Wilson & Carter
[2022] FedCFamC1F 216
•8 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wilson & Carter [2022] FedCFamC1F 216
File number(s): PAC 5480 of 2018 Judgment of: JARRETT J Date of judgment: 8 April 2022 Catchwords: FAMILY LAW – CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – parenting – parental responsibility – where presumption of equal shared parental responsibility does not apply – competing proposals for parental responsibility – assessment of competing proposals Legislation: Family Law Act 1975 (Cth) ss 4AB(1), 60CA, 60CC, 61DA(1), 64B(2), 65DAC Cases cited: Goode & Goode (2006) FLC 93–296
Simpson & Brockmann (2010) 43 Fam LR 32
Division: Division 1 First Instance Number of paragraphs: 41 Date of hearing: 18 & 19 November 2020 and 8 & 9 June 2021 Place: Brisbane Solicitor for Applicant: Litigant in person Counsel for the Respondent: Ms Mahony Solicitor for the Respondent: Rowlandson & Co Solicitors Counsel for the Independent Children’s Lawyer Ms Tabbenor Solicitor for the Independent Children’s Lawyer John Spence & Associates ORDERS
PAC 5480 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WILSON
Applicant
AND: MS CARTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1.In addition to the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 18 January 2022, the applicant and the respondent have shared parental responsibility for decisions concerning the major long-term issues for X born 2016.
2.Otherwise all outstanding applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson & Carter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J
This parenting application came before me in the Federal Circuit Court of Australia (as it then was) for hearing and determination on 18 and 19 November, 2020. The hearing of the matter could not be completed and its further hearing was ultimately completed on 8 and 9 June, 2021. At the conclusion of that hearing I reserved my decision for delivery on 15 June, 2021. However, shortly prior to that time my Associate was contacted by the applicant and the other parties requesting the judgment not be handed down because the parties were in the throes of resolving the case. Despite a couple of further attempts at delivering the judgment, correspondence from the parties or one or other of them and Independent Children’s Lawyer suggested that the parties were close to reaching an agreement and that the judgment should wait so that the parties had the opportunity to further explore settlement.
Happily for X, the child who is the subject of these proceedings, his parents were able to reach agreement, by and large, in relation to the parenting arrangements for him. On 18 January, 2022 a judge of the Federal Circuit and Family Court of Australia (Division 2) made consent orders upon the parties’ request. Those orders disposed of all of the contested outcomes in these proceedings save one. The remaining outcome in dispute relates to parental responsibility.
The orders agreed between the parties provide for X to live with his mother and spend time with his father:
(a)for the 2022 school year (during school term time):
(i)each Monday from after school until 6.45pm except when Monday is a public holiday;
(ii)in week 2, from 10.00am Saturday until the commencement of school the following Monday but if Monday is a public holiday then the commencement of school the following day;
(b)commencing Term 1, 2023 (during school term time):
(i)each Monday from after school until 6.45pm except when Monday is a public holiday; and
(ii)each alternate weekend from the conclusion of school Friday until the commencement of school the following Monday but if Monday is a public holiday then the commencement of school the following day.
The orders also provide for X to spend time with his father on special occasions and during school holidays. The orders provide for the school holidays to be spent equally between his parents. The orders cater for change over to occur at X’s school or, if that is not appropriate, for his mother to deliver X to his father’s home at the commencement of his time with his father and for his father to deliver X to his mother’s residence at the conclusion of that time. The orders record an agreement between the parties about the primary school that X will attend. There are a range of other orders dealing with administrative matters and orders permitting X travel outside of Australia with each of his parents.
The record shows that the application was mentioned before a Judge of the Federal Circuit and Family Court of Australia (Division 2) for the purposes of determining how to proceed in respect of the remaining dispute about parental responsibility. The parties agreed that I should determine that issue based on the evidence that I have already heard in the application more generally. For that purpose, the application was transferred to the Federal Circuit and Family Court of Australia (Division 1).
The remaining outcome in dispute between the parties relates to parental responsibility. The applicant, X’s father, seeks an order that he and X’s mother have equal shared parental responsibility for decisions concerning the major long-term issues for X. The respondent, X’s mother, seeks an order that she be solely responsible for decisions concerning major long-term issues for X. So too, the Independent Children’s Lawyer.
For the reasons that follow, I have concluded that it is in X’s best interests for there to be in order for shared parental responsibility between X’s parents.
Some principles
Part VII of the Family Law Act 1975 (Cth) provides the relevant statutory framework within which the Court must determine what parenting orders to make, including orders for parental responsibility. The Court must regard X’s welfare as the paramount consideration in determining what parenting orders to make: s 60CA of the Act. The best interests’ principle informs each of the orders that a court might be called upon to make concerning parenting, including orders about the incidence of parental responsibility.
Parental responsibility is not a right to which parents are entitled; rather it is an obligation. It is better seen as a right of a child to have decisions concerning that child made by a parent. In the context of the Family Law Act, parent means biological parent: Simpson & Brockmann (2010) 43 Fam LR 32.
Subsection 61DA(1) of the Act provides that when making a parenting order, a court must presume that it is in the best interests of the child or children concerned for their parents to have equal shared parental responsibility for them. That presumption will not apply if there are reasonable grounds to believe that a parent of the child or children concerned either has engaged in abuse of a child who, at the time, was a member of the parent’s family or has engaged in family violence: s 61DA(2).
Abuse is defined in the Act as follows:
abuse, in relation to a child, means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Family violence is defined in s 4AB(1) of the Act and some examples are given in s 4AB(2) as follows:
4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
However, a finding that the presumption does not apply does not mean that a court cannot make an order for equal shared parental responsibility or more simply, shared parental responsibility, but if it does so, it must do so on the basis that such an order is in the subject child’s or children’s best interests: Goode & Goode (2006) FLC 93–296 at [46] – [48]. That is to say, the making of the order is by reason of an application of the best interests’ principle.
Consideration
Each of the parties addressed the question of parental responsibility in their final submissions. The respondent and the Independent Children’s Lawyer submitted that the presumption of equal shared parental responsibility did not apply. The applicant argued that it did.
The respondent and the Independent Children’s Lawyer argue that the presumption of equal shared parental responsibility does not apply because the Court should be satisfied that the applicant has engaged in abuse of another of his children, Y. The evidence supports this submission. The applicant accepted that he had placed his hand over Y’s mouth on a number of occasions so as to prevent her screaming when he did not want her to scream. That action probably constituted an assault within the description of abuse. I so find.
Further, the presumption that it will be in X’s best interests if his parents have equal shared parental responsibility for him does not apply because there are reasonable grounds to believe that each of X’s parents has engaged in family violence. Let me explain why.
I am comfortably satisfied and I find, that the applicant has engaged in family violence towards the respondent. The evidence demonstrates that there was at least one physical assault of the respondent by the applicant. That assault was not repeated and I am not satisfied that such behaviour by the applicant represents an ongoing risk for X, but it does mean that the presumption of equal shared parental responsibility is displaced.
Further, I am also satisfied and I find, that the respondent has engaged in family violence towards X. It will be seen from s 4AB(1) that family violence is constituted by behaviour by a person that controls a member of that person’s family. Here, the respondent’s behaviour in preventing X from spending time with the applicant controlled X and controlled his relationship with the applicant. It also controlled the applicant in his relationship with X. That control prevented X from keeping connections with his family, namely his father. X is a member of the respondent’s family. The applicant is X’s family. Withholding X from maintaining a relationship with the applicant, as the respondent did initially, I find, was family violence.
The presumption that X’s parents should have equal shared parental responsibility does not apply because s 61DA(2) is engaged. The making of any orders for parental responsibility must necessarily be a direct result of a consideration of X’s best interests rather than the application of any presumptions.
As the Independent Children’s Lawyer submits, the evidence suggests that the biggest risk factor here for X is exposure to the psychological harm that results from his parents’ conflict and what is described as their “inability to communicate”.
Both the applicant and the respondent seemed to accept that X will do best if he has input from each of his parents. One might have thought that if the respondent’s view was that X would not benefit from input from his father or a meaningful relationship with him, the orders for time would be either non-existent or less extensive than they are. The orders that she seeks regarding parental responsibility underscore what she must consider to be the importance to X of the input of each of his parents to important decisions about him. She seeks that I impose on her an obligation to inform the father of the decisions she has to make for X, call for his input and consider that input if given.
The Independent Children’s Lawyer highlighted a concern with the respondent’s unilateral decision-making for X. The evidence shows that she has effectively excluded the applicant from any decision-making for X for a large part of X’s life. Her unilateral decision-making has led to conflict between the parties and resentment on the part of the applicant which is, frankly, understandable.
More recently, however, the parties have demonstrated an emerging capacity to reach agreement about significant matters for X. Schooling is a good example. They have agreed upon the primary school at which X will attend. It is true to say that that agreement was not reached without some difficult communication between the parents but the significance of the fact that they reached an agreement in the end cannot be underestimated.
The Independent Children’s Lawyer pointed out that as X gets older, if there are further decisions that need to be made (and there will be), both parents may prioritise what is convenient to them as opposed to what it is that is in X’s best interests. She points to the evidence-in-chief and the cross-examination about distances and travel times and what was “fair” to the parents. The Independent Children’s Lawyer submits that the parties will look to make decisions based on what is fair, or appears to be fair to them, as opposed to putting themselves in the perspective of their child and making a joint decision based upon what is best for him. The Independent Children’s Lawyer submits that for that reason, I should make an order for sole parental responsibility so that, in effect, there will be certainty for decision-making in respect of X and that he will not have to be exposed to ongoing conflict where, as X gets older, there is a real concern that one or both of these parents may seek to engage the child to their way of thinking.
Respectfully, however, I cannot accept these submissions. First, whilst the evidence certainly does suggest that the parties have attempted to take into account their own convenience when attempting to make decisions for X, that is not an inappropriate consideration by them. For just about any decision that will need to be made for X, one particular decision will be more convenient or have more convenient effects than another for each of his parents. It is entirely legitimate for parents to raise these issues with each other for consideration as part of the decision-making process. That is because the convenience of the parents may well impact upon X’s day-to-day existence. There are questions of reasonableness involved, of course. The applicant’s argument that X should change his swimming, should change his music lessons and should change those activities in which he is already enrolled so that the travel and involvement of the applicant is “fairer” to him are not reasonable. That is because these parties live approximately half an hour’s drive away from each other. As the Independent Children’s Lawyer submits, this is not a case where the parties are hours away or hundreds of kilometres apart from each other. Half an hour travel time should enable these parties to facilitate their child’s extracurricular activities, whether they occur in a place that is closer to the mother’s residence or in the event that they occur in a place that is closer to the father’s residence. Overall, however, I consider that whilst the parties will raise issues of their own convenience when it comes to making decisions for X, those issues will not prevent them from making a decision for him and nor will they allow such considerations to burden X.
Second, putting the capacity to make decisions for X solely into the hands of one or other of these parents may well lead to them giving greater emphasis to their own convenience than what is truly in X’s best interests. There will be no checks or balances.
Third, nor do I accept that vesting decision-making for X solely in one parent, in this case the respondent, will mean that X will not have to be exposed to ongoing conflict. Indeed, the respondent seeks orders that will oblige her to seek and consider the applicant’s input into any decisions that need to be made for X. Such an arrangement is just as apt to lead to conflict between the parties as is an order for shared parental responsibility. One can envisage arguments mounted by the applicant to the effect that the respondent has failed to give any, or any proper consideration to his views in relation to a decision that the respondent may have to make for X. That is especially so if, on its face, the decision seems to favour the convenience of the respondent more than anything else.
The Independent Children’s Lawyer argues that the order that she proposes will require:
(a)the respondent to provide advice to the applicant in writing in respect of decisions that she has to make;
(b)the applicant to respond in writing; and
(c)the respondent to provide her decision to the applicant in writing.
She argues that such an order, whilst not perfect, balances X’s exposure to the parties’ conflict with X’s interest in having his father involved in long-term decision-making for him. However, the fallacy with that argument is that it will not work to shield X from his parents’ conflict. I do not accept that will be an effect of the order proposed by the Independent Children’s Lawyer. In my view, it has a real potential to exacerbate the conflict between the parties, especially where the applicant considers that his views have not been properly taken into account by the respondent or that the respondent pays nothing more than lip service to the obligations upon her to consult the applicant. There is a very real potential for such an order to lead to further litigation between these parties in the nature of a contravention application or perhaps an application by the applicant to vary the parental responsibility orders in the face of repeated demonstrable non-compliance by the respondent.
In submissions, counsel for the respondent reiterated the arguments made by counsel for the Independent Children’s Lawyer and relied upon them. She argued that the parties recent agreement about X’s schooling was a unique agreement and stands on its own. She argued that it was not representative of some newfound ability on the part of these parents to reach agreements about matters concerning X’s welfare. She pointed, quite correctly in my view, to the parties’ long history of disputation about things such as recording the applicant’s name on X’s birth certificate, the disagreement about school and X’s involvement with a speech therapist. That evidence tended to suggest that these parties moved along parallel paths rather than coming together on a single path for X’s best interests.
However, in my view, the decision the parties reached about X’s schooling is a harbinger for better things for X. Not only have the parties been able to reach agreement about the primary school X will attend, they have now reached agreement about X’s living arrangements and the time that he will spend with each of his parents. There is also evidence that in the recent past the parties have been able to agree on changes to the current interim arrangements where changes have been necessary – Christmas time in 2020 and twice in 2021. That is a significant matter which augurs well for X’s future. They have been able to reach agreement about a range of other matters recorded in the orders that have now been made. Whilst those matters do not indicate that X’s parents will not fall into dispute again about what is in his best interests, it does provide reason for optimism that they will be able to reach agreements about those matters, perhaps not without some little difficulty, but they will be agreements nonetheless.
Counsel for the Independent Children’s Lawyer and counsel for the respondent placed emphasis upon the evidence of the family consultant concerning the Court’s decision about parental responsibility. The family consultant considered that an order for sole parental responsibility was appropriate because it would protect X from further conflict. I reject that opinion. For the reasons I have explained above, I do not consider that an order for sole parental responsibility will protect X from conflict between his parents at all and indeed might lead to further conflict. I was unimpressed by the family consultant’s evidence on this issue because it did not seem take into account the alternative that an order for sole parental responsibility would lead to greater conflict between X’s parents and in particular greater resentment on the part of the applicant which, in turn, would fuel further parental conflict.
Each of the parties submit and I find, that X has an established relationship with each of his parents. He enjoys his time with each of them and derives benefit from a meaningful relationship with each of them.
Although the respondent would like to paint the picture that the applicant was disinterested in X from his birth for a number of years, the evidence does not demonstrate that to be so. The parties have been in dispute about the arrangements for X since he was about 3 months old. There have been parenting proceedings in on foot since 2018. The parties have been at loggerheads about how much time X should spend with his father – the applicant contending for more time than the respondent would permit.
I am satisfied and I find that both the applicant and the respondent are vitally interested in X’s welfare. I am satisfied that the applicant has always intended to play an active part in X’s life and has attempted to do so. His involvement in X’s life and X’s involvement with him has been limited, unreasonably in my view, by the respondent. I am satisfied that X’s welfare will be advanced by input from each of his parents and both of his parents will eagerly provide that input.
Geographically, the parties live relatively close and so each of his parents will be able to be involved in X’s scholastic activities and his extracurricular activities. In those circumstances, it will be important for X that each of his parents have the capacity, jointly, to make decisions about those matters so that he understands that they are “on the same page” as it were.
Whilst it may have been the case that shortly following X’s birth the applicant’s capacity to put X’s interests ahead of his own when it came to making decisions about X’s welfare in conjunction with the respondent was compromised, the evidence demonstrates that the applicant has taken steps to improve his capacity. I accept his evidence that he has undertaken a “Preventing Violence and Abuse course” and he has undertaken a Circle of Security parenting course. These are matters which demonstrate a willingness on the part of the applicant to seek out and receive assistance in relation to critical areas of his co-parenting functioning.
Conclusion
Whenever a court makes a parenting order it needs to consider whether the presumption of equal shared parental responsibility applies. I have found in this case that it does not and so it is unnecessary to consider the matters set out in s.65DAA of the Family Law Act 1975 (Cth).
Notwithstanding that the presumption does not apply, I am satisfied that it is in X’s best interests for there to be in order that his parents have shared parental responsibility for decisions concerning the major long-term issues for him. The effect of such an order will be to engage the terms of s.65DAC of the Act and impose upon these parties the obligations set out in that section. Imposing those obligations on the parties in this case will benefit X because he will have input from both of his parents about decisions concerning major long-term issues for him. He will not be deprived of the input of one or other of his parents in respect of those decisions.
For the reasons I have expressed above, I do not consider that an order for shared parental responsibility will, of itself, lead to an exacerbation or continuation of conflict between these parties because as I have attempted to explain above, whether or not there is such an order, if these parties choose to continue their conflict they will do so. I have come to the conclusion, however, that these parties and in particular the applicant has concluded that the conflict that has existed between these parties following X’s birth is not in his best interests and needs to be avoided.
Accordingly, I make orders as set out at the commencement of these reasons.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 8 April 2022
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