jones referred to as “fast radical changes” to her living arrangements.
In her second report dated 29 January 2010, she commented on page 3 that [X] “has established meaningful relationships with both of her parents, and it is considered will continue to benefit from spending time with each of them.”
Ms Jones was cross examined at length by both parties.
I am satisfied that nothing arose during the course of cross examination that could lead me to a finding that it is other than beneficial to [X] to have a meaningful relationship with both of her parents. It was very clear from the evidence of the parties and their witnesses, as well as the evidence of Ms Jones, that at the time of trial she did have such a relationship with each of them. This was notwithstanding the very obvious pressures to which she had been subjected by both sides of her family that had made it difficult for her on occasions to be able to freely enjoy those relationships without feeling an obligation to either parent.
(b) the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
In paragraph 96 of the husband’s trial affidavit filed on 23 September 2009, he deposed to the wife displaying violent behaviours. He said, inter alia in that paragraph “She physically assaulted me on one occasion by kneeing me in the testicles, for which my doctor referred me for an ultrasound of the area.”
In paragraph 99 he deposed to the parties having many arguments and being verbally abusive towards each other, and in paragraph 110 of his trial affidavit he deposed to the mother’s mother, Ms G having anger management problems impacting on [X], who tells him that Ms G is always angry and she swears.
In paragraph 165 of the same affidavit, the father deposed to the maternal grandfather and the maternal grandmother yelling and effectively having some kind of altercation in front of [X] at a handover on 18 February 2009.
In the mother’s affidavit filed on 2 October 2009, she deposed, in paragraph 7 thereof, that she left the marriage because of the husband’s physical, verbal and emotional abuse. She deposed to that having escalated over the twelve months leading up to separation and often occurring in the presence of [X].
In paragraph 74 of the same affidavit, she described the husband as being erratic and unpredictable with his moods, and scaring [X] when he became angry and when he smacked her. She deposed to him verbally abusing her by calling her “bitch”, “slut”, and “crazy psycho bitch.”
In paragraph 75 of the affidavit, she deposed to returning home on an occasion in late 2007 and finding [X] crying hysterically. She said the father told her that he had slapped [X] in the face and legs and sent her to her room.
She deposed in paragraph 78 of the same affidavit to the father becoming angry with [X] on an occasion in mid 2008 and referring to her as “it”, and in paragraph 22, to the father becoming aggressive towards her after smoking marijuana or when she raised the issue of him smoking marijuana.
In paragraph 92, she deposed to the father being regularly abusive towards her and yelling and throwing objects around when he was angry, which was often for no apparent reason. She deposed to him having broken her mobile phone, ipods, glasses, plates and two hair straighteners at times when he was angry.
She deposed to [X] witnessing some of those occasions and appearing frightened, and said that sometimes she cried.
She said in paragraph 93, the father punched her arm on one occasion and she retaliated by punching him back.
In paragraph 94, she deposed to the father becoming violent towards her if she resisted having sex with him, and in paragraphs 120 and 121 of the said affidavit, she deposed to intimidating and harassing behaviour towards her post separation, as well as stalking behaviour.
In paragraph 171 of her trial affidavit, the mother deposed to the father denigrating her in the presence of the child including calling her “a lying bitch”, “psycho wife”, “a slut sleeping around” and “a lesbian.”
The mother said in paragraph 9 of her trial affidavit she had reported the father’s behaviour to the Domestic Violence Unit at the [omitted] Police Station in late December 2008 and early 2009.
In cross examination, the father denied that he had broken any of the items alleged by the mother, save that when he was questioned in respect of breaking two hair straighteners of the mothers, he said that he had picked up an implement on the vanity which was wet and he had got “zapped”, whereupon he dropped the item and it broke. He said that the mother was lying in respect to those allegations.
He was asked what he had called the mother during arguments, and said he was unable to recall. He agreed that the word “bitch” might have come up, but denied referring to her as a “slut”, “a crazy psycho bitch”, “a lesbian” or a “slut sleeping around”.
When asked whether [X] had been present during verbal arguments between the parties, he replied that she may have been in the house but that the arguments did not take place in front of her. He said she may have heard arguments during the course of the marriage.
When the father was asked whether he continued to think of the mother in derogatory terms, he replied “not really”, but when questioned about an entry in his diary of 1 September 2009 when he had referred to the wife as “a bitch”, he conceded that he might have thought that of her then.
It was put to him that when on 12 April 2009 he had referred to her in his diary as a “fucking cunt” he must have thought of her in that way then, and that what he was saying to the court and what he actually thought of the mother were two different things. He replied that he doesn’t let personal feelings get involved.
He was asked whether he had referred to her in his diary on 15 April 2009 as a “fucking dickhead”, and agreed that he may have put that down.
When it was put to him that the entry in his diary related to the mother telephoning him in a distressed state because he had just provided her with two or three hours notice of his intention to take [X] to Queensland on a holiday, he replied that she was given notice four hours after he made the decision.
The father was asked whether he thought at the time of the trial that the [mother’s] family were “defected.” He replied that he didn’t, but was reminded that in his diary on 6 August 2009 he had referred to the [mother’s] family being “defected” and the maternal grandmother as a “fucking bitch.”
He was asked when his views in relation to these issues changed. He said that he didn’t have those views overall and they were a reaction to particular incidents.
It was put to the father that his diary records accurately reflected his views in relation to the wife and her family. He replied that due to things that they may or may not have done he had recorded his views at the time but that he could get over those things regardless.
The wife was not cross examined specifically about the allegations to which I have referred. However she was, as was the husband, cross examined about various arguments and disputes that had arisen particularly since separation about arrangements they had each made for [X] without proper consultation with the other of them. It was very clear that, to use a colloquial expression, the parties are well aware of how to “push each other’s buttons”. It was also clear from the evidence of the parties both in chief and in cross examination, together with the matters raised in the report of Ms Jones, that both parents are completely supported by their respective families, such that there is very little opportunity for either of them to “reality test” their various reactions each to the other of them.
I am satisfied that [X] was exposed to a great deal of argument between her parents whilst they were married and resided in the same household. Further, I find that she has been present when arguments have occurred between her parents post-separation, both by way of telephone and in person.
I am satisfied that she has heard each of her parents being abusive towards the other of them.
I find, taking into account the demeanour of the parties and my impression of their particular personalities, that it is likely that the father was more likely to initiate abusive exchanges with the mother. It was my clear impression that he had little ability to desist from abusing her when she did some of the thoughtless things that she has done post-separation in terms of [X]’s arrangements. I find that these have been deliberately provocative. I do not accept the father’s evidence that he has softened his negative views of the mother or that he is able to avoid letting his personal feelings get involved as he suggested.
A particular example of that relates to [X]’s involvement in netball during her time with her father and the lack of thought on the part of the mother as to the impact of her decisions on [X]’s enjoyment of that activity. The mother arranged this activity. Her mother was involved in coaching [X]’s team and she is patently aware that from the father’s point of view he feels very uncomfortable in that environment so usually does not remain to watch [X].
When it was put to the mother in cross examination that presumably she had, against a backdrop of the acknowledged conflict between her parents and the father, given thought to her mother coaching [X]’s netball team and the consequences that might flow from that she replied “No – it was nothing to do with me.”
The mother conceded that despite the problems the father experienced from his perspective in attending at netball he had done nothing to prevent her or her family from attending.
I find that the mother was not being candid to the court as to this matter and that she was well aware that the level of participation of her family in this activity of [X]’s would have the result of effectively precluding the father’s involvement, or at the very least making it an uncomfortable experience for him.
I have no doubt at all that [X] would have found the behaviour of her father frightening on occasions, and it behoves both parents to ameliorate their behaviour so that [X] is not continually subjected to unpleasantness between the parents.
I am not satisfied that [X] has been subjected to or exposed to family violence in the sense of physical violence, but I am satisfied that she has been exposed to abuse, the circumstances of which have been contributed to by both her parents and in respect of which she needs to be protected.
I am satisfied that such protection can be achieved by appropriate injunctive orders.
Section 60CC (3) – additional considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court this are relevant to the weight it should give to the child’s views.
At the time of trial [X] was aged 6 years and 10 months.
At the time of her first meeting with Ms Jones she was 6 years old and at the time of her second meeting with Ms Jones she was 6 years and
8 months old.
In the first report of Ms Jones dated 3 June 2009 at paragraphs 6 and following, Ms Jones set out issues in relation to [X]’s wishes. Ms Jones spoke of [X] referring to loving both her mother and father “equally” and making that statement on more than one occasion.
She referred to [X] appearing to be at pains not to draw distinction between her parents, and also to what Ms Jones considered to be an unusual response set to questions asked of her in the Family Relations Test, where [X] attributed almost all positive messages to both her mother and father.
When counsel for the husband questioned Ms Jones as to this aspect of her first report, she said that from her perspective [X]’s response was unusual in terms of the care that [X] took to be very specific as regards equal attribution of the messages to each parent. She conceded however that it could have illustrated nothing more than [X]’s words being genuine. Ms Jones was also asked whether it was significant in terms of reinforcing the weight that should be placed on positive messages to [X]’s parents, namely that negative messages were all given to Mr Nobody. Ms Jones replied that she did not really consider that to be significant because where a child has a healthy stable family it was in her experience unusual for a child to say that there was nothing negative to be attributed to either parent.
It was then put to her by Mr Berman that if [X]’s relationship was really happy with each of her mother and her father, this could be the explanation for all of the negative messages going to Mr Nobody. She replied that it was possible, but did not appear to be in any way convinced by Mr Berman’s suggestion. She went on to say that when she stated in the report that such an attribution of messages by the child was unlikely to be an accurate portrayal of [X]’s views, that this was against a backdrop of [X] talking to her of her difficulties and a seeming need on her part to highlight positives, whereas the importance of the Mr Nobody responses is that they are indicative of whether a child is able to express negatives with respect to his or her parents.
Ms Jones stated in paragraph 7 of her first report that [X] told her that no-one had spoken with her about why she was meeting with Ms Jones, but that [X] had then proceeded to speak with her about wanting seven days equally with each parent or week about because she wanted to spend more time with her father. She described [X] as talking about those issues in a pressured manner. She referred to [X] stating that her mother got to see her more, and to reporting that that made her feel upset because “I want to see my puppy and my whole family and my Dad when I am with my Mum”. Ms Jones expressed a view that it appeared to her that either directly or indirectly [X] had been exposed to the father’s views and the views of his family.
She described [X]’s views as being confused as regards her time with each parent when talking about the number of days and the routine in place at the time of that interview.
She reported that when she spoke with [X] again after [X] had spent time with her mother, [X] still expressed a wish to see her father more than she currently was at that time, but also stating that she was happy to spend the time she had with her mother although she felt sad about not seeing her father and his family when she was with her mother.
Ms Jones raised with [X] on that occasion the fact that if she saw her father more she would see her mother less, and she reported that [X] indicated that she hadn’t understood that. She said towards the end of paragraph 8 of her first report “When asked about the terms she had used, and how she felt about spending seven days with each parent, [X] was clearly uncertain and upset. Although she said she might like to try having seven days with each parent, she stated that she might not like to keep it that way, but that her father and her grandmother really wanted it changed.”
In paragraph 10 of her first report she referred to [X] telling her that her father told her that the current living arrangements for [X] were not fair and her mother telling her that she had to spend more time with her. She reported [X] saying that her father had told her that he missed her when she spent more time with her mother, and her paternal grandmother telling her that she should spend seven days with each family and that she wasn’t seeing her father’s family a lot because her mother got to see her more. She reported [X] as saying that she had the same input in reverse from her mother and maternal family.
Ms Jones said at the end of paragraph 10 of her first report “While the writer does not doubt that [X]’s reporting would not be entirely accurate, it was clearly apparent that [X] has at the very least been indirectly exposed to the views of her family members.”
By the time of [X]’s second interview with Ms Jones on 22 January 2010, she was still confused about the amount of time she wanted to spend with each of her parents and was clearly still being subjected to pressure, either direct or indirect, by her parents and extended family members. Ms Jones reported on page 5 of her report –
“[X] was clear that it is difficult for her to tell her parents what she wants because, if she was to tell her father she wants to spend more time with her mother “he would be upset”, and likewise her mother will be upset if she was to tell her she wanted more time with her father.”
In the paragraph preceding that comment Ms Jones reported as follows:-
“[X] was uncertain, however, about what should occur during term time. She noted that on the last occasion she had told the writer “when I saw you I told you I wanted 7/7 but I didn’t really want to but my Dad said to. On this occasion [X] indicated her awareness that her father still wants an arrangement of week about. She was able, however, to state that she was not sure what she wanted. [X] discussed feeling that she does not have enough time with her father when school is on in the week that she only sees him on Thursday nights. This appeared to be a particular difficulty late in 2009 due to netball being scheduled on Thursdays and hence the night was taken up in the process of attending the game. [X]’s focus in this discussion centred upon the arrangement not being “fair” for her father.”
When [X] spoke with Ms Jones on both occasions she was less than seven years old. She was also subject to a great deal of input from both sides of the family, including parents and extended family members, as to the amount of time she should spend in each household. She was at pains not to differentiate between her parents when discussing relevant issues with Ms Jones. She was obviously doing her best to be “fair” to both of her parents.
Taking into account:-
(a)[X]’s young age;
(b)her very close and loving relationships with each of her parents and with extended family members and;
(c)the pressure under which I find she had been placed by her father leading up to these interviews to tell Ms Jones that she wanted to live with each of her parents on a week about basis and by her mother, at the very least, to tell Ms Jones that she wanted to spend more time with her mother
I find that this is not a matter in which the court should place significant weight on [X]’s views when determining the amount of time she should spend in the household of each of her parents. To do so would be to place upon her a level of responsibility for making decisions about her day to day living arrangements for which she is not equipped either in terms of age or circumstance.
(d)The nature of the relationship of the child with:-
(i)each of the child’s parents;
(ii)any other persons (including any grandparent or other relative of the child.
There is no evidence before the court either from the parties themselves, their witnesses or Ms Jones that could lead the court to a conclusion other than that [X] has a secure and loving relationship with each of her parents and with extended members of her parents’ families, in particular each of her maternal and paternal grandparents. These are all people who have played a significant role in the parenting of [X] from a very young age, and I am satisfied that she is well able to look to either of her parents and any of her grandparents both for love and affection and for all of the things that she needs to provide for her daily living.
I am concerned however that both her parents and both sets of her grandparents seemingly approach the issue of the nature of their relationship with [X] as some kind of a competition, based on a view that the depth of her relationship with them is directly proportionate to the amount of time that she spends with each side of her family. It is of concern that this continues to be the view, particularly on the part of the father and members of his extended family. This is notwithstanding that in the period of time from the date of separation to the time of consent orders in October 2008, [X] lived primarily in her mother’s household, after which she has continued to live primarily in her mother’s household during school term time and with each of her parents for equal amounts of time during school holidays. This has patently not impacted on the depth of [X]’s relationship with her father or members of her father’s family. From [X]’s perspective I find this view to be unfortunate as it of course means that she has continued, after the time of the consent orders in October 2008, to be pressured as to expressing wishes commensurate with the view of the father’s family. I am also satisfied that pressure from the mother’s family continued with respect to this issue, but not to the same extent.
Ms Jones reported on page 5 of her second report that although [X] indicated her awareness that her father still wanted the week about living arrangement during school term time, she said her mother had told her to tell Ms Jones whatever she wanted to say, and that her mother wanted her to be happy.
(c)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
It was clear from the cases of both of the parties as presented to the court that both of [X]’s parents want very much to be involved in a significant way in [X]’s day to day life.
They had of course, by the time of the trial in March 2010, already agreed some five months earlier to [X]’s time during school holiday periods to be shared equally. This of itself was indicative of both a willingness and an ability of the part of each of the parents to facilitate and encourage a close and continuing relationship between [X] and the other of them.
I am satisfied, notwithstanding the litany of complaints to which I have already referred, that both parents understand very clearly the depth of the relationship that [X] has with the other of them.
It was a feature of this case that, notwithstanding the obvious dislike that each of the parents was still exhibiting towards the other of them by the time of the trial in March 2010 (some fifteen months after separation), that [X] had managed, despite being acutely aware that she was the subject of a power struggle between her parents, to maintain a very loving relationship with each of them. For a child of [X]’s young age and in the circumstances I have described, that was a significant achievement indeed. I am satisfied that [X] does seem to be able to move between the households with relative ease, indicating that she understands that although the families don’t like each other, her parents acknowledge her close and loving relationship with the other of them.
I find, taking into account the matters to which I have referred and the proposals of each of the parties for the apportionment of [X]’s time between their households during school term time, that they each have the ability to facilitate and encourage a close and continuing relationship between [X] and the other of them. As regards the willingness of each party, I am satisfied that at this stage it could best be described as a “grudging” willingness on the part of each parent.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:-
(i)either his or her parents;
(ii)any other child or other person (including any grandparent or other relative of the child) with whom he or she has been living.
I do not find this to be an important consideration in this matter. [X] already spends equal amounts of time in the households of her parents during school holiday time. The dispute only relates to how much time [X] spends in the household of each of her parents during school term time.
I find that any issues that relate to this particular factor are more properly addressed when considering the capacity of the parents to provide for [X]’s emotional and intellectual needs, the attitude to [X] and to the responsibilities of parenthood demonstrated by the parties, and consideration of the issues that relate to the question of whether or not the presumption of equal shared parental responsibility should apply.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relationships and direct contact with both parents on a regular basis.
Not relevant in this matter.
(f)the capacity of:-
(ii)each of the child’s parents;
(iii)any other person (including any grandparent or other relative of the child) to provide for the needs of the child including emotional and intellectual needs.
I find, in the absence of any persuasive evidence to the contrary that both parents are capable of providing for [X]’s physical needs. It may be that in the father’s household many of these needs are met by the paternal grandmother at this stage, but I am not satisfied that such a situation arises from necessity but rather because the father’s mother is willing so to do and has played such a role for almost all of [X]’s life.
As regards [X]’s intellectual needs, at the time of trial she was enrolled in and attending at [omitted] school.
In paragraph 194 of the mother’s trial affidavit filed on 2 October 2009, she described [X] as enjoying attending that school, doing well and having made numerous friends.
Other than a comment in the affidavit of the father filed 23 September 2009, namely that he had been informed on 2 April 2009 by [X]’s teacher that [X] was very clingy to her mother when her mother dropped her off to school but that didn’t appear to be the case when the father dropped her off, and his evidence contained in paragraph 213 of that same affidavit where he deposed to be keen to become actively involved in [X]’s school education and extra curricular activities, [X]’s education was barely mentioned by either of the parties in their evidence in chief, particularly the father.
This is an example of the issue to which I was referring earlier in this judgment when I commented that little of the evidence was “forward looking” from [X]’s perspective.
The father was cross examined with respect to the issue of his participation in [X]’s kindergarten and school live including his financial contributions to her school fees and expenses. I refer to these matters in greater depth when assessing the parties’ attitudes to the responsibilities of parenthood in paragraphs 220 to 228 and 238 to 240 inclusive of these reasons.
The consent orders of 28 October 2008 provide for both parties involvement in [X]’s education. It would of course be inherent in the mother’s proposal that she have sole parental responsibility for [X] that she would be in a position of making unilateral decisions about [X]’s long term schooling.
For those reasons I am satisfied that the mother has the capacity to provide for [X]’s intellectual needs. It may be that the father has also, but on the limited evidence available I find that he has not demonstrated a commitment to actively supporting [X] with respect to her education.
The issue of providing for [X]’s emotional needs is of particular importance in this case.
I have already referred at length to the very difficult position [X] found herself in leading up to this trial in terms of the pressure on her from both her parents and extended family members to satisfy all of their needs in terms of the time [X] spent in each household, and to not disappoint anyone when being “talked at” or “questioned” in relation to the time she was to spend in each household, such that it would be “fair”.
Ms Jones referred to those issues at some length in both of her reports and in paragraph 12 on page 6 of her first report Ms Jones said as follows:-
“Both of [X]’s parents and her grandmothers denied speaking with [X] about conflict between them, or engaging in negative discussions about members of the other family with or in front of [X]. Despite this, both [X]’s parents and both of her grandmothers indicated that they do tell [X] when something she is reportedly repeating is not true, and engage her in discussion about what is true. None of the adults interviewed demonstrated awareness of the impact of these sorts of discussions with [X], in which she is still being informed that by one parent for example that her other parent is lying to her. It highlights the confusing situation [X] finds herself within, and the importance for [X]’s parents and grandparents in learning more about the risks of further exposure to such stress for [X]. All of the adults placed responsibility for these behaviours upon the other family.”
An issue arose in relation to [X]’s birthday party in May 2009. The effect of the issue was that as a result of a dispute between her parents with respect to whether or not [X]’s mother could spend time with [X] on her birthday, [X] became embroiled in discussions as to her mother being able to attend at her birthday party. [X] discussed this matter with Ms Jones, as reported in paragraph 13 on page 6 of Ms Jones first report. This was an example where neither party seemed to grasp the fundamental issue that [X] should be able to enjoy her birthday in a stress free environment and that each of them should do whatever necessary to celebrate that special event with [X] in a way that gives her the most pleasure. If this means having separate birthday celebrations each of which are stress free and enjoyable for [X], then that would surely be the better option.
Ms Jones was cross examined about the impact on [X] of parental conflict. Ms Jones agreed with the suggestion put to her by counsel for the father that when the court has to determine the respective applications of the parties with respect to [X]’s care, the issue of conflict between them becomes important. If there is a finding of conflict, the real issue then is how [X] may be or is being affected by that conflict.
It is important to say at this stage of the judgment that for reasons to which I have already referred and reasons to which I will refer later herein, I find that there is a high level of conflict between the parties in this matter. The issue of how that has or is impacting on [X] is indeed a most important issue, particularly in the context of the capacity of the parties to provide for [X]’s emotional needs.
When it was put to Ms Jones by Mr Berman that this may be a case where, against the backdrop of conflict, the parties have provided appropriate protection for [X] such that she understands there is conflict but is not emotionally affected, Ms Jones replied that [X] had spoken to her of the conflict which suggested to Ms Jones that [X] was experiencing something.
When it was put to her by Mr Berman that even in the best of households there is conflict and then things return to normal, Ms Jones agreed. She said however that what was important about that issue was that in households where that occurred in circumstances where the family still lived together, children were able to see how repair to that conflict was managed. That is not available to a child in [X]’s position. Ms Jones agreed with a suggestion from the court that [X] is a child who is trying to keep everyone happy.
Mr Berman asked Ms Jones whether [X] was capable of understanding the concept of “divided loyalty.” Ms Jones replied that [X] was only
six years old and that although she could see concepts, it was a little too much to ask of her to properly understand those concepts.
Ms Jones also made it clear in cross examination, in answer to a question of Mr Berman, that although she agreed that it appeared she was more concerned about [X] being influenced by the father and his family than by the mother and her family, it was really a matter of degree and that she considered that [X] was being influenced by both parties.
It was put to Ms Jones by Mr Berman that, it having been said that if [X] could be removed from conflict it would probably be good for her, could it be said that [X] was well adjusted regardless. Ms Jones agreed with that suggestion.
When she was asked whether she would say that [X] had the ability to put these issues of conflict to one side such that they would not or had not affected her development, Ms Jones replied that she thought that [X] was resilient, capable and that she engages well as school. She went on to say however that what raised a problem for her was that [X] had to direct some of her efforts to issues arising from the conflict between her mother and her father, when these efforts could be better used elsewhere for her own development. She considered [X] was vulnerable in that regard. She pointed out that [X] doesn’t see her parents repairing the conflict because she doesn’t see interaction between her parents.
In answer to a question from the court of Ms Jones as to whether she had seen anything to suggest that although [X] was vulnerable in respect to the issue of conflict, there had been any real effects on her with respect to that issue, Ms Jones replied that she had concerns that [X] was worrying about the issue and perhaps couldn’t talk to one or other of her parents about those worries – that is, she was concerned about [X] having the ability to develop trust in her parents to property cater to her emotional needs. Ms Jones said she was talking about a resilient child but a child who was influenced to some degree, and a child who in her mind was almost taking care of her parents’ emotional needs rather than the reverse.
Ms Jones was asked by Mr Berman whether it mattered how parents communicated so long as the communication was polite and respectful. Ms Jones replied that parental communication for children in [X]’s position is most helpful when the child can observe some civil personal communication between his or her parents.
Ms Dickson also cross-examined Ms Jones at length about issues arising from the parental conflict. She referred in particular to paragraph 21 on page 9 of the first report, where Ms Jones commented:-
“It appears highly likely to the writer that [X], in a time of uncertainty and change and high conflict between her parents, has found a way to ensure that she receives attention and reassurance from all members of her family. There is little
doubt that [X] indirectly or directly is being exposed to inappropriate information and, being a curious, alert little girl is seeking to understand what is happening around her. It is also apparent that the information and guidance which she is receiving is confusing and at times stressful for [X] and that if this continues it will have a negative impact on her emotional and social development.”
Ms Dickson asked of Ms Jones what would she see as possible negative impacts on [X]’s emotional development if the stress was to continue at that level for [X]. Ms Jones replied that it could lead to depression in adolescence as problems arise when she has to try and find out the “truth” from her parents, and that if she is expending energy in relation to that issue, then that energy is not available for her usual emotional and social development. She said it may also lead to problems arising later in other relationships that [X] might form.
I am satisfied on the evidence of both parties, their answers in cross examination and the evidence of Ms Jones, that by the time of the trial in March 2010 the parties were still in conflict and [X] was still being exposed to that conflict.
The conflict had arisen post separation in respect of a myriad of matters including the father taking [X] to the Gold Coast on holidays with almost no notice to the mother, issues about the father taking [X] to dental appointments without the mother’s knowledge, disputes about who [X] should see on her birthday in 2009, conflict about the payment of school fees, conflict about arrangements for [X]’s extra curricular activity and the like.
I find however that all of these various disputes were simply manifestations of the real underlying dispute, being the father’s determination to achieve an outcome of [X] living with each parent for equal time and the mother’s determination to avoid such an outcome.
I am satisfied that there is sufficient evidence to find that both parties have had significant difficulty in being able to put [X]’s emotional needs ahead of their need to continue their dispute. Neither parent has had the ability to take adequate responsibility for their contribution to the disputes, and both have been unable to appreciate the very real stress that has been experienced by [X] because of her parents’ behaviour. There was little sign of the attitudes of either parent having improved some 15 months after separation and after advice from legal representatives, comments from the court and attendance at post-separation parenting programs.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
[X] is a little girl aged 7 years.
She has a close, loving and meaningful relationship with each of her parents and her maternal and paternal families.
It is clearly in her best interests to continue these relationships so as to enable her to benefit from the nurturing that she receives from each side of her family. This will equip her for a well balanced and well rounded life, particularly if all of these adults are able to focus on [X]’s need to be able to fully enjoy and grow within these relationships.
[X] is particularly fortunate to have a mixed cultural heritage and I am satisfied that the existing consent orders will facilitate her participating fully in the culture and traditions of both sides of her family.
(h)if the child is an Aboriginal child or Torrens Strait Islander child:-
the child’s right to enjoy his or her Aboriginal or Torrens Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
the likely impact any proposed parenting order under this Part will have on that right;
Not a relevant consideration in this matter.
(i) the attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents.
To my mind it is this factor, particularly when considered in conjunction with the issues that arise from the examination of the capacity of the parties to provide for [X]’s emotional needs, that has the greatest impact on the outcome of these proceedings.
It must be stressed again, that this is a matter in which the court is satisfied that both parents love [X] very dearly.
What is of greater concern however, is the attitude of the parties to [X] in the context of their ongoing acrimony, and how that impacts on their attitude to the responsibilities of parenthood. In my view, one of the most significant responsibilities that parents have in circumstances where the family no longer resides as a unit is to ensure that, notwithstanding their own views of their former partner, they avoid embroiling their children in that dispute and instead demonstrate to them a very clear understanding of the significance of and importance to the child of the other parent. This is done in many ways, including but not limited to a respectful and co-operative decision making process, respectful communication in the presence of the children or otherwise, and the ability to consider issues from the perspective of the child and not from the perspective of “winning” the battle. It is of little use to pay mere “lip service” to these matters, as children quickly observe any insincerity in this regard.
It would be clear from the evidence of Ms Jones that, when approached in this manner, post separation parenting practices are less likely to place children under stress and pressure and unlikely to place them in a position where they feel obliged, because they love both sides of their families, to keep each side happy. It follows therefore that they are less likely to have the developmental and emotional difficulties that might otherwise flow from dysfunctional post separation parenting practices.
It was unfortunately a feature of these proceedings that very few of those positive post separation practices were in evidence, other than in the context of the father paying “lip service” to same. To the credit of the mother she was at least more honest in this regard but that does not make her attitude less unfortunate.
It was clear from the father’s evidence that notwithstanding the reality of the mother being the primary parent to [X] leading up to the time of separation (taking into account the circumstances prior to the parties’ marriage, and the husband’s long night time working hours prior to separation), the father made it clear to the mother immediately upon separation, and to the court shortly thereafter, that he was not prepared to consider any care arrangements for [X] other than equal shared parenting time.
It is apparent, from the matters discussed with [X] as reported by her to Ms Jones, and from the tenor of his evidence overall, that he is of the view that such a living arrangement for [X] is the only one that is “fair”.
What was not so easy to ascertain from the father’s case was whether he perceived such an arrangement to be “fair” for [X], or “fair” for himself and his parents.
The mother was equally determined, for her part, to achieve an outcome where [X] was in her primary care. It must be said that it was to the credit of both of the parties that in October of 2009 they resolved the issue in respect of school holiday time on the basis of equal shared parenting time, as well as almost all of the other issues in dispute.
Mr Berman of counsel for the father submitted that between the time of the first and second Jones reports, the parties had managed to agree matters concerning [X]’s care other than during school term time. He commented that they had commenced on occasions to use a communication book, and that the father was genuine in his desire to want to have more communication with the mother.
He pointed to the father not having made an issue about the mother entering into a new relationship even though she did not advise him of that, and to his regular attendance at [X]’s netball games notwithstanding that they were organised at times that [X] would otherwise have been in his care and were attended by various members of the mother’s family which from the father’s perspective made attendance uncomfortable.
Mr Berman submitted that words exchanged between parties are of interest but it is the parties’ deeds that demonstrate how they are approaching issues.
He went on to submit that the father was capable of putting all of the earlier issues aside and “getting on with it”.
He submitted that although the father would like to speak with the mother by telephone about issues concerning [X], it was unlikely that the mother would allow that, but said it was not acceptable for the mother to simply determine that she should follow that approach because it was the best way of advancing her position, namely that communication between the parties is impossible. I accept that submission.
It is necessary therefore to consider the background to the parties’ current positions with respect to the issue of communication. This is a relevant issue when considering the reasonableness of parties attitudes to communication and therefore to the responsibilities of parenthood.
It is common ground, as conceded by Mr Berman in his final submissions, that at the time of separation there was a very poor relationship between the parties.
It was the mother’s evidence that during the course of the parties relationship and particularly after their marriage the father’s behaviour was erratic and unpredictable, and that he was verbally abusive to her including calling her names such as “bitch”, “slut” and “crazy psycho bitch”.
She deposed to the father becoming easily angry with [X] if she did not do exactly as he wanted, and to relying on his mother to care for [X] when she was at work, preferring to sleep or undertake activities of interest to him including working on his car. She said that the father attended at strip clubs and that when she confronted him about it he disregarded her concern. She said that the parties had frequent arguments about the father’s use of marijuana, which was in fact a concern to the father’s family and an issue raised with him by members of his family.
She referred to the father entering into a transaction to purchase a motor vehicle in mid 2007 that resulted in people unknown to her attending at the house and having an argument with the father, whereupon he told her that she should go inside and lock the doors as they were coming back with guns.
She referred to the father breaking various objects when he was angry and often appearing angry for no apparent reason.
She referred to the father being aggressive towards her in terms of his sexual demands, leading to further arguments between them.
The mother complained that the father restricted her contact with friends and family, being unsupportive of her when she was ill and being critical of her cooking and housekeeping duties.
It was the mother’s case that separation occurred in December 2008 because of the father’s erratic and volatile temper and drug use, leading to her moving out of the former matrimonial home with [X].
It was her evidence that following upon separation the father intimidated and harassed her, that she agreed to attend mediation with him almost immediately upon separation, but that his demands in respect of [X]’s care were non –negotiable in terms of equal shared parenting time.
She said that notwithstanding entering into arrangements almost immediately upon separation for [X] to spend gradually increasing time with the father at his parent’s home, the father, by early January, insisted on [X] spending greater time with him than that to which the parties had agreed. She said he frequently expressed to her that he was determined to achieve an equal shared parenting agreement because that was what the law said should happen. She said he did not consider the issue at any time from [X]’s perspective.
The mother deposed to the father being secretive about the time that [X] spent with him and being unwilling to openly communicate with the mother about issues, culminating in the father giving her a matter of a few hours notice on or about 15 April 2009 that he was going to take [X] to Queensland with him for a holiday without prior consultation with her. She further said that it was necessary to involve her solicitor to obtain details of where the father and [X] were staying, date of departure, and date of return. I accept that she was very distressed about this issue.
She referred to the father being uncooperative in terms of failing to respond to her efforts to arrange for [X] to commence playing netball, to changing [X]’s swimming lesson times without consultation with her, and to being unwilling to allow [X] to spend any time with her on [X]’s birthday being [date omitted] 2009.
She complained that the father denigrated her in [X]’s presence, allowing other people to do so, and that he has referred to her as “a lying bitch”, “psycho wife”, “a slut sleeping around” and “a lesbian”.
It was her case that particularly during 2009 but continuing, the lines of communication were so poor between she and the father that any changes that were sought with respect to orders concerning [X]’s care almost inevitably involved solicitors.
In her affidavit filed on 11 February 2010, she deposed to a continuation of denigration of her by the father and his family in the presence of [X] and to the father in early 2010 disputing the arrangements about [X]’s care pursuant to the terms of the existing order and subsequently apologising, after having been abusive to her about this issue, for being wrong.
The father was cross-examined about some of these issues.
He was asked about how he would describe communication between the parties, and said that when they did communicate it was civil and respectful but he would like to think that the mother could speak with him more easily which he considered would be better. He said that he thought he didn’t have a problem with communication, but that there was more of a problem with the mother and that sometimes it was hard to get a response from her.
The father was asked whether he had any cause to suspect that the mother was making decisions for [X] that were not in her best interests, and replied that he thought most decisions the mother made were fair but not with respect to the time that [X] spent with him. He also said that he was concerned that the mother had got [X] excited about attending at netball without consulting with him.
With respect to the issue of netball, the father said in cross examination that sometime before [X] had commenced playing the mother had discussed with him the issue of [X] wanting to play netball, but there had been no further consultation after that until the mother advised him early in the week of her first netball game that she was so doing. He denied that the mother had told him that [X] wanted to play netball but said rather, he had simply been told when she would be starting. He denied that the mother had advised him that the only available time for [X] to be able to play was on a Thursday evening, and said rather, that the mother had simply informed him that that was what would be happening.
The mother was cross examined in relation to the netball issue.
She confirmed that the father took [X] to netball, said that he stayed at times but outside rather than in the venue, and confirmed that she attended the games sometimes but that if she wasn’t there, her mother was there. She also conceded that on occasions her father and her brother were at the games.
When asked whether it was a matter of concern to her that that activity was during a time that [X] would otherwise be with her father and so therefore it would perhaps be a cause of conflict or a problem, the mother said that she didn’t see that.
She agreed that she understood from the father’s affidavit evidence that he had made allegations of conflict occurring at the games between the mother’s parents and the father and vice versa. When asked whether it was her position that the conflict, enmity and bitterness between the families still existed she said that it was and agreed that it was significant.
The mother went on to say that at netball there are lots of people there, that the father chooses to sit away which from her perspective was “great”, because if the parties speak, all that she gets from the father is harshness and abuse.
When asked whether if the father chose to be nice she would respond, she said “yes”, if she got those words.
When it was put to her that the father says he says hello to her family but gets no response and a cold shoulder, she denied that was the position. When asked whether she was saying that the father was never polite to her, she said that was the position and that he was not polite to her or to members of her family or friends.
When it was put to the mother that she then presumably gave thought to the issue of her mother coaching [X]’s team and the consequences of that course of action, she replied that she hadn’t and that it was nothing to do with her.
I am satisfied in respect of the issue of netball that this is an example where the mother failed to exhibit a sensible attitude towards the duties of parenthood. It is the mother’s own case that there is a great deal of bitterness between the parties.
I have no doubt that she was aware at all times when arranging for [X] to play netball during a time that she would otherwise spend with her father pursuant to existing orders, and further in the knowledge that her mother would be coaching the team, that such a course of action would upset the father.
I find that she paid no attention to the impact that her course of action would have on [X], both from the perspective of making the netball arrangements at those times without the express cooperation of the father such that she gave [X] an expectation of participation which if not facilitated by the father would have caused [X] unhappiness, and secondly, placing the father in a position where to participate in this activity of [X]’s he has to run the gauntlet of the mother’s family, knowing of their negative attitude towards him, This quite probably engenders in him a feeling of being uncomfortable which would, taking into account my observations of the father’s personality, inevitably lead to an uncomfortable silence at the very least, or more likely, unpleasant exchanges between the families.
The mother’s actions in these circumstances I find to be thoughtless and provocative and her evidence and demeanour in cross examination about the issue quite disingenuous.
I find in respect of the netball issue that the father has put [X]’s best interests ahead of his own wishes, and has ensured that [X] has attended at netball on Thursday evenings, and personally delivering her to and collecting her from netball. I accept however, taking into account the father’s evidence overall and his demeanour in the witness box, that it is unlikely that he has actively tried to improve communications between he and the mother and members of her extended family on those occasions, albeit that I am not confident that such efforts if made by him would find fertile ground.
I make this particular comment taking into account the mother’s evidence to the effect that it was great that if the father did remain for the netball game he sat away from the mother’s family. That is also an example of a party maintaining the rage, and the entire circumstances of the netball issue served to illustrate the incapacity on the part of either of the parties to move on from their difficulties in such a manner that it is immediately obvious and can be followed by example by extended members of the family on both sides. Such an outcome would be of great assistance to [X], and would illustrate a positive attitude to a very important responsibility of parenthood.
The events surrounding the father taking [X] to Queensland for a very nice holiday without consulting the mother and in fact only giving her about three to four hours notice of his and [X]’s departure were a clear example of the father’s lack of respect for the mother. I find that his actions were ill-considered, deliberately provocative and without any consideration for the emotional well-being of either the mother or [X]. I am satisfied that the father gained a measure of satisfaction from the distress he caused the mother, who he referred to as a “fucking cunt” and a “fucking dickhead” in his diary at about that time.
I am also satisfied that the timing of the trip, being only shortly before [X]’s first interview with Ms Jones, was not accidental and that the trip, with all its exciting activities for the child was designed to influence her in any discussions she had with Ms Jones as to what time she should spend with her father.
This whole incident reflected poorly on the father’s attitude both to [X] and to the responsibilities of parenthood.
The father would have the court accept that he has moved on from his earlier views about the mother and her family and is now desirous of respectful communication with the mother.
The essence of the mother’s case was that that was a position adopted by the father for the purposes of these proceedings, and that upon their conclusion his attitude and behaviour towards her would revert to its previous form.
The mother said the father was abusive towards her during the period of the relationship and post separation. He was cross examined about these issues.
When asked what he had called the wife during arguments, he said that he was unable to recall. When he was asked whether he had referred to her as a “bitch”, he said that might have come up. He denied to having referred to her as a “slut”, “a crazy psycho bitch”, “a lesbian” or “a slut sleeping around”.
When he was asked whether he continued to think of the mother in derogatory terms, he replied “not really”. When he was asked whether it was untrue that he had referred to the wife as a “bitch” in his diary notes on 1 September 2009 he appeared surprised and replied that it was his personal diary. When it was put to the father that that is what he had thought of the mother on that occasion, he said that he may have thought that then. When asked if he had thought that the mother was a “fucking cunt” on 12 April 2009, he replied that he wrote it in his diary so he must have thought of her in that way then.
It was put to the father that what he said to the court in evidence and what he actually thought about the mother were two different things. He replied that he didn’t let personal feelings get involved. I do not accept the father’s evidence in that regard.
When asked whether he had referred to her in his diary as a “fucking dickhead” on 15 April 2009, he agreed that he may have put that down.
When it was put to the father that the relationship between he and the mother and her family still remained strained, he agreed that that was the case but went on to say that she and her family have a problem saying hello to him.
When it was put to him that the relationship was not as rosy as he was presenting, he responded that he had no control over “them”.
He was asked whether he still thought the maternal grandmother had a mental illness, and said “maybe”. When asked further what his view was about that issue he said he thought she was “a bit different”.
He was asked whether he thought the mother suffered a mental illness and said he didn’t think she does.
He was then asked why he referred to her as “psycho” in his diary. He replied that it might have been a result of something he came across, he couldn’t really say without seeing his diary and he didn’t have it with him in court. I find that in that diary entry the father was frankly expressing his thoughts of the mother, expecting those thoughts to remain private.
When the father was asked whether he thought the mother was effectively trying to alienate [X] from him, he said that he thought she had improved.
The father was asked by Ms Dickson whether he still thought the mother was trying to install false memories in [X]’s mind. He replied that he didn’t think so anymore but that just after separation, [X] had asked him if certain things were true that were not and that these were things that the mother had told her.
When asked whether he had believed that the mother was trying to install false memories in [X] when he had written it in his diary, he replied that he had so believed but that he didn’t believe it any more and had no more queries.
When asked whether he still thought the mother was training [X] in terms of what to say to people, he replied that he had previously, but he didn’t any more.
I was not convinced that the father was sincere in suggesting to the court that he no longer believed that the mother was manipulating [X], telling her untrue things, or that she (the mother) didn’t have any mental health difficulties.
I am satisfied that the father not only held the views about the mother to which I have referred as recorded in his diary at the time of writing them but that they were the same or similar terms of abuse used by him towards the mother during arguments both prior to and after separation.
I find that at the time of trial the father had a poor opinion of the mother and of members of the mother’s family. I find that the father had, following upon the reading of the first report of Ms Jones and his subsequent attendance at the Kids R First post separation parenting program, become aware of the possible impact of pursuing those sort of issues in this case without substantive and corroborative evidence and was attempting to persuade the court that he had changed his views.
I also find that at the time of trial the mother had a poor opinion of the father and members of his family. As I have said previously, I find that she was more honest in that regard and from her perspective there is no reasonable likelihood of improvement in the parties’ level of communication in the foreseeable future.
I find that the father has been verbally abusive towards the mother, both during the course of their marriage and subsequent to separation. I find the abuse has its’ genesis in the father’s anger towards the mother.
I do not accept that this is a case where the mother is exaggerating the level of communication difficulty for the purpose of supporting her argument that the level of communication between the parties is unsatisfactory and problematical to the extent that [X]’s best interests would not be met by her living in each parent’s household for equal time during school term time.
I find that until such time as the mother can be confident that the father’s level of anger towards her has ameliorated to the extent that he is able to communicate with her at a sincerely respectful level, it is unlikely that she will be prepared to take the risk of personal communication with him save and except to the extent of major issues.
I find therefore that although neither party is exhibiting an attitude to one of the major responsibilities of parenthood, namely respectful communication, in a manner that could be described as being in [X]’s best interests, that until the father’s attitude towards the mother changes to the extent to which I have already referred, it is unlikely that either party will be in a position to move forward in this regard.
From [X]’s perspective therefore, I am satisfied that when making orders as to her living arrangements, I must be mindful that they provide her with an environment where there is as little communication required between her parents as possible. It is my hope that this circumstance will improve for [X] as time passes.
I am further satisfied, in light of the concessions made by the father in cross examination, that most of the decisions the mother makes with respect to [X] are in her best interests save and except from his perspective with respect to the issue of the time that [X] spends with him. I find that the father’s antipathy towards and resentment of the mother arises almost solely because of his perception that it is unfair that [X] spends more of her time with her mother and maternal family than with him and his family. I find that he has no genuine concerns about the standard of [X]’s care in her mother’s household.
I gain assistance in making that finding when considering the father’s attitude to [X]’s education. He conceded in cross examination that prior to separation the parties had agreed that [X] would attend at private school, and that both parties had agreed on her enrolment at her current school. He further conceded that he understood that in attending at a private school there would be extra school fees involved. He was asked what he thought the amount of fees was, and said he thought that they were $800 to $12,000. When asked what period he thought those fees would cover, he said he was unable to recall. He was asked if he would be surprised to find that the school fees were $2,500 per year and replied that he was aware that school fees go up.
He was asked when was the last time the mother had asked him for school fees, and replied that it was last year when she had organised for him to pay fees in each alternate term. When asked whether he had made enquiries in that regard, he said that he had, and when asked what amount he had paid, he said that he had paid fees in one term last year but had been advised by Child Support that his Child Support payments covered the school fees. When asked if he had a copy of the advice from the Child Support Agency, he said the advice had not been in written form and then again confirmed that he had paid the fees for one term.
When asked if he had contributed any thing towards the cost of [X]’s books and uniforms, he said that he thought he had paid one half of those costs last year. When asked whether he knew that to be a fact, he said that he believed so but had not been given a receipt by the mother. When asked how that amount had been paid, he said it had been adjusted in the property settlement. He agreed that the mother had raised issues of Child Support and payment of school fees in the communication book.
The father conceded that in a note in the communication book dated
21 November 2009, the mother had advised him that she had ordered [X]’s school books, that $306.70 was needed by 14 January 2010 and that it would be appreciated if he would pay half of the cost. He was asked whether his evidence was to the effect that his Child Support covered those expenses, and replied that to be the case. When asked whether he had paid anything towards the 2010 school book cost, he replied that he hadn’t. When asked again why not, he said he understood that his Child Support covered those expenses.
When it was put to the father that during September 2009 he was assessed to pay Child Support at the rate of $38.85 per week, he replied that may well be the case. When asked whether in January 2010 he was re-assessed to pay $74.94 per week, he said that sounded right. When it was put to him that that was a modest amount to pay towards the support of [X] he replied that he had to support [X] when she was staying with him. He was asked whether he paid his parents board, and replied that he did.
When asked whether he was prepared to consider his position in relation to a contribution towards school fees, he said that he would do so if it was his obligation.
Ms Dickson put to the father that she was asking him to commit to making a contribution, say one half, to [X]’s school fees. The father replied that he understood his Child Support covered that expense, and when it was put to him that he was effectively saying he would not make a contribution, he replied that that was correct. When he was asked again whether he would pay half the cost of [X]’s books and uniforms, he replied that he wouldn’t because he understood his Child Support covered that expense.
When it was put to him that he was effectively again saying no he would not make such a contribution, he said he agreed but that if [X] lived with him for half of the time he would pay half of everything.
I find that at the time of separation and up to and including the time of trial, the father was and continued to be very angry with the mother.
I am satisfied that the primary, and indeed only identifiable reason for his anger is a view held firmly by him that the mother is deliberately thwarting his efforts to have [X] live with him for exactly one half of the time, which he considers to be the only “fair” position with respect to [X]’s living arrangements.
The father was cross examined in respect of the issue of fairness.
He agreed that he thought “50/50” was fair, but said he had not discussed that with [X].
When asked whether he had any insight as to why [X] would use that same word “fair” in her discussions with Ms Jones, the father replied that she may have heard it somewhere else. When asked where else said in the mother’s family.
When he was asked whether he thought the mother’s family would be saying that 50/50 was fair, he said that he didn’t believe that as that was not what they wanted.
When it was put to the father that it was therefore impossible to think that his earlier suggestion was correct, he said that he did not agree.
I am satisfied, as I have said earlier, that both of [X]’s parents have spoken to her on occasions about what time she should spend in each of their households.
I find, taking into account the father’s evidence, and the matters raised in Ms Jones report both with respect to Ms Jones discussions with the father, and arising from the topics discussed by [X] with Ms Jones, that the father made it perfectly clear to the mother at the time of separation that he would not agree to anything other than equal shared parenting time and that he had not changed that view by the time of the trial in March 2010.
I find that when making reference to the concept of fairness, the father is considering the issue from the perspective of his own needs and perhaps those of his extended family members, and not from the perspective of [X],
That is not to say that [X] does not benefit from spending regular and substantial time with her father, but I am satisfied that the father’s views are based more on a matter of principle on his part than a desire to participate in the parenting role to the same extent as the mother.
In making that comment I refer to the concessions made by the father in cross examination during a series of questions about his participation in [X]’s school life. The father was asked whether he was involved in [X]’s kindergarten attendances and helping out, for example at her kindergarten, and said that he had not. When asked by the court whether he had ever attended at [X]’s kindergarten, the father said that he had picked her up on maybe a handful of occasions.
He was asked whether he had attended [X]’s first day at school and replied that he had not. When asked whether the decisions in relation to [X]’s school attendance had been taken care of by the mother including procuring the uniforms, [X]’s regular school attendance, communication with the teachers and the like, he conceded that had been the case. When asked whether he had attended parent-teacher interviews in 2009, he replied that he had attended one that was available. When asked whether he had any formal involvement with [X]’s school prior to 2009, he replied that he had not.
This evidence, particularly when looked at in conjunction with the evidence of the father in relation to contribution to school fees and expenses, satisfies me that this is one of the responsibilities of parenthood that the father has effectively abrogated to the mother.
I am satisfied that against a backdrop of loving [X], both parties are capable of providing for her day to day needs.
I find that in the father’s case, it is his mother who often assists in the care of [X], but I do not consider that to be other than appropriate.
I have already made findings as to my concerns for [X] arising from the conflict between her parents, and the responsibilities of each of her parents to that conflict.
I find that the father’s anger towards the mother is responsible for much of the conflict that has arisen and that there are likely to be ongoing communication difficulties between the parties for some time.
I find that it is the mother who has undertaken responsibilities relating to [X]’s education, and that the father has not participated in matters relating to [X]’s education to the extent that he could, although I am satisfied that he has been responsible for taking [X] to swimming lessons and has attended at her netball games notwithstanding the difficulties that causes for him.
Overall, taking into account the matters to which I have referred, I am satisfied that it is the mother who has assumed the primary responsibility for [X]’s care for most of her life, that the father has no genuine complaint about decisions that the mother has made for [X] save and except with respect to the issue of netball participation, and that he has been content to allow the mother to assume the major responsibility for [X]’s day to day care. I find that she has undertaken this task for the most part with [X]’s best interests at the forefront of her considerations and that she will continue to do so.
I find that the father’s evidence regarding his preparedness to pay half of all of the costs relating to [X]’s education if she lived with him for half of the time was illustrative of the father’s case being based on a matter of principle, rather than based on [X]’s best interests.
I find that this is not indicative of a responsible attitude to parenthood.
(l) whether it would be preferable to make the order that would be least likely to lead to the institute of further proceedings in relation to the child
The proposals of both parties are predicated on long term arrangements for [X] including school holiday arrangements which have already been resolved by way of consent orders.
This is a matter in which there is some concern that if the father does not achieve an outcome of equal shared parenting time, which is the only outcome that he considers to be “fair”, there may be a risk of the institution by him of further proceedings as [X] gets older. It is the intention of the court however to make orders that specify the time that [X] is to spend with each of her parents from now until she reaches the age of 18 years.
It is to be hoped that following upon the receipt of this judgment, the parties will each consider the impact on [X] of litigation in which she is inevitably involved both directly and indirectly, and look towards resolving any difficulties that arise in the future by way of accessing community agencies that are available to assist parties to reach a mediated resolution with respect to parenting issues.
I intend to include a requirement for the parties to take that step prior to instituting any further proceedings as an order in this matter.
Presumption of equal shared parental responsibility
Section 61DA of the Family Law Act 1975 (as amended), which refers to the presumption of equal shared parental responsibility is expressed in the following terms:-
“When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child.”
Section 61DA(4) of the said Act is in the following terms:-
“The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
If the court is to make an order for equal shared parental responsibility for the child, it must, according to the terms of section 65DAA consider whether it is in the child’s best interests to spend equal time with each his or her parents or if not equal time, to spend substantial and significant time with each parent. One of the considerations in determining those issues is whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parents. In that regard the Court must consider the following issues:-
(i)how far apart the parents live from each other;
(ii)the parents current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
(iii)the parents current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
(iv)the impact that an arrangement of that kind would have on the child;
(v)such other matters that the Court considers relevant.
The note to Section 65DAA of the Act is to the effect that behaviour of a parent relevant for the issue of the capacity, current and future, to communicate with each other and resolve difficulties may also be taken into account when the Court determines what order would be in the best interests of the child, particularly when considering the willingness and the ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.
Section 65DAC of the said Act, is in the following terms:-
(i) This section applies if, under a parenting order:-
(a)two or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long term issue in relation to the child.
(ii) The order is taken to require the decision to be made jointly by those persons.
(iii) The order is taken to require each of those persons:-
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(iv) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Section 65DAE makes it clear that there is no requirement for parents who share parental responsibility for a child to consult about decisions made in relation to a child that are not major long term issues. The note to that section is in the following terms:-
“this will mean the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long term issues.”
In this case the father seeks that the presumption apply, whereas the mother seeks an order for sole parental responsibility.
It was the mother’s case that both prior to and since separation she has been primarily responsible for making decisions with respect to [X]’s care, including her education. It was her case that the father had not participated in that process, had rarely if ever attended at [X]’s kindergarten, had not attended [X]’s first day at school or parent teacher interviews to any significant degree and, notwithstanding having agreed for [X] to attend at private school had not contributed anything towards [X]’s school fees despite repeated requests.
It was submitted by Ms Dickson of counsel on behalf of the mother that this is a case where an order for shared parental responsibility would not be in [X]’s best interests.
She submitted that on the mother’s evidence the father’s behaviour towards her over the period of the relationship had been controlling and abusive and that the parties had been unsuccessful post-separation in resolving issues concerning [X]’s care either with the assistance of community agencies or family members. She referred to the comments made by Ms Jones in her first report under the heading “Opinion” as to the impact on [X] of exposure to ongoing conflict, and the evidence available to Ms Jones at that time through the reports of both the parents to the effect that they had not successfully managed flexible care arrangements or arrangements around special events, as well as accusations made by each party against the other of them which then spread into their ability to engage in effective communication with respect to issues concerning [X].
Ms Dickson conceded that most of the issues relating to [X]’s care had been resolved by way of consent orders in October 2009, but despite those agreements the parties were still in significant dispute in March of 2010 as regards the time [X] should spend with each of them during school term time. She submitted that although the mother acknowledged that there had been some improvement in communication between the parties, it was not to the extent that the parties were able to successfully communicate personally with respect to even simple matters.
Ms Dickson submitted that the issues put to the father in relation to his diary entries were a useful window into the father’s real thoughts about the mother and her family, and that the mother had little confidence that the father would change.
I have referred earlier in this judgment to the father’s evidence that the parties had improved significantly in terms of their ability to communicate since the preparation of Ms Jones first report, and particularly from the time of the making of consent orders in October of 2009, and made findings in that regard.
If the court makes an order for equal shared parental responsibility, it does not automatically follow that the court must also make an order that [X] spend equal time with each of her parents. Indeed, the specific note to section 61 DA (1) is in the following terms:-
“the presumption provided for in this sub-section is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).”
Section 61B of the Act defines the meaning of parental responsibility in the following terms:-
“in this Part, parental responsibility, in relating to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
Notwithstanding the findings that I have made with respect to the various factors relevant to a determination of [X]’s best interests, I find that there is insufficient evidence to support a finding that it is not in [X]’s best interests for her parents to have equal shared parental responsibility.
As is clear from the legislation, this responsibility relates to major long term issues. Matters that most commonly arise in this context relate to issues of education, medical treatment, overseas travel and the like.
Mr and Ms Tourna both love [X] very much, as do their extended families.
Notwithstanding the protracted dispute upon which they have embarked with respect to the amount of time she lives with each of them, I am not satisfied that the parties are incapable of reaching agreement about major long term issues. They had already agreed prior to separation that [X] attend at the school where she is currently enrolled. Those arrangements have been undertaken by the mother, and there is no evidence that the father has attempted to interfere with or obstruct those arrangements for [X]’s education.
Although the parties have had disputes about when [X] has been taken to the dentist and by whom and with respect to who has made those arrangements, [X]’s dental care has not been compromised in any way. In fact the evidence is that both parents take her to the same dentist.
It is true that the parties have required the assistance of solicitors to negotiate many of the matters that have arisen. This may well be the case if conflict arises in respect of major long term issues. Historically however, the intervention of solicitors has assisted in the resolution of many of the issues that have arisen.
Although I am satisfied that the mother has no wish to communicate with the father, and that the father’s expressed change of heart with respect to that issue is as much as a result of a determination to achieve the outcome he seeks through these court proceedings rather than a genuine change in his attitude to the mother, the parties have in fact managed with solicitors help to negotiate a very substantial amount of the issues that were at large with respect to [X]’s care arrangements, and I am satisfied that they can do so in the future with respect to major issues.
The court must then turn to the issue of whether [X] should spend equal time with each of her parents, or substantial and significant time with each parent.
In considering that issue, the court has to turn its’ mind to whether or not it is reasonably practicable for a child to spend equal time or substantial and significant time with each parent.
Looking at the factors the court must consider in that regard, I am satisfied that distance between the parties residences is not an issue that would preclude such an arrangement.
I am satisfied that the parents have a current and future capacity to implement an arrangement for [X] to spend equal time with them during school holidays in accordance with the terms of the order to which the parties agreed in October 2009.
I am not satisfied that they have such a capacity to implement an arrangement for [X] to spend equal time with them during school term time. This is primarily because that is a time that involves decisions being made on a daily basis as to school, clothing, extra curricular activities, homework and school related social activities, all of which are issues that may require communication and resolution on short notice which is not something that I am satisfied the parents could achieve at this time, or in the reasonably foreseeable future.
Those difficulties would be substantially ameliorated to my mind if [X] spent substantial and significant time with each of her parents, but in circumstances which would leave her mother being primarily responsible for most of those day to day care decisions.
This is a role that the mother has undertaken to date, and one with respect to which I have previously found the father has no genuine complaint.
I am satisfied that [X]’s close and loving relationship with her father which has been evident throughout the time her parents have been separated would continue under such an arrangement, being one where she is less likely to be subjected to unnecessary arguments between her parents about minor day to day matters.
As these orders will be final orders, it is to be hoped that [X]’s future can be one where she flourishes in the care of each of her parents free of the pressure to which she has been subjected to date as a result of the knowledge that she has been the source of ongoing arguments between her parents.
I am satisfied that against a backdrop of [X]’s close and loving relationship with each of her parents and her extended family members, an arrangement of her time such as I propose to make in accordance with these reasons will have a positive impact on [X].
Conclusion
For the reasons set out herein, I find that [X]’s best interests would be served by her living primarily with her mother during school term time and spending substantial and significant time during that period with her father.
Substantial and significant time is defined in the Family Law Act as including days that fall on weekends and holidays and days that do not fall on weekends and holidays, and the time that the child spends with a parent should allow the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child. The time the child spends with the parent should also allow the child to be involved in occasions and events that are of special significance to the parent.
Much of this is achieved by way of the existing consent orders whereby [X]’s time with each of her parents during school holidays and on special occasions is defined.
I am satisfied that the mother’s proposals provide for [X] to spend time with her father that would allow him, if he so wishes, to be involved in [X]’s education which at this time of her life is a very important aspect of her life. It will allow the father to collect [X] from school on Thursday of each week and take her to school on Friday of each week. This will give him an opportunity of regularly meeting with her school teachers, of observing her work in and about the class room, of participating in school assemblies and the like and becoming familiar with her friends. I consider it also advantageous from [X]’s perspective in that it lessens the number of handovers between the parties such that in each two week period there is only one handover that is not effected at [X]’s school. The mother’s proposal also provides for [X] to spend weekend time with her father.
I find that the father’s proposal of [X] living with each parent on a week about basis would be beneficial to [X] from the perspective of minimal handovers as between her parents, but would involve inevitable difficulties between the parties in terms of their ability to respectfully communicate about and resolve day to day parenting issues.
For those reasons I make the following orders which are contained at the commencement of my judgment.
I certify that the preceding two hundred and ninety-four paragraphs (294) are a true copy of the reasons for judgment of Mead FM
Associate: P M Malone
Date: 10 June 2010
0
0
1