Arthur and Arthur

[2014] FCCA 2351

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARTHUR & ARTHUR [2014] FCCA 2351

Catchwords:
FAMILY LAW  ̶  Whether equal time in the best interests of the child  ̶  whether equal time reasonably practicable.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65DAA

Applicant: MS ARTHUR

Respondent: MR ARTHUR

File Number: MLC 1300 of 2013

Judgment of: Judge Phipps

Hearing dates: 2 & 3 June 2014

Date of Last Submission: 3 June 2014

Delivered at: Dandenong

Delivered on: 16 October 2014

REPRESENTATION

Counsel for the Applicant: Ms Campbell

Solicitors for the Applicant: Fiona R Mcgregor

Counsel for the Respondent: Mr Goddard

Solicitors for the Respondent: Campbell & Shaw

ORDERS

1. That all previous orders are discharged from 20 October 2014.

2. That the husband and the wife have equal shared parental responsibility for the child X born (omitted) 2010.

3. That the child live with the wife.

4. That the child spent time and communicate with the husband as follows:

   (a)Commencing 31 October 2014 each alternate weekend from after school, kindergarten or childcare or otherwise 5.00pm on Friday until before school, kindergarten or childcare or otherwise 9.00am on Tuesday.

   (b)Commencing 23 October 2014 each alternate Thursday from after school, kindergarten or childcare or otherwise 3.30pm until 7.00pm;

   (c)On Father’s Day in each year if not during a weekend the child is spending time with the father from 5.00pm on the Saturday prior to Father’s Day until before school, kindergarten or childcare or otherwise 9.00am Monday.

   (d)From 5.00pm Christmas Eve 2014 until 5.00pm on Christmas Day 2014 and each alternate year thereafter and from 5.00pm Christmas Day 2015 until 5.00pm Boxing Day 2015 and each alternate year thereafter;

   (e)On each of the child’s birthday and the husband’s birthday if the child is not otherwise spending time with the father from 5.30pm until 7.30pm on a weekday and from 10.00am until 2.00pm on a weekend day;

   (f)Upon the child commencing school for half of school term holidays and half summer holidays at times to be agreed and if not agreed the first half in even numbered years and the second half in odd numbered years.  For school term holidays, unless otherwise agreed, the first half from the conclusion of school on the last day school day of term until 5.00pm on the middle Saturday and the second half from 5.00pm on the middle Saturday until the commencement of school on the first day of the next term.  For summer holidays, unless otherwise agreed, the first half shall be from 5.00pm on the last day of the school term until 5.00pm on the mid Saturday of the holidays and the second half from 5.00pm on the middle Saturday until the commencement of school on the first day of the next term.

   (g)Otherwise as agreed.

5. That the provisions in this order for the child’s time with the husband are suspended as follows:

   (a)Upon the child commencing school paragraphs 4(a) and (b) during all school term and summer holidays;

   (b)From 5.00pm on the Saturday prior to Mother’s Day;

   (c)From 5.00pm on Christmas Day until 5.00pm on Boxing Day in 2014 and each alternate year thereafter and from 5.00pm on Christmas Day until 5.00pm on Christmas Day in 2015 and each alternate year thereafter.

   (d)On each of the wife’s birthday and the child’s birthday if the child is spending time with the husband;

   (i)If a weekday, from 5.30pm until 7.30pm or if the child is attending school from the conclusion of school until 7.30pm;

   (ii)If a weekend day from 10.00am until 2.00pm.

6. That each party is restrained by injunction from abusing, belittling or denigrating the other party to the child or in the hearing or presence of the child or permitting the child to be in the presence or hearing of any third party who is abusing, belittling or denigrating the other party.

7. That each party advise the other in writing (including by text message) as soon as practicable of any change of address and/or contact details.

8. That each party advise the other immediately by telephone of any significant illness or injury by the child when in their respective care.

9. That each party authorise the doctor or health professional to provide information to the other party regarding any issue concerning the health, treatment or diagnosis of the child.

10. That the parties are at liberty to communicate with each other by text message regarding issues that may affect the welfare of the child and the exercise of the parties parental responsibility for the child provided such communication does not constitute family violence.

11. That each party be restrained from enrolling the child in a new childcare centre without the prior written agreement of the other party.

12. That the father undertake a parenting after separation course and provide evidence in writing to the mother that he has done so.

13. The court notes that a family violence order was made in the Ringwood Magistrates Court on 4 February 2014.  To the extent that this order is inconsistent with that family violence order this order prevails.

IT IS NOTED that publication of this judgment under the pseudonym Arthur & Arthur is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 1300 of 2013

MS ARTHUR

Applicant

And

MR ARTHUR

Respondent

REASONS FOR JUDGMENT

1. The parties have one child X born (omitted) 2010.  She lives equal time with each parent in a two week three-day four-day cycle.  In the first week she spends time with the husband from the conclusion of child care on Tuesday until 5.00pm on Friday and in the second week from the conclusion of child care on Wednesday until 5.00pm on Sunday.  She spends the rest of the time with the wife.

2. The husband proposes that this time continue with a minor change to commence his time at 4.30 or 5.00pm (depending on when his concludes work) instead of after childcare.  The wife proposes that the arrangements be altered so that the child live with her and spend time with the husband each alternate week from the conclusion of school or creche on Friday until the commencement of school or creche on Monday, each alternate Wednesday from 5pm or the conclusion of school or creche on Wednesday until the commencement of school or creche on Thursday.

3. Ms L recommends in the Family Report that the current arrangement should continue until the child commences school in 2016 and that prior to that time the arrangement be renegotiated.  In her oral evidence she said that once the child commences school she should spend the school week in the one home and that weekends be shared.  She said that the child should live with whichever parent could provide the better care and spend time with the other parent alternate weekends Friday after school to before school Tuesday and in the intermediate week for some time on one day after school.  Towards the conclusion of her evidence Ms L suggested that perhaps the change should commence immediately.

4. The husband was born on (omitted) 1985 and the wife on (omitted) 1988.  The parties met in Victoria.

5. The parties met in (omitted) 2009 and commenced cohabitation in (omitted) 2009.  They married on (omitted) 2010.  They finally separated on 27 December 2012 and were divorced on 10 May 2013.

6. The parties lived on the (omitted) Queensland and then moved to (omitted) in Queensland where the husband’s family live.  They first separated in November 2010.  The wife alleges an episode of domestic violence including the husband smashing the cars windscreen with the wife and child inside.  The husband acknowledges breaking the windscreen but says he did not intend hitting it that hard.  The wife returned to Victoria.

7. In December 2010 the husband travelled to Victoria and the parties reconciled.  They separated again in December 2011 and the husband returned to (omitted) Queensland.  In May 2012 the parties reconciled and the wife and child moved back to Queensland with the husband.  In September 2012 the husband, wife and child returned to Melbourne to reside.  On 27 December 2012 they separated for the final time and the wife and child went to live at the home of her parents where she remains.  She is employed full-time with (employer omitted) in a (omitted).

8. The husband has re-partnered with Ms C.  They have lived together at Ms C parents’ house since November 2013.  Ms C has two children aged six and four.  They live equal time between Ms C and their father.  The husband is employed full-time as a (occupation omitted).

9. Following separation the child spent equal time with each parent on the two week four day/three day rotating cycle.  The wife commenced these proceedings on 11 September 2013.  She says that she did not consider the child was coping with the equal time arrangement.

10. On 16 October 2013 consent orders provided for the parties to have equal shared parental responsibility, for the child to live with the wife and to spend time with the father in two week cycle, week one from the conclusion of childcare Wednesday until 5.00pm on Saturday and in week two from the conclusion of childcare on Wednesday until 5.00pm on Sunday.

11. Further orders made on 30 January 2014 changed the father’s time to in the first week from the conclusion of childcare on Tuesday until 5.00pm on Friday and in the second week from the conclusion of childcare on Wednesday until 5.00pm on Sunday.  This was to allow the wife to have a full weekend with the child.  The order on 30 January 2014 contains a provision, not made by consent, that the father be in substantial attendance during all times that the child is in his care and in the event he is required to work on weekends, the child be placed in the care of the mother.

12. The relationship between the parties is poor.  They have little ability to cooperate.  An incident on 11 February 2014 illustrates this.  The order of 30 January 2014 provided that in the first week of the two week cycle the child spend time with the father from the conclusion of childcare on Tuesday until 5.00pm on Friday.  The child was not at childcare on that day.  The father arrived at the mother’s home at about 4.30pm.  He says childcare usually ended about that time.  He says he knocked on the door and was told, it seems by the grandmother, that his time commenced with the child at 5.00pm that he was in the wrong.  He says he stated the order verbatim from the conclusion of childcare on Tuesdays.  He says he was told they were going to call the police.

13. He reversed out of the driveway and called Ms C, his partner, who told him to video record going to the door again which he did.  He knocked on the door at 4.45pm and was met very rudely.  He says he could hear the child in the background upset.  He said the door slammed in his face so he again read verbatim what the order said.  He went to the (omitted) Police Station who told him there was nothing they could do.  He went back to the house and was met by two Police Officers and handed them the orders and the intervention order and video recorded it.  He says that the child was handed to his partner and they went away.

14. On 13 May 2014 according to the wife, the husband arrived on a Tuesday afternoon but in the week the child was due to go into his care on Wednesday.  The husband knocked on the door at 5.00pm.  She said she told him that was the wrong date, there was a few minutes of argument and the husband left.  The wife says the child started screaming because the wife had told the child she should be staying with her that night.  Possibly the wife is exaggerating the child’s reaction but significantly she heard her parents arguing.

15. The mother applied for a Family Violence Intervention Order against the father in September 2013 and again in February 2014.  The first was resolved by the husband giving an undertaking.  On the second occasion an order was made.  The outline of incidents in the applications in each case allege abuse by the husband of the wife by text message, threats to attend her workplace, threats that his new girlfriend was going to bash her and a threat that he was going to break into her parents’ house.  It matters little the extent to which the husband disputes the allegations.  It illustrates the wife’s attitude to the husband.

16. Ms L prepared a Family Report.  In that Family Report she recommended that the equal time arrangement continue.  She recommended that the child live with the father in week one from the conclusion of childcare on Wednesday to 5.00pm on Saturday and in week two from the conclusion of childcare on Wednesday until 5.00pm on Sunday and that otherwise she should live with the mother.  She recommended that prior to the child being enrolled in primary school there be a review of the parenting regime.

17. Ms L considered there were a number of contrary factors to a shared care arrangement working but made her recommendation that the current split week continue because it had worked well for X since it commenced.

18. The contrary factors are in the report and were explored during Ms L’s oral evidence.  She says that both parents have very negative views of each other as parents.  The father has a very negative attitude towards the mother’s family and believes there is no discipline or a healthy environment in which the child lives.

19. Ms L gave each parent the parental alliance measure.  This indicated problematic issues on behalf of the father.  He identified that he does not accept the maternal family.  The mother’s scores were more marginal indicating she has the capacity to accept the father in X’s life on a long-term basis.  Ms L said that the comments the father provided her in his written format said he believes that the entire family on the wife’s side are “liars” and that he didn’t want the child around them.  Ms L said this indicated to her that the father was not able to allow the child to have a positive relationship with the mother’s family because he was so focused on what he believed was the right way of going about things.

20. The father’s statements about needing to “reteach” the child each time she comes into his care indicates a lack of insight about parenting of a three-year-old and the developmental needs of such a young child.  She says he is apt to interpret and places blame on the other parent of any issues that he does not agree with and behaviours he does not understand when they are demonstrated by the child.

21. Ms L says that the father’s statement he would prefer to have the child full time indicates a problematic issue in his ability to support the child’s relationship with her mother.  He indicated a lack of understanding of how to parent a pre-schooler.

22. The father is in full-time employment and studies on Tuesdays and Wednesdays from 5.30pm to 9.30pm and from 9.30am to 1.30pm on Saturday.  Ms L said that if that was reducing the child’s time with her father that was not helpful to the child.

23. Ms L commented on the father’s evidence about his method of disciplining X which was timeout.  An example he gave was if the child took a toy from one of the other two children in the household, his partners four-year-old and six-year-old boys, she would be put in a corner and once the timeout was over she would be told what she had done wrong.

24. Ms L said that that type of parenting is not the current view of parent coordinators.  The child’s capacity to understand what is right and wrong is not developed.  She would not understand why she was being put in a timeout chair.  She said there are other strategies that the toddler parenting courses look at.

25. Ms L said it is a problem for the child and that she has to adjust to different parenting styles.  She would be confused.  She would become the chameleon child.  She would not know what to do in each household.  The rules in one household are different to the rules in the other and at three she cannot hold the sets of rules in her mind.  She is cognitively and developmentally not able to do so.  Ms L said this would suggest there should be less time in the household that is not positive for her because she cannot keep changing.  She said it is important to have clear structures.  There can be rules but within the context that the child can understand, not a complete change.

26. Ms L said of the incident earlier in the year when the police were called that it would be very significant.  She said that if the child was witness to that, that exacerbates stress and she said that could indicate there needs to be a lot more of a change than possibly her recommendations originally assumed.  She said events where episodes of verbal disputes between the parents were witnessed by the child are of concern because the child would not be able to process what is happening, and be quite tense.

27. There had been the further incident in which the parties were in dispute about whether the husbands’ time started on Tuesday and the child was present.   There had been earlier ones.  The most significant is when the parties were in Queensland and the husband broke the windscreen of a car with the mother and child inside.

28. In relation to school Ms L said that what she described as the split school circumstances is very hard for a child to manage.  By that she meant the child splitting her time between each parent’s home during the school week.  Ms L said that the child would need to have the school week in one place and the time on the weekends to be available to both parents.  She said that at the child’s age she would want to see each parent weekly.  What she proposed for school was that the child live with one parent and spend Friday night to Tuesday morning on alternate weeks with the other parent and time for dinner in the intermediate week.

29. It is clear from Ms L’s evidence that she saw difficulties for the child in moving into a household where there were quite a few relationships she had to negotiate, that being the situation in the house where the father lived.  He lives with his partner’s parents, his partner and partners two children half the time.

30. The parties agree on an order that they have equal shared parental responsibility for the child. That means that s.65DAA of the Family Law Act 1975 (Cth) applies and I must consider whether the child having equal time with each parent is in the best interests of the child and reasonably practicable, and if not equal time, substantial and significant time. Section 60CA of the Act provides that the best interests of the child is the paramount consideration in making parenting orders. While that is so I must consider both the best interests of the child and whether the proposed orders are reasonably practicable. I must bear in mind the objects and principles underlying Part VII which are described in s.60B of the Act.

31. The considerations for determining a child’s best interests are contained in s.60CC of the Act. I will consider first the relevant additional considerations.

32. The child is too young to have any views and so the first relevant consideration is the nature of the child’s relationship with each parent and other people.  The child has a very good relationship with each parent. Ms L described attachment seeking behaviour by the child towards her mother and soothing of the child by the father.  She says in her report that this is demonstrative of a secure relationship with both parents.  While Ms L observed this her evidence about the difficulties for the child living in households with different parenting styles and stress for the child from being present at altercations between the parents shows that the current arrangement of equal time could affect the child’s relationship with each parent.

33. The next two considerations cover the extent to which each parent has been involved in the child’s life including maintaining the child.  Both parents have done this.

34. The next consideration is the likely effect of any change in the child’s circumstances including the likely effect of any separation from either of his or her parents or any other person.  The wife proposes a change so that the child predominately lives with her.  Ms L, when told of recent altercation between the parents including the involvement of police, expressed the view that the change she recommended once school commenced might need to start earlier.  This evidence is in the context of what Ms L said about the difficulties the child has in living in a house with different parenting styles and of evidence about the conflict between the parties.  This evidence shows that a change from living equally with each parent to living predominately with one parent would most likely benefit the child.

1. There is no practical difficulty or undue expense involved in the child spending time communicating with each parent.

2. Next is the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs. Ms L criticises the fathers discipline methods and his attitude towards the wife.  Ms L says in her report that she is concerned about the attitude the husband has to the wife and his expectations of what a three-year-old can cope with and should cope with.  She referred to difficulties for the child in living in the father’s household with the father’s partner, her children and her parents.

3. While Ms L says of the wife that she still harbours a sense of loss about the original relationship and had not realised the consequences for the child of two parents being apart physically but also emotionally, Ms L does not criticise the wife’s parenting style.  The conclusion from Ms L’s evidence is that the mother is better able to provide for the child’s needs.  In addition, while the wife does have a negative attitude towards the husband she does not make the sort of statements that concern Ms L about the husband.

4. The child’s maturity, sex, lifestyle and background are already described.

5. The parties’ attitude to the child and to the responsibilities of parenthood can be seen from what has already been said.  Each loves the child and takes their responsibilities seriously.

6. The mother obtained a Family Violence Order in February 2014.  The relevance of this is what it shows about the relationship between the parties.  Other than that the child has witnessed behaviour which meets the definition of family violence in s.4 of the Act.  There is no evidence that the child is at risk of abuse or family violence.

7. The consideration whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child has particular relevance in this case. Ms L’s recommendation in the Family Report is that equal time should continue until the child attends school and that in the September prior to the child commencing school a review of the parenting regime be undertaken either through Family Dispute Resolution or through a further Family Report.  In her oral evidence at the hearing Ms L said that once the child commences school she will need to be living in one household during the school week and have weekend time with each parent.

8. The parties’ history shows that they are unlikely to reach agreement about changing the child’s living arrangements once the child commences school.  If the result of this case is that the child remains living equal time with each parent, the probability is that the change recommended by Ms L could only come about by further court proceedings.  If the child’s best interests mean that the change once school commences should be done then if further court proceedings are to be avoided that change needs to be done.

9. I am satisfied that the child’s best interests are served by the child living with the mother and spending time with the father for an extended weekend, after school Friday to before school Tuesday with time one afternoon in the intermediate week.  Ms L’s evidence shows that the current parenting arrangements will cause difficulties for the child and affect the relationship with each parent if continued.  The child needs the stability of living predominately in the one household so that she has consistent rules in her life.  The wife is better able to provide for the child’s needs.  I accept what Ms L says about the need for the change once school starts and there is great benefit in making the change now because it will avoid the probability of further proceedings.

10. I must consider whether the proposal for equal time is reasonably practicable. Considerations for determining what is reasonably practicable are contained in s.65DAA(5) of the Act. The parties live close to each other but the evidence relevant to the second and third of the considerations shows that equal time is not reasonably practicable. The considerations are the parents current and future capacity to implement the arrangement and the parents current and future capacity to communicate with other to resolve difficulties.

11. The parties differing parenting styles, and the father’s negative attitude towards the mother show that the parties have little capacity to implement an equal time arrangement.  While the child appears to be coping with it well at present, Ms L’s evidence shows that she will be having difficulties and that must eventually affect her.  The parties communicate by text message but as the child’s life becomes more complicated, particularly by the commencement of school, the detailed communication and cooperation between the parents that is needed will not be there.  Equal time is not reasonably practicable.

12. The child’s best interests are served by changing living arrangements now so that she lives predominately with the wife.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 16 October 2014