Communication and co-parenting
Cable & Sampson  FCCA 17 (12 January 2016)
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/17.html
The law in relation to parenting
- In making any parenting orders the Court must regard the best interest of the children as the paramount consideration. In determining what is in the best interests of the children the Court must have regard to the two primary considerations set out in section 60CC(2) of the Family Law Act which are, first, the benefit to the children of having a meaningful relationship with both parents and, secondly, the need to protect the children from physical or psychological harm arising from abuse, neglect or family violence. In this case there is clearly a benefit to the children of having a meaningful relationship with both parents. However, there is also potential risk to them as a result of being exposed to parental conflict which, at times, is high.
- The Court must also have regard to the additional considerations set out in section 60CC(3) of the Act. The first of these relates to the views of the children and the weight that should be accorded to those views. The children are both young and accordingly any views expressed by them would have little weight. There is very little evidence about the children’s views in any event. I am satisfied on the evidence as a whole that both children would want to continue to spend time with both parents. Ms M asked X about the amount of time she spends with her father. X said she liked the amount of time she was currently spending with him and did not know whether or not she would like to spend more time with him. That could reflect some ambivalence on her part or may simply be the product of the young age of the child and her inability to assess the implications of greater time.
- The next consideration is the nature of the relationship each child has with each parent. The evidence on that issue supports a finding that the children have a close, affectionate and loving relationship with both parents. They have a closer and more familiar relationship with their mother as a result of living primarily with her and having spent less time with their father. I also accept the mother’s evidence that X has, on occasion, asked the mother to raise issues with her father, such as whether she can attend a friend’s birthday party, rather than asking him directly which may indicate some reticence about approaching her father on potentially contentious issues.
- Next I am required to take into account the extent to which each of the parents has taken or failed to take the opportunity to participate in decision-making about major long-term issues, to spend time with the children and to communicate with them. Both parents are highly motivated and keen to be fully involved in the children’s lives. The father has expressed deep frustration and distress about not being able to spend as much time with the children as he would like. He has also felt shut out of decision-making about major issues concerning them. He complained for instance that the mother failed to consult him about which school X would be enrolled in when the mother and children moved to Canberra from (omitted) in February 2013. The mother conceded openly that she enrolled X in the local preschool because it was close to her home. She pointed out the children were spending no overnight time with their father at that point and said she believed that, had she consulted him, there would have been a major dispute about which preschool X should attend. She said she informed the father as soon as X was enrolled. She said she did not specifically recall recording all of the father’s contact details but, if the enrolment form had a space to record them, she would have done so. She said she advised the father of the enrolment and left it up to him to make contact with the preschool. She said she has always ensured the preschool and school the children attend know that the father is welcome to be fully involved and to receive full information from them.
- During cross-examination of the mother the father tendered an email he received from X’s preschool teacher on 19 September 2013 asking him for his address in order to post him a copy of X’s report. The email reads as follows:
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Hi Mr Sampson,
Thank you for attending the excursion yesterday, X enjoyed having you there very much.
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I have spoken with the school and Ms Cable and we are in the process of getting a copy of X’s report for you to obtain. There is no address for you on X’s enrolment information, I would like to request an address for mailing her report to you.
- The father said this email supported his submission that the mother failed to advise the preschool of his contact details. The mother said it corroborated her evidence that she advised the preschool of the father’s identity and that she was happy for the father to be fully involved with the preschool and to obtain information from them. She said to the best of her knowledge the father had made no contact with the preschool between February and September 2013. The email is consistent with the evidence of both parties. I accept that the mother made no attempt to keep the father’s identity secret or keep him away from the preschool or school. She also actively supported the father attending at Y’s childcare centre to spend time with her.
- Next I am required to consider the extent to which each parent has fulfilled their obligation to maintain the children. The father pays child support in accordance with the administrative formula. The mother said he paid no child support for the first eight months following separation and only commenced paying once she made an application to the Child Support Agency to garnishee his wages. The father said that when he received an initial call from the Child Support Agency he asked the Agency to take the money directly from his wages. He said he assumed that was happening but did not check and several months later he was contacted again about arrears. He said he paid the arrears and has remained up to date since. I accept that.
- The next consideration is the likely effect of any changes in the children’s circumstances. I am satisfied on the evidence of the children are likely to benefit from spending more time with their father than the current arrangements provide. However, there is overwhelming evidence of long-standing and deeply ingrained communication problems between the parties. The simplest issues can quickly become a battleground. The implications for this case are serious because the greater the degree of shared day-to-day care of the children, the greater the degree of interaction between the parties that will be required, especially given the young age of the children. This factor strongly militates against an equal time or more substantially shared arrangement for the children.
- The communication issues are also relevant to an assessment of two further considerations under section 60CC(3). The first is the capacity of each parent to provide for the needs of the children, including their emotional and intellectual needs. The second is the attitude to the children and to the responsibilities of parenthood demonstrated by each parent. In my view the mother has displayed a responsible attitude to parenting and a high level capacity to provide for the practical, intellectual and emotional needs of the children. I am less confident about the father’s attitude and capacity because of his tendency to approach issues from the perspective of his rights as a parent, his tendency to assume he is being attacked if someone disagrees with him and his combative and aggressive style of interaction with anyone who crosses him. Although the father can provide for the practical and intellectual needs of the children, I have concerns about his capacity to understand and meet the children’s emotional needs. For example, the father repeatedly accused the mother of being motivated by financial gain in her parenting decisions. In one email to the mother on 11 August 2013 the father said the following:
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X and Y may well read these emails when they’re old enough and mature enough to see how you manipulated them (for money). They’ll know what you are. Your games won’t work forever – they’ll know…
- That threat implies a profound lack of understanding about the emotional needs of the children.
- The mother’s concerns about the father’s alcohol and drug consumption, the difficulties posed by his physical disability and his aggressive personality were legitimate concerns following separation, especially given the very young age of the children and his limited experience of caring for Y. The mother made a number of sensible suggestions in order to obtain reassurance about the issues but many were resisted by the father. These included her speaking directly with the father’s doctors, her being able to attend the first few visits at Marymead and the father obtaining a psychological assessment. It was the father’s refusal to cooperate at least initially with the mother’s suggestions which delayed increases in the children’s time with him. He eventually agreed to the mother attending the first few visits at Marymead and she only needed to attend once before being satisfied that Y would be comfortable without her. Once the father cooperated in obtaining a psychological assessment which indicated no ongoing psychological problems, the mother consented to the children spending overnight time with him. It was the father’s defensiveness which delayed these things, not the mother’s unreasonableness in asking for them.
- The mother has, in general, been polite in her dealings with the father about the children and limited her communications to parenting issues. By contrast the father has repeatedly used communication about parenting issues to berate and hector the mother and point out what he sees as her inadequacies.
- Both parties have at times involved the children, perhaps inadvertently, in parental disputes. X has certainly has been aware of the conflict. Ms T, the psychologist who assisted X in 2013, made a file note to the effect that X said her mother does not like her father. There is no evidence to suggest she was told that directly by the mother but clearly the child accurately assessed her mother’s attitude to the father.
- The mother said that on the morning of the day when Y was to spend overnight time with her father for the first time she spoke positively about that and said to Y “Are you looking forward to having a sleepover with your daddy?” and the child responded “Yes, because you don’t want me; you don’t need me”. The mother said she asked Y who told her that and she replied “Daddy”.
- Ms T and Ms M, the family consultant, both commented on the risks to the children of being exposed to ongoing parental conflict. The father submitted that the quality of communication had improved significantly before the trial and was likely to improve significantly once the litigation ended. Given the volume of difficult communications over the years following separation, I do not have a lot of confidence in that submission. The fact that the father verbally abused the mother on 29 March 2015, the week before the trial began, because she picked up Y’s jumper from the floor of his car at handover reinforces my concerns. The mother should not be required to put up with such abuse.
- The legislation requires me to consider whether it would be preferable to make the order which would least likely lead to further parenting proceedings. It is hard to assess this matter as there is the potential for further litigation regardless of the outcome. On balance, I am inclined to think that the more time the children spent with the father the more likely it is that further proceedings will be required because of ongoing unresolvable parental disputes.
- When making parenting orders the Court must apply a presumption that it is in the best interest of the children for their parents to have equal shared parental responsibility for them.The presumption does not apply if there are reasonable grounds to believe there has been child abuse or family violence and may be rebutted if the Court is satisfied on the evidence that it is not in the best interests of the children.
- For reasons previously stated, I am not satisfied to the requisite degree that there has been family violence. There is no evidence of child abuse. Accordingly, the presumption applies in this case. However, I am satisfied on the evidence that it is not in the best interests of the children for the parents to have equal shared parental responsibility. Such an order would require the parties to consult each other in relation to major long-term issues concerning the children and to make a genuine effort to come to a joint decision about those issues. In my view there is no reasonable prospect of the parties reaching a joint decision in relation to such issues without significant conflict. Given the history it is likely the parties will reach a stalemate in relation to important decisions which need to be made and which cannot be progressed without further litigation.
- Counsel for the mother submitted that an order should be made granting the mother sole parental responsibility but requiring her to advise the father of any major long-term issue that needs to be made and requiring her to take his views into account before making the decision. I agree that the mother can be trusted to genuinely and properly carry out this task. Such an order would allow the father to be heard about significant issues but would avoid a situation in which the mother is required to remain locked in endless negotiations with him and exposed to his hostility.
- The father has a lot to offer his daughters. He is clearly devoted to them and keen to spend as much time with them as possible. There is potential for him to be a strong role model for them, having overcome and dealt with significant adversity in his life. At the age of 27 his motorbike accident resulted in him having his left leg amputated. By the end of 2005 he had completed (studies omitted). He then applied for and was accepted into the (employer omitted). He subsequently completed a (qualifications omitted) degree while working full-time. Each of those accomplishments required great determination and strength of character, attributes from which the children can benefit.
- The children may also benefit from the different perspective the father will bring to parenting issues but that perspective will still be available if the orders require the mother to consult the father about major long-term issues.