Arthur and Ballantine

[2016] FamCA 175

FAMILY COURT OF AUSTRALIA

ARTHUR & BALLANTINE [2016] FamCA 175

FAMILY LAW – CHILDREN – interim arrangement – parties have status quo of six nights per fortnight by husband with children for over 18 months – husband wants seven nights in week-about arrangement – wife wants four nights one week and two the next – importance of night’s irrelevant to the stability – status quo to remain.

Family Law Act 1975 (Cth)

APPLICANT: Mr Arthur

RESPONDENT: Ms Ballantine

FILE NUMBER: DGC 2866 of 2013

DATE DELIVERED: 22 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 17 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Jenkins

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Duckett

SOLICITOR FOR THE RESPONDENT: Mackinnon Jacobs Lawyers

Orders

1. That until further order, the children B born … 2003, C born … 2006; D and E both born … 2009 live with the father as follows:

   (a)During all school terms in each week from the conclusion of school on Thursday (or 9.00am on the Thursday if it is not a school day) until 9.00am on the following Sunday;

   (b)      For one half of each school term holiday period:

   i.for the first half of all school term holidays for 2016 and for a similar period in each alternate year thereafter commencing at 10.00am on the first Sunday of the holidays and concluding at 10.00am on the middle Monday of those holidays; and

   ii.for the second half of all school term holidays for 2017 and for a similar period in each alternate year thereafter commencing at 10.00am on the middle (second) Monday of the holidays and concluding at the commencement of the first day of school;

   (c)for one half of the long summer holiday period:

   i.in 2016/2017 and for a similar period in each alternate year thereafter, for the first week of the long summer holidays commencing at 10.00am on the first Sunday and for a similar period in each alternate week thereafter; and

   ii.in 2017/2018 and for a similar period in each alternate year thereafter, for the second week of the long summer holidays commencing at 10.00am on the second Sunday and for a similar period in each alternate week thereafter;

   (d)during the four day Easter holiday period (if not part of the school term holidays);

   i.in 2016 and for a similar period in each alternate year thereafter, from 5.00pm on Easter Saturday until 5.00pm on Easter Sunday; and

   ii.in 2017 and for a similar period in each alternate year thereafter, from 5.00pm on Easter Sunday until 5.00pm on Easter Monday;

   (e)for Father’s Day in each year from 5.00pm on the day before Father’s Day until the commencement of school on the day after Father’s Day (or 9.00am if not a school day).

2. That the children live with the wife for all other periods not covered by (1) of these orders;

3. That the father’s time be suspended during the periods of time other than as described in paragraph (1) so as to ensure that the children spend time with the wife and specifically for Mother’s Day in each year from 5.00pm on the day before Mother’s Day until the commencement of school on the day after Mother’s Day or 9.00am if not a school day.

4. That for the avoidance of doubt, school holiday periods and the long summer holidays commence on the first Sunday after the last day of school at which the children attend.

5. For the avoidance of doubt, the father’s time spent under these orders when suspended, will recommence after each school holiday period and the long summer holidays on the same rotation as if the time had not been interrupted by the school holidays or long summer holidays.

6. That in the event the changeover does not take place at school, it shall occur at the father’s home at the conclusion of his time with the children and at the mother’s home at the conclusion of her time with the children.

7. That all extant applications for final orders are adjourned to a date to be fixed to be listed for trial before a judge in due course.

8. That the interim orders sought by the husband in his application filed 21 December 2015 and the interim orders sought by the wife contained in her response filed 7 March 2016 are otherwise dismissed.

9. That the interim parenting orders document proposed by the father and the mother’s handwritten proposal in response thereto be attached to the file and remain as Exhibits for future purposes.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Arthur & Ballantine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2866  of 2013

Mr Arthur

Applicant

And

Ms Ballantine

Respondent

REASONS FOR JUDGMENT

1. Mr Arthur (“the husband”) and Ms Ballantine (“the wife”) were divorced in 2014 but for my convenience, and with no disrespect to them, I shall refer to them in these reasons as husband and wife.

2. The immediate issue for determination is the husband’s time with the parties’ four children who are aged almost 13 years down to twins aged seven years.  All indications are that there is significant conflict between the husband and wife and they cannot agree on holding order arrangements until the trial of this Court.

3. In some detail in these reasons, I shall set out the history of the parties’ litigation.  Needless to say however, the primary focus is on the determination that the Court is now required to make.  The proceedings were in the Senior Registrar’s list on 15 March 2016 at which point, the wife represented herself whilst the husband was represented by counsel.  The husband relied on an affidavit filed on 21 December 2015 and the wife responded to that affidavit but not until 7 March 2016.  Because of the lateness of the receipt of the affidavit, the husband needed to respond because the document was lengthy.  The applications were adjourned to 17 March 2016.

4. On 17 March 2016, the wife appeared by counsel as did the husband.  There was no change in the material relied upon by the wife but the husband had filed an affidavit effectively indicating whether he admitted or denied the many allegations made by the wife in her 7 March affidavit.

5. Notwithstanding the positions to which I shall refer below, through her counsel, the wife indicated that there was no dispute that the husband should have the children for six days per fortnight but the structure was what was in issue.  The existing arrangement is that the husband has the care of the children for three days in each week.  That was not always the position.  Until October 2014, the husband was having seven nights per fortnight and his complaint (by his affidavit) was that the wife unilaterally reduced his time to six nights per fortnight.

6. There are three main issues to be determined.  First, should the parties revert to seven nights per fortnight or, should it be six nights per fortnight but in a different constellation to that which has existed since October 2014?  Secondly, what is the structure for school holidays in circumstances where there is agreement as to half but again, the problem relates to the structure of the days?  Thirdly, both parties seek equal shared parental responsibility but the wife seeks that it be restricted in that she have sole responsibility for the children’s education and health. 

7. For the reasons that follow, the status quo should be maintained.  That is, in respect of the weekday contact, it should be three days in each week and a continuation of the current structure.  Secondly, in respect of the holidays, the husband’s position makes most sense and is best for the children.  Thirdly, this is not a case in which the Court could make findings such as to rebut the presumption or not apply the presumption, of equal shared parental responsibility, and it should continue unless otherwise altered in future by a court.

8. Each of the parties sought voluminous other orders but by constructive discussion, counsel eliminated those which were not contentious and the practitioners have been requested to provide a minute of what is an order by consent.  Thus, these reasons only deal with the issues in dispute.

Background

1. As can be gleaned, the husband and wife separated a long time ago; indeed, it was October 2012.   

2. As also indicated, the application before the court was filed by the husband on 21 December 2015.  That was not the parties’ first contact with the court.  Apart from their divorce which was heard in June 2014, property orders were made by consent on 14 October 2013.  It would appear that issues associated with the children were not contentious at that time.  If they were, and that might be an inference to be drawn from the affidavit of the wife filed on 7 March 2016, no-one did anything about them. 

3. In his divorce application, the husband described the arrangement between the parents and the children as four nights per week with the wife and three nights per week with him “on days and times arranged by mutual consent”.  The court granted the divorce and the record shows a finding by the registrar that

   
   

   s 55A(1)(b)(i) of the Family Law Act 1975 (Cth) (“the Act”) had been satisfied.

4. On 21 December 2015, the husband sought both interim and final parenting orders.  That seems to have been precipitated by a 2016 school enrolment issue but that too has now gone away.  It does become relevant however in respect of parental responsibility for the reasons that follow.  In 2012, the husband sought interim orders (leaving aside the wide-ranging ancillary issues) that he have the children in alternate weeks from Wednesday to Sunday and Thursday to Sunday respectively.  The proceedings came before Registrar Mestrovic on 16 February 2016.  There, the mother appeared and despite extensive negotiation, the dispute remained unresolved.  The wife at that time had not filed any responding material.  The registrar adjourned the proceedings to the Senior Registrar’s list on 15 March 2016 and ordered the wife file and serve a response before 8 March.  As indicated, she did so on 7 March.

5. For the purposes of the immediate issue, the wife’s position is that the six days per fortnight should be broken up into four days in Week 1 and two days in Week 2 on the basis that that would give her a weekend.  Whilst that might sound logical, the difficulty here is that the children have experienced a structure that has existed for the best part of 18 months.  It would need some evidence to show that such an arrangement is not working before the court should alter that arrangement as being best for the children on an interim basis.

The hearing on 15 March 2016

1. In discussions and with the wife representing herself, I suggested that there were two options for the court.  One was to simply adjourn the hearing so that (as pursued by the husband) a private family report could be obtained and the matter should then come back for further determination.  The second option was to determine the matter on the evidence before the court and the case sit in a list awaiting a trial before a judge.  In the latter, it would most likely be for about a year.

2. The difficulty with the second option was that no agreement could be reached as to what time the children should spend with the husband in the meantime.  The problem with the first option was that no guarantees could be given that any solution or advice might be proffered by the appointed expert and there was then the difficulty and cost of the parties coming back to court again in circumstances where the court would have to put further resources into a determination.  It seemed clear that whichever option the court took, agreement was unlikely to be reached having regard to the nature of the evidence each party put before the court.  In other words, expecting the parties to adopt an expert social scientist’s view seemed unlikely where they had each spent significant time negotiating and the matter had been going on for 18 months or more.

3. In my view, the children need a resolution.  To the extent that the parties now decide to attend upon a social scientist for assistance, they can do so.

4. A significant factor in suggesting that the matter be adjourned to enable a proper examination to be undertaken of the evidence, was the fact that the wife’s affidavit was voluminous but, on the submission of counsel for the husband, it contained little that would assist the court either in making findings about what was best for the children or indeed pointing to the impact of any changes or conduct of the parents for the children.

5. Despite the truncated hearing and the paucity of evidence, the court must still regard the best interests of the child as the paramount consideration in deciding what (if any) interim parenting orders should be made (Goode and Goode (2006) FLC 93-286).

6. In Goode (supra) the Full Court indicated that the court should:

   (a)      identify the competing proposals;

   (b)      identify the issues in dispute;

   (c)      identify any agreed or uncontested relevant facts; and

   (d)consider the matters in s 60CC that are relevant and if possible thereafter, make findings.

The evidence

1. As indicated, the husband filed an affidavit on 21 December 2015 in which he set out what had been happening following separation in April 2013. He observed that he and the wife were able to come to an agreement about parenting arrangements but the wife unilaterally reduced his time to six nights per fortnight on 15 October 2014. He said she refused to participate in a mediation process and he was issued with a certificate under s 60I of the Act on 1 December 2014. Despite that, a year went by before he filed his application. Thus, to the extent that the husband’s case was that the court should revert to the position agreed at separation, the difficulty is that these children have experienced a reduced regime for over a year. It is not at all clear to me what impact an alteration on them would be if the Court chose to increase the days from six to seven per fortnight.

2. The parties live in Suburb F and Suburb G respectively.  In the latter, the husband moved to be closer to a school in which they had enrolled their eldest child.  The importance therefore of their location is that it is not inconvenient for them to share the parenting arrangement. 

3. I earlier made reference to the catalyst for the current proceedings. That must be mentioned in one important context.  The husband seeks equal shared parental responsibility whilst the wife seeks sole parental responsibility concerning health and education.  The husband said about education that throughout June 2014 until May 2015, he and the wife had been communicating about secondary schools for their oldest child and indeed reached agreement.  That all fell apart according to the husband when the wife changed her mind and she unilaterally enrolled the child in a local secondary college.  Both parents had concerns about that secondary college but they still went there on a tour.  The husband adopted the view at the end of that tour that the local secondary school was not a good choice for the child.  The husband said that the wife appeared to agree with his concerns and so she proposed a private school.  It had logistical problems but they were covered by a private bus service.  The parties attended that school for a tour and everyone was impressed.

4. Whilst it would then appear that the arrangement was to proceed to go to the private school, all of that fell apart in May 2015 and, in October 2015, the wife unilaterally enrolled the child in the local secondary college.  As I have indicated, that issue is resolved because agreement was reached on an entirely different school to all of those just mentioned.  The nature of what has occurred over schooling justifies a finding, at least at this stage, that agreement between the parents is likely to be difficult in the future.

5. Nothing more was said about the time issue relating to the husband and the children until the wife’s affidavit which was filed on 7 March 2016.  In other words, although the husband complained about the wife’s unilateral action in reducing his time, no other complaints were raised.

6. In her affidavit, the wife said that in October 2015, the child about whom the schooling was being considered, said to her that he was scared to tell his father how he felt because his father had moved house to be near the new proposed school.  She quoted the child as saying:

   “I don’t want to let Dad down.”

   “I feel guilty. Dad’s really excited about [x] school”;

   “I don’t want you and Dad to fight”;

   “I don’t want to have choose sides.  Please leave me out of it.”

7. Whilst all of that evidence related to schooling and I do not draw the inference that it related to the general issue of the parent and child relationship, the parties’ son was poignantly conscious of the conflict between his parents and desirous of not being involved.

8. The wife then said that the child told her that the husband was showing him everything that was being written between the parents and as a consequence said:

   Dad thinks you’re manipulative and lying about things to get your own way and I have a right to know what you’re doing.

9. The difficulty with that evidence is that whilst the husband cannot dispute that his son made the observation, he denied making the statements to the child at all.  No doubt a social scientist will get to the bottom of that when the soon to be 13 year old explains what was going on in each household.  That would be rather sad having regard to the statement he earlier made that he wished not to be involved.

10. In her affidavit, the wife included a long email from her to the husband and his reply but on a superficial reading of it, it does no more than show civil communication and disagreement.

11. In December 2015, the wife said that the child said that the husband had told him not to explain to the wife what he was doing and effectively requiring him to lie and the child felt uncomfortable about it.  Just what this was all about remains something of a mystery but in any event, the husband, by affidavit filed 17 March 2016, replied that he had not told his son what the wife reported the child said.

12. It is abundantly clear from the statements thus far and what follows, that the wife has no hesitation in accepting that whatever the child tells her has occurred, and indeed did.  The very fact that the parties have put this sort of material in affidavit form exposes the child to an invidious position.

13. In the hearing, I pressed counsel for the wife to indicate what the evidence was that justified any alteration to the status quo structure.  His submission was that the alteration proposed by the wife would eliminate tension and eliminate the potential for family violence.  Neither of those is a matter about which I could make a finding on the evidence.  By inference, each relates to the potential confrontation between the parties at a handover of the children but on the status quo, the children are collected from school by the husband and returned to the wife at 9.00am on the Sunday.  Obviously, there is opportunity for confrontation.  Pointing to the evidence of the wife, her counsel observed that the parents did not speak at changeover and whilst the wife tried to be pleasant and communicate, the husband ignored her.  Again, I am not sure of the extent of this confrontation and/or standoff but its relevance must be something to do with pressure on the children.  There can be no doubt that the husband has the capacity to care for the children.  Apart from the fact that the wife was agreeing to maintain the six days per fortnight regime, she went on a holiday cruise for two weeks in December 2015 and the husband cared for the children.  That was only three months ago.  For whatever reason she went, and this is not a criticism for having taken a holiday, it must be concluded that she had no doubt about the husband’s capacity.

1. In her evidence, the wife described a history of the parties’ relationship.  Nothing there recorded was helpful to this determination as the wife was still maintaining (on her best case) that the husband should have significant time with the children. 

2. In her affidavit however, she made allegations of family violence.  One was 12 years ago when the oldest child was a baby.  All of these issues are in dispute and as such, findings as to their relevance let alone exactly what happened, cannot be made here.  Some of the issues appear to have no temporal context so their relevance is also hard to see at least for this interim determination for the same reasons already mentioned.

3. The wife referred to the unpleasant breakdown of the relationship and of the husband crying, screaming and having rages.  The facts remain untested and as I have already indicated and will continue to indicate, findings cannot be made.

4. The wife also criticised the husband for the management of the household finances but that seems to have resolved itself through final consent orders that were made in 2013.  Curiously in 2013, the wife attempted to rekindle the relationship by a joint trip to Country H.  That seems to have been unsuccessful because a separation again occurred thereafter.

5. The wife set out her role in the care of the children much of which must be seen as of little relevance because of what has occurred since separation. 

6. The wife accused the husband of hacking into her messages.  The husband denied that he had done so.

7. In 2013, the wife said the husband’s behaviour was screaming at her on one moment and then saying her loved her on the next.  She accused him of denigrating her.  He replied that that was not true.

8. In mid to late 2014, the husband was said to have hit a garden ornament and knocked the head off it in a rage.  That too, he denied.

9. It would seem from the wife’s evidence that she intends to assert that the children are embroiled in the conflict.  She asserts the children tell her things about what their father says to them but it remains to be seen just what that is all about.  I do not consider it appropriate to make findings when the husband does not admit the conversations here.  Even if they did occur, it is unclear what impact that is having on the children. 

10. The wife referred to an incident in August 2015 as follows.  There appears to have been some sort of altercation between the husband and his brother where three of the four children were in the home where the husband was living.  The children told their mother of an argument involving the yelling of profanities and of the husband telling the children to go upstairs which was followed by crashing and banging noises.  The children told their mother that they were frightened and crying.  The husband admitted that he and his brother had a physical fight.  The husband said that the oldest child was not at home and the girls were upstairs.  It seems that it was a disagreement about the business.  The issue has been resolved and there is now no animosity.  The fact that the incident occurred in August and the children were frightened must be put in the context of the substantial time that the husband has had with the children since then and more importantly, the wife’s absence during the holiday time in December.  In my view, that evidence needs to be fleshed out in more detail under cross-examination but I would not conclude that it is a basis to determine the time that the children spend with their father or more importantly, the structure of that time.

11. In her affidavit sworn only days before this hearing, the wife said that she was told that the tension in the husband’s family remains but all of this is as a report from the children.  It is disconcerting that the issue is still being raised by the wife with the children and what needs to be examined is the circumstances under which the children proffer the explanations that she has given.

12. The wife also referred to a photographs dispute but those are matters that need careful attention as, if they are property, the jurisdiction may have been finalised when the property orders were made in 2013.  Accordingly, there is nothing further I can do on an interim basis in relation to them. 

13. As for contact between the husband and the children, the wife then went on to make reference to the husband’s work commitments, her inability to negotiate with the husband, the fact that he now ignores her, that clothes are not returned at changeover and disputes about school holiday time.  Having regard to the limited nature of the dispute here, none of that evidence has any great significance.

14. At paragraph 86 of her affidavit, the wife made reference to child conduct of an overt sexual nature and when she raised the issue with the husband, she said he dismissed her concerns.  She then approached the child who informed her that he had learned about “oral sex” from watching “pornography” at his father’s house.  Whilst the husband did not deny that the general problem had occurred and that the conversation had taken place with the wife, he denied having said anything to the child about not speaking to the wife apparently about the fact that he had watched some sort of sexually oriented film.  Again, it is difficult for the court to know exactly what that means when there is a dispute as to exactly what occurred.  Like much of the other evidence in this case, the court cannot make a finding as to exactly what happened but it may become a parental responsibility issue if no explanation is given why a child who is almost 13 years of age is being exposed to that sort of adult content.

15. The wife then referred to the fact that the husband refused to answer her phone calls and as a consequence, they have hardly spoken to each other but the husband’s response was that he preferred to correspond with the wife in writing.

16. One example of a difficulty that the parties will face but in my view does not make any difference to the determination I have here, is that in November 2015, one of the children told the wife that she had cut her thigh with scissors trying to shave a tree branch and went to hospital where it was required to be glued.  The wife complained that the husband had not made any attempt to tell her and when she became aware of it at the changeover, the husband minimised it by saying that it was not serious.  That certainly is a serious issue if it is true.  What the husband said was that the cut was less than one centimetre in length and he only attended the hospital to inquire about a tetanus shot.  He said the medical staff were surprised that he had brought the child to the hospital.  This seems to be a matter which can be objectively tested by an examination of the hospital records.  Some three and a half months after that incident, the wife called no evidence from the hospital to show that it was more serious than portrayed by the husband.  Importantly also, I refer again to the wife’s holiday period.

17. It is clearly part of the wife’s case that the husband is disappointed about the ending of the relationship.  One of the children, according to the wife, has expressed distress about separation from the husband.  That child has indicated in the past a desire to speak to her father daily and the perception from the wife’s perspective is that the child is becoming parentified.  On the basis of the open possibilities, it would be unsafe for the court to draw an inference along those lines here.  That is particularly so where the wife is still agreeing to the children having six nights per fortnight in the husband’s care.

18. The wife’s case is that the husband’s feelings have been transferred to the child and he is “inappropriately exposing her to adult topics and his grief” about the separation. Whilst the wife’s opinion is admissible as evidence by virtue of Division 12A of the Act, bearing in mind what has gone on between these parties and the conflictual nature of not only their relationship but also the evidence, I am satisfied that it would be unwise for the court to be drawing any adverse inference at this stage.

19. Most importantly, in my view, it would be unwise for the court to draw any inference as to the impact of the parental conflict upon these children. 

20. The husband has filed an affidavit simply denying much of the precise conversations that the wife has had with the children and it is not clear to me whether the denial relates to the fact that the conversation has not taken place with the wife but rather not taken place with him.  All of that needs to be tested.

21. Ultimately, the evidence of the wife turned to what she described as the children’s requirement for more routine and stability.  Much of this was about the period after separation but involving the moves by the husband.  It would appear that she took the view that the standards of living adopted by the husband were clearly not those of her.  For example, the wife complained:

    (a)the children did minimal homework with the husband as a consequence of which she had to do a lot of catch-up work;

    (b)the youngest children have a speech pathology recommended program but that was not carried out by the husband;

    (c)piano practise for the oldest child was not undertaken;

    (d)the children returned to her tired indicating that they had stayed up late with their father whereas with her, there was a strict bedtime routine.

22. In reply, the husband denied every one of those allegations.  Again, some of these facts can be objectively tested and should be now that the husband has filed this affidavit.  In my view, these are facts which are contested and the court should not descend into guessing.

23. Importantly, all of those issues just mentioned do not appear to be affected by the structure as distinct from the time between the husband and the children.  Those problems will still be there whatever time the children have.  It is significant to notice however that notwithstanding there is an agreement now for six nights per fortnight, nothing of a positive note was said by the wife about that time and somewhat disconcertingly, all she referred to was the complaints that she said the children made about their father’s behaviour.  Nothing was said by the wife about how the children might react to an alteration to the time that they have enjoyed with their father for over a year. 

24. I turn then back to the approach I earlier set out was the requirement as described by the Full Court in Goode (supra).

25. The parties’ respective proposals have been earlier identified.  The differences are marginal.  Not only is the structure in relation to the week time and weekend in dispute but so too is the holiday period. 

26. In the husband’s case, he wanted the first half of the school holidays from 10.00am on Sunday to 10.00am on the midpoint day in even numbered years and the second half of those holidays from 10.00am on the middle Monday concluding at the commencement of school (or the second half) of term holidays in 2017.  In each case, that pattern would follow in alternate years.  The wife’s case was that the holidays should be equally shared but the changeover should take place at 10.00am on the middle Saturday.

27. The same argument applies in respect of the summer holidays.  The husband’s position was that there be one half by agreement and in default of agreement on a week about basis with the changeover occurring at 10.00am on the various Sundays.  The wife’s position was that it should be the Monday.  In the proposed minute or note of the mother’s proposal, a reference was made for:

    Need to include that the children always spend the last overnight before start of term with the mother.  

    I am not entirely sure why that is so because the evidence does not enlighten me as to its need.  Presumably, the husband is in a position to attend school.  That seems to be where the parties have had difficulties at times.  There is no suggestion that the husband cannot get the children to and from school because he has had them on Wednesdays, Thursdays and Fridays.

28. As far as structure is therefore concerned, there is no clear evidence to show which particular structure best suits the children and why that might be so.  There is no principle in law that requires the structure to be sorted out in a particular way as the only issue is the question of what is in the best interest of the children.  There is no evidence here that a school has expressed concern about the tiredness or the experts have indicated problems with the ancillary issues of piano and speech pathology. 

29. Having identified the issues through the factual matrix of this case, one thing is clear.  There is an unashamed conflict between the parents but the impact of that on their children and on their development, remains unknown.  From the husband’s perspective, all is well.  There are few facts about which the parties agree and I have endeavoured to set those out where practicable.

30. Accordingly, I turn to the s 60CC factors but it is also important to refer to other provisions in the legislation that guide the court.

31. Section 65D(1) provides that in proceedings for a parenting order, the Court has a discretion guided by the various other parts of the legislation, to make such order as it thinks proper.  The Court should only exercise that power if it is in the best interests of the children but also necessary in the particular circumstances that prevail.  In determining the best interest, the various considerations in s 60CC need to be taken into account.

32. Section 61DA(1) provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for that child’s parents to have equal shared parental responsibility.

33. Section 61DA(3) provides:

    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

34. In my view, notwithstanding the fact that the parties have been separated for a long time and have had an unofficial arrangement in relation to the parenting of their children for a number of years, this is not a case where the evidence supports a conclusion that the shared parental responsibility arrangement should be altered. Unless a court orders otherwise, each of the parents of a child who has not turned 18 years of age has parental responsibility for that child. Parental responsibility (s 61B) means in relation to a child, all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Nothing in the evidence of the wife has indicated that the husband does not have a desire to participate in the decision-making processes associated with the children and as can be seen, he vigorously negotiated a situation in relation to schooling. Nothing in the evidence about the cut that required an attendance at hospital indicates a desire not to be involved in the health of the children. It would therefore be a significant step for the court to intervene and restrict or remove the obligations as well as the rights of a parent in these circumstances. Particularly having regard to s 61DA(3), in circumstances where the court cannot make proper findings as to matters that would enable the court to decide whether responsibility has been and is likely to be, properly exercised, not to mention the fact that the provisions of s 61DAC of the Act can or cannot be met, the court should not on this interim basis, apply the presumption. In my view, the law should continue to prevail and therefore, the parties will continue to have equal shared parental responsibility until a court orders otherwise.

35. Accordingly, the court does not need to make an order.  Absent making an order, the court does not need to address the s 65DAA considerations.

36. Turning then to the question of what is in the best interests of these children, the provisions of s 60CC apply.  I find:

    ·I do not know what the views of the children are other than those as described by the wife and whether they would be keen to change the structure;

    ·The nature of the relationship between the children and the parents seems sound and it is clear that both parents have had a very significant role in the lives of the children even if there has been a stumbling block since separation over decision-making and their respective unhappiness about the conduct of the other;

    ·There are disputed facts about child support and the maintenance of the children and the court is not in a position to make any findings;

    ·Importantly, I do not know what impact there may be on the children if the orders were made inconsistent with the status quo and it would be unwise here to speculate bearing in mind the contested nature of the facts; and

    ·Although the wife seems to say that the husband has problems about capacity to provide for the needs of the children, both physically and emotionally, she does not oppose the six days per fortnight.  It may be that the dispute is simply about lifestyle choices and accordingly, the focus will need to be on whether the continuation of the existing regime is prejudicial to the children.

37. I have identified the respective proposals.  The issues are also defined.  There is an unashamed conflict between the parents but the impact of that remains unclear.  In my view, there is no basis for the court to alter the status quo.  There is no evidence to indicate that it is not working appropriately for the children.  It may not necessarily be satisfactory from either parent’s point of view but that it only one of the considerations here.  The best interests of the children must be the paramount consideration.  Absent some evidence, my view is that the structure should not be altered.

38. In respect of specific times, as earlier indicated, there is no specific way of resolving the issue and accordingly, I simply propose to adopt the position set out by the husband.  That seems to provide machinery for holiday periods which do not prejudice either party and to the extent that they need to be reargued, that can occur in a year’s time.  In other words, there are only three or four holiday periods involved presumably prior to trial in which case, the parties and the children can live with the temporary arrangements.

39. Section 60CC also requires the court to consider the primary considerations.  The considerations I have already dealt with are those which are described as the additional considerations.  The first of the two primary considerations in s 60CC is the importance of the children having the benefit of a meaningful relationship with both parents.  That in my view, is happening.  The second consideration relates to protecting the children from being subjected to, or exposed to, abuse, neglect or family violence.  Whilst the wife’s affidavit is littered with those complaints, I do not know how much of that could genuinely be said to be family violence or abuse and more importantly, whether the children have been exposed to it.  The rudeness may not necessarily amount to family violence whereas denigratory behaviour might.  The court is not in the position to make findings of fact in this particular case. 

40. In this case therefore I propose to make the orders set out at the commencement of these reasons.

I certify that the preceding Seventy Two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 March 2016.

Associate: 

Date:  22 March 2016