Update on Shared Parenting

Mike Emerson

Principal

Emerson Family Law

Family Law in Practice 2011 Update on Shared Parenting

1. Best Practice Shared Parenting Orders

The 2010 Best Practice Guidelines for Lawyers Doing Family Law Work do not make specific reference to best practice in relation to shared parenting orders, however the do have comprehensive guidelines in respect of children’s matters generally.

Given the statutory presumptions and legislative intention towards shared parenting, these guidelines must underpin our practice in parenting matters, whether they be matters within which shared parenting is sought or ordered, or otherwise.

Turning to the guidelines, whilst some of them would seem to be the most basic premises or conduct guidelines in parenting matters, it is worthwhile sometimes to return to the basics which we must focus on:-

• Remember that the Court’s paramount consideration is the best interests of the child – which is of course legislatively mandated in any event;
• We must advise our clients of the manner in which the Court approaches children’s matters and that ultimately what the Court determines to be in the best interests of the children may not be what either parent has advocated for;
• Seek specific instructions in relation to cultural issues which are relevant to consideration of the best interests of the child;
• Ensure that negotiations in relation to parenting matters are kept separate and distinct from negotiations on all other matters – children’s issues are not bartering tools;
• Provide appropriate information to client’s on the damaging effects upon children of conflict and disputes between their parents or encouraging children to become enmeshed in the parents disputes by taking sides or expressing tainted wishes;
• Don’t let clients be motivated by anything other than the best interests of their child when making an Application for parenting orders;
• Ensure that where appropriate, clients are advised to engage in appropriate FDR measures prior to seeking the Court’s intervention;
• Advise clients that child support and the living arrangements for the children do not go hand in hand and that they ought not be motivated by issues of child support when seeking Orders pertaining to the living arrangements for the children;
• Discourage any client that wishes to structure the children’s living arrangements to achieve a more favourable child support outcome (either as payer or payee). Sadly, it is a widely held view amongst experienced practitioners that a child support issue often lies behind children’s disputes;
• Encourage your client to inform children about adult separation in a child focused and age appropriate manner;
• Make appropriate referrals to professional persons and/or bodies in circumstances where there are issues relating to the child’s emotional health or allegations of abuse and family violence of any form;
• Ensure that our clients are aware of our ability to breach our duty of confidentiality in circumstances of disclosures of abuse or the whereabouts of a child subject to a location or recovery Order – in this regard we must balance our duty with the perceived threat to a child’s life or health (mental and physical) and as such the threat must be sufficiently serious to consider such a breach
• Always consult with senior colleagues or senior advisors at the Law Society if in doubt;
• Ensure that we advise our clients in respect of both the procedural and legal ramifications of allegations of abuse of any kind –
• • Magellan listing
  • Potential consequences for a parent where allegations are found to be vexatious or malicious
• Never pressure a client to agree to arrangements for children where it is clear that they do not consider those arrangements to be in the best interests of the child(ren)

For assistance in framing orders where domestic violence is involved, see the Full Court decision in Oakley and Cooper [2009] FamCAFC 133.

At paragraph 59 the Full Court said:

The legislature has spelt out in the Act a clear direction to a Court hearing a parenting application and making parenting orders to ensure when considering children’s best interests that they be protected from physical or psychological harm as a result of being exposed to, amongst other matters, family violence.

The Court referred to the launch of the Family Court’s publication “Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged” and said some of the recommendations may help Courts in framing orders which could assist the future wellbeing of children in these types of cases, including consideration of the making of conditions; whether an order should be supervised by a family consultant or the parties referred to an external parenting orders program for longer term supervision and support and whether any parenting order or injunction would be inconsistent with a family violence order.

The Court spoke of the need to ensure that children are protected so far as possible by orders designed to shield them from physical or psychological abuse and which, in appropriate circumstances, facilitate suitable therapeutic measures.

In relation to the orders generally, the normal requirements of drafting apply. Every effort should be made to ensure that orders properly reflect the intention of the parties and that they are expressed in clear and unambiguous terms.

Ambiguities and imprecise drafting give rise to miscommunication between parties whose ongoing relationship is very often marked by poor communication and ambiguities will inevitably give rise to unnecessary allegations of contraventions which waste the Court’s time and increase the cost and frustration level for parties.

So often we see contraventions arise which are the result of poor drafting causing parties to interpret the same order differently and which could have been avoided with more time and care at the drafting stage.

In terms of specific orders, I could do little better than refer you to the notes, papers and precedents provided by His Honour Federal Magistrate Slack in a seminar presented on practice in the Federal Magistrates Court on 1 December 2009.

In the course of the seminar His Honour remarked on the importance and benefits of a properly prepared and thoughtful application commenting that the application is the most important document that a solicitor will prepare for a client but that “unfortunately, it has become the document that is treated with the most disrespect”. A sample of draft orders prepared by FM Slack which I find quite useful is attached to this paper.

2. Current trends in the Court

• Equal Time

Of course there is now the decision of the High Court in MRR v GR [2010] HCA 4 which has in effect “turned upside down” the issue of the matters required to be considered before equal time will be ordered.

The relevant chronology in MRR v GR is as follows:-

It is the interpretation of the Court (comprising French CJ and Gummow, Hayne, Kiefel and Bell JJ) in respect of s65DAA which has had a dramatic effect on existing jurisprudence of parenting matters and the practice in respect of shared parenting.

The Court commented at paragraph 9:-

“Each of sub-ss (1)(b) and (2)(d) of s65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard to” certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question….”

Ultimately the Court determined, at paragraph 13:-

“s65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c) to the making of an Order. The words with which para (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an Order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind.”

Their Honours went on to note if a Court was unable to make ”such a finding” then the legislation required consideration of the prospects of the child spending substantial or significant time with each parent and a consideration of that sub-section required the answering of the same questions concerning the child’s best interests and reasonable practicality.

The Court found that His Honour FM Coker treated his answer to the question posed under para

• as being determinative of whether an Order should be

The effect of the judgment is that a Trial Judge cannot make an Order for a child to spend equal (or substantial and significant time) with each parent without making a finding, separate from its consideration of what will be in the child’s best interests, that it is reasonably practical for the child to spend such time with each parent.

In the Full Court decision of MRR v GR [2009] FamCAFC 81 (at 96 and 97) the Full Court considered His Honour’s consideration of s60CC considerations as satisfactory in circumstances whereby His Honour did not expressly address reasonable practicality.

The High Court held that those matters (being the s60CC considerations) could be relevant only to the question posed under para (a) of s65DAA(1) and not the question posed under para (b) (at paragraph 14).

Other comments from the High Court in this matter include:-

–     s65DAA(1):-

• is concerned with the reality of the situation…. not whether it is desirable that there be equal time;
• requires a practical assessment of whether equal time is feasible. (at para 15)

Their Honours said the Full Court should have held:

• It was not open to the Federal Magistrate to find it was reasonably practicable for the child to spend equal time or substantial or significant time with each of the child’s parents; and
• It was not open to the Federal Magistrate to consider making an Order for equal

So how has the decision of the High Court affected the Court’s interpretation of the shared parenting provisions in the Act?

In an article published in (2010) 24 AJFL 255 Chisholm & Parkinson in summarizing the consequences of the decision state as follows:

Where s65DAA applies, in order to make a parenting order that children have equal or substantial and significant time with each parent, in contested matters the Court must now make a specific finding that the child spending such time with the parents is reasonably practicable having regard to the factors listed in s65DAA(5), distinct from its assessment of what is best for the children (even if some of the same factual material might be relevant to both issues).  Failure to do so will mean the Court has no power to make an order for equal time or substantial and significant time, even though the judge may consider such an arrangement to be in the child’s best interests with regard to the s60CC factors

MRR v GRR has been cited in approximately 130 judgments (according to www.austlii.edu.au since the delivery of the High Court’s reasons in March 2010.

Two recent examples from the Family Court include:-

Appleton & Appleton [2011] FamCA 70 (delivered 17 February, 2011) wherein the Court held (at para 95) –

In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).

 Broom & Falcon [2011] FamCA 67 (delivered 16 February, 2011) at para 219 –

As there is to be an order for equal shared parental responsibility, I am bound to positively consider those matters required by s 65DAA.

It is therefore clear that in light of the decision in MRR v GR the hurdles to overcome in respect of an equal time or shared care order have just become exponentially harder.

Collu & Rinaldo [2010] FamCAFC 53 was the first relocation case considered by the Full Court after the High Court decision in MRR v GR.

The Full Court was critical of the trial judge for making findings that an Order should be made for equal shared parental responsibility prior to considering the relevant statutory considerations and, in particular, s60CC of the Act.

This case is worthwhile reading to assist in understanding the approach to be taken following MRR v GR.

At paragraphs 334 & 335 the Full Court dealt with the Order in which the statutory provisions in Part VII are best considered. They said:

“Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration. “Parenting order” is defined in s 64B. Section 60CC then sets out how to determine what is in a child’s best interests. Section 60CC(1) provides that in determining what is in the child’s best interests the Court must consider the matters set out in s 60CC(2) being the primary considerations and the matters set out in s 60CC(3) being the additional considerations. In other

words, the matters in s 60CC could be described as the “best interests” considerations and they must be considered.

There is a possible overlapping of a number of the considerations in s 60CC of the Act. For example, the first primary consideration in s 60CC(2)(a) of the Act, which deals with a child having a meaningful relationship with both of his parents may overlap with the additional consideration in s 60CC(3)(b) which requires consideration of the nature of the relationship of a child with each parent and other persons. So also any finding as to the nature of the relationship of a child with a parent would be relevant to consideration of s 60CC(3)(d) which requires consideration of the likely effect of any changes in the circumstances of a child including the likely effect of separation from a parent. It is for this reason that there is some attraction in the idea that perhaps the additional considerations in s 60CC(3) should be looked at before consideration of the primary considerations in s 60CC(2): Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 per Brown J.”

In Cowley & Mendoza [2010] FamCA 597 Murphy J succinctly summarized the legislative pathway the Court should follow in parenting matters, stating:-

Summary of Principles

The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode [2006] FamCA 1346; (2006) FLC 93-286), would, then, appear to me to require a Court contemplating the making of parenting orders to:

• First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;
• Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;
• Further or alternatively, then make findings, by reference to s 60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;
• Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;
• If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate

orders are in the best interests of these particular children in their particular circumstances (s 65D; s 60CA; s 65AA). (As the Full Court put it in Goode, the enquiry about best interests is “at large”);

• If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the Court must (s 65DAA) then proceed to:
  • Make findings as to whether the subject children’s best interests are best met by an order for equal time; and
  • Make findings as to the matters prescribed in s 65DAA(5), and, as a result;
  • Make findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and
  • If it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s 65DAA(3)) should be made;
• If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s 65D; s 60CA; s 65AA).

It might be thought that, as a matter of logic, if neither party seeks an order for either equal time or substantial and significant time, a consideration of the power to make such an order may become moot. But, that is clearly not so.

First, the Court must (subject to procedural fairness) formulate proposals, independent of the parties, consistent with findings about the children’s best interests. (See, eg. U v U, above). Secondly, while, in accordance with the High Court’s judgment in MRR, s 65DAA contains the power to make those orders, the section also plainly casts an express obligation upon the Court to consider the exercise of the power to make each such order in the prescribed manner when the precondition to its application is met (viz. an order is to provide for equal shared parental responsibility). That statutory obligation exists despite the fact that, in any given case, neither party seeks an order of either type.

• Rebutting the presumption of equal shared parental responsibility

Before looking at some recent decisions where the Court has resolved that the presumption has been rebutted, it is important that we start with an understanding of both the concept of parental responsibility and the legislative pathway which must be followed.

His Honour Justice Murphy in Wattel & Evans [2010] FamCA 411 sets out the process of examination the Court must engage in when disputes as to the appropriate allocation of parental responsibility arise1.

Firstly s61C of the Family Law Act which provides:-

• Each of the parents of a child who is not 18 has parental responsibility for the child;
• This position is not affected by the change in the nature of the parent’s relationship, ie separation or either or both parent remarrying;
• The position is subject to any order of a Court.
  

Therefore by becoming parents each of the mother and father has, until such time as an Order of the Court is made, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children2.

It is clear by the terms of s61D that a parenting Order 3 does not of itself displace the position set out in s61C, rather the Court must specifically provide for the allocation of parental responsibility in order for the underlying parental responsibility to be displaced4.

When the Court is asked to make parenting Order, it is bound by the terms of s61DA to apply the presumption contained therein, namely:-

• when making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child

The presumption applies unless the Court has reasonable grounds to believe there has been abuse of the child or another child, family violence or if the Court is satisfied that it would not be in the best interests of the child for the responsibility to be shared5.

1. See para 13 referring to Lansa & Clovelly [2010] FamCA 80
2. See s61B Family Law Act 1975 (Cth)
3. See definition of parenting order in s64B Family Law Act 1975 (Cth)
4. Section 61D(2) Family Law Act 1975 (Cth)
5. Section 61DA(2) and s61DA(4)
   s61DA(3) provides that in reference to an interim Order, the presumption applies unless the Court considers that it would not be appropriate to so apply.Before embarking on the method by which the best interests of the child are determined, in Wattel & Evans6 Murphy J notes that the legislative provisions are narrowed by a consideration of s65DAC and he comments:-
   …makes it clear that sharing parental responsibility (whether equally or not) is not a passive activity; it requires those having shared parental responsibility, or aspects of it, to make joint decisions and to consult and attempt to reach agreement in order to do so. However, the section goes on to provide that consultation is not required unless the decision is about a major long-term issue – an expression that is defined 7
   “Major long-term issues” are clearly defined in s4 of the Act and do not need re-stating herein.
   The responsibility and requirement for consultation which is inherent in sharing parental responsibility will be practically difficult to achieve in matters where there is “entrenched and apparently intractable conflict”8.
   This practical consideration therefore imposes upon the Court the need to consider the practical reality of the matter before it, in addition to the legislatively provided for considerations in s60CC.
   This was highlighted by the Full Court in Chappell and Chappell (2008) FLC 93-382 where the Full Court said9:-
   We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings.
   In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings.
6. Ibid
7. Para 19
8. Wattel & Evans [2010] FamCA 411 at par 24
9. Para 75
   In VR and RR (2002) FLC 93-099 the Court noted that orders limiting or curtailing the parental responsibility of a parent should be made only in circumstances which warrant it and in practice, such orders are rare. The Full Court commented 10
   ….in our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that Order being made.
   By reference to the following cases we see how, in recent times, the Court has held that it is appropriate to rebut the presumption of shared parental responsibility.
   2.2.1          2010 Cases
   Clovelly & Clovelly (No3) [2010] FamCA 684
   Interim judgment of Faulks DCJ Orders (relevantly)
   Mother have sole parental responsibility for “C” aged
   Facts
   
   • Consent Orders made in 2007
   • Father filed application seeking to spend more time with child
   • Father lived in New Zealand and travelled to Australia for the purposes of spending time with the child each alternate weekend
   • Court asked to implement interim arrangements to cover the period July to November, 2010
   • Father advised during interim hearing that he would be returning to Australia however had no firm arrangements for accommodation, employment or other financial support Expert Evidence

• Family reporter concluded:-
  • Might best meet the child’s needs if she were to spend time with her Father on a more flexible basis… in this way she can maintain a relationship with her Father, such that she is able to focus on her own interests and commitments and such that her time with him might be more meaningful and enjoyable

Comments from the Bench

• Child has not formed a close emotional attachment to the Father
• Not a good fit between the father’s parenting attitudes and the needs of the child
• Child feeling unease and resentful
• Child no longer wants to be centre stage in her parents ongoing conflict or be burdened with the task of appeasing her parents, in this case her Father
• Uncertainty of the Father’s plans upon returning to Australia made assessing his proposals for the child’s living arrangement very difficult
• Rebutted the presumption of shared parental responsibility for the following reasons:
  • The issue is not what rights each of the parents have, but rather what responsibilities and obligations they have;
  • In this instance the parents have demonstrated over a long period of time their total inability to agree on almost any matter;
  • Neither party is able to put aside his or her views about any matter to enable a joint decision or a cooperative decision to be made;
  • This in itself would mitigate against (at least on an interim basis) and at least on an interim basis determine, the issue that the presumption should not apply;
  • Even though the statutory rebuttals did not apply the Court was satisfied after considering s60CC that the presumption should not apply;
  • Relevant s60CC factors considered included
    • The evidence of the family consultant which was clear and unequivocal was that the child was expressing views about the time she spends with her father with such views not as a result of any particular coaching from the mother –

• As to the child’s maturity the Family Consultant suggests:-
  • “she impresses as an eleven year old with strong views and determination… confident, well adjusted and sociable young individual who is well regarded by adults and her peers and who is well attaining the tasks of her development stage”
• As to the nature of the child’s relationship with her parents and other persons
  • Child has a close relationship with her mother based on mutual affection and respect. This bond is not one which causes the child or the mother to be emotionally dependent upon the other
  • Held that the relationship between the child and the Father is not as close as that between the child and the Mother but is nevertheless an important relationship in her life
• As to the willingness and ability of each parent to facilitate a close and continuing relationship between the child and the other parent:-
  • Does not exist for either parent
  • In theory the Mother would like that to occur, I do not think in practice that is the case
  • Certainly not the case that the Father wants a close relationship between the child and her mother even though he might express that that is what he really wants
  • Neither parent prepared to put aside the animosity they feel toward the other to bring about a close and continuing relationship
  • Could not see that situation changing
• Practical difficulty and expense
  • Given that the recommendations of the Family Consultant were that the time should be something like a period of hours only and given the Father travelled from New Zealand to spend time with the child the Court held this to be a mitigating factor against the presumption applying
• Capacity of each parent to provide for the child’s needs
  • Evidence of the Family Consultant
    • The Father is incapable of having sufficient empathy and

understanding of the child’s emotional needs to adequately provide for them

• The relationship between the child and her Mother does provide that emotional and, to some extent, psychological and intellectual support

• Attitude towards the child and the responsibilities of parenthood demonstrated by each of the parents
  • Each said that the other had gone out of their way to disrupt and/or destroy the relationship between that parent and the child
  • Each of them has exhibited an ability to put his or her own needs ahead of what the child really needs
  • Example on the part of the Father:-
    • Email sent to Mother regarding costs of presents for party’s the child may attend whilst in his care

– as he was paying child support he felt it was appropriate for the Mother to purchase the present for the party

• “I find the pettiness in that context quite extraordinary and an adverse reflection upon the father’s idea about his responsibilities as a parent”

• As to the primary considerations
  • There is a need to protect the child from the psychological harm of forcing her to spend time with her father against her will. In this regard the family consultant has indicated that this may have an effect, if indeed she does not want to spend time with her father, of causing her to resent her mother’s actions in making her do it and resent even more, perhaps, her father for making her do it as well

Seales & Pacillo [2010] FamCA 759

Judgment of Justice Rose Orders

• Mother Ordered to have sole parental responsibility for the child (11 years old) Facts
• Final Orders made in September, 2003 after a contested hearing
• Both parties sought those Orders be discharged
• Mother sought
  • Sole parental responsibility
  • Child live with her
  • Child spend time with the Father depending upon the findings made about alleged abuse of the child by the Father and/or the Father’s child from a previous relationship
• Father sought
  • Sole parental responsibility
  • Child live with him
  • Child spend time with the Mother on alternate weekends and during school holiday periods dependant upon the Mother not being under the influence of drugs or alcohol
• Numerous interim issues between 2003 and final hearing in 2010 including
  • Father seeking and obtaining an Apprehended violence Order against the Mother in2005
  • Contravention proceedings in 2005, 2008 and 2010
  • The Father’s former girlfriend seeking and obtaining an Apprehended Violence Order against him in 2008
• Allegations of
  • Physical abuse of the child by the Father
  • Emotional abuse of the child by the Father
  • Sexual abuse of the child by “S” (the child’s half sibling)
  • Emotional abuse of the child by “S”
  • Unacceptable risk of abuse of the child by the Father and/or “S” Expert Evidence
• Dr B – Psychiatrist
  • Although the child made negative comments about his father – don’t believe they are a true reflection of his feelings

• Child appeared remarkably comfortable with his father
• Discounted the child’s complaints
• Wasn’t struck by the allegations or risk posed by “S”… on the evidence there didn’t seem to be sufficient concern to regard “S” as an unacceptable risk to the child
• Father does not have a great deal of insight into the understanding of children of this age, nor the situation that the child funds himself between the parents and also the inappropriate punishment… it’s of major concern

Comments from the Bench

• Mother’s affidavit material had themes of:-
  • Child showing fear or anxiety and resistance to spending any time with the Father;
  • Child having adverse reactions to verbal and/or emotional abuse directed to him by the father;
  • Child fearful of the Father;
  • Child exhibiting regressive behaviour and feigning illness;
  • Child stating that he wished to be dead and threatening to self-harm;
• Not satisfied on the basis of Dr B’s evidence that the child’s views in relation to the father should be discounted;
• Found that the child had a close and strongly bonded relationship with the mother and whilst there are positive aspects of the child’s relationship with the father, it has been severely undermined by a combination of the child’s reaction to the father’s lack of insight together with his negative comments about the Mother;
• Although little weight attached to the evidence of Dr B in relation to the allegations against “S” the Court was not satisfied that “S” in fact either sexually abused the child or threatened to do so;
• Neither parent found to be willing to enable a continuing relationship between the child and the other party;
• Practical difficulties were obvious – Mother on the Central Coast and Father in Western suburbs of Sydney;
• Practical difficulty in respect of communication also – communication almost non-existent because of entrenched conflict that is a significant “handicap” to the child having effective communication with one party or the other;
• Whilst the Father alleged the Mother had been engaging in alienating behaviour, the Court balanced the limited evidence on that allegation with the Father’s lack of insight and found that the Mother had not engaged in alienating behaviour;
• Mother found to have appropriate parental attitude;
• Father found to have a compromised parental attitude due to the stress and anxiety the child has suffered as a result of not only the conflicted relationship between the parties but also the father’s behaviour;
• Found that there had been instances of family violence on the part of the Father, demonstrated by his language and demeanour which caused the child to reasonably fear or be reasonably apprehensive about his personal wellbeing or safety – thereby falling within the definition of family violence in s4(1) of the
• Satisfied that the presumption did not apply pursuant to s61DA(2), namely that family violence had taken place
• Also concluded that it was in the best interests of the child for an order for sole parental responsibility to be

2.2.2 2011 Cases

Moer and Sands

Judgement of Brown FM Orders

• Father have sole parental responsibility in respect of decisions concerning health and education of the child aged 9

Facts

• Child had lived predominantly with the Mother since separation in early
• Father asserted that if current arrangement remained the same there was the potential to expose the child to an unacceptable risk that he will come to some form of psychological harm as a result of his mother’s abusive and neglectful parenting of
• Mother opposed any significant change and seeks sole parental
• Mother unilaterally withdrew child from school in 2009 as well as being generally unreceptive to school’s advices and recommendations and disruptive to his attendance there – showing up for example in the middle of class in PJ’s and rummaging through the child’s

Expert Evidence

• Psychologist
  • Father said that he was motivated to make the application because of his perception that the child’s mental health had deteriorated
  • Mother similarly reported concerns but attributed the behaviour to the Father’s violent and aggressive behaviour towards her;
  • Evident that the child had serious emotional and behavioural disturbance;
  • Needs parents that accept and act on the advice they receive from professionals even when that advice may be unpalatable to them;
  • Each parent had very different accounts of who has been primarily responsible for initiating and maintaining conflict;
  • Recommended that the child continue to attend current school and receive urgent professional psychological care;
  • Live the majority of the time with one parent and spend three or four nights a fortnight with the other;
  • Parents acrimonious and competitive relationship with each other was emotionally detrimental to the child;
  • Court must minimise the conflict;
  • Child would cope with being in the primary care of either

From the Bench

• Satisfied that the child is a disturbed child who is seriously at risk educationally;
• Patently obvious that the current arrangements for his care are not working particularly in terms of providing him with a satisfactory standard of education;
• The mother either consciously or unconsciously working against the school’s efforts because she wants the child to attend another school;
• One of the main points of the Mother’s case was that the child’s behavioural problems were as a result of the Father’s exposure of him to violence towards the mother
• However in the 2007 hearing the Mother’s position was that the child should live equally between the parties;
• Accept that the child is significantly at risk due to his education being compromised;
• If the child is deprived of the opportunity to learn elementary skills, his progress through primary school and on to high school will be problematic. His social skills are likely to be retarded because he will not interact as fully as other children do with their peers;
• The duty to ensure a child attends school properly and has a regular education is one of the most fundamental and important responsibilities of being a parent. The Court was satisfied that the evidence currently indicates that the child is not having a regular or normal education;
• All unexceptional school activities are marked by conflict which causes the child distress;
• If the child continues to have a failed education there was no doubt that this has the potential to cause him significant psychological harm and that it was incumbent upon the Court to act decisively;
• Accept that the Father is far better placed to work with the school than the mother;
• Satisfied that the Mother can continue to have a meaningful relationship with the child notwithstanding there is to be a change of arrangements;
• Neither appropriate nor in the child’s best interests to apply the presumption of shared parental responsibility;
• Pressing need for normalisation of child’s attendance at school and ensuring he receives the necessarily support required to remedy his fallen academic standards

Brown & Sidebottom [2011] Fam CA 47

Judgement of Dessau J after hearing commencing July, 2010 and continuing part heard through October, 2010 and finalising in January, 2011-02-27.

Orders

• Father have sole parental responsibility for the children aged 13 and 10; Facts
• Children lived in mostly week about arrangement for approximately six years;
• Mother alleged serious risk to children’s welfare due to Father’s life long sexual abuse of them;
• Expert evidence (disputed by the mother obviously) is that mother suffers from paranoid delusional disorder;
• Long litigation history
  • Mother first filed in 2003;
  • Alleged sexual abuse then but ultimately final consent Orders for shared care;
  • The mother then alleged sexual abuse again but that litigation also ended in 2006 with consent orders for shared care;
  • In 2008 the Father commenced proceedings and the mother again alleged sexual abuse but these proceedings ended in consent orders whereby the children lived with the Father and spent time with the mother ;
  • Mother started proceedings again in

Expert Evidence

• Family Consultant
  • Described the children as intelligent, good natured girls;
  • Happy living with their father and his new wife;
  • Children more mature than their age;
  • Children felt relaxed and secure in Father’s presence;
  • Children expressed hurt and distress at their mother’s conduct;
  • The eldest daughter accepted that the Mother’s behaviour might be as a result of mental illness and said that her mother “only gets so many chances”;
  • Children described feeling hurt as a consequence of her mother stalking her and her friends …. “she has ruined my primary school friendships”…. “I have cut all emotional ties with her”;
  • Eldest refused to see mother during interview process and said that if she was required to see her Mother she would just get on a train and go back to her Father;
  • Family Consultant said that the strength of the child’s feelings at present were such that she was genuinely unable to contemplate spending time with her mother either alone, with her sister or in a supervised situation;
  • The youngest expressed willingness to spend time with her mother eventually with someone else present but wanted nothing to do with her until she started to take her medication again;

• Satisfied the children were giving their own views free from any outside influence or pressure;
• Children need respite from these issues, their mother’s behaviour and Court proceedings.
• Psychiatric Report
  • Professional opinion was absolutely clear that the Mother’s behaviour is consistent with a paranoid delusional disorder;
  • Medication could not eradicate her delusions but her response to them could be substantially calmer if she adhered to

From the Bench

• Whilst it is generally in the interest of children to have a good relationship with both parents it is sometimes not possible;
• Mother is the only source of these allegations – offers very little evidence of direct disclosures by the children – concerns are based on her own inferences drawn from the children’s behaviour or from her understanding of the behaviour and propensity of men in general;
• Mother’s belief based on things such as:-
  • The children being constipated from time to time was a result of the Father sodomising them;
• Satisfied that the children are not at risk of sexual abuse or any other abuse in their father’s home;
• Satisfied that they are at very serious risk in their Mother’s home, given her mental health issues and constant reinforcing to the children that they have been sexually abused;
• Clear on all the evidence that the mother’s capacity to care for the children is extremely hampered by her view that, to protect them, she must severely restrict their movement;
• The mother’s train of thought in her trial material gave an insight into what the children have endured;
• Father held to have only ever stepped in to stop the relationship between the children and the mother when there has been a genuine concern about the Mother’s mental health;
• Mother does not have the capacity to facilitate relationship between the children and their Father;
• Court “sadly” held that Father should have sole parental responsibility – sadly used because the Mother’s mental health issues can be treated and if so she has the capacity to contribute to decision making for the children;

• However currently her mental health resulted in the presumption being rebutted in light of the abuse the children have suffered in the Mother’s care;

Pillai & Doshi (No 2) [2011] FamCA 36

Judgment of Justice Young in Melbourne Orders

• Mother have sole parental responsibility for the children aged 6 and

Facts

• Allegations of family violence, threats and abuse;
• Marital conflict, total lack of communication and alleged inappropriate influence upon both children;
• Father had refused all supervision of his time with the children;
• Father had rejected any role, influence or recommendation made by counsellors or social workers, the Family consultant or the ICL;
• Father sought that the children live with him and have sole parental responsibility;
• Mother sought the children live with her and have supervised time with the Father and that she have sole parental responsibility;
• Long litigation history commencing in 2007
• Defended Family Violence proceedings in Victoria with an Order being made in favour of the Mother for an undefined period of time – Father was in the process of appealing at the time of hearing.

Expert Evidence

• Ordered to attend upon psychiatrist;
• Father refused to attend and maintained could not afford to pay the fee involved and disputed the need for

From the Bench

• Turning to s61DA the Court held (at paragraph 102):-
  • I commence with the presumption that an equal shared parental responsibility order is appropriate for the children, but that the presumption is clearly and firmly rebutted on the facts of this case
• Relied upon the findings made in respect of Family Violence but also held that there are other significant factors identified which resulted in it not being in the best interests of these children for their parents to share equal responsibility for them;
• No level of communication;
• Continuing conflict;
• Total lack of trust;
• Held that there was no meaningful relationship between the Father and the children – all recent periods of time spent between the Father and the children were spent by him to develop issues and gather

Yanders & Jackin [2011] FMCAfam 57  

Decision of FM Turner

Orders

• The Respondent Ms Jacklin have sole parental responsibility for the child (aged almost 6).

Facts

• Same sex relationship;
• Respondent Ms Jacklin conceived a child with Mr S, an acquaintance of hers
• Physical separation occurred in May or June, 2008 with Ms Jacklin asserting separation under the one roof much earlier, in October, 2006;
• Issues relating to the Applicant, Ms Yander’s mental health including a failed suicide attempt;
• Ms Yander’s sought shared parental responsibility and graduated time orders;
• Ms Jacklin sought an order for sole parental responsibility and that Ms Yander’s spend no time with the
  • Asserted that Ms Yander’s did not have the right to have anything to do with the child and that the child would not benefit from any relationship with

Expert Evidence

• Family Report prepared by Mr E
  • Setting aside the descriptors of parent, mother, friend and/or aunt, indications are that from mid-2005 until some time in 2009 Ms Yander’s was a part of the child’s relationship and/or care landscape, while Ms Jacklin was at the epicentre of the girl’s relationship and care experience. Indications are that, to varying degrees, prior to 2009 Ms Jacklin included Ms Yanders in the child’s care and relationship network and, from sometime in 2009 she adopted a stance to exclude her;
  • The report is challenged on the matter of recommendations regarding sole or shared parental responsibility as it seems that Ms Jacklin has largely been the parent who has taken sole or primary responsibility for managing crucial aspects of the child’s health, education, religious, family, friendship and relationship matters and that Ms Yanders has largely accepted and complied with
    

Comments from the Bench

• Held that as a threshold issue, the Court must determine whether Ms Yanders was entitled to bring an Application for parenting
• Held that the child was not a child of a de facto relationship given that the child was not a child of the parties nor was the child adopted by the parties;
• s60HB did not apply as it pertains to surrogacy;
• s60H(1) relating to artificial conception procedures;
  • Ms Yanders’ asserted that as the pregnancy was planned with Mr S acting as a sperm donor only, the child was conceived through artificial insemination therefore making the child a child of she and Ms Jacklin;
  • Ms Jacklin said that the pregnancy was unplanned and accordingly was not a child of she and Ms

• Court held that whether or not the pregnancy was planned the child was conceived naturally and therefore s60H(1) does not apply;
• Ms Yanders was held to be a person concerned with the care, welfare or development of the child pursuant to s65C(c) and accordingly entitled to make her Application
  • (Referring to Ms Jacklin’s assertion that Ms Yander’s was no more than an “Aunt” to the child) the Court held at paragraph 102 – Whether as an

Aunt or something greater, it is evident that for the first three years of [X’s] life, the Applicant was a constant presence for the child and developed a bond with the child;

• Relied on the threshold test set out in KAM v MJR & Anor (1998) 24 Fam LR

• As to parental responsibility the Court held:-
  • At para 111 – The presumption…..does not apply as a finding has been made that the Applicant is not a parent for the purposes of the
• Relying however upon s64B(2) which provides that a parenting Order (having established Ms Yanders is entitled to apply for parenting Orders) can deal with the allocation of parental responsibility the Court entertained the application for shared parental responsibility, ultimately finding:-
  • At para 122 – In addition to their being no evidence of any active role of the Applicant in the parental responsibility or decision making for the child in the past, it is unlikely with the complete lack of communication between the parties and the strong feelings of animosity demonstrated by the respondent towards the applicant during the trial, that there is little, if not, any chance of the parties having the ability to co-operate together in the future in respect to making decisions for [X];
  • At para 123 – … I find that in this matter, where the respondent is so strongly opposed to the child spending any time with the applicant, and with her staunch views towards the applicant, that family dispute resolution would be of little assistance and that any order for shared parental responsibility is more than likely to lead to further Court proceedings;
  • At para 124 – I find therefore that it is not in the best interests of the child for an order to be made for the Applicant to have any shared parental responsibility with the respondent, and accordingly the applicant should retain sole parental
    

NB – the judgment is also a detailed analysis of the considerations when being asked to make a parenting order in favour of a non-biological parent and/or a person only concerned with the care welfare and development of a child

3. Relevance and impact of social science research

The issue of the use of research and academic writing by judicial officers has been the subject of comment by the Court recently, due to litigants feeling displaced upon reading a judgment in their matter which refers to such academia (and often in significant amounts).

The general consensus is that litigants feel that it is inappropriate for judicial officers to refer with such vigour to material which they did not seek the Court rely upon and often do not even know the content of.

These general concerns have been raised recently in the following cases:-

Vance & Vance [2010] FamCAFC 250 

Facts

This was an Appeal by the Father against the Orders made by FM Altobelli which provided that, in broad terms, the children live with the mother and spend time with the father each alternate weekend from Friday after school until the commencement of school on Monday morning, and for time after school until 8.00 pm each Wednesday. Additionally, the orders provide for special occasions and holiday time with both parents. It was also ordered that the parents have equal shared responsibility for the children.

Grounds of Appeal

1. Procedural Fairness

The Father asserted there was no procedural fairness as he wasn’t put on notice about the use of academic materials which were ultimately referred to in the judgment at first instance.

This was notwithstanding the Trial Judge having set out in his reasons for judgment that the academic material was not evidence and only used by him for background purposes.

In commenting on this particular ground of appeal the Appeal Court noted:-

• there is likely to be a fine line between what material is used truly as background material or material which is relied upon;
• understandable that parties will not understand why material that they did not have any knowledge of finds its way into the judgment;
• whilst no appealable error is established, it may have been prudent to direct the parties’ lawyers to the material and/or to provide copies to the parties at commencement of the hearing to enable them time to consider and discuss with their

Outcome

Appeal was dismissed.

Salvati & Donato [2010] FamCA 263

Facts

The trial judge had made reference to social science research which was not tendered by the parties.

Parties did not have the opportunity to make submissions on its content.

These circumstances did not give rise to a ground of Appeal however the Full Court made comment on the use of social science research in parenting cases and said as follows:-

• Quoting the trial judgment – This research is background to my judgment. It is not evidence – no judicial notice being taken – no findings of fact being made as a result of the material – assists in understanding the expert evidence – one also hopes that parents might learn from it.
• However despite this disclaimer the trial judge made the following comment in discussing the Orders he proposed:-

o “I appreciate that this is contrary to the research and recommendations of MacIntosh and Chisholm. However the facts of this case are unique….

• Referring to s144 of the Evidence Act 1995 (Cth) – Matters of Common Knowledge – the Full Court said that they did not consider the research and academic material the Federal Magistrate referred to could be considered to be common knowledge;
• Considered it inappropriate for the Federal Magistrate to refer to the journals and for them to inform his decision when they had not been tendered by either party or the ICL and

where the parties had not been given the opportunity to make submissions in relation to them.

McCall & Clark (2009) FLC 93-405

In this case the Full Court were discussing the use of social science research and academic material in circumstances whereby the Federal Magistrate did not have any expert evidence to rely upon.

Neither party tendered any such material.

The Federal Magistrate did not inform the parties that he could have recourse to such material.

The Full Court held that absent such evidence the Federal Magistrate could not have informed himself of such matters.

Had the Trial judge informed the parties of his intention, then reliance upon material such as this may have been admissible after giving appropriate notice under s144(4) of the Evidence Act.

This case was another international relocation case where the Full Court concluded that the basis on which the Federal Magistrate ultimately reached his decision showed that he had not given “any real consideration of the imperatives in s65DAA.

At paragraph 62 the Full Court concluded:

“In our view, it is inevitable given the provisions of the legislation that the exercise to be undertaken will on its face involve dual consideration of some matters …”

Barclay & Orton [2009] FamCAFC 159

Reliance was placed on the matters raised in McCall & Clark above and Justice May observed:-

It is entirely desirable that judges have the assistance of expert evidence but not appropriate, in my view, that a Federal Magistrate inform himself about some academic writings and not provide those writings to the parties nor allow other expert evidence to be called.

As it was clear that the Federal Magistrate relied upon his own appreciation of expert evidence in making decision, the Appeal was allowed.

Allen v Green (2010) 42 Fam LR 538

Justice Boland found that the lack of procedural fairness amounted to an appellable error. Her Honour said:-

Neither party had referred to the two specific articles the subject of complaint and the father was denied the opportunity to make submission on those articles. Mother’s Counsel didn’t provide the article to Dr T to enable his comment.

The Federal Magistrate also sourced materials without reference to the parties.

If the material merely gave background to the Federal Magistrates decision or was extraneous to her decision then notwithstanding a failure to provide to the parties there would be no appealable error.

Her Honour’s reasons show that she took into account the author’s opinions which were against the recommendations of the experts.

In the circumstances it was established that there was no procedural fairness to the Father who did not have the opportunity to address the material on which the Federal Magistrate relied and there was accordingly an appealable error.

The Court said:

We do not consider that the research and articles to which the Federal Magistrate referred could be considered to be “common knowledge such as to fall within s144(1) of the Evidence Act 1995 (Cth)”. 

4.The Role of the Family Consultant

Tryon & Clutterbuck (2010) FLC 93-453

This appeal involves comment by the Full Court on the role of the family consultant or Court expert. The trial judge in a case involving paternity issues ordered that the mother and her new partner attend a family consultant for purposes of the preparation of a family report. On appeal the mother and her new partner sought to set aside the Order on the basis that they were precluded from having legal representation at the interviews for the s62G report although in their submission the family consultant was performing discretionary functions “sometimes analogous to judicial work” and consequently the denial of legal representation was a denial of natural justice. The Full Court rejected the submission, expressing the view that the family consultant’s role pursuant to s62G is that of an expert preparing a written report in reliance of his or her expertise and the family consultant was not exercising discretion or carrying out a judicial function.

At paragraph 32, Their Honours said:

“We do not accept however that the family consultant exercises any “power” in preparing a report. Nor does the family consultant make “findings” in the sense that the term is applied to judicial determinations. Nor does it follow that the report of a family consultant “will lead” to findings by the Court in which the evidence of the family consultant is adduced with respect to the “rights, interests or legitimate expectations” of parties to the proceedings in that Court.  They may have that result, or they may not. What impact, if any, the report of the family consultant has upon the exercise of a judge’s discretion will only be determined after its author has been cross-examined if the report is controversial, and all other relevant evidence considered. Clearly, the extent to which it emerges in the course of cross-examination of a family consultant that he or she has expressed opinions or recommendations in the absence of affording a party a fair opportunity to be heard is likely to reduce, or even destroy the weight which would otherwise be given such conclusions or recommendations”.

Rice v Asplund [1979] FLC 90-215

The issue of Rice v Asplund was considered by the Full Court in Reid & Lynch [2010] FamCAFC 184 where O’Ryan J considered at length the relevant authorities on the question of res judicata and Rice & Asplund and concluded that the Court ‘should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment’ and must be satisfied of significant change in circumstance.

Conclusion

Finally I would refer interested practitioners to the evaluation of the 2006 reforms carried out by the Australian Institute of Family Studies. The study contains some interesting statistics and conclusions about how the reforms have impacted on separating couples and their children. A copy of this evaluation is appended to this paper.

Dated: 11 March 2011

Michael John Emerson Emerson Family Law.

Acknowledgement

In researching and preparing this paper I acknowledge the valuable assistance and contribution of Ms. Abbi Beggs an Accredited Specialist with Emerson Family Law.

Copyright

© These materials are subject to copyright which is retained by the author. No part may be reproduced, adapted or communicated without consent except as permitted under applicable copyright law.

Disclaimer

This seminar paper is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. Readers should not act on the basis of any matter contained in this seminar paper without first obtaining their own professional advice.