Wilcox and Wilcox
[2010] FMCAfam 966
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WILCOX & WILCOX | [2010] FMCAfam 966 |
| FAMILY LAW – Children – parental responsibility – with whom a child lives. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG , 61DA, 65DAA, 65Y, 69ZW |
| Pitken & Hendry [2008] FamCA 186 Marvel [2010] FamCAFC 101 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR WILCOX |
| Respondent: | MS WILCOX |
| File Number: | PAC 1483 of 2009 |
| Judgment of: | Harman FM |
| Hearing date: | 19-20 August 2010 |
| Delivered at: | Parramatta |
| Delivered on: | 20 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conte-Mills |
| Solicitors for the Applicant: | Fay Rose Legal |
| Counsel for the Respondent: | Ms Karagiannis |
| Solicitors for the Respondent: | Legal Aid NSW |
ORDERS
As and from 8 am Wednesday, 25 August 2010 I discharge all existing parenting orders with respect to the child [X Lewis] born in 2005 who shall hereinafter in these orders and otherwise be referred to as [X Wilcox].
[X]’s parents, Mr Wilcox and Ms Wilcox, are to have equal shared parental responsibility for him.
[X] shall during school terms live with his Father;
(a)Each alternate weekend from 3 pm or the conclusion of school Friday until 9 am or the commencement of school the following Tuesday, extending to Wednesday in the event that Monday is a public holiday or a pupil free day; and
(b)In each intervening week from the conclusion of school Monday or 3 pm until the commencement of school Tuesday or 9 am.
(c)THE COURT NOTES that the first period of weekend time (Friday to Tuesday) shall commence the weekend 3 September 2010 and the first period of Monday to Tuesday time shall commence Monday 30 August 2010.
(d)Commencing 2011 for one half of each short New South Wales school holiday period as agreed between the parents or failing agreement, for the second half commencing 6 pm on the middle Saturday concluding 6 pm on the final Sunday before the commencement of the new school term.
(e)For the Christmas 2010/2011 school holidays:
(a)From 10 am 18 December until 3 pm 25 December 2010; and
(b)From 10 am 2 January until 6 pm 12 January 2011.
(f)Commencing in 2011 and each school year thereafter for one half of the Christmas school holidays in each year alternating between the first and second half of those holidays and provided that:
(a)For the Christmas school holidays commencing in 2011 [X] shall be with his Father for the second half of the Christmas school holidays; and
(b)In any year when [X] is with his Father for the first half of the Christmas school holidays that [X] shall spend time with his Mother from 3pm Christmas Day until 6 pm Boxing day (and the same provision shall apply for [X] to spend time with his Father in any year when [X] is spending the first half of the holidays with his Mother).
(g)From 6 pm Saturday until 6 pm Sunday on the Father’s Day weekend in each year if [X] is not already in the Father’s care and provided that in the event that Mother’s Day falls on a weekend that [X] would be with his Father that [X]’s time with his Father shall, for that weekend, conclude 6 pm Saturday.
(h)For a period of time on [X]’s birthday as agreed between the parents or failing agreement:
(a)If a school or week day from 3 pm until 6 pm;
(b)If not a school day, from 1 pm until 6 pm.
(i)Such further and/or other times as agreed between [X]’s parents from time to time.
[X] shall live with his Mother at all times save when living with his Father pursuant to the above order.
That communication between [X]’s parents or with respect to [X]’s welfare and well being shall occur save in the case of emergency between [X]'s Mother and Father and not otherwise.
For the purpose of [X] passing in to the Father’s care for the above periods that [X]'s Father shall collect [X] from his school or the Mother’s home at the commencement of each period and shall return him to his school or the Mother’s home at the conclusion of each period that occurs during school terms.
For periods that occur during school holidays [X]'s Mother shall deliver [X] to his Father at his Father’s residence when passing in to his Father’s care and [X]'s Father shall return [X] to his Mother’s residence when passing back in to his Mother’s care.
Each parent shall be entitled to communicate with [X] by email, telephone, live chat or Skype program or other means at all reasonable times and provided that each parent shall be entitled to speak with [X] by phone between 6 and 8 pm on each day that he is not in their care.
Each parent shall keep the other advised at all times of their residential address and contact telephone number which shall be either their landline number and/or their mobile phone number.
Each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to ensure that both of [X]’s parents and all of their relevant details are recorded with any pre-school, day care centre or school at which [X] is enrolled and further, to ensure that each parent can contact such pre-school, day care centre or school and obtain all and any information that they desire together with copies of school reports, newsletters, school photos or other materials.
Both parents are entitled to attend all and any events or activities including school events to which parents, grandparents or others are invited and any sporting or cultural activities in which [X] is enrolled and participating at any time and irrespective of whose care [X] is in at the time of that event or activity.
Neither parent shall enrol [X] in sport or cultural activities that will occur whether as a one off or on a regular basis in the other parents’ time with [X] other than with the consent of both parents, but once so enrolled each parent shall ensure that [X] is taken to all such events and any training or tuition related to it.
[X]'s Mother is at liberty to enrol or continue [X]’s enrolment at [School O], commencing with the 2011 school year and shall not change that school enrolment save with the consent of both parents.
[X] shall henceforth be known by the surname Wilcox and each parent shall forthwith do all things, sign all documents and give all consents and authorities necessary to enable [X]’s surname as recorded on his birth certificate to be changed to Wilcox and a fresh birth certificate issued to each parent and further, pursuant to s.22 of the Births Deaths and Marriages Registration Act the Registrar of the Registry of Births Deaths and Marriages is requested and directed to cause such change to be affected.
Pursuant to s.65Y of the Family Law Act [X]'s Father is hereby authorised to remove [X] from the Commonwealth of Australia for the purposes of travelling to Fiji departing no earlier than 4 November 2010 and returning [X] to the Commonwealth no later than 13 November 2010.
Each parent shall forthwith and within 14 days do all things, sign all documents and give all consents and authorities necessary to enable an Australian passport to issue for [X] and:
(a)Mr Wilcox is hereby authorised and entitled to use that passport for the purpose of the above travel;
(b)Upon return from Fiji and no later than 21 November 2010 the passport shall be delivered to Ms Wilcox and thereafter neither party shall remove [X] from the Commonwealth of Australia save pursuant to the provisions of s.65Y of the Family Law Act.
Each parent shall forthwith, and contemporaneous with the event, advise the other parent of any significant illness, medical emergency or hospitalisation suffered by or related to [X], and including sufficient details to enable both parents to be consulted with respect to and fully advised regarding significant illness or hospitalisation and treatment recommended or provided and so as to be able to visit [X] if hospitalised.
Each parent shall refrain from making any negative or derogatory comment regarding the other parent or member of the other parent’s household or extended family in the presence or hearing of [X], nor from allowing, causing or permitting any other person to do so.
Ms Wilcox is to ensure that [X] attends at the family consultancy service of this court at 9.30 am Thursday 26 August 2010 for the purpose of these orders and the process which is given rise to their being made being explained to [X] by a family consultant with or without the presence of the judicial officer having made such orders.
IT IS NOTED that publication of this judgment under the pseudonym Wilcox & Wilcox is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1483 of 2009
| MR WILCOX |
Applicant
And
| MS WILCOX |
Respondent
REASONS FOR JUDGMENT
These are competing parenting applications that seek orders with respect to a young boy, [X] born in 2005 and accordingly not yet quite five years of age.
The parties to the proceedings are [X]’s mother and father, being respectively Ms Wilcox in the case of his mother and Mr Wilcox in the case of his father.
As parenting proceedings Full Court authorities such as Goode and more recently Marvel, amongst many others, prescribe the path for the Court in applying legislation to the case.
I should remark at the outset that the facts involved in this case and, in fact, that which motivates each parent to come to the Court to seek a variation of arrangements that have been in place between them, at all times having previously been negotiated by agreement, is largely driven by the fact that [X] will, at the end of this year, turn 5 and will, at the beginning of the 2011 school year, commence school. Perhaps specifically within Australia and in Sydney there is a very real issue then as to practicality and both parents agree that it will no longer be practical for them to continue to practise a shared care arrangement and a relatively equal shared care arrangement that has been in placed for [X] for some time and which it is remarked by the report writer has, indeed, met his needs quite well for some time.
That specific Sydney geography, which means that the time it takes to traverse small distances, particularly on weekdays as opposed to the geographical distance, drives each of the parents in that the mother lives [omitted] in western Sydney and the father lives [omitted] in the very inner west of Sydney. While that is a distance which is probably no more than 30 or 35 kilometres it is a distance that can, at times proximate to children commencing school, take some very real time to traverse, whether by public transport, which is notoriously inefficient and in parts non-existent on the route between these parents’ homes or by car.
The Law
In turning to the relevant law it is most helpfully described, in my view, by Murphy J in a decision of Pitken & Hendry [2008] FamCA 186 wherein Murphy J has the following to say:
“The fact-finding (or value-finding) exercise required by s.60CC is directed towards ultimate findings about best interests. Those findings inform a number of different statutory requirements, including ultimate findings about parental responsibility and quantity of time.
…best interests is the paramount, but not the sole consideration… (as the High Court reminds us in AMS v AIF (1999) 199 CLR 160).
All parenting cases require precise proposals by the parties (including, if thought appropriate, alternative proposals). The proposals are (or should be) the expression of each party’s assessment of their child’s best interests. …
The court is not bound by the parties’ proposals. (or past arrangements) (That’s certainly made clear in a number of recent authorities, including appeal decisions published today by the Full Court and also by U v U (2002) 211 CLR 238.) Where the evidence points to an alternative being in the best interest of the children (that being outside of the parents’ proposals) orders should be crafted by the court accordingly.
Findings in respect of relevant s.60CC considerations, … should, when applicable, take account of the prospect of equal or substantial and significant time, whether because s.65DAA mandates it or because either is a proposal of the parties or looms as a potential order.”
I pause at this point to note that the parties are substantially in agreement from the outset of the case and, indeed, the very basis upon which the litigation has been commenced and pursued to conclusion, that an equal time arrangement will, upon this little boy commencing school, become unworkable and no longer in [X]’s best interests.
Continuing Murphy J says:
“Findings relevant to s.65DAA, if applicable, can and often more appropriately should be made as part of the s.60CC exercise, because, although requiring a specific process (as the High Court has remarked in MRR & GR [2009] HCATrans 248), any s.65DAA considerations are founded ultimately in findings as to best interests.
Findings necessary to underpin an ultimate finding of “reasonable practicality” (s.65DAA(5)) can be, and often more appropriately are, conducted as part of the s.60CC exercise. Any specificity inherent in those s.65DAA(5) factors which do not overlap with s.60CC considerations can often readily be accommodated within the s.60CC exercise (s.60CC(m)). …
The abrogation or curtailment of parental responsibility with respect to long term issues involves a serious interference with fundamental rights and that is a factor which ought to be taken into account in assessing whether the best interests require the rebuttal of the presumption. Obviously, that right must give way where the best interests of the children require it. …”
The other aspect that I would add to that which Murphy J has set out above is that the considerations in s.65DAA(5) regarding how one approaches a consideration of reasonable practicality are, in my view, a useful and helpful codification of the present state of play of social science regarding the indicators and contra-indicators of shared care arrangements being successful in a child’s best interests as opposed to their parents.
The Court can also take great instruction from the decision of now retired Carmody J in Dylan & Dylan [2007] FamCA 842, wherein the real role of the Court was set out succinctly as followed:
The width of the discretion judges have in making child-related decisions means the predictions, perceptions, assumptions and within reason even intuition and guesswork can all play a part in the reasoning process in the best interest exercise. This is because best interests are really values not facts. They are not susceptible to scientific demonstration or conclusive proof. The same body of evidence may produce opposite but nonetheless reasonable conclusions from different judges. There is not always one right answer.
Informed and honest minds can genuinely disagree and yet neither be totally wrong nor completely right. Sometimes the least worse situation may be the best available. Many cases are finally balanced with the only option being a choice between two or more imperfect alternatives. Notably the statute aspires to promote meaningful, not optimal or ideal, relationships. What meaningful is in any given situation depends very much on its own unique circumstances, but reciprocal love and affection and mutual respect and concern are common features.
I hasten to add at that point that there are two notable elements of this case. Firstly, each of the parties holds, in my view, and I so find, a genuine and reasonable assessment of what is in their child’s best interests as a future care arrangement following the changes that each of them acknowledges must occur for [X]’s best interests to be to the fore and appropriately addressed come his starting school in 2011. As Carmody J has remarked, there is not always only one right answer and the same facts and the same evidence can produce opposite, but nonetheless reasonable and supportable conclusions. That is so in this case.
Secondly, there is no dispute or issue in this case - and I’ve remarked to counsel in submission that I am content in accepting and so find - that [X] presently has a meaningful parent/child relationship with each of his parents. Carmody J goes on to say:
What is clear is that meaningful parent/child relationships and involvements take time and effort to build and maintain.
That is what has occurred for these parents in the last three years whilst they have been practising a shared are arrangement. The quote continues:
Presumably the greater range of contexts for interaction between parents and their children the better. Thus the more active participation a loving parent has in a child’s every day life the closer and more meaningful their relationship with each other is likely to be.
That is, I have perceived since the commencement of the case the gravamen of the duty that falls to me. How to maintain a meaningful relationship and as meaningful a relationship and as meaningful an involvement as is possible for [X] with each of his parents, bearing in mind that he presently has an excellent and meaningful relationship with both of his parents and there is no issue raised in this case to suggest that his needs cannot and would not be met by one or either of his parents.
The law that otherwise applies, leaving aside the manner in which it is has been applied as described above, commences with s.60B, the objects and principles of the Act.
The objects and principles are designed to focus upon and ensure an attention to [X]’s needs, interests and rights. The matters set out in s.60B to a large extent reflect matters which are the subject of the International Convention on the Rights of the Child.
The objects in subsection (1) provide that this Court must, as best it can, ensure that the best interests of children are met by
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
(b) protecting children from physical or psychological harm – and in this case there is no real suggestion that there is a risk of harm in a physical sense or, other than in an oblique fashion, psychological sense from either parent and
(c) ensuring the children receive adequate and proper parenting to help them achieve their full potential.
How the Court can achieve that can only be through structuring orders which will hopefully obviate as many of the difficulties and challenges facing these parents and enable them as best as possible to effectively co-parent together, whilst ensuring that [X] has the benefit of a meaningful and nurturing relationship with each parent.
The principles underlying those objects as set out in subsection (2) provide that except where it is contrary to a child’s best interests
a)children have the right to know and be cared for by both of their parents;
b)children have a right to spend time on a regular basis and communicate on a regular basis with both of their parents and with other people significant to their care, welfare and development, such as grandparents and other relatives;
c)parents jointly sharing duties and responsibilities for the care of their children; and that
d)parents should agree about future parenting; and
e)the children have a right to enjoy their culture, including the right to enjoy that culture with other people who share that culture. That amendment which occurred in 2006 to subsection (e) is designed to bring into line the Family Law Act with the International Convention on Economic, Social and Cultural Rights.
Subsection (3) of the objects and principles goes on to more specifically address issues with respect to Aboriginal and Torres Strait Islander culture, and a child’s right to enjoy that culture, including a right to maintain a connection with the culture, to have support, opportunity and encouragement necessary to explore to the full extent of that culture, and consistent with the child’s age and development and views, and to develop a positive appreciation of that culture. That is also addressed in s.60CC and I will return to it at that point.
The parties’ proposals
The Full Court in Marvel [2010] FamCAFC 101 and Goode & Goode (2006) FLC 93-286 are also clear that one should start, as highlighted by Murphy J in Pitken & Hendry (supra), with the parties’ proposals. At the outset of the hearing, and indeed at the time of family report interviews prior to the hearing itself, there was some dispute between the parties as to whether orders for sole or equal shared parental responsibility would be sought. By this point in the matter there is no dispute between the parties in that regard, although of course the Court is not bound by the parties’ consent.
The proposals that each party puts with respect to [X]’s care in the future would best be typified as describing each seeing themselves as becoming [X]’s primary parent, at least insofar as the allocation of time between them is involved. Because an important element of this case is in fact the clear, lineal distinction between time and relationships, that both parents agree at the outset and in the orders proposed by them in minutes of order that are now exhibits in the proceedings – exhibit F5 in the father’s case and exhibit M12, as well as contained within her case outline, in the mother’s case – that [X]’s best interests once he starts school will be served by living primarily with one of his parents, at least during school weekdays, and attending school proximate to the home of the parent with that primary time.
The mother’s proposals are in a number of alternatives, and that has largely arisen from matters that I had raised during the hearing and during Ms Wilcox’s cross-examination. The mother’s primary position is that she would say that [X] should live primarily with her during school weeks and would spend two out of three weekends from Friday to Sunday with his father. There is an alternate proposal as contained in the mother’s minute of orders which would extend that to two weekends out of three from Friday to Monday, from and before school.
And in her proposal Ms Wilcox also indicates that in the event that [X] were not to live primarily with her, which, whilst this case could not in any fashion be categorised as a relocation case, nor is it being conducted as such, the Full Court’s comments in DS & V [2003] FamCA 280 would suggest, appropriately so, the alternate proposal be sought from Ms Wilcox and is provided. In that regard, Ms Wilcox has indicated that in the event that [X] lives primarily with his father during school terms, she would see [X] spending time with her two weekends out of three in accordance with her primary proposal, ie, from Friday to Sunday, and I will return to her evidence in that regard.
Mr Wilcox’s proposal is that [X] would live primarily with him and would spend, at least during school terms, time with his mother on an alternate weekend basis from the conclusion of school Thursday till the commencement of school the following Monday, and in the other week, from the conclusion of school Thursday to Friday. That is put as being more consistent with the definition of substantial and significant time contained within s.65DAA.
As I have indicated, neither party proposes that an equal time arrangement would be appropriate for [X], and to that extent - and even absent the parties consent - I am satisfied that certainly upon [X] commencing school at the very latest, that would no longer be in his best interests for reasons that will become apparent, and I concur with his parents who have each demonstrated some insight in that regard.
The difficulty the parties face is then with respect to the issues that are in dispute between them. Clearly, each party proposes that they would be the primary time parent, although, as I have added and will add on each occasion that it arises, the amount of time that [X] may spend with his parents is not necessarily a reflection of the importance either to [X] or to that parent of their relationship.
There are otherwise a number of issues between these parties which touch upon relevant matters in s.60CC and which have been the subject of substantial evidence and cross-examination. In that regard, I make clear that the evidence that has been considered in this case is the affidavit material filed by each of the parents from the commencement of the proceedings to date, together with numerous and lengthy annexures, their competing application and response, their minutes of order - which have become exhibits in the proceedings - submissions and material set out in case outlines, together with a number of exhibits in each party’s case. I have also had the benefit of a report from family consultant Mr L and he has also attended and been cross-examined briefly.
The issues that arise from that material are perhaps lesser on one view than the matters in agreement between these parties. It has been observed on a number of occasions that the parties do not agree about much but they interestingly agree on most fundamental issues. They disagree on matters that are perhaps less fundamental, and certainly one would think, if [X] was sufficiently cognisant and mature to express his views fully - or participate in these proceedings - to an independent children’s lawyer or otherwise, would not necessarily cause him any substantial or significant concern.
Factual background
The factual background of the parties is not complicated.
The parties met in 2000 or 2001 and they commenced to live together in about May of 2001.
The parents separated on or about 30 June 2007, a little over three years ago, and have lived separately and apart since that time.
At the time of separation [X] was a fairly young child, and in fact was around 18 months of age, having been born in 2005.
There is some contention between the parties as to who was primarily responsible for [X]’s care and upbringing whilst the parties were still together. Not a great deal turns on that because the parties have, through their own actions, and particularly through negotiating and putting into effect arrangements between them since that time, obviated the significance and importance of those matters.
However, Ms Wilcox, for her part, asserts that she was primarily responsible for [X]’s care and development at all times in his infancy and that, indeed, Mr Wilcox had little or not interest in pursuing a relationship at that time.
That is most clearly denied by Mr Wilcox, who asserts that both he and Ms Wilcox were equally sharing in [X]’s care prior to their separation and, indeed, in the early period following their separation.
What is clear from the evidence is that Mr Wilcox was in substantial full-time paid employment at that time. It is less clear what employment Ms Wilcox was engaged in, although clearly there were periods when she was on workers compensation and other periods when she was working part-time. However, I don’t feel it necessary to make any findings regarding the invidious question of primary care during that period of [X]’s life.
The parties then negotiated arrangements, and there is some controversy between them as to how that came to be, whereby relatively equal shared care arrangements have been in place for some time. Certainly since these proceedings were commenced in May 2009, orders were made by consent which cemented that arrangement and which sees [X] in his father’s care each alternate week from 10 am Saturday until 8 am the following Wednesday, and, in the other week, from 5.30 pm Sunday until 8 am Wednesday.
Accordingly, there is a well-settled, established pattern that [X] is used to. That is not a pattern that cannot change and, indeed, each of the parents suggests it should. I am comforted that each of the parents agrees in that regard having regard to the Full Court’s decision in Williams & Bonner [2010] FamCAFC 154 published today wherein a Federal Magistrate’s failure to make orders that continued existing arrangements that had been in place for some time over the objections of the parties was seen as an appellable error.
The parties have then substantial dispute about a number of issues relating to their relationship but they must be seen in this context. The parties agree, and certainly Mr L observes and concludes, that [X] has an excellent relationship with each of his parents. [X] was also observed with his stepmother, Ms W, a person who assumes great significance in these proceedings for reasons that will become apparent, and with his maternal grandmother.
He was observed to also have an appropriate and strong relationship with each of those people, being people of significance to him and, in the case of Ms W, particularly significant, as she is married to and lives with [X]’s father, Mr Wilcox, and is integrally involved in [X]’s day-to-day care whilst [X] is part of that household, and Ms W’s evidence goes so far as to say she is in fact not working on a full-time basis but part-time three days a week and is available every Tuesday and spends time with and is responsible for [X]’s care on that day. Those matters, as I have said, loom large in these proceedings.
The parties also agree that [X] loves them both, that they love him, and that there are many things relating to [X]’s best interests for which they can be thankful. [X] is a happy, healthy young man.
[X], notwithstanding that he has been in an equal shared care arrangement since very early in his life, since, in all probability around 18 months to two years at the latest. He has, notwithstanding all of the contra indicators that would otherwise be seen in the body of social science that now exists regarding share care arrangements and their age-appropriateness and the current debate surrounding it, survived well and in fact is observed and remarked by the report writer as thriving in the circumstances.
It is indicated in paragraph 35 of the report:
“Despite the parents’ lack of capacity to communicate amicably (to which I will return) [X] appears to have adjusted well to a long established parenting arrangement. He is confident and capable and shows no indication of emotional disturbance. Thus it would seem appropriate that he continue to have the benefit of equal involvement with each of his parents. But, because Mr Wilcox and Ms Wilcox want to live on opposite sides of the metropolitan area, and because they appear unable to confer regarding [X]’s parenting needs, equal care is contra-indicated.”
In fact, the more significant element of that is the geographical problem created by these parties if they are to have mid-week arrangements when [X] is at school traversing what is commonly a parking lot rather than an expressway.
The issues
The issues essentially in dispute between these parties in my mind are as follows:
a)A central issue of the extent and the ability of [X]’s parents to communicate with each other, how that will occur, the frequency with which it will occur, the precision and detail involved in that communication and, most importantly, the people who will be involved in that decision-making and that communication.
It is Mr Wilcox’s proposal, and an important part of his case, that he and his wife, Ms W, are a team, as it were, and that they should both jointly and equally be involved in decision-making. That is heavily resisted by Ms Wilcox, and that is remarked upon on a number of occasions in Mr L’s evidence, to which I will turn shortly.
b)Has there been family violence perpetrated by Mr Wilcox upon Ms Wilcox?
There is no suggestion, I hasten to add, of any physical violence being perpetrated by either parent or any other member of their household upon [X], but there are clear and serious allegations by Ms Wilcox, and I will deal with those separately with respect to s.60CC considerations and the parties’ evidence generally.
c)Ms Wilcox’s attitude to involving Mr Wilcox and/or Ms W in decision-making with respect to [X] and arrangements generally.
In this regard, Mr Wilcox’s case is critical of Ms Wilcox on the following bases: firstly, that Ms Wilcox will not discuss matters at all on some occasions with either he or Ms W; that Ms Wilcox does not tell him things relevant and important with respect to [X]’s upbringing and welfare; that Ms Wilcox will not convey [X] to football games in which he is enrolled to play in the vicinity of Mr Wilcox’s home, or at least not with absolute regularity or consistency; and that Ms Wilcox will not deal, and for a long time and until early this year would not deal at all, with Ms W in decision-making.
These criticisms are echoed in evidence filed in the case by Ms W, who complains in her material that Ms Wilcox will not acknowledge her role or deal with her, will not copy her into emails, although certainly on at least one occasion that did occur with what would appear to be, for whatever reason, somewhat disastrous consequences; that Ms Wilcox has not included Ms W in family photographs or invitations to participate in them and, as a consequence, family photographs including [X] and both of his parents and/or Ms W have not been forthcoming; repeating the complaint regarding [X] not being taken to his football games with regularity, and complaining that Ms W’s relationship with [X] is not adequately recognised, or facilitated or encouraged by Ms Wilcox including, amongst other things, through not purchasing gifts or flowers for Mother’s Day.
Those issues with respect to attitude are a significant aspect of Mr Wilcox’s case. That is not to suggest that they are in any way unimportant. They, in my mind, are somewhat fundamental, and, I have no doubt, to the fore of Mr Wilcox’s mind in the proceedings.
The response of Ms Wilcox is that she finds the level of communication that is expected of her, the manner in which communication is expected to occur, the parties to that communication and decision-making, to be onerous, unreasonable and unfair.
The evidence
Turning to the evidence, I will firstly deal with the evidence of Mr L who, as I have indicated, has both provided a report to the Court and attended for cross-examination. Mr L’s report is, in my mind, balanced and thorough. Mr L in the concluding paragraph, paragraph 42, somewhat apologetically opines:
“A conclusive recommendation, however, does not emerge from this assessment. It is considered that [X]’s needs would be met if the Court were to find in favour of either of his parents. The child appeared attached to both parents and to have a close and positive relationship with Ms W, who impressed as a warm and responsive woman. Mr Wilcox, however, appeared to have a significant investment in determining [X]’s parenting program and may consequently seek to diminish or exclude Ms Wilcox’s influence on the child if [X] were to live primarily with him.”
Throughout his evidence, Mr L had referred to the communication issues that exist between the parties. What is clear from the evidence is that the parties have substantial communication. Annexure A to Mr Wilcox’s affidavit is a 115 page attachment of emails passing between these parties primarily from early to mid 2009 through to July 2010.
Also attached to Mr Wilcox’s affidavit is a lengthy transcript of text messages between the parties and similar material is also attached and annexed to Ms W’s material and to Ms Wilcox’s material. Clearly, these parties have a volume of communication.
Prior to the email and text messaging, which has occurred as the primary form of communication rather than face-to-face or telephone discussion, from May of 2009 the parties had utilised communication books, portions of which have been read into evidence although the documents have not been tendered.
It is suggested and I accept without reservation that the communication books suggest as fulsome a level of communication as what passes between these parties is inherently detailed regarding [X]. It goes into details as to what he is being provided for morning tea at preschool, when he has had bowel movements or the absence of them, and matters of such daily minutiae.
There is a criticism that often more significant issues are either lost or are raised in the communication but not responded to, and that criticism is principally levelled towards Ms Wilcox. When those matters were put to Mr L in cross-examination he made the comment which I accept is quite apt for these parties, “Quantity of communication doesn’t determine its quality.”
And indeed, having now read - although having indicated at the commencement of the hearing that I had not read the attachments, they have been caught up with during the course of the hearing and the parties’ evidence - the detail contained within the emails, particularly as a form of communication, does not, in fact, often reflect communication, but simply the passage of information between people. When communication was raised in cross-examination with Mr L he had this to say:
“I don’t consider the parties have communication problems. Mr Wilcox wants the mother to communicate with him at a level she is not comfortable with or that she sees as reasonable.”
That again, I feel, is more the issue with respect to these parties’ communication than of their communication itself. One might put it almost in the vernacular that their communication is so fulsome one cannot see the forest for the trees. There are instances where a number of emails are sent in a day and obvious frustration develops, particularly when Ms Wilcox has not responded.
This has been the subject of both submission and cross-examination indicating that Mr Wilcox as part of his work has access to email for about a quarter of his work day and certainly every day. Ms Wilcox’s evidence is that she does not and she tends to answer her emails when she can and quite often late at night or early in the morning when she has time.
Otherwise dealing with issues with respect to communication, it was put to Mr L whether the difficulties that were seen and the criticisms raised in particular with regard to Ms Wilcox’s failing to respond to communication supported or suggested any concern.
This also extended to issues that were put to Ms Wilcox regarding [X]’s enrolment in Ms Wilcox’s chosen school at St Mary’s and her completion of an enrolment form, it would appear, without the father’s prior knowledge and consent, although certainly since July I accept he has been aware of that enrolment.
Of more concern, Ms Wilcox did not include any of Mr Wilcox’s details. Mr L in response to those issues suggested the following:
“There is some obligation if there are effective channels of communication for that to occur, (i.e., including Mr Wilcox’s details on the form). In the context of this dispute, she would have been aware that he - Mr Wilcox - would have said, “Don’t do that.” She would have known that he would respond not to do it.”
This would appear in my mind to suggest that whilst there would be some criticism that like all things to do with families and which we very often forget (and which in elements of the evidence in this case have been forgotten, if not trampled underfoot), that everything has a context and the communication between these parties is part of that context.
When asked in cross-examination about his overall impression about the mother’s attitude towards the father’s wife, Ms W, it was indicated by Mr L:
“It is one of toleration. She is not desiring to strike up a friendship. I felt that she - being Ms Wilcox - feels that she - being Ms W - is climbing above her station in seeking to usurp her role as a mother, and as a consequence she has some negative feelings, but I don’t think it goes much further than that.”
Indeed, again I take some comfort from the description of Mr L in his report of this little boy, [X]. He is described, notwithstanding that he has lived in an equal shared care arrangement since a very young age, which the writings of academics such as McIntosh would suggest is contraindicative to his welfare, that he is indeed a child who is well-adjusted and not showing any signs of exposure to overt negative vibes between his parents.
There was also some discussion with Mr L regarding the fact that [X] at four appears to refer to his mother more frequently as “[Ms Wilcox’s first name]” than “Mummy”, and at other times the evidence suggests, without much dispute, that he calls and is encouraged to call his stepmother “Ms W”, “Mummy-[Ms W’s first name]” and his mother either “Mummy-“[Ms Wilcox’s first name]” or ““[Ms Wilcox’s first name]”.
That was not seen as overtly significant by Mr L, although I accept it is clearly a matter of some real significance to each of the above women.
The other aspect of communication that was addressed with Mr L in cross-examination was when it was put to him that the introduction of Ms W as a third party to communication between parents at a very early stage in her relationship with Mr Wilcox and, indeed, not that long after separation of he and Ms Wilcox, was perhaps a little early. Mr L’s response to that was:
“Introducing Ms W seemed to add fuel to the fire regarding communication difficulties at that time.”
It was then suggested to Mr L that perhaps it was somewhat naïve on the part of Mr Wilcox to expect Ms Wilcox to embrace the triumvirate style of parental negotiation and communication proposed by him, and Mr L accepted and adopted that proposition.
Turning to the evidence of the parties, each three of the deponents, being Ms Wilcox, [X]’s mother, Ms W, [X]’s stepmother, and Mr Wilcox, [X]’s father, were cross-examined and gave some brief oral evidence. Dealing firstly with Ms Wilcox, I am urged in submissions by her counsel to find that she gave her evidence candidly, frankly and did her best to tell the truth.
Further, that her evidence was child-focused, as evidenced by her indication in the witness box that she was prepared to forego time, ie, she would prefer weeks to run from Friday to Sunday if she were not the primary parent and she saw that as being in [X]’s best interests to avoid unnecessary and burdensome travel. Overall, I accept that submission. That is not to say that I do not accept credit with respect to other witnesses at different points.
In relation to the father and Ms W, I am urged by the mother’s counsel to find that Ms W’s evidence, in particular, was flippant and offensive, and that the father’s evidence was less than frank and that together they represented a formidable and determined team. Certainly the latter part of that submission I accept.
I am urged in the father’s case – and this is a case in which I am urged by each side to make findings of credit although, for reasons that will become clear, such findings are not as large in my mind as they may be in the parties’, but I am urged to find that the father and Ms W’s evidence is far more credible than the mother.
This is on a number of bases. It is certainly urged upon me that the case is not one that I can approach in a black and white fashion and I wholeheartedly adopt that. As a general observation, I feel that very rarely can one find that there are black and white facts in any parenting case as so much turns on perception and nuance.
There are shades of grey in this and, I feel, every case that comes before the Court. But sometimes that grey seems incredibly dark to the point of black and sometimes very light to the point of white, but rarely is there one entirely earnest version of events which must outweigh all others. But I do not accept that the mother was less than frank or forthright. The criticisms of her in this regard, that I am urged to use as the basis for finding her as being a less than frank and truthful witness, I do not find convincing.
That is not to suggest any disrespect to counsel or the submission put in that regard but, simply, that the matters that are dealt with I find are either open to substantially different interpretation - are open to contrary explanation which is equally probably or reasonable and, in some instances, certainly not germane matters upon which I need to make findings of fact.
Perhaps the most important issue where I am urged to make findings of fact is with respect to the allegations of domestic violence that are raised in this case. I am urged to accept that as there is no domestic violence order that this provides some support for an absence of concern and, indeed, extending to an absence of reportable instances of domestic violence by the mother, notwithstanding that she urges the Court to accept that this has been so.
This, perhaps, turns significantly on an examination of the nature of domestic violence. I note that the Family Law Act does not refer to domestic violence, but family violence and, as such, in section 4, contains an incredibly limited definition of what constitutes family violence.
A definition that is legalistic is based on an objective rather than subjective test and which requires, in my respectful view, some amendment. Whereas the other portions of Part VII, which have been the subject of not less than six reviews in the last 12 months calling for change, do not require amendment.
The tools to deal with domestic violence, without them specifically applying to this case, are manifest. Everything that this Court does in parenting proceedings commences from a consideration of domestic violence. From s.61DA and whether the presumption of equal shared parental responsibility applies – and it can be rebutted on the basis of family violence – through to s.60CG and the requirement for the Court to consider family violence and to ensure that strategies are in place in any order to protect against it, through to the Court’s extensive powers to make notifications, obtain information from the Department and the Police under s.69ZW, and the very obligation contained within Part VII to prioritise all and any cases that relate to allegations of violence.
One of the other matters put with respect to violence and why I would not accept it is that a form 4 has not been filed and that this, of itself, infers an absence of violence. As I have noted to counsel during the case, it is regrettable and it is, indeed, one of the criticisms of inquiries into the operation of the Family Law Act both prior to and post 2006 amendments by the Australian Institute of Family Studies and others that the presentation of evidence, with respect to domestic violence, particularly by legal practitioners – without singling out legal practitioners in this case – is less than perfect and, indeed, far less than satisfactory.
The majority of cases – I would suggest the substantial majority of cases – that come before this Court contain some element of risk of family violence or, at least, allegation of it which would warrant the filing of a form 4.
Regrettably, it would appear to be the practice of the legal profession, in particular private practitioners, to not pay heed to that requirement. They should begin to do so forthwith as it is their obligation as officers of the Court.
In any event, I am not critical of Ms Wilcox in this case for not having filed a form 4. She has been represented and it is a matter for her advisors as to whether it is filed. And, again, I hasten to add that is not a criticism of her advisors. But, more importantly, the material facts upon which Ms Wilcox relies are set out in her material and were set out in her material in her first affidavit of May 2009 and, accordingly, has been before the Court for 15 months.
The other aspect of domestic violence relates to the suggestion that there has been an absence of reporting as well as the absence of orders and that this is evidence that really there is no substance to the allegations. The fact is that proceedings have been commenced it would appear by the police in 2001 following an incident, which is that subject of total denial in Mr Wilcox’s case and absolute protestation in Ms Wilcox’s.
In this regard I note that the literature, with respect to domestic violence, would not support that proposition. And I quote from material prepared by Mr F on behalf of a number of organisations – and there is an information sheet specifically for the National Association of Single Mothers which provides:
Australian support for the notion that misuse of protection orders is widespread comes from a 1999 survey of magistrates in New South Wales. 90 per cent agreed that orders were used by applicants, often on the basis of advice from a solicitor, as a tactic in Family Court proceedings to aid their case and to deprive the partner of access to their children -
this arriving from a judicial commission of New South Wales 1999.
More recent surveys found that some Family Law solicitors share this perception, stating that:
Many women are access bitches who vindictively deny contact between their ex-partners and their children -
based on research of Melville and Hunter in 2001. It goes on to indicate this:
However, examination of Family Court files and victims’ experiences finds that the father’s rights claim is unsubstantiated if not false. In the study of 176 files in which children’s matters were contested, while 95 per cent of the files - or 54 per cent - included evidence of domestic violence, apprehended domestic violence orders had not been obtained in over a third of these. This suggests that women going through Family Court proceedings and living with domestic violence do not routinely take out protection orders in response.
It is often suggested (although as a credit to counsel not in this matter), that the fact the parties have stayed together in this case from the first incident alleged by the mother in 2001 until 2007 must, of itself, be evidence of an absence of concern on behalf of the alleged victim and, perhaps, is support for the fact that the allegations are, or should rightly be inferred as, made up.
That is simply not consistent with the nature of the cycle of domestic violence well documented in social science. Domestic violence is an insidious form of control within a relationship and has nothing to do with the fabric of a loving relationship. It is a psychological process that operates for its perpetrator.
It also is a psychological process that operates for its victim and, accordingly, the well-documented evidence now available in the public sphere regarding domestic violence, the manner in which it occurs and, most importantly:
a)the fact that people stay together notwithstanding violence
b)will separate because of violence and then reconcile
c)go to the police, make complaints, commence proceedings but then discontinue them or
d)agree or consent to arrangements for their children which might be perceived, if one were to believe the allegations as contrary to any expressed fear;
is now manifest and unarguable.
However, in this case, I accept the submission of counsel for the father that it is not necessary for me to make a finding positively or negatively. Although I find the version of events given by Ms Wilcox is cogent - and I hasten to add I do not fail to make a finding for failing to believe her evidence – I simply do not need to make the finding to deal with the judiciable issues before this Court.
A finding would be of great relevance if I were being asked to rebut the presumption, which I am not, and I m not satisfied on the evidence before me that if I were that I would in either the mother or, even more so, the father’s case.
However, the fact that family violence is raised as an issue is relevant and significant and, in my mind, imposes an obligation upon the Court under, s.60CG, to ensure that such orders as are made include safeguards, as far as possible, to avoid any issue in the future without having to find, as a matter of positive fact, that it has been an issue in the past.
It would also have some relevance with respect to the arguments advanced as a central tenant of Mr Wilcox’s case that the mother’s attitude towards communication and information provision and decision-making is unreasonably. To that extent, I am satisfied – and with respect to other issues that I will canvas shortly – that Ms Wilcox should not be criticised with respect to communication between these parents and, more pertinently, between herself, Mr Wilcox, and Ms W.
With respect to credit generally, the other issue that I am asked to draw inferences about is the father’s evidence and, particularly, Ms W’s evidence regarding a particular email that had passed between the parties.
It is to be recalled that there is a substantial criticism that Ms Wilcox has failed or refused to acknowledge the role of Ms W in parenting [X], or as being a significant person in his parenting and household with his father, or to communicate with her, make decisions with her, provide information to her, or be engaged with her in what might otherwise be described as a parenting relationship.
It is clear that Ms Wilcox and Ms W have met on only than three occasions and all during 2010, and Ms Wilcox’s evidence is that January 2010 was the first face-to-face meeting.
Ms W’s evidence is clear that there have been a number of invitations and entreaties as early as 2007 and 2008. Mr Wilcox’s evidence corroborates this. However, the first real face-to-face meeting occurred at that time.
As regards to criticisms that emails were not copied by Ms Wilcox to Ms W – whilst quite clearly they have for some years been copied by Mr Wilcox to his wife – the parties spent some time in addressing an email that had been copied by Ms Wilcox to Ms W, being an email of 17 March 2010 regarding a number of issues and particularly discussing Ms Wilcox’s views and attitudes towards Ms W.
It also dealt with a number of other issues with respect to football, communication and the like. That email was sent by Ms Wilcox to Mr Wilcox at 12.09 pm, and it was copied at the same time to Ms W. At 12.24 pm an email was forwarded by Ms W to Ms Wilcox which read:
“OMG (Oh my God). She’s a bitch. Will chat to you about it later. Expect a nasty affidavit from her.”
In cross-examination and, indeed, in her affidavit material, Ms W had suggested that that email had arrived with her as the first email that had arrived from Ms Wilcox at a time when she was also engaged in either an instant chat or email dialogue with her brother regarding an employment issue dispute and a past partner – whether business or not, I do not know.
It is suggested that, indeed, the email sent was intended to be sent to her brother. A Jones & Dunkel inference might arise – and that was raised during submissions. And I was advised in submissions that material was in the process of being obtained regarding a chronological log of those emails. It does not concern me that that is not before me.
I do not need, again, specifically to make a finding as to whether one or other version is true and the other false. Whatever happened, it is regrettable. And, certainly on balance, I find some difficulty in accepting Ms W’s version of events or, if accepted, that she has demonstrated the level of care and insight into the importance of preserving that relationship as would be suggested in her evidence as a whole.
That is so as:
a)Ms W’s evidence is this: it is the first email she had ever receive from Ms Wilcox, notwithstanding that for some two and a half years she had been seeking to be copied into all emails;
b)Ms W had indicated she was not even aware that Ms Wilcox had her email address;
c)To have sent the message back to Ms Wilcox would have required, at the very least, having seen the message and clicking on it to either reply or having cut and pasted the address to send a fresh email.
The heading of the email itself - as attached to the affidavit material, annexure C to Ms Wilcox’s affidavit – would make it difficult – when it is headed “RE: [X] Easter Football”, and clearly bearing Ms Wilcox’s email address – to confuse it unless acting in extreme haste.
As I have indicated, I do not need to make a finding in that regard because it is not germane to what I must determine, but it is, at the very least, unfortunate and regrettable. And it would appear, since that time, any goodwill that had begun to develop through the three coffee meetings, or otherwise, evaporated quickly.
Following thereafter were emails from Ms Wilcox to Mr Wilcox requesting that he, rather than Ms W, now participate in changeovers. Again, Ms Wilcox was criticised for that as having previously suggested that she was anxious in coming into contact with Mr Wilcox. And it is suggested that that flies in the face of there being a reasonable or real anxiety, fear, or otherwise of Ms Wilcox of Mr Wilcox. I do not accept that that is so.
It is, again, an instance where things have come horribly undone and finding not the optimal but the least worst solution to that problem has eventuated.
Both parties are otherwise critical of the other about not consulting the other before making decisions. There is a suggestion that each parent has had injections or vaccinations provided without consulting the other. But it is certainly clear that each advised the other after the event, which is at least sensible and practical in light of the dangers that might be faced by [X] if these things were duplicated.
There is a very real issue between the parties and which becomes highly relevant in the decision-making process regarding [X] playing Rugby League football this year in the Gladesville area. It is suggested by the father that that was a joint decision. It is suggested by the mother that it was not and that she was simply advised about it.
The only objective evidence, if I can call it that, is a copy of an email
9 February 2010 – annexure 32/ 115 to the father’s material – which is addressed by the father to the mother and commencing:
“I wanted to let you know that I’ve registered [X] to play football with [K] and [D] (being two cousins).”
The email is not determinative of either version. It does not preclude prior discussion. It may confirm what was already agreed. It might be taken to suggest an absence of discussion and simply being told.
But it is important, also, in this regard. A limb of the father’s case – and I am, at this point in the judgment, referring to them as mother and father to avoid having to use everyone’s full name in light of the fact everyone in this case has the same surname – it is suggested in the father’s case that playing football for this team is a matter of some significance in determining the issue of where [X] will primarily live, because [X] has established friends and a routine in that area playing football for that team with his cousins.
Against that, however, is the uncertainty as to whether, indeed, when football commenced in April of this year – some four months ago and after hearing dates had been allocated– it was something that was done by agreement or of the father’s own volition. If of the father’s own volition it is not something that can be seriously weighted in support of his case.
It is also suggested that he plays with people, including his cousins, in that team. What is significant in that regard is that there would appear to be no dispute, or contest at least, as there is no evidence other than the mere assertion, that these cousins enjoy a good relationship with [X]. I accept that they do primarily because it would seem logical that it be so. And it is, in any event, conceded by the mother.
But the father’s evidence indicates, in paragraph 25:
“On the weekends, [X] spends time with his many cousins and we regularly have sleep-overs. [X] loves all of his cousins but [K] and [N] and [J] are his favourites. On Sunday morning we take [X] to his football game and, generally, have lunch or dinner with family.”
What is important with respect to that piece of evidence I feel flows on to, in fact, the germane issue in this case. The issues in this case are about relationships, about developing them so that they are meaningful, and about maintaining them.
There is inevitably, on each party’s proposal, going to be substantial change for [X]. But what will change, in my mind, is his time arrangement and his care arrangements, not his relationships.
[X] has developed a number of relationships, I accept, in both households on a part-time basis. He has not, for the last two years at least, had the experience of living substantially or primarily in one home. He has spent pretty much equal time in each home and has managed to develop and maintain meaningful relationships with a variety of people, significantly including his parents, whilst doing so.
There are also significant relationships on the mother’s side, including with her mother and people who are part of her church congregation, although she is less clear and specific about whom those people are.
He has also been attending two preschools and, no doubt, has formed friendships and associations through both. The preschool he attends while in his mother’s care is proximate to his home and in the same suburb. Whilst in his father’s care is proximate to the father’s place of work.
The real issue that has driven the divide between these parties, if not their litigation, is that of communication. And, in my mind, what I must determine is the differences in what each party expects of communication both as to how frequently, what is included in it, what is communicated about and jointly decided as opposed to day-to-day matters that the parties can deal with themselves and, fundamentally, the issue of whether communications between [X]’s mother and father or between [X]’s mother, father, and Ms W.
Conclusions
In turning back to the law, and then dealing with the above issues and evidence, the Act, as I have indicated, requires that I commence with a consideration of the objects and principles in s.60B. Everything I do must be governed by s.60CA and the paramountcy of [X]’s best interests.
I must turn to the presumption under s.61DA and whether the parties are to continue to have equal shared parental responsibility for the reasons I have already expressed. And, as neither party proposes otherwise, I intend that the presumption would apply and I will, in due course, make an order for equal shared responsibility.
The presumption applying, I am then required under s.65DAA to consider equal time and substantial and significant time as against the dual test of what is reasonably practical and what is in [X]’s best interests.
With respect to equal time, I am satisfied that it is not appropriate. Neither parent proposes that it is appropriate, and it is fundamental to each of their applications that it could not be appropriate. That is primarily based on that fact that once [X] starts school practical difficulties mean that an onerous burden of travel and disruption will fall on [X]’s shoulders and that is not acceptable to a child of this age. Nor is it age appropriate for him to be having such passages, and I accept it would likely be disruptive to his schooling. That does not, however, end the issue of the involvement that each parent will have.
In the father’s case, I am urged that orders should be made which provide for substantial and significant time, as defined in subsection (3) and this provides that each parent would have substantial and significant time only if the time that they spent with the child includes days that are weekends and holidays, days that do not fall on weekends and holidays – for some reasons the legislators seem incapable of saying weekdays - the time that each parent spends with their child including time that enables them to be involved in the child’s routines, and occasions and events that are significant for the child and for each parent.
On that basis, the father’s proposal, which is Thursday to Monday and Thursday to Friday in the other week, is put as being substantial and significant time, whilst the mother’s is not.
Clearly, the mother’s proposal for two weekends out of three, in her primary application, running from Friday to Sunday, would not include any substantial weekday time although could not be said to include none. It does include, after all, Friday afternoon. But it is not a significant sharing, although sharing need not be or even approximate equality. The mother’s alternate proposal accedes to two weekends out of three, Thursday to Monday.
I have in mind that an order which provides for some compromise as to substantial and significant time to enable the parties to have some involvement each in weekday time is appropriate, although it will be tailored in a fashion that would minimise disruption for [X]. And to the extent that there is disruption or burden it will fall on his parents and be minimised as regards [X].
As regards the balance of s.65DAA(5), and reasonable practicality, notwithstanding the judgment of Murphy J referred to above, I will deal with those issues separately and now.
The parties do not live any substantial geographical distance apart but the travel times between their homes can vary depending on the day and time of day the travel is undertaken by car. If it is undertaken at
3 o’clock on a Sunday morning it would, no doubt, be a trip of about 40 minutes. If it is undertaken west to east on any day with a view to having [X] at Gladesville at 8.30 or nine, it is common knowledge the difficulties that befall the M4.
The mother, in all likelihood, need to either catch a bus to St Mary’s Station, a train from St Mary’s to Strathfield, and a bus from Strathfield to Gladesville to get there, or would need to drive. That drive may take some time – anything certainly up to an hour and a half to two hours. The travel in the opposite direction is, perhaps, less onerous as the flow of traffic in the morning is west to east and in the evening, east to west.
In relation to the parent’s current and future capacity to implement arrangement for time, I am satisfied, based on the fact the parties have done so for two years that they can make anything work if they turn their mind to it.
The parties’ current and future capacity to communicate I accept – with the reservations that I will make in a moment between the mother and father – is adequate, if not good.
The impact of the arrangement on the child: both parents concede, as does Mr L that this will be a big change for [X]. But it is a change that both parents acknowledge must happen.
With respect to communication, I intend, as I have indicated, to make an order for equal shared responsibility as between [X]’s mother and father, and that is where it will end. Communication should be between [X]’s mother and father. Whom Mr Wilcox chooses to involve or share that information with is a matter for him, but the communication should be between them.
It is manifest, from the evidence that is before this Court, that the difficulties that arise when it extends beyond that do not benefit [X]. Communication breaks down, it becomes terse, it becomes fraught.
Thus far [X] has been spared from that but I cannot imagine that will continue into the future as [X] gets older. Mr L comments as follows, in paragraph 40:
“An amicable relationship between the mother and step-mother may create harmony, but harmony between [X]’s parents is the more important goal. It would seem more appropriate for Mr Wilcox to concentrate on developing a workable relationship with the mother rather than insist that his wife be included. His insistence on including Ms W has so far been divisive and created tension. His need to exchange, with Ms Wilcox, symbols like Easter eggs, to include himself and the step-mother with Ms Wilcox in preschool photographs, his desire for the mother to provide the step-mother with flowers on Mother’s Day, adds to the tension and to Ms Wilcox’s discomfort in dealing with him. …”
In turning to s.60CC, there are two primary considerations. There are then 13 additional considerations. The additional considerations are not subservient to the primary considerations but certainly inform the primary considerations, and can stand alone. The two primary considerations focus upon
a)the benefit of [X] having a meaningful relationship with both of his parents, and
b)the need to protect [X] from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am satisfied that for the purpose of this decision, and without dismissing out of hand either party’s position as regards a number of allegations, that the second primary consideration regarding protection is not, at this point, significant. It may become so in the future. With respect to a meaningful relationship being maintained between [X] and both of his parents I note that the parties’ proposals in their primary applications are not mathematically dissimilar.
Mr Wilcox’s proposal would see [X] spending about 35 to 36 per cent of his time with his mother. Ms Wilcox’s would see [X] spending about 33 per cent of his time with his father.
But this case is not about maths or science or anything more fundamental than [X] having a meaningful relationship with both of his parents. The type of time, the frequency of time and what the parents do with that time is, in my mind, far more important than what the time itself is. That also has been the subject of comment in a number of previous authorities and including the decision of Carmody J to which I have already referred.
The time that each parent will have will not be equal. Neither parent proposes that it be so and I accept that it is not practical or appropriate particularly once [X] starts school. But that does not suggest that their relationships with [X] will be unequal or any less significant, particularly to [X]. It would be important for both parents to remember that and to attempt to put their feet into [X]’s shoes and see this dispute from his perspective. He has two parents. He also has other people who are significant to him and I wholeheartedly accept that includes Mr Wilcox’s wife, Ms W.
However, he has two parents. He will until he dies and that will not change. He has a right to know them both and I intend to make orders that will allow that to occur.
[X]’s views
In the additional considerations and in submission it has been put to me that I would place some weight, although not significant upon views expressed by [X]. It is important to remember that the Act expresses and uses the terminology views, not wishes.
[X] has views, no doubt, about many things and is reported by Mr L as expressing a view to live with his dad. He phrases this in his report in paragraph 34:
‘‘I want to live with Daddy.” When asked if his father had said anything about living with him, [X] said, “He said you can live with daddy all the time but you have to go see mummy sometimes. …”
In my mind what is significant about that is not that a conversation would have occurred – it is not unexpected that a parent will discuss matters with their children, particularly if they are coming to see a family consultant and I would not expect that any parent would simply present their child here without any idea of what they are doing. What is significant in my mind is the latter part of that response though. Not significant that Mr Wilcox is reported as saying to [X] that his Daddy says he can live with him all the time, but the negative connotation put in relation to his mother, who is often, it seems, referred to as Ms Wilcox rather than Mummy.
The phrase “You have to go see mummy sometimes” does not, in my mind come close to meeting what Full Court authorities regarding the express and implied obligations of supporting a child’s relationships require. It puts it in a negative tone that it is something that this child must endure, whereas the evidence is quite clear and it does not seem to be an issue between the parents that [X], in fact, enjoys an excellent relationship with both of his parents.
That is so notwithstanding that there is substantial evidence that at least for a big period of 2009 Mr Wilcox faced difficulties in getting [X] to prepare and go back to his mother at the end of his periods with his Dad. Similar difficulties are noted by Mr L, although not with the same extremity. When [X] is leaving the observations from having come in with his mother’s care and leaving with his father [X] is observed at that point as going to his mother, being quiet, giving her a kiss and saying that he will miss her.
Nothing significant is raised in that and Mr L does not suggest that it is significant other than suggesting not that he does not want to go with his father, but that he does not want to leave his mother. Perfectly natural for a child of his age. What is also significant in that regard is that there has been some frank and candid communication between the parties regarding that. It is certainly contained in a lot of the emails that are forwarded by Mr Wilcox to Ms Wilcox. Ms Wilcox raises it in relation to Christmas and earlier periods of time and a lot of the issues relating to that ability to facilitate and encourage relationships I will deal with very shortly.
The nature of the child’s relationship with each parent and other people
I accept is excellent as regards all.
The willingness, ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent.
I am perfectly satisfied that Ms Wilcox has that ability and has demonstrated it. I am satisfied to a similar, but not quite equal, extent that Mr Wilcox has and will continue to do so. The matters that cause me concern in that regard include what I have raised above, as well as the matters that I previously quoted from Mr L’s report. Those matters do cause me some concern.
There is a flavour, if nothing else, to Mr Wilcox’s evidence and Ms Wilcox’s regarding the importance to him of his wife, Ms W, being recognised and placed on equal footing with each of [X]’s parents in decision-making, information sharing and that she be acknowledged as a parent, but regrettably and without intending any disrespect at all, she is not. [X] has two parents. And the difficulties that have arisen from that very issue as to who is to be included in information exchange, because it is quite clear that in the communication book and emails that Ms W is actively involved in forwarding material to Ms Wilcox much to her chagrin, is something that needs address as it has caused difficulties but for which these parties might not have been before this court.
The other aspects with respect to this that are urged upon me relate to issues of credit in that Ms Wilcox - Ms Wilcox - has in her material been critical of the father at times for a number of things. One relates to an incident that has been referred to as the “locking in the car incident” in December of 2009, but also more significant criticisms raised from paragraph 44 of the mother’s affidavit wherein she alleges and provides a specific list of dates when she did not get to speak to [X] in accordance with orders made by the court by telephone.
There does not appear to be any dispute that, in fact, the telephone conversations did not occur in accordance with the orders on those dates. However, as it is quite rightly pointed out, Ms Wilcox does not go on to indicate, as is referred to in one of the annexures to the father’s affidavit, a typescript of text messages, that she did, in fact, receive on most, if not all, of those occasions - a text message from Mr Wilcox providing an explanation for why [X] was not available, but it does not remove the fact that he was not available.
Telephone calls for young children when they are absent from any parent are an important way of maintaining that parent in the child’s mind. Certainly the explanations are perfectly plausible. “We went to the beach and he was really tired and went to sleep early. See you at 8 am tomorrow” and the like. But whilst Ms Wilcox is criticised for not alluding to the explanations provided that is what they are; explanations for something that did not happen and that should of. In contra-distinction Ms Wilcox’s evidence, which was not challenged, is that matters come to a head regarding telephone calls and particularly telephone calls between [X], his father and Ms W.
In paragraph 28 of the mother’s affidavit she refers to an occasion in or about December 2008 that she spoke with the father who said “When I call you to talk to [X] I want [X] to talk to Ms W as well”. The mother responded, “I’m not comfortable. Just give me some time and I will let you know when it’s okay”. And the mother reports that the father responded, “If Ms W can’t speak to [X] when she calls then I won’t call either to talk to [X].’ After this conversation Mr Wilcox stopped all communication between me and [X] when [X] was with Mr Wilcox” and it is asserted that for a period of time [X] did not receive calls from his father.
That, again, would appear to be what is really in dispute between these parties. Nothing to do with how they view their child’s well-being, how much they love him, how much they want the same or not dramatically different things for him in life. I am certain they both want him to be happy, healthy and well-adjusted. But from the time that Mr Wilcox entered his relationship it appears that he has done nothing that would suggest hastening slowly as regards not only the introduction of Ms W into [X]’s life but an insistence that Ms W become part of communication and effective parental responsibility for [X] notwithstanding the obvious discomfort and disquiet this has caused - and as Mr L has noted - the fact it has caused division and difficulties that have not been in [X]’s best interests.
It is understandable that he would have that attitude, but it would not appear that Mr Wilcox has placed himself into either [X]’s shoes or in this circumstance, more importantly, Ms Wilcox’s shoes to see it from her point of view other than to suggest that the difficulties arise out of jealousy. There is nothing to support that, however.
Effect of change
In dealing with the balance of s.60CC considerations the likely effect of change I have already touched upon. There will be a substantial change to the extent that Mr L has suggested that it may, perhaps, require some counselling or other assistance beyond his parents’ goodwill. I am satisfied that his parents’ goodwill, if they both turned their mind to it as a united front between the two of them, would address the issue, but I am also satisfied that appropriate support will be sought out if needed.
The change otherwise is not something that, in my mind, should occur with the beginning of the 2011 school year as that will cause even more disruption for [X].
Practical difficulty and expense
In relation to practical difficulty and expense I have indicated that is the real issue as regards the need for time arrangements to change. I accept the capacity of each parent and other people involved in the child’s care to meet the child’s emotional and intellectual needs - to date I am satisfied that has not been a negative issue in either case.
Maturity, seeks lifestyle and background, including culture
This ties in then with subsection (h) dealing specifically with [X]'s Aboriginal and Torres Strait Islander background and also flowing on in subsection (6), which gives more definition to the right to maintain culture and to enjoy and explore that culture with other people of that culture.
There is no criticism of the father that he will not support and encourage [X]’s aboriginality or, as it now seems to be commonly referred to, indigenality. However, culture is a living experience. It is not a static, objective concept that is taught to children like maths or reading. It is something that children enjoy, that they develop an interest in and explore with people of their culture. That is inherent from a variety of United Nations instruments as well as a body of sociology and ethnography.
The important aspect for [X] is that [X] comes from a number of different cultures. He is not just an Aboriginal child. He also has a Lebanese culture. There is some issue as to how seriously that is perceived by the father and a criticism that the mother does not support it, but the mother’s evidence suggests that she is certainly aware of it and, at the very least, does not impede it. There is also reference to [X] having lineage from other backgrounds, including Brazilian and German, although their role in [X]’s upbringing is unclear.
[X]’s aboriginality that is not a determinative factor in this case, but he certainly needs time with his mother to explore it and on the mother’s evidence receives it at the moment through her attendance at a religious congregation, which is specifically focussed upon the Aboriginal community in western Sydney and that is to her credit.
Family violence
I am satisfied, as I have indicated, I do not need to make findings regarding the specific instances that are referred to in evidence, but I do propose in the structure of orders to be made and as I am required by s.60CG to put such safeguards into place as I can to avoid that ever being an issue for these parties.
There is clearly no family violence order.
Avoiding future proceedings
As to making orders that will avoid future proceedings this is a final hearing and one would hope that the orders that are made will be complied with, but I am satisfied that they are orders that will best meet [X]’s needs and should, on that basis if nothing else, avoid the parties returning for future proceedings.
Bearing in mind that they will, of course, first need to attend family dispute resolution.
Three additional issues are raised. The first is that there would appear to be agreement between the parties that [X] will travel with his father to Fiji later this year. S.65Y of the Act requires for that travel to occur, bearing in mind that there are already, and will after today’s reasons be further orders with respect to [X], that this be done with the parents’ written consent or a court order. I propose to make an order about it to ensure that there is no dispute, particularly as Ms Wilcox’s evidence is that she does agree.
There will also need to be orders about the execution of a passport and what’s to occur with it.
The second issue that arises is with respect to [X]’s name. [X] is registered with the Registry of Births, Deaths and Marriages under the surname [Lewis]. It is to be noted that that is not a name that any party to these proceedings uses. It was, in fact, Mr Wilcox’s birth name, but he changed that name some time ago and following what would appear to be an incorrect prosecution against him which has resulted in not only the prosecution being no billed with costs but I am also told proceedings are now on foot for unlawful imprisonment.
I make very clear that that is not an issue that arises in these proceedings as a matter of credit or otherwise. It is just a reality which is the explanation provided by Ms Wilcox in her material as to why the father changed his name from his birth name to Ms Wilcox’s name and now having remarried his wife’s name, hence there being two Mrs Wilcoxs in this case notwithstanding that the mother and father were never married. It would appear that the change of name that Mr Wilcox undertook occurred some two years prior to [X]’s birth and four years prior to [X]’s baptism, all of which occurred in the father’s birth name.
The mother opposes any change of name.
The father proposes that the name be hyphenated. The father explains that he changed his name to avoid embarrassment or other indignity that might arise from the false charges that were brought against him.
In my mind, and as I’ve indicated to counsel during the course of the case, it’s all or nothing. If there is going to be embarrassment to the father of using that name one would think it would flow to [X], so accordingly in my mind the choice is either it changes to Wilcox or it stays as [Lewis]. On the basis - and I appreciate that Ms Wilcox opposes it - that none of these parties are known by the name of [Lewis] it seems to me artificial, even absurd, that [X] would continue to be known by another name.
And particularly as the change of name is occurring to the mother’s name I propose to make that order.
The final issue that it is raised, and it would appear common ground, that someone other than the parents should have a role in explaining these orders to [X]. It’s proposed in the mother’s case that it be Mr L and it’s proposed in the father’s case that it be a family consultant, but not Mr L. There has been a great deal of debate in this country and others exercising common law jurisdiction as to whether judicial officers should be involved in meeting with or interviewing children.
I am on the record of having strongly expressed and continue to adhere to the view that it is not the role of judicial officers to interview children in the course of proceedings for the purpose of entering the fray or the arena. However, as regards the explanation of these orders I propose to take that duty on with the assistance of a family consultant, Ms D.
I have made inquiries during the adjournment between the closing of submissions and these reasons and ascertained that it is not feasible or practical for Mr L to do the job, but Ms D, an experienced consultant within the court, can and can do so next Thursday when I am also available having returned from Newcastle. Accordingly, I will make an order in that regard. For all of the above reasons, which will be published in due course, I make the following orders.
I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 13 September 2010
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