Vogel and Abell
[2010] FMCAfam 1189
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VOGEL & ABELL | [2010] FMCAfam 1189 |
| FAMILY LAW – Children – parental responsibility – with whom a child lives – international relocation. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG , 61DA, 65DAA, 65Y, 69ZW Australian Citizenship Act 2007 |
| Goode & Goode (2006) FLC 93-286 Marvel [2010] FamCAFC 101 U v U (2002) 211 CLR 238 “Post Separation Parenting Arrangements and Developmental Mental Outcomes for Infants and Children” Jennifer McIntosh, Bruce Smyth, Margaret Kelaher, Yvonne Wells, Caroline Long May 2010 “The difference is night and day” Bruce Smythe 2003 |
| Applicant: | MS VOGEL |
| Respondent: | MR ABELL |
| File Number: | PAC 3321 of 2010 |
| Judgment of: | Harman FM |
| Hearing date: | 20 September 2010 |
| Date of Last Submission: | 20 September, 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 20 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Batey |
| Solicitors for the Applicant: | Watts McCray Lawyers |
| Counsel for the Respondent: | Mr Anderson |
| Solicitors for the Respondent: | Etheringtons Solicitors |
ORDERS
That the parents have equal shared parental responsibility for the child [X] born [in] 2009 other than decisions in respect of:
(i)Education;
(ii)Country of residence.
which shall be subject of consultation between the parties but in the event of disagreement shall be in accordance with the mother’s decision.
That [X] shall live with his father, Mr Abell, and subject to order 1 the father shall be responsible for [X]’s day to day care and welfare at the following times:
(i)from the date of these orders, until the mother and [X] commences residing outside Australia, on two occasions each week being:
a) Each Wednesday from 4pm to 6pm;
b) Each Sunday from 9am to 11am.
(ii)Commencing from when [X] attains the age of 5 or commences primary school whichever is the later, for four periods of 7 days from 10am on day 1 to 4pm on day 7, if possible in school holiday periods, or if not in school holiday periods then conditional upon [X] attending school.
(iii)At such other times and in such other locations as the parties may agree in writing,
(and for periods between Ms Vogel’s and [X]’s departure from Australia and the commencement of Order 2(ii) in accordance with order 9 hereof).
That the mother, Ms Vogel, is to do all things necessary to maintain an internet connection in the residence in which [X] resides, and to facilitate “Skype” or such other face to face connection to permit the father to have internet/telephone communication between [X] and his father once per week by agreement between the parties or failing agreement each Sunday or Monday between 4pm - 4.30pm local time where [X] is residing.
That [X] shall live with his mother at all other times and that prior to
Ms Vogel and [X]’s departure Ms Vogel shall deposit A$50,000 into a controlled moneys account in the name of the parties to be held by the applicant mother’s solicitors and father’s solicitors, such funds to be released only on the following events:
(i)In the event the mother fails to comply with Order 2 then the father is to submit to the solicitors for the mother all statements of account from the father’s solicitor for and incidental to the father’s costs of any enforcement or compliance proceedings in respect of Order 2 and the solicitors for the mother shall cause to be paid from the controlled moneys account sufficient funds to pay the father’s solicitor’s account within 7 days of receipt of the itemised account.
(ii)Upon [X] attaining the age of 5 and there being no breaches of Order 2, in which case the moneys shall be returned to the mother or as she directs.
(iii)Upon the mother and [X] residing permanently in a country that is a signatory to the “Hague Convention of Abduction of Children” in which case the moneys shall be returned to the mother or as she directs.
The mother is to provide to the father as soon as practicable copies of all medical reports, school, and/or school reports issued to her for [X] and keep the father advised of:
(i)Any medical ailments and/or hospital admissions of [X] other than normal childhood ailments;
(ii)The current address and phone number of any residence occupied by the
mother and [X];
(iii)28 days notice of any change in the mother’s residence and/or change of employment;
(iv)28 days notice, of if unable to give 28 days notice, such notice as soon as any change is known, of her intention to visit Australia whether for the purpose of Order 2(i), (ii) and (iii) herein or any other time that she will be travelling to Australia with [X].
The mother is to cause these orders to be registered with the appropriate Court or Government Department in which the mother and [X] shall reside, that has the authority or jurisdiction to enforce parenting orders.
Pursuant s.65Y of the Family Law Act 1975 [X]’s mother Ms Vogel is hereby specifically empowered and authorised to remove [X] from the Commonwealth of Australia and in to the extent that there is any impediment with respect to same and particularly any inclusion of [X]’s details upon any PACE or Airport Watch List maintained by the Australian Federal Police such order or inclusion is discharged.
The Court notes that until Ms Vogel’s departure from Australia with [X] that [X] will spend time with his father in accordance with order 2(i) hereof.
That following Ms Vogel’s department from Australia with [X] on or about 4 October 2010 and until [X] is 3 years of age that [X] will spend time with his father as follows:
(a)for periods to occur no more than once per calendar month in Singapore not to include any month that Ms Vogel travels with [X] to Mr Abell’s place of residence (presently Australia) provided that Mr Abell gives at least 14 days notice of his intention to spend time with [X] and being:
i.
On an occasion to occur between [X]’s departure from Australia and 1 December 2010 and for no more than
4 consecutive days from 10am until 2pm on each of those days and provided that for the first period (ie. the first day of time) that [X]’s nanny will be present with [X] and thereafter Mr Abell’s time with [X] will be unsupervised; and
ii.Thereafter for no more than 5 consecutive days on each occasion with each day being from 10am until 4pm or such other periods as are agreed between [X]’s parents.
In addition to periods of time [X] spends with his father in Singapore as above and until [X] is 3 years of age that [X] will spend time with his father in Australia or Mr Abell’s place of residence such as it may be for
4 periods per year with [X] to be transported by his mother to Australia or such future country as Mr Abell may reside in and to then facilitate 5 days of time with Mr Abell from 10am until 4pm on each of those days and whether they are to occur consecutively or on alternate days or a combination thereof as determined by Ms Vogel.
From the time of [X]’s 3rd birthday and until [X] commences primary school or turns 5 (at which time order 2(ii) hereof will come into effect) [X] shall spend time with his father:
(a)for periods in Ms Vogel’s country of residence during a 6 day block and being from 10am until 4pm for 3 consecutive days then a day with his mother and then an overnight visit with his father from 10am on the first day until 10am on the second day provided Mr Abell shall give to Ms Vogel written notice of the address at which he will be staying; and
(b)For 4 periods per year with Ms Vogel to transport [X] to Australia or such other country as Mr Abell may then be residing in and so as to facilitate 5 days of time and being for 3 consecutive days from 10am until 4pm, then a day with his mother, and then an overnight visit from 10am on the first day until 10am on the second day.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Vogell & Abell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3321of 2010
| MS VOGEL |
Applicant
and
| MR ABELL |
Respondent
REASONS FOR JUDGMENT
These are proceedings for parenting orders with respect to a young British citizen, [X], born [in] 2009.
The proceedings have been on foot for a relatively short time, and certainly within the usual and recent history of this Court, an extremely short time from inception to final hearing.
The first application in these proceedings was in fact filed a little over three months ago on 15 July 2010 and as a consequence of some matters of urgency, in the parties’ circumstances, an urgent hearing has been accommodated.
The proceedings were listed for two days, but today, being the first day of trial, a substantial number of issues between the parties have been resolved, and leaving one issue to determine, being the nature and structure of how [X]’s relationship with his father will continue and develop between and now and his fifth birthday or the commencement of school, whichever occurs last.
These proceedings commenced as a relocation case.
The parties to the proceedings are [X]’s parents, who are Ms Vogel, who is 34 years of age, and Mr Abell, who is 40 years of age. Both of [X]’s parents are British citizens, and [X] is also, as consequence of his birth, although whilst born in Australia, a British citizen.
The Australian Citizenship Act 2007 does not confer any right of citizenship on [X] as a consequence of his birth in Australia. He is entitled to Australian citizenship only if born in Australia to parents one of whom at least is an Australian citizen or is a permanent resident or has been ordinarily resident in Australia throughout a period of 10 years preceding the date of the birth.
Under United Kingdom legislation, [X] is entitled to British citizenship and has that automatically as a consequence of birth and descent from two British nationals.
I commenced with that point for two reasons. Firstly, there are a number of parallels as to the issues in dispute between these parties with a decision delivered by Deputy Chief Federal Magistrate Baumann last week, in a matter of Machess and Liviera (unpublished), although the factual matrix of the two cases are dramatically different. But, secondly, because the matter reflects the increasing globalisation of our world.
The parties to these proceedings, and indeed [X] as a consequence of the operation of legislation in both the United Kingdom and Australia, have no connection with Australia other than their presence within the country. Each of the parents are the subject of what has been referred to in the proceedings as 457 visas, what might otherwise be referred to as work permits, that allow them to be present in Australia subject to sponsorship by their employer. Those visas each expire no later than June 2011, and indeed are subject to a number of other conditions which, at least in theory, expose each of these parents to a requirement to leave Australia within 28 days of terminating their present employment and without finding another employer/sponsor.
That is a matter of some particular topicality, it being the subject of news discussion and articles on the front page of the Sydney Morning Herald today as to the nature and status of immigrant workers in a number of contexts. That is not to suggest that either of these parents is illegally or improperly in this country, but it could well be described that there is a degree of transition in these proceedings.
As a consequence of the consent orders that are now proposed and which are not the subject of controversy between these parents, it is common ground that on or about 4 October 2010, that is in about
3 weeks’ time, [X] and his mother will leave Australia and will thereafter take up habitual residence in Singapore.
That is largely, on the mother’s case, to enable her to pursue employment, which is shortly to become the subject of a possible redundancy in Australia, but in any event, even if the redundancy were not to follow, come June of next year, about nine months away, the mother would, unless she found other employment and an extension to her visa, be compelled to leave the country.
Mr Abell’s evidence is that he has taken separate steps since the proceedings were commenced, and will now be in a position to remain in Australia, and that he certainly considers it, within legal terminology, his domicile, and has an intention to pursue permanent residency if not citizenship in the future.
At the outset of the matter, I indicated that I had read all of the material filed by the parties, which notwithstanding the short time the matter has been before the Court, is somewhat voluminous. The parties sought some time to discuss the matter and to see if they could limit issues. That time also allowed material that was filed in Court this morning to be considered by the Court.
Those discussions have proved fruitful, which is indeed a substantial credit to each of this little boy’s parents, as well as to counsel and solicitors representing them. They have taken incredibly difficult and often considered largely unresolvable issues of international relocation and reached substantial agreement.
I have before me two minutes of orders. One minute, marked Exhibit M2, represents a substantial raft of agreed orders with identified paragraphs of those orders being in dispute - they being paragraphs 2.1 to 2.4, and also some controversy with respect to a proposed paragraph 5. The proposed order 5, which dealt with some arrangements regarding child support, as to which there is some dispute as to jurisdiction for the Court to make, in any event, was not pressed.
That accordingly leaves the paragraphs I have identified which deal with and address the manner in which [X] would maintain and develop a relationship with his father.
Exhibit F1 is a minute of alternate orders covering the same subject matter and as sought by the father. In essence, the distinction between the two proposals is what might be described in the vernacular as cautious, slow, and steady versus an immediate or fairly immediate move towards week blocks of time, whether those weeks occur as a
7-day continuous block or some other configuration within that time period.
That then is the germane issue for the purpose of this decision.
Background
The relocation issues, as I’ve indicated, have resolved and that relocation creates a very real logistical and practical difficulty. [X] will, as a consequence of the consent arrangements between the parties, live with his mother in Singapore. His father will continue to live in Australia. The duration of the mother’s residence in Singapore is unclear, but certainly, the mother’s evidence is that it is her intention for the foreseeable and relatively long-term future that she will remain there where she has employment.
It is also germane to observe that Ms Vogel has previously lived and worked in Singapore, and in fact, had spent a period of some years there between 2005 and 2007, and, as a consequence, has a number of friends and acquaintances there, some of whom have sworn affidavits in these proceedings.
Mr Abell’s proposal is that he will, for the foreseeable future, be remaining in Australia, and in fact, has given fairly clear evidence in his affidavit material as I’ve alluded to, of his intention to seek permanent resident status in due course once he is entitled to do so, so that he can give some substance and legal meaning to his domicile of choice in Australia.
There are substantial factual issues between these parties which had great relevance in relation to the issue of relocation, but also have substantial relevance with respect to the issues in dispute. These particularly relate to the extent and nature of Mr Abell’s past involvement in the care of [X] and substantial allegations with respect to domestic violence.
Those allegations are the subject of proceedings in a State local Court in relation to both a charge matter and an apprehended domestic violence complaint. There are interim orders in force which are before the Court, and the Local Court matters are listed for a defended hearing in December of this year.
The matter has not proceeded to cross examination but has proceeded on the filed evidence and submissions. To some extent, the contested orders that I am called upon to make as final orders are typified by that which usually befalls interim decisions, ie, the evidence is highly contested and has not been tested. But I will touch upon that evidence, and I will touch upon relevant case law, both here and internationally, regarding those issues.
When the matter had been before this Court some little time ago, in August of 2010, a number of interim orders were made, which included listing the matter for trial, and making orders for interim child support. Time was not permitting, the matter being in a duty list on that day, to deal with any substantive or substantial issue regarding time arrangements between [X] and his father. And it was quite clear, at that time, that time was not occurring. Each party has their own slant on why that is, and that has continued to be the case. But in any event, it is a fact in the case as to which I need not make any finding, as there is no controversy regarding it.
I did, though, make an order for the parties to attempt a child dispute conference, so that they would have the assistance of an experienced family consultant, and the Court would have the benefit of some brief insight – and it is, indeed, brief – regarding the issues in dispute between.
The child dispute memo has been produced by family consultant C following her attendance with these parties on 10 August, and a subsequent appointment arranged by Ms C which involved and included [X] so that he could be observed with each of his parents, which was in accordance with the terms of my order on 3 August 2010. That brief memo and report repeats the contested allegations between the parties with respect to domestic violence. But it did include some observation, and on 3 September 2010, the following observations are made by Ms C:
“On 3 September 2010, a child-inclusive conference was conducted to observe [X] with Mr Abell. It was an indication of the acrimony between the parents, that the parents had prolonged disagreement over [X]’s car seat which Ms Vogel insisted that she needed to bring [X] to the Court, and Mr Abell’s reluctance to relinquish it. A brief feedback was given to Ms Vogel and Mr Abell in separate sections.
It was observed that, at nine months of age, [X] is exhibiting normal separation anxiety from his mother when he was left with the family consultant and when he had a play section with
Mr Abell, whom he had not seen since the 22 June 2010.
I pause at that point to observe that that would appear on the evidence before the Court as being, in fact, the last time [X] has spent time with his father, being the play session.
During the play session, Mr Abell was observed to be able to distract [X] from crying for several minutes at a time, but [X] would become distressed again looking around for his mother. The play session lasted for about 25 minutes. [X] was observed to be only truly soothed when Ms Vogel returned and held him. Ms Vogel expressed the concern that, if [X] started to establish a relationship with Mr Abell again, that relationship would be disrupted when she moved to Singapore. It was explained to
Ms Vogel that infants possess sensory memory which, if unattended, is quickly lost, and a limited working memory, but could develop a memory for familiar things only if frequent interaction with that person is maintained and encouraged.”
As I’ve indicated, each of the parents suggests and, at least inferentially, seeks to apportion blame to the other as to why nothing has transpired since 3 September. But irrespective of that, there is certainly agreement that matters will move forward from here.
One of the difficulties with any orders this Court makes is that they will then require registration in an appropriate Court in Singapore for enforcement.
The parties have made provision within the orders agreed between them for a bond of some $50,000 to be provided by Ms Vogel to enable some recompense to Mr Abell in the event that he needs to bring enforcement proceedings with respect of arrangements which would either need to occur in a Court in this jurisdiction, if the parties were present, or potentially in a Court in Singapore. In any event, and addressing the issue between the parties, Mr Abell’s past involvement, the evidence between the parties has not been tested. The evidence between the parties is in dispute when it comes to the present state of the relationship between [X] and his father and, indeed, the past level of involvement.
There is evidence by each of the parties and by their support witnesses, and the support witnesses in Mr Abell’s case largely focus upon corroboration of his allegations as to both the mother’s conduct towards him, and, more importantly, corroboration of the father’s assertions as to his level of care and involvement of [X].
What is clear and undeniable in this case, however, is that, following the birth of [X], his mother, Ms Vogel, has taken a substantial period of leave, whether that is paid or unpaid, and has accordingly been a full-time parent for quite some months, and until recently.
Mr Abell, without intending any criticism of him, has continued in paid employment and his evidence is less clear as to any periods of time he has had off. That does not, in any way, however, seek to assert that a parent, particularly a male parent, who continues to engage in employment following the birth of their child is, in some way, to be criticised for a lack of commitment or otherwise. It is simply a reality in Australian society and, whilst it has been the subject of recent political debate to make some provision for paternal leave, it will, if introduced, ultimately be for very limited periods of time. But that does limit the extent of involvement.
There is also criticism which relates to the other substantial issue between these parents as to the father’s behaviour when he has been at home and has been in [X]’s presence. It is certainly asserted, in
Ms Vogel’s case, that the father has been violent, intoxicated, distracted by other activities and has had little involvement. The father denies these assertions, as do corroborating witnesses, and it is certainly presented in the father’s evidence that he has had a far more bountiful involvement in caring for [X].
What is clear, however, is that since these parties separated earlier this year when [X] was only some months of age, that there has been, again, without seeking to accept either parties’ version of blame apportionment, an absolute cessation or termination of time with some very limited exceptions, one of which regrettably was a meeting between the parties which seems to have been a discussion largely between them of financial issues, but also potential issues regarding [X], when [X] was present albeit minded by a friend of the father’s.
It is against that background that, at this point in time, whilst there is an issue as to the quantum of involvement by Mr Abell has had in the care of his son, that I must accept that there has certainly been some involvement and some limited familiarity in caring for this little boy, and he is, indeed, a very little boy.
The other issue that is urged in Ms Vogel’s case is that Mr Abell also has a child, who is now an adult, whom he has not had a relationship with. I do not see, in the context of this case, that much turns upon that as I am not in a position to make any finding regarding it, and they are, after all, different children.
If there was, as is urged upon me in the mother’s affidavit material, a lack of commitment on the father’s part to having pursued a relationship with that child, that child is not [X]. The father, it is to be noted, is presently 40 years of age and, at the time the elder child was born, was a little over 20 years of age and, it seems, a [occupation omitted]. It is a matter purely of conjecture as to why that relationship didn’t flourish and/or was not pursued. Suffice to say, it was not, but as I have indicated, [X] is a different child and the father’s presence, commitment to and engagement in these proceedings would suggest to me that, clearly, he has a different motive in relation to this child, whatever that motive may be.
There are also, though, substantial issues in this case with respect to domestic violence, and whilst I am not in a position to make concluded findings as the evidence of the parties has not been tested, it would be fair to say that those issues consume the vast majority of evidence between these parties. Indeed, as I have observed, the material filed in the proceedings is voluminous in each party’s case and, in Mr Abell’s case, includes two annexures to his material which are audio recordings: One, an ERIS interview with respect to the pending charges, to which I have referred. The other - recordings made by
Mr Abell which purports to be of comments made by Ms Vogel to him and/or disputes between the parties. That is a matter that Ms Vogel comments upon in her evidence as being a pattern of behaviour by
Mr Abell, not only in her relationship with him, but in past relationships and, I am urged to accept in Ms Vogel’s case, typical of a course of conduct that I should find falls within a category of family violence and domestic abuse.
Much turns in our legislation and as part of government sanctioned review, independent comment and media review regarding how this Court deals with violence and limitations that are perceived within the Family Law Act as to the treatment of violence and the protection, in particular, of women and children from violence. The definition within the Family Law Act of family violence is limited and is prefaced in a legalistic and objective sense. Mr Anderson, quite rightly, addresses that issue and points out that the section 4 definition of family violence is limited so as to mean the following:
…conduct, whether actual or threatened, by a person towards or towards the property of a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for or reasonably to be apprehensive about his or her personal well-being or safety.
That is, indeed, in legalistic terms, a most objective definition requiring application of what might be referred to as the Law of Denning reasonable man on the Clapham Omnibus Test. Although, how many “reasonable people” catch Clapham omnibuses is difficult to determine. The difficulty with the definition within the Act is its very limitation. That has been the subject of comment in a number of recent authorities of the Full Court of the Family Court dealing with appeals, not only from federal magistrates but also appeals from judges of the Family Court. Most particularly, the case of Oakley & Cooper [2009] FamCAFC 133 reflected upon a discussion of the Family Court’s best practice principles where family violence or abuse is alleged which practice principles, in themselves, include a far more expansive, subjective, one might say, social work definition of family violence.
But in any event, the definition of family violence within section 4 has little relevance to findings made by the Court, or the manner in which the Court deals with and determines proceedings as the Court is entitled to take into account, both under section 65DAA(5), which deals with reasonable practicality, and under section 60CC that deals with how the Court is to determine what is in a child’s best interests, such matters as the Court considers relevant.
Family violence, no matter how it is defined, is simply a form of violence and a form of behaviour which is unacceptable and, in many contexts, criminal. The behaviour that is defined in section 4 is perhaps that which falls within the criminal domain within the state system. But behaviour of parents generally is relevant to proceedings and, accordingly the Court is not bound nor precluded from considering behaviour whether it falls within strict definitions, or not. That has some particular relevance having regard to the very nature of domestic violence.
There is now a wealth of judicial authority, as well as social science research, regarding domestic violence. I turn to a number of those elements purely to set the tone for each of these parents as regards the context of their dispute and the manner in which the Court approaches these matters.
In the majority decision of Sachs J in S & Baloya & Others CCT29/99 [1999] ZACC 19 from the South African Constitutional Court, a succinct descriptor of such matters is given as follows:
All crime has harsh effects on society. What distinguishes domestic violence is its hidden repetitive character and its immeasurable ripple effects on our society and, in particular, on family life. It cuts across class, race, culture and geography and is all the more pernicious because it is so often concealed and so frequently goes unpunished.
Justice Sachs goes on to refer to the Law Commission of South Africa, in supporting the need for appropriate legislation to produce and prevent family violence, invoked the following quotations from the US National Council of Juvenile and Family Court judges:
Domestic and family violence is a pervasive and frequently lethal problem that challenges society at every level. Violence in families is often hidden from view and devastates its victims physically, emotionally, spiritually and financially.
I pause to add that they are all elements in Ms Vogel’s case that she asserts:
It threatens the stability of the family and negatively impacts on all family members, especially children who learn from it that violence is an acceptable way to cope with stress or problems or to gain control over another person. It violates community safety, health, welfare and economies by draining billions of dollars annually in social costs such as medical expenses, psychological problems, loss of productivity and inter-generational violence.
That decision came before the South African Constitutional Court in the specific context of considering section 12 of the South African Constitution which is part of the Bill of Rights of that nation, which asserts that every person has a right of freedom and security, including a right to be free from all forms of violence. Of course, Australian has no such Bill of Rights and the debate regarding it will, no doubt, continue.
The other aspects, then, of Sachs Js decision go on to quote from a volume of social science research. Importantly, it also refers beyond national legislation to international law such as the Universal Declaration of Human Rights providing in its Preamble “…human beings shall enjoy…freedom from fear…”), the Declaration on the Elimination of Violence against Women and the Convention on the Elimination of Discrimination Against Women to which Australia, like South Africa, is a signatory, and which specifically enjoins member states to pursue policies to eliminate violence against women. The Convention on the Elimination of Discrimination against Women imposes a positive obligation on states to pursue policies of eliminating discrimination against women by, amongst other things, adopting legislative and other measures which prohibit such discrimination.
The aspects of violence, whilst I am not in a position to make findings with respect to them, as I have indicated, occupy the majority of the parties’ evidence and would appear, based on a very broad view of what might constitute violence or, at least, grave unhappiness in the relationship between these parties, are substantially common ground. They are described by Mr Abell, in his material, as the relationship having been typified by conflict and dispute and arguments between the parties. Corroborating witnesses in Ms Vogel’s case take it a little further; as I have indicated.
Findings with respect of those matters in the absence of cross-examination or concession may not be appropriate and, in any event, they are matters that will be dealt with by a state Court in a few months time. But they also have some very great relevance for a number of other reasons, particularly relating to how the parties will conduct themselves in the future regarding what, in many overseas jurisdictions, is still referred to as joint guardianship or joint custody.
The decision of Rogers J from the Ontario Superior Court in Aguilera & Reid 2006 CanLII 6196 says as follows with respect to the inter-connection between those concepts:
“The concept of joint custody calls for co-operation between two parents and an ability to focus on children’s issues. The children’s agenda cannot be held up by parental discord. It is noted in the Court of Appeal in a previous decision the parties must have demonstrated an ability to communicate on children’s issues for joint custody to be maintained.”
His Honour goes on to indicate that joint custody was not considered by him to be possible in that case, on the following basis:
“There has been significant domestic violence. The respondent seems to feel that all the problems in the family are to be laid at the doorstep of the applicant. He accepts no sincere responsibility, although he made statements of regret while continuing to blame the applicant in cross-examination of her and in his own evidence. There has been no communication between the parties as the applicant rightly fears the respondent. Domestic violence means the parties cannot cooperate. The level of domestic violence, in this case, is very significant and it clearly rules out any possibility of joint custody.”
His Honour goes on to deal with a number of other matters regarding that.
Also, somewhat significantly, and in a similar vein, Ross J, in the Supreme Court of British Columbia in DCR v TMR 2007 BCSC 1127 (CanLII), speaks on the same theme and, after giving a synopsis of children’s views of violence between parents in that particular case, has the following to say:
“In Jordan & Jordan 2001 BCSC 1058 (CanLII) Joyce J discussed factors to be considered by the Court in relation to joint custody orders.” [Of course, a phrase we no longer use, but which has some real impact with respect to both decisions with respect to equal shared parental responsibility, which I am not called upon to address, but also with respect to general considerations with respect to section 65DAA, subsection 5 and section 60CC].
Her Honour goes on:
“I am satisfied that the ability of the parents to communicate and cooperate remains an important factor when considering the best interests of a child. This is apparent from the decision in Robinson & Filyk 1996 CanLII 3310 (BCCA) itself, as well as from the decision in Ness & Ness 1999 BCCA 51 (CanLII). It is not the only factor to be considered, however. In my view, some other factors that are relevant to this inquiry include the ability of each parent to make proper decisions for the child; the extent to which the child will reside with each parent; the geographic distance between the parents’ homes; the extent to which the parties parenting styles may differ and, consequently, the extent of which their different parenting styles may provide the opportunity for disagreement; the harm that may be caused to the child if the parents’ disagreement on issues creates an atmosphere of conflict; and the nature of the disagreements in the past, particularly whether they relate to access issues that are likely to be resolved by the Court order or whether they concern matters of child rearing that are likely to continue to arise. These are not necessarily all of the factors that have a bearing on what sort of custody order is in the best interests of the particular child, but they are, I think, some of the important ones.
With respect to custody, it is clear that the relationship between the parties is extremely acrimonious. While it would clearly be in the child’s best interests for that relationship to improve, given the time that has passed since separation without improvement, it is unrealistic to assume that there will be any improvement. These parents have not shown an ability to communicate and cooperate.”
Without making any finding with respect to whether domestic violence, family violence or any other form of violence or conduct which would impact upon [X] has occurred between these parents, the above passages from overseas jurisdictions are quoted as they are somewhat germane to the ongoing debate as to the limits or the benefit of discretion exercised by this Court under the Family Law Act.
Everything that this Court does is governed by the dual test of section 65DAA(5) dealing with reasonable practicality and section 60CC, which no one could possibly confuse as to its meaning as it is headed “How a Court Determines What is in a Child’s Best Interests”. Section 65DAA, in particular, provides a somewhat useful checklist of matters that the Court should and must consider in relation to reasonable practicality, but that is all it is – a checklist. It ends with subsection (e):
…such other matters as the Court considers relevant.
And in my view, the type of matters referred to in the decision of Ross J from DCR & TMR above perhaps expand upon the types of considerations that this Court might routinely turn its mind to, and should turn its mind to. Of more importance and relevance to those matters, however, is the legislative framework in which decisions are made by this Court.
As the Full Court has made clear in Goode & Goode (2006) FLC 93-286, and more recently, Marvel [2010] FamCAFC 101, I am required to start by considering the objects and principles of the legislation.
I am required to ensure that the paramountcy principle, as set out in section 60CA, applies to all that is done, both procedurally and substantively, and it is, on that basis indeed, that the matter has been accommodated with great expedition from filing to determination and disposal within three months.
I am required, specifically where allegations of family violence, or any form of conduct that would create risk, arise, to turn to section 60CG which compels the Court to ensure that orders are made that are not only consistent with family violence orders, but include safeguards necessary to ensure safety of all concerned.
I am required to turn to section 61DA and determine whether the presumption of equal shared parental responsibility will apply. In this case, and with some caveat as regards issues of education and country of residence, the parties agree that there should be an order for equal shared parental responsibility. As the High Court has made clear in
U v U(2002) 211 CLR 238, I am not bound by the parties’ consent and can reject it. However, in this case, particularly having regard to the fact that the parties have resolved substantial issues between them of a significant nature and that the nature, quality and guidance that they would have received from their expert counsel, I am satisfied I should not interfere with their consent arrangement.
If section 61DA applies, as it does, I am required to turn to section 65DAA which compels me to consider, and that is all it does, to turn my mind to equal time or, following that, if I am not satisfied it is appropriate, substantial and significant time, before making any other time order and to do so having regard to the dual test set out, as I have indicated in sections 65DAA(5) and 60CC.
The objects and principles of the legislation are largely in accordance with the International Convention on the Rights of the Child and are designed to do exactly that: mirror and give direction towards children’s rights. Section 60B(1) provides the objects of the part which are:
To ensure that the best interests of children are met by:
(a)ensuring the children have the benefit of both of their parents having a meaningful involvement in their life to the maximum extent consistent with the best interests of the child;
(b)protecting the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence; and
(c)ensuring that the children receive adequate and proper parenting to help them achieve their full potential.
And also in –
(d)ensuring the children fulfil their duties and meet their responsibilities.
The principles in subsection (2) underlie the objects and indicate that, except where it would be contrary to a child’s best interests, that:
(a)children have a right to know and be cared for by both of their parents;
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with both their parents and other people significant to their care;
(c) parents should share, jointly, duties and responsibilities;
(d) parents should agree about future parenting; and
(e) children having a right to enjoy their culture.
I should hasten to add, also, that there is no issue regarding culture in this case. Indeed, [X] is a lucky little boy who, whilst he is a British citizen who has not yet set foot within that country, although Britain isn’t a country – a collection of countries, ever diminishing as Northern Ireland and Scotland achieve relative independence – he is a child who will experience a great many benefits from each of his parents who are both well-travelled, indeed, who have travelled to be in Australia where they met and who will, no doubt, continue, in the future, through work or otherwise, to travel and allow [X] to be exposed to a number of cultures outside of his own Anglo-Saxon culture.
The objects and principles make clear, as is often overlooked in media debate, that children’s best interests are paramount and their protection is fundamental to all which the Court does. There are no rights vested in parents under the Family Law Act, at least not until such time as orders are made in their favour, wherein a parent then has the benefit of a right under the order. But it is a right to enjoy that which the order provides and nothing more fundamental. Children have rights under the Family Law Act and those rights are protected by this Court through the proper application of the law.
The application of the law also, however, must take into account, not only that which is prescribed by sections 65DAA(5) and 60CC, but must, in my view, of necessity, take into account, particularly with children of tender years and, accordingly, great vulnerability, as is the case with [X], published research in relation to child development, child attachment and other matters that would impinge upon the decisions which this Court makes. Indeed, section 65DAA(5), in my mind, to a large extent, codifies the relevant matters that one would consider from social science and which one is compelled under the Family Law Act to consider having regard to the compulsory consideration of equal time and substantial insignificant time as contra-indicators or indicators of benefit to children of such arrangements, noting in particular that subsection (5) includes as one of its very specific considerations:
The impact that an arrangement of the kind proposed would have on the child that must, of necessity, include a consideration of social science.
In this day and age, the Court is somewhat overwhelmed with research. Some of it is produced in the context of seeking to dissuade legislators from allowing the Family Law Act to stand as it is presently drafted, although, in my view, it is drafted with some great precision and benefit to the exercise of discretion by the Court and to enable children’s best interests to be protected. But that is a matter for others on another level to determine, not this Court. This Court will simply apply such legislation as is passed from time to time by Parliament.
Much of the research is of long standing, indeed, the majority of it stems from a consideration, at least in relation to infant children, of Bowlby’s attachment theory which will, next year, celebrate its sixtieth anniversary. Accordingly, it cannot be described as being “recent invention.”
However, consideration in particular of matters relating to the impact of shared care arrangements in a social science sense, defined as commencing with five nights a fortnight upwards, is more recent and is becoming far more abundant.
Usefully, in May of this year, a number of reports were pulled together in a report prepared for the Attorney General’s department and collectively headed Post Separation Parenting Arrangements and Developmental Mental Outcomes for Infants and Children. That research was authored by a number of people including a very pre-eminent Australian researcher, Bruce Smyth, who has since 2003 published useful articles regarding the likely indicators for successful shared care arrangements and which, as I have indicated, are largely codified in subsection (5) and section 65DAA.
That research is particularly timely as regards [X] for he is a child of nine months of age. The research particularly urges caution and is directed towards cases where children are under school age, and/or where children have a high level of acrimony or conflict between their parents, both of which are, on either version of the evidence, applicable in this case. This research goes on to indicate, and I quote:
“Overnight care with the parent living elsewhere, once or more per week, with respect to children under two had an independent effect in the following areas:
(1) higher irritability than infants in primary care; and
(2)more vigilant, visual monitoring of and maintenance of proximity with the primary parent than infants having rare or no overnight care.
Shared care at one night per week or more was associated with an added degree of vulnerability relative to primary care in two areas of emotional regulation: irritable behaviours and greater monitoring of proximity of the primary carer.
Attachment theory would predict this set of outcomes for infants who experience regular prolonged disruption to care giving by the primary carer. High frequency or continuing behaviours such as being fretful and difficult to soothe, when separating from the parent; crying, seeking out the primary carer, and being able to settle to play alone are reliable indices of stress in the context of the parent-child attachment. Attachment studies over several decades show that repeated and prolonged absences from the primary caregiver creates for the young infant disruption in sensitive response from that primary caregiver which is uniquely stressful. At this phase of cognitive development, repeated separation is both beyond the infant’s control and beyond their cognitive ability to predict, comprehend or resolve.
The resulting stress and distress is typically expressed on reunion with the primary carer, through irritable, unsettled, angry, or ambivalent behaviours, and over time through psychosomatic symptoms. Across cultures the causal relationship between sensitive, prompt, and reliable responses to the infant’s attachment signals attachment security and regulated emotional responses by the infant distress are well documented, and a number of reports supporting those propositions are given.”
It goes on to indicate:
“These findings echo those of Solomon and George (1999). In the context of divorce regular overnight time away from the primary carer at the rate of one night per week, or more, was found to be associated with greater propensity for anxious, unsettled behaviour in infants when with the primary carer and great propensity for development of disorganised attachments.
In the context of Kibbutzim studies, overnight time away from the mother made a difference to infant outcomes with greater rates of unsettled and ambivalent behaviours in infants cared for overnights by a Kibbutzism carer during the week despite daily contact and weekend night contact with their biological mothers.
Emerging developmental neuroscience suggests that the establishment and consolidation of the infant’s limbic system circuits in the first 24 months is critically enhanced by mother-infant interaction with the adult female right brain being differentially wired for the task involved in co-regulating the infant’s developing autonomic nervous system, such as reading subtle visual cues and facial expressions, contingent responsively, and emotional regulatory interactions. Shaw summarises neurological research suggesting that after the age of 24 months fathers, or adult male caregivers, are thought to provide crucial support for developing left brain functions including language and the management of aggression.”
No doubt it would be suggested in this case by Ms Vogel that the latter of those benefits is elusory in this case. It goes on, to quote:
“The role of cognitive development and the unique place of overnight separation needs to be considered. Infants under two years of age do not have the cognitive capacity for comprehending time, understanding reasons for separation, predicting reunion and so forth. All of which are cognitive capabilities that can alleviate stress for the older child when moving between home and any other care setting. Developmental research of Carol George considered the role of cognitive development in managing overnight separations in this way. A baby can’t imagine what tomorrow is. With a child we can say “okay, you can go and do this or the other now and tomorrow will be this” which is what we do with children in preschool. Three years tends to be the beginning of a developmental shift where children don’t necessarily understand, but where they can, at least with help from the adults around them, keep these relationships alive with pictures and talking to the other parent on the phone.”
The research goes on to continue and quotes from Bowlby himself:
“Humans have certain innate fears. These are the fears we are actually born with. They’re part of our genetic code, and one of them is fear of the dark. Children do instinctively feel vulnerable at night and are instinctively driven by their attachment seeking behaviour to seek proximity to their primary attachment figure for safety and security.”
That also becomes significant in light of research by researchers including, but not limited to, Bruce Smyth in his 2003 study “The difference is night and day” as to the important of different types of time structures and different types of time to the development of a real or meaningful relationship between a parent and a child.
The bringing together of this research and reports also ventures some caution with respect to children in the age bracket of two to three. This indicates that in two- to three-year-olds sampled
“Two independent effects of shared care arrangements were identified:
1.Lower levels of persistence than either the rare or primary care groups, (being the ability to play continuously, stay with routine tasks, examine objects thoroughly, practise new skills, and return to an activity after a brief interruption in the presence of the respondent parent). Of all groups the shared-cared children have the lowest level of persistence; and,
2. More problematic behaviours…Specifically the shared-cared group relative to the primary care group showed more distressed behaviours in the context of parent-child interaction and caregiving. Crying or hanging on to the parent when he or she tries to leave, worrying a lot, or seeming very serious, not reacting when hurt, often becoming upset, gagging or choking on food, refusing to eat, hitting, biting or kicking the parent.”
Similarly, that material goes on to venture such cautions as this:
“With a focus on emotional and behavioural regulations shared care at the policy definition of 35 per cent of nights was associated with a cluster of developmental problems indicative of significant stress in the young child. It’s noteworthy that children were not the only ones stressed. Findings showed that the co‑parenting system was more stressed in the shared-care arrangement of this younger developmental stage then when share and care of four to five-year-olds with much higher rates of reported disagreement between parents of two and three-year-old children.
In attachment terms the caregiving system of the primary parent during the two- to three-year-old stage of development is still highly primed or geared to read and respond to attachment related signals of the child. Bowlby postulated the presence of a caregiving behavioural system that operates instinctively within the parent, as the attachment system operates within the child. George and Solomon describe the primary goal of the caregiving behavioural system as providing protection for the child. Activation of the caregiving system occurs via the parents’ perception of dangerous, stressful or fear inducing situations for the child; including separation, endangerment, and the child signals of discomfort and distress.”
Less reservation is expressed in a summary of presently available research with respect to children as they reach the age of four or five years and indeed commence school. That is summarised in the following:
“In the context of low-risk care, attachment theory both predicts and explains a lessening impact for four- and five-year-olds of overnight stays away from the primary attachment figure. By this stage the hierarchy of attachments has a different shape and function, with the move away from the importance of the primary attachment relationship, the development of other attachment bonds and the ability to use other adult caregiving relationships for comfort and guidance.”
So what does all of this social science have to do with [X]. Firstly, [X] is a child of nine months who is still being breastfed. Secondly, [X], I accept, has a present secure attachment with his mother as his primary caregiver. There can be no issue in my mind on the evidence, untested as it is, that that is so. The child dispute memo produced by Ms C describes [X] as separating appropriately from his mother, exhibiting “normal separation anxiety.” It also suggests, and speaks to a volume at the research which I have quoted regarding [X]’s interaction with his father, perfectly appropriate interaction, but ending with the comment “[X] was observed to be only truly soothed when Ms Vogel returned and held him.” [X] is a very young child who will continue to live in his mother’s primary care.
That then turns back to the legislation. Dealing first with section 60CC, it commences with two primary considerations. The Full Court has been clear, particularly in the decision of Carmody J, now retired, the case of Dylan & Dylan [2007] FamCA 842, that the primary considerations do not necessarily outweigh the additional considerations. The additional considerations are not secondary, otherwise they would be called so. They are additional. They both inform the primary considerations and in some circumstances may cumulatively outweigh the primary considerations. But section 60CC subsection (2) commences with the two primary considerations being – the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, from being subjected to, or exposed to abuse and neglect or family violence.
There is controversy between the parties as to whether [X] has ever been exposed to family violence, whether, as defined within section 4, or in a more expansive definition. It is certainly put in Mr Abell’s case that there is no suggestion, notwithstanding the allegations by
Ms Vogel in her case, that [X] has ever been the subject of violence perpetrated towards him. However, without making any finding as to which party’s of events is more accurate in that regard I simply pause to observe that the present state of social science makes clear that the perpetration of violence towards a child, in their presence, in their hearing, or towards a parent or caregiver of the child, irrespective of whether the child is present or within earshot is, of itself, an abuse of the child and I accept that fundamental proposition without specifically applying it to the facts of this case as I’m not in a position to determine them.
The primary consideration one is left with, then, is the benefit to [X] of having a meaningful relationship with both of his parents. The two interconnect. The focus of the exercise is not how to promote a meaningful relationship between [X] and his father but between [X] and his mother and his father and the two can, and in this case quite clearly do, interconnect.
The inability of these parents, as referred to in the decisions of Canadian decisions to which I have referred, to problem solve or, indeed, communicate on any meaningful level with each other means that [X] will continue to be exposed, to some degree, to estrangement of his parents, if not active conflict at different times, as is asserted in Ms Vogel’s case. Certainly the same is also suggested in Mr Abell’s case, although the nature and perpetration is different.
The other aspects that tie into the legislation from the social science which I have quoted is that my job is not to mathematically apportion time. That does not enter into the Court’s considerations and indeed outside of section 65DAA, there is no reference in the Family Law Act to time. The Act deals with “meaningful involvement” and “meaningful relationships”.
I have helpfully been taken, by Mr Abell’s counsel, to a number of cases which have discussed the nature and meaning of meaningful and in particular, Brown J’s decision in Mazorski & Albright [2007] FamCA 520 as well as the Full Court’s decision in McCall & Clark [2009] FamCAFC 92 and I certainly adopt all that he said.
A relationship, to be meaningful, must be significant. It must have some meaning, both to the parent but, more importantly, to the child and it is indeed, for me, an exercise in prospective decision making.
I must try and predict what will best achieve a meaningful relationship. Social science tells me that an arrangement that is hastened too quickly for the developmental and age appropriate needs of [X] will not achieve a meaningful relationship but will have the potential to, firstly, disrupt the secure attachment between [X] and his mother and, secondly, to produce an insecure or disorganised attachment between [X] and his father.
Accordingly, I propose to make orders that will, by and large, although progressing somewhat more rapidly than is proposed by Ms Vogel, take a slow and cautious approach in relation to [X]’s time with his father so that the orders that are put in place are not simply a mathematical apportionment that is convenient and practical as regards to the parties who will live an eight-hour flight apart and in different countries, but which will, more appropriately, and as best as one can, having regard to those reasonable, practical difficulties of distance, address [X]’s developmental needs and give him the greatest prospect of developing a secure attachment with his father and consequently, as he grows older, a meaningful relationship with him. Because at this point, to talk about a meaningful relationship between [X] and either of his parents, at nine months of age, is somewhat nonsensical. We are discussing attachment.
[X] is at a period in his life where he is developing bonding and attachment but that is of itself incredibly important. Indeed, the work of the Court in determining cases with very young children is all the more onerous and important as to get it wrong in the infant attachment phase is to predict, with some certainty, prospectively, that the child will, in fact, not have a meaningful relationship and will, in fact, have the potential that it will undermine the strong, secure attachment which I find [X] presently has with his mother and, consequently, his prospects of a meaningful relationship with either of his parents in the future.
Practical difficulty under section 65DAA(5) is not limited to geographical distance, although that is in fact subsection (a). It also deals, connecting back to the case law which I have referred to, particularly from Canadian jurisdictions, to the parents’ current and future capacity to implement an arrangement for the child and current or future capacity to communicate with each other and resolve difficulties. Ordinarily, one might have some concern if a time arrangement were progressing too quickly for [X]’s developmental needs, so that he was not settled. As Ms C has referred to in the memo, in a 25-minute observation, [X] is capable of being appropriately soothed but does not fully settle until returned to his mother. There is little hope that the parents would negotiate, communicate and cooperate with each other to demonstrate flexibility if such difficulties arose.
The social science research to which I’ve referred and which is summarised in the May 2010 report suggests that the largest and most significant predetermining element of negative impact of any care arrangement for a child is an absence of flexibility. In this case, I cannot be satisfied from the evidence of each of the parties that there is any reasonably foreseeable prospect of such problem solving in the future and accordingly, there is likely to be some degree of rigidity and inflexibility in any arrangements that are ordered and imposed.
Indeed, it would appear that the parties, and each of them, have some degree of scepticism of the other’s willingness and ability to cooperate, having regard to the requirement for a $50,000 bond to be provided by Ms Vogel which, thankfully in the context of this case, is well within the affordability of each of these parents.
In dealing with section 60CC and the additional considerations, very few have any great moment in this case, and that is not surprising, having regard to the fact that they largely draw upon the past history of these parents, and [X], being nine months of age, there is precious little past history.
Views of [X] could not possibly be asserted as being of relevance.
As regards the nature of [X]’s relationship, as I’ve indicated, I am satisfied on the evidence of the parties and limited comment of Ms C that [X] has a secure attachment and a primary attachment with his mother, although a developing attachment with his father. That is apparent from the passages of the memo I’ve quoted.
Each parent is critical of the other’s willingness and ability to facilitate the other’s relationship on a close and continuing level but the fact that the parties have entered into a substantial raft of agreed orders gives me some satisfaction that in reality, they simply don’t trust the other’s capacity to do so, whereas each has taken some active step to demonstrate it.
The likely effect of change is inevitable but [X], at his age, is likely to be impacted most significantly by absence from, whether at a transitory nature or permanently, from his primary carer rather than a change in physical environment.
Practical difficulty and expense I have previously referred to. Thankfully, these parties are each employed in industries whereby, whilst their holidays are somewhat limited, their incomes are not and they are each in a position to fund international travel without great difficulty.
In relation to the capacity of each of the parents to meet the child’s emotional and intellectual needs, I am satisfied that Ms Vogel is perfectly capable of doing so. I am satisfied, with some reservation, that Mr Abell has a developing capacity to do so, although the orders that are proposed by him in his response cause me some concern as to his insight and focus upon [X]’s needs in formulating that relief, but that is not a substantial criticism, more an observation.
[X] is a child of nine months of age and accordingly, issues with respect to his maturity must tie back to and relate, as I’ve previously indicated, to the very clear, specific and important need for the Court to be abreast of and to consider relevant child development literature and child attachment theory in making orders that will best predict prospectively the possibility of [X] developing a meaningful relationship with his father and, more importantly, both of his parents.
[X] is clearly not of an Aboriginal or Torres Strait Islander background and no other cultural issue is relevant.
I’m satisfied that, for present purposes, each parent has demonstrated a sufficiently positive attitude towards their responsibilities as parents, although the absence of financial support and assistance immediately following the parent’s separation, which was remedied on the first return date of these proceedings by an order, is of some concern.
There are substantial issues of family violence, although I’m not in a position to make findings, as I’ve indicated, and accordingly, my section 60CG obligation is as far as I can take that.
As to avoiding future proceedings, that is in the hands of these parties. [X] is a very young child and unless they are able to, firstly, follow and comply with the order that are about to be put into place and, secondly, to develop a mechanism wherein they can better address [X]’s needs - for them to be able to parent and to communicate on a functional level, future proceedings may, and I hope only may, become inevitable. The other issue that relates to time arrangements is not just chronology and age appropriateness, but a desire for it to be supervised, at least for the period between now and Ms Vogel’s departure from Australia.
There is some suggestion that it would continue to be supervised, particularly when occurring in Singapore. I am satisfied that supervision, in the initial phase, being up and until departure and for the very first portion of time that occurs in Singapore, would be useful and beneficial for a number of reasons, none of which relate to any acceptance of parental incapacity on behalf of Mr Abell but more so to firstly provide some comfort to Ms Vogel, it being remembered, that my obligation is to address each parent’s relationship and, accordingly, each parent’s sensitivities.
Secondly, to provide a mechanism by which Ms Vogel may begin to be able to develop, through demonstrated behaviour, a greater trust and assurance as to Mr Abell’s motives and parenting.
Thirdly, to protect Mr Abell from allegation or criticism.
But, fourthly, and most importantly, to provide some benefit to [X] of hopefully having anxiety and stress both during and surrounding brief periods of time as each parent proposes two hour visits, until departing Australia in a few weeks’ time, and accordingly to the extent of that portion of the minute exhibit 2, I will make orders in accordance with paragraph 2.1.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 11 November 2010
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