Alba and Leon
[2009] FMCAfam 818
•10 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ALBA & LEON | [2009] FMCAfam 818 |
| FAMILY LAW – Children – best interests – equal shared parental responsibility – equal time – substantial and significant time. |
| Family Law Act (1975) (Cth) ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Mulvany & Lane [2009] FamCAFC 76 Bolitho and Cohen (2005) FLC 93-224 H and H (2003) FLC 93-168 B & S [2004] FMCAfam 61 |
| Applicant: | MS ALBA |
| Respondent: | MR LEON |
| File Number: | HBC746 of 2008 |
| Judgment of: | Roberts FM |
| Hearing date: | 22 April 2009 |
| Date of Last Submission: | 22 April 2009 |
| Delivered at: | Hobart |
| Delivered on: | 10 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Daniels |
| Solicitors for the Applicant: | PWB Lawyers |
| Counsel for the Respondent: | Ms A Burrows-Cheng |
| Solicitors for the Respondent: | Murdoch Clarke |
ORDERS
That MS ALBA (“the mother”) and MR LEON (“the father”) have equal shared parental responsibility for [X] born in 2001 and [Y] born in 2004 (“the children”).
That the children are to live with the father as follows:
(a)during school terms each alternate week from the conclusion of school on Friday until the commencement of school on Tuesday;
(b)during each May/June and August/September school holidays from 3:30 p.m. on the last day of term until 6:00 p.m. the following Friday;
(c)during the children’s Easter school break as follows:
(i)in 2010 and in each alternate year thereafter from after school at the start of the Easter school break until 5.00 p.m. on the Tuesday after Easter Sunday; and
(ii)in 2011 and in each alternate year thereafter from 5.00 p.m. on the Tuesday after Easter Sunday until the start of school at the end of the Easter break;
(d)during summer school holiday periods for one half of those holidays in alternating week blocks commencing at 3:30 p.m. on the first Friday in 2010 and in each alternate year thereafter and 3:30 p.m. on the second Friday in 2011 and in each alternate year thereafter, provided that each party has the option of the children spending two consecutive weeks with them for the purpose of the holiday that is primarily to be taken away from their usual place of residence provided that the parent gives the other parent one month’s written notice of his or her intention to exercise such option and provides to the other parent an itinerary at least 14 days beforehand.
That subject to Order No. 4 hereof the children are to live with the mother at all other times.
That the following is to apply with respect to “special days”;
(a)on Father’s Day and Mother’s Day the parties must do all things necessary to ensure the children spend time with the relevant parent from at least 9:00 a.m. until 5:00 p.m.;
(b)on the of each of the children’s birthdays the parties are to do all things necessary to ensure that the children spend time with the parent with whom they are not otherwise living with on that day from 4:30 p.m. until 8:00 p.m. if it is a school day or between 2:00 p.m. and 7:30 p.m. if it is a non-school day;
(c)in 2009 and each alternate year thereafter the children are to live with the mother from 2:00 p.m. on 24 December until 2:00 p.m. on Christmas Day and with the father from 2:00 p.m. on Christmas Day until 2:00 p.m. on Boxing Day;
(d)in 2010 and each alternate year thereafter the children are to live with the father from 2:00 p.m. on 24 December until 2:00 p.m. on Christmas Day and with the mother from 2:00 p.m. on Christmas Day until 2:00 p.m. on Boxing Day;
That when changeover is not otherwise to occur at school the parent with whom the children have been living is to deliver the children to the other parent.
That each parent is to ensure that when the children are in his or her care they are transported by an adult with a valid driver’s license.
That each parent is to facilitate reasonable telephone communication between the children and the other parent when the children are in his or her care.
That the father and the mother must each complete a “Parents in Contact Programme” or an equivalent programme conducted by Relationships Australia or a similar organisation.
IT IS NOTED that publication of this judgment under the pseudonym Alba & Leon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC746 of 2008
| MS ALBA |
Applicant
And
| MR LEON |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant is MS ALBA (“the mother”) and the Respondent is MR LEON (“the father”).
The father is aged 35 years and the mother 34 years. There are two children of their relationship - [X] born in 2001 and [Y] born in 2004 (“the children”).
The mother commenced these proceedings in the Family Court of Australia in July 2008 by filing an Application seeking parenting orders in relation to the children, together with an affidavit. The father filed his Response and supporting affidavit in August 2008.
His Honour Benjamin J made interim parenting orders on 15 September 2008 and transferred the final hearing of the matter to this Court.
On 4 December 2008 I made orders for a Family Report and on the following day orders were made by consent providing for variations to Benjamin J’s orders for the 2009/2010 long summer school holiday.
The Family Report was released to the parties on 11 March 2009. In it the Family Consultant, Ms Gourlay, summarised the background well. She said:[1]
The parents commenced a relationship as teenagers in 1991 and separated in December 2007. At this time the mother and the children left the family home and arrangements were made in early 2008 for the children to spend time with their father each weekend from Friday afternoon to Sunday afternoon. This arrangement continued until the children were placed in the full time care of their father by their mother on the 14th May 2008 as a result of a house fire at the mother’s home. For a period of approximately seven weeks the children lived with their father and spent limited time with their mother. When Ms Alba returned to her home on the 9th July 2008, the children lived in an equal shared care parenting arrangement between their parents which ceased on the 15th September 2008 as a result of Justice Benjamin making interim Orders after a contested hearing.
In accordance with the interim Orders dated 15th September 2008 the children are currently living with their mother and spending time with their father from 8.30am Friday to 5pm Sunday in week 1 and from 8.30 am Wednesday until the commencement of school on Thursday in week 2. The children are also spending equal time between their parents during the school holiday periods.
[1] Paragraphs 2 and 3
In early 2007 the younger child, [Y], was diagnosed as suffering from Autism Spectrum Disorder in the moderate to severe range.
The issues
In her originating application the mother was seeking sole parental responsibility for the children (on the basis that she consult with the father and keep him informed in relation to major long-term issues) and that the children spend time with the father on a fortnightly basis of two nights in the first week and one night in the second week. However, when the matter came on hearing, the mother was seeking orders for equal shared parental responsibility and that the children live with the father as follows:
·each second weekend during school terms, from after school on Friday until the start of school on Tuesday;
·for the first half of each May/June and August/September school holiday;
·on a rotating weekly basis during the long summer school holidays, but with provision for either parent to have the children for a fortnight in order to take them away for a holiday.
She also sought orders to deal with special occasions and other matters.
The father has consistently sought orders that he and the mother have equal shared parental responsibility for the children and the children live with them equally on a rotating weekly basis.
In short, the ambit of the real dispute was summarised well by the father’s counsel in her opening, when she said “essentially we’re arguing about three nights per fortnight during the school term”.
Legal principles to be applied
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[2].
[2] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [3]
[3] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children[4].
[4] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[5].
[5] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant[6].
[6] Subsection 60CC(3)
There has been some debate about whether the “primary considerations” should be given more weight than the “additional considerations”. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case. Indeed, I am fortified in that view by the Judgment of May and Thackray JJ in Mulvany & Lane[7], in which their Honours said:
76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
[7] [2009] FamCAFC 76
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence[8]. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child[9].
[8] Section 61DA
[9] Subsection 61DA(4)
However, if the presumption applies, it does not necessarily follow that sole parental responsibility will be ordered. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·consider whether spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable; and
·if it is, consider making an order to provide for the child to spend equal time with each of the parents.[10]
[10] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that is reasonably practicable.[11]
[11] See subsections 65DAA(2) and (3)
It is clear that the court is not restricted to the proposals put forward by the parties. See Bolitho and Cohen. [12]
[12] (2005) FLC 93-224
The children’s best interests
As stated above, it is necessary for me to consider the relevant factors set out in section 60CC. I therefore propose to examine the evidence in the light of those factors.
Primary considerations
The benefit to the child of having meaningful relationships with both parents
Neither party is suggesting anything other than that it is to the benefit of the children to have a meaningful relationship with the other party. It seems to me that they both simply accept that the children love both parents. As the Family Consultant said:
Both Ms Alba and Mr Leon seek that the children continue to have positive relationships with each parent post separation.
She also said:
[X] and [Y] are fortunate to have intelligent and involved loving parents who both wish to play a significant role in their daughters’ lives.[14]
The need to protect the child from harm from abuse, neglect or family violence
[14] At paragraph 42.
There is no suggestion that these children are in need of any protection from the effects of abuse, neglect or family violence.
Relevant additional considerations
The children’s views
At paragraph 25 of her Report, the Family Consultant said:
[Mr Leon] stated that the primary reason he is currently seeking an equal shared care arrangement because this is [X]’s expressed wish. According to her father [X] has expressed that the current arrangements are not fair and she is seeking a week about parenting arrangement. Mr Leon describes [X] as an intelligent and mature child “far beyond her age”.
At paragraph 35 Ms Gourlay also said:
When [X] was asked how she thought this conflict could be resolved she stated that she wanted “Equal Parental Shared Care”. …… [X] thought that this term meant 50% or week about and that this was a fair arrangement as everybody got the same.
Further, at paragraph 49, Ms Gourlay said:
[X] is described by both of her parents as extremely intelligent and emotionally mature. Mr Leon believes that given these positive attributes [X] has a good understanding of the parental conflict and it is her wish to enter into an equal shared care parenting arrangement.
Notwithstanding [X]’s intelligence and maturity, it is important to remember that she is only seven years old, and rather than being involved in her parents’ dispute, she should be shielded from it.
[Y] is too young to have a relevant view about the matters that I have to decide.
The children’s relationships with the parents and other people
It is very clear that both girls have warm and loving relationships with both parents and their affection is reciprocal. I repeat that Ms Gourlay reported that: “[X] and [Y] are fortunate to have intelligent and involved loving parents who both wish to play a significant role in their daughters’ lives.”
Ms Gourlay’s comments also indicate that a special relationship exists between [X] and [Y]. She said:
[X] was very patient with her younger sister and tended to assist [Y] to make things easier for her. There did not appear to be sibling rivalry between the children as would often be seen with children of this age, instead [X] was very accommodating for [Y], often putting herself out for her sister. [X] would often talk for her sister while engaging her in play.[15]
[15] Family Report, paragraph 32
The mother has re-partnered and is engaged to be married. She and her fiancé have not set a date for their wedding but she expected it to be in March 2010. Although her partner did not file an affidavit, I can accept the mother’s word that her fiancé has a good relationship with the children, because that was not challenged by the father.
Similarly, the court does not have the benefit of affidavits from any of the children's grandparents. However, I infer that the children’s relationships with them are normal and loving relationships.
The capacity of the parents to provide for the children’s needs
It is quite clear that the mother has been quite diligent in the way that she has cared for the children and organised assistance in relation to [Y]’s autism. To his credit, the father conceded that he had not been involved in organising the involvement of the Early Childhood Intervention Service, her speech pathology or [Y]’s day-care.
I am quite confident that the mother will continue to provide properly for the needs of both children.
On the other hand, I have some concerns that the father is at times unable to put his children’s needs before his own.
It is perfectly clear to me that the father has involved [X] in adult matters in an inappropriate manner on occasions. For example, it was quite inappropriate for him to have discussed the interim court proceedings with her in the manner that he did. Although he says that he did not use the terminology that [X] used when talking to
Ms Gourlay, I am satisfied on the balance of probabilities that he did, and that explains why [X] said that she wanted “equal parental shared care”. Consequently, I share the view expressed by Ms Gourlay as follows:
It is highly inappropriate that [X] is exposed to her parent’s conflict and given her high intelligence it is essential that her parents are extra vigilant in protecting their 7 year old from adult issues and concerns.
Mr Leon’s justification of [X]’s involvement in legal issues and his praise of her emotional support after the last interim hearing may indicate that he is currently unable to separate his own views and emotions from his daughter’s social and emotional development needs. This emotionally abusive behaviour is currently placing tremendous strain on [X].[16]
[16] Family Report at paragraphs 49 and 50
In an earlier paragraph Ms Gourlay had said, somewhat poignantly:
It is important to remember that [X] is only 7 years old.[17]
[17] Paragraph 48
When the father was giving his oral evidence, it became increasingly clear to me that he was quite manipulative in relation to the mother’s need for money to provide for the children’s needs. In this regard, the parties had more than $400,000 tied up in a trust fund and the father consistently refused to release any funds to the mother. It was only after the mother instituted Supreme Court proceedings and “at the court door” that the father agreed to the release of $20,000 to each of them as an interim measure. My criticism is not related to the minimal child support that the father pays (because that is all that is require under the legislation); it is that he indulged in tactics that delayed the mother having access to funds to which she was entitled, when he must have known that the children would gain some direct benefits from those funds being made available.
It also did the father little credit for him to suggest that the mother receives “large amounts of money from the government” when referring to her Centrelink benefits.[18] Having heard him say that, I have no difficulty in accepting the mother’s version of events is more accurate about the occasion when they attended an optometrist for the purpose of obtaining glasses for [X].
[18] Transcript, commencing at page 52
Ms Gourlay recommended that the father have some counselling, and to his credit, the father organised that quite quickly. He had attended two appointments in the short time between the release of the Family Report and the hearing. Although, his counsellor reported favourably, it is not possible for me to conclude whether the father’s responses were genuinely “in alignment with and congruent with what (his counsellor) would see as being healthy parental responses”.[19] It is equally conceivable that the father knew what responses were required of him to obtain a favourable report from his counsellor, so I make no finding about that.
[19] Paragraph 10 of the affidavit of the father’s counsellor
In my view, the father acted quite inappropriately when presented with an interim school report for [X]. I prefer the mother’s version of that event and I find, on the balance of probabilities, that the father did describe [X]’s school as “a shit school” in [X]’s presence and he took no notice of the mother’s efforts to have him desist. Such behaviour was clearly inappropriate and I must have some misgivings when I consider that this event took place only a few days after the father had his second session with his counsellor.
Given these factors, I cannot help but conclude that there are times when the father puts his own needs and desires first. I can only hope that he continues with his counselling and that his engagement with that counsellor is not merely “a flash in the pan” for the sake of these court proceedings.
The attitudes of the parents to the children and to parental responsibilities
In general, I have no concerns about the mother’s attitude to her responsibilities as a parent. She has a demonstrated history of having a responsible attitude to parenting, and that is particularly evident in relation to arranging appropriate intervention for [Y]’s Autism Spectrum Disorder.
Unfortunately, I cannot be quite so confident about the father’s attitude.
I have already commented above about the father being manipulative in relation to money, and that reflects poorly upon him when I have regard to the fact that the mother was seeking funds for purposes that were in some cases directly intended to benefit the children.
I also have some serious concerns that the father’s police record shows a consistent disregard of the standards of behaviour that society expects of its citizens. His record comprises six pages and covers a period of less than 16 years. By my count, he has been convicted of traffic offences on 49 occasions during that period, ranging from minor parking offences to serious offences like speeding at 46 kilometres per hour above the limit and drink-driving.
Having a bad history of traffic offences does not necessarily make one a bad parent. Almost everybody has some regrets about stupid things done in their younger days, but the father's police record must cause me some concern about the role model he provides for the children. In this regard, I note that the period following [X]'s birth covers nearly five of the six pages of his record.
Clearly, the father needs to reflect seriously upon the facts that he is now 35 years old and has parental responsibilities for two children.
The mother seeks an order requiring the parties to ensure that the children are only transported by an adult with a valid driver’s license. In view of the father’s driving record, I have little hesitation in making such an order.
The willingness and ability of the parents to facilitate and encourage the children’s relationships with the other parent
I have no concerns about the mother’s willingness to facilitate and encourage the relationship between the children and the father. This can be seen from the way in which she has been flexible in relation to them spending time with him in addition to the time provided in the interim orders, such as for his birthday and when he requested to take [X] to Melbourne. On the latter occasion, the mother permitted it even in spite of her misgivings.
However, the father does not appear to have been quite so flexible. Indeed, it reflects poorly on him that he was not prepared to allow the children the enjoyment of celebrating their grandfather’s 60th birthday for a few hours even when the mother was prepared to provide him with compensatory time. I was not impressed by his explanations in relation to that. When he said that he wanted to make sure that he was doing the right thing, he was asked how it could possibly be the wrong thing to agree to the children spending time with their grandfather on his 60th birthday. His response defied any reasonable logic. He said:
Morally I had no objection to it but legally I wondered whether there was anywhere where (the mother) could, you know, turn around and say that I didn't want to be responsible for the children on those days and that I had unfairly dumped them back on her or something.
I consider that his actions at that time were yet another example of him putting his own needs and wants before the needs of the children.
The likely effect of any change in the children’s circumstances
Stability is important in the lives of children generally, but it is particularly important in the lives of young children. [X] and [Y] are still very young and there is the added complication of [Y]’s autism.
It is pleasing to see that both parents believe that there should be less handovers between them. That was certainly the view of Ms Gourlay. She said:
Given [Y]’s increased difficulties with handovers and change in routines and environments, it is recommended that [Y] have less handovers between her parents possibly moving to one block of time (per) fortnight with each parent.[21]
[21] Family Report, paragraph 51
She had previously observed:
[Y] appeared to become anxious and slightly distressed on three occasions during her observations with her parents, when she was separated from her father to spend time with her mother in the playroom, when her mother left to playroom to allow her father to enter the playroom and again when it was time to leave the court with her mother.[22]
[22] Family Report, paragraph 39
Whatever the Court decides, it is clear that the number of handovers needs to be reduced, and either party’s proposal will accommodate that.
The practical difficulty and expense of the children spending time with and/or communicating with a parent
The father lives at [O] and the mother lives in Hobart. However, this has not caused any significant difficulties, even when the father was without a driver’s licence.
Any family violence and family violence orders
There has not been any recent family violence, nor are there any family violence orders.
Should there be equal shared parental responsibility?
The parties now agree that they should share parental responsibility equally.
As I have mentioned above, the Court must apply a presumption that it is in the best interests of children for their parents to do so, unless there are reasonable grounds to believe that a parent has engaged in child abuse or in family violence. Although no such grounds exist in this case, the presumption is rebuttable.
Notwithstanding that I have made some critical comments above about the father’s social irresponsibility and the fact that he has put his needs above those of his children, I do not believe that the presumption should be rebutted in this case. I propose to order that the parties have equal shared parental responsibility.
Should there be equal time?
Because I propose to order that the parents have equal shared parental responsibility, I must consider whether spending equal time with each parent would be in the best interests of the children and is reasonably practicable. Clearly, the father wants me to make orders that will result in him spending equal time with the children during school terms and school holidays.
Federal Magistrate Ryan (as she then was) gave a very useful summary of the law in relation to equal shared care in H and H.[23] She said:
[23] (2003) FLC 93-168
47. Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
· The parties' capacity to communicate on matters relevant to the child's welfare.
· The physical proximity of the two households.
· Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
· The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
· Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
· Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
· Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
· Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
· Whether or not the parties respect the other party as a parent.
· The child's wishes and the factors that influence those wishes.
· Where siblings live.
· The child's age.
48. This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s 65E nor s 68F(2). Each factor fits comfortably within s 68F(2).
Her Honour made very similar comments in her 2004 decision of
B & S.[24]
[24] [2004] FMCAfam 61
The section 68F(2) to which she was referring was the forerunner to the current section 60CC that is referred to above. Many of the considerations that were found in the former section 68F(2) are still to be found in the current section 60CC. Consequently, it is my opinion that what she said then is still valid today.
Clearly, the factors she listed are not all relevant in every case, and certainly, they are not all relevant in this case.
Although the parties have had their communication difficulties in the past, those difficulties appear to be on the mend, in that they appear to have improved their level of communication. In part, I put this down to the father’s gradual acceptance that his relationship with the mother is over, and the mother’s acceptance that she needs to communicate with the father for the sake of the children. When she was asked about communicating with the father, she said:
I have to because of my children. I do it for the kids.[25]
[25] Transcript, page 33
In relation to the proximity of their households, much will depend upon where the mother decides to live in the future. From her oral evidence, it appears that she would like to live somewhere outside Hobart, but she is undecided about exactly where. She mentioned possible locations like [R] and the [C] area. Clearly, if it is to be the former, she will be even further from the father than she is now, but if it is to be the latter, she could be quite close to him. The current distance between the parties’ households has not presented them with any significant problems. As the past is generally the best indicator of what might occur in the future, I can only assume that the parties will do their best to overcome any difficulties that may arise from any lack of proximity between their households.
The parties appear to have demonstrated that they were able to implement a 50/50 living arrangement during the last long summer holiday. However, 50/50 living arrangements during school holidays are very different from 50/50 living arrangements during school terms. Currently, [X] attends the [M] primary school on a full-time basis and [Y] is there for two days of the week. Next year [Y] will be at school full-time. I do not know which school(s) the children will attend next year but I have confidence that the parties will be able to reach agreement about that. In the short term at least, that is likely to be in Hobart and that would require the father to drive the children (if he still holds a driver’s licence) quite a long way each morning. If that is to occur on a consistent basis, I do not see it as being in the children’s best interests, especially in view of [Y]'s difficulties.
In the main, I am of the view that it is in young children’s best interests to go to school close to their home. Unfortunately, that is not possible if the parents share their care equally but live some distance apart. This is especially so in the case of young children or where special needs exist. Both these children are young, and [Y] clearly has special needs.
It is clear to me that both parents are quite capable of dealing with [Y]’s special needs. I accept what Ms Gourlay said:[26]
Parenting a child with Autism Spectrum Disorder can be challenging for the best and more experienced parents. In observing [Y] in the presence of each of her parents it was clear that they are both loving and attentive towards her. Each parent appeared to be skilled in pre-empting [Y]’s behaviours and quickly implementing strategies to minimise [Y]’s anxiety or distress.
[26] Family Report, paragraph 39
Ms Gourlay’s additional comments in that paragraph reinforce in my mind that a special relationship exists between these two young girls. She said:
It is also interesting to note that [X] too at her young age has adopted a very sensitive approach to her sister and was supportive of her parent’s attempts to either distract or reassure [Y] where appropriate.
However, when I weigh up all these factors, I conclude that it is not in these children’s best interests for them to spend equal time with each of their parents during school terms.
Given what I have said above about the father’s inability to put the children’s needs before his own and his social irresponsibility, it should not come as a great surprise that I consider it to be in the children’s best interests for the children to live predominantly with their mother.
The Act requires that I give consideration to the children spending substantial and significant time with their father. Sub-section 65DAA(3) provides that a child will be taken to spend “substantial and significant time” with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The orders sought by the mother in her Amended Application filed
17 April 2009appear to have adopted the recommendations of
Ms Gourlay in the Family Report. They provide for “substantial and significant time” as defined in sub-section 65DAA(3) and are considered by me to be in the children’s best interests.
In the circumstances, I will make orders that are in very similar terms to the mother’s Amended Application.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date:
[13] Family Report, at paragraph 43.
[20] Transcript, page 59.
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