BABEU & AAMOT
[2014] FCCA 3066
•22 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BABEU & AAMOT | [2014] FCCA 3066 |
| Catchwords: FAMILY LAW – Interim hearing – equal time. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Cases cited: Re G Children’s Schooling [2000] FamCA 462 T & N [2001] FMCAfam 222, (2001) 31 FamLR 281 |
| Applicant: | MS BABEU |
| Respondent: | MR AAMOT |
| File Number: | NCC 2104 of 2014 |
| Judgment of: | Judge Myers |
| Hearing date: | 22 December 2014 |
| Date of Last Submission: | 22 December 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 22 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Duane |
| Solicitors for the Applicant: | Burke & Mead Lawyers |
| Counsel for the Respondent: | Mr Dowd |
| Solicitors for the Respondent: | Watts & McCray Lawyers |
THE COURT ORDERS PENDING FURTHER ORDER THAT:
The parties shall have equal shared parental responsibility for the children [X] born [omitted] 2006, [Y] born [omitted] 2010 and [Z] born [omitted] 2012.
The father spend time with the children as follow during school term:
(a)With [Z] in a two (2) week cycle as follows:
(i)From 11.00 am to 4.30 pm on Monday;
(ii)In week 2 from 11.00 am to 4.30 pm on Monday and from 10.00 am to 4.00 pm on Saturday and Sunday.
(b)With [Y] in a two (2) week cycle as follows:
(i)Week 1 from 11.00 am Monday to 9.00 am Wednesday
(ii)Week 2 from 3.00 pm Friday to 9.00 am Wednesday
(c)With [X] in a two (2) week cycle as follows:
(i)Week 1 from 3.00 pm Monday, or 11.00 am if [X] does not attend school on this day, until 9.00 am Wednesday;
(ii)Week 2 from 3.00 pm Friday to 9.00 am Wednesday.
(d)With [X] and [Y] only during the Coptic Orthodox Christmas from 4.00 pm on 5 December until 4.00 pm on 9 January each year and with [Z] from 8.00 am to 6.00 pm on 7 January each year.
(e)During the Coptic Orthodox Easter weekend from 4.00 pm Friday until 4.00 pm Easter Monday with [X] and [Y] and with [Z] from 8.00 am to 6.00 pm on Coptic Orthodox Easter Sunday.
(f)On the weekend which includes Father’s Day with [X] and [Y] from after school Friday to until before school Monday and with [Z] from 10.00 am until 4.00 pm on Father’s Day provided that if the children were not otherwise be spending time with the father pursuant to these orders on such weekend time they have spent with the father on the following weekend shall be suspended.
(g)At such other times as may be agreed between the parties in writing.
(h)[Z]’s time with the father shall be extended to 6.00 pm on each alternate Saturday and Sunday provided she is fed, bathed and ready for bed upon her return from the father to the mother.
The children live with the mother at all other times.
Despite the provisions of any other order the children spend time with the mother from 12 noon New Year’s Eve until 4.00 pm 2 January 2015
The father’s time with the children is suspended as follows:
(a)From 4.00 pm 24 December until 4.00 pm 28 December each year;
(b)From 4.00 pm Good Friday until 4.00 pm Easter Monday each year;
and
(c)On the weekend that includes Mother’s Day weekend from after school Friday until before school Monday provided that where the children would not otherwise be spending time with the mother pursuant to these orders on such weekend and the time the children would spend with the mother on the following weekend shall be suspended.
Each party be restrained from changing [X]’s current school.
The parties be entitled to enrol the children in any day care they might choose on the days the children are living with or spending time with that parent.
The mother is hereby restrained from enrolling the children in extracurricular activities or changing the children’s current extracurricular activities to a day when the children would otherwise be spending time with the father without first obtaining the father’s written consent.
The father is hereby restrained from enrolling the children in extracurricular activities or changing the children’s current extracurricular activities to a day when the children would otherwise be spending time with the mother without first obtaining the mother’s written consent.
The parties be at liberty to contact the children by telephone and or face time when the children are not in their care and the other shall encourage and facilitate the children to communicate with that parent.
Both the father and mother are authorised to obtain from children’s pre-school and schools, notice, letters, reports and invitations and authorise to attend parent teacher interviews and other activities to which parents are invited.
The father and mother both advise one another of current telephone numbers and addresses details and any change to be adhered to within 72 hours after such a change occurs.
For the purpose of changeover the changeover shall occur at the children school and when changeover is to occur on a non-school day or out of school hours the mother or her nominee deliver the children to the father’s residence at the commencement of the time he shall spend with the children pursuant to these orders and the father or his nominee deliver the children to the mother’s residence at the commencement of her time with the children pursuant to these orders or as otherwise agreed between the parties in writing.
The parties contact each other as soon as is practicable by telephone if there is any medical emergency involving any or all of the children.
Each party notify the other on any medical appointment that is to be arranged for any or all of the children prior to the appointment being made and each parent be at liberty to attend such appointment.
Each parent shall ensure the children are able to attend any sporting or extracurricular activity in which the children participate in as agreed between the parties when the children are in their care and in the event that parent is unable to do so they contact the other parent as soon as is practicable.
Each parent be permitted to attend any extracurricular activity in which the children are participating in.
In the event the children are not attending pre-school or school the parent who has care of the children on that day pursuant to these orders must advise the other parent of any absence from school and the reasons why within 12 hours of the absence occurring.
Despite the provision of any other order the children are permitted to travel with the mother on holidays between the periods of 10 January to 24 January 2015.
The matter is adjourned to 13 March 2015 at 9.30 am for directions hearing.
The respondent file and serve an amend response, financial statement and affidavit upon which he intends to reply upon by 4.00 pm on 27 January 2015.
The parties are excused on 13 March 2015 provided they remain legally represented.
THE COURT NOTES THAT:
Should the parties be in agreement about the pool of assets available or the divisions of value there of the parties will be allocated a conciliation conference date on the next occasion.
IT IS NOTED that publication of this judgment under the pseudonym Babeu & Aamot is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT NEWCASTLE |
NCC 2104 of 2014
| MS BABEU |
Applicant
And
| MR AAMOT |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an ex temp decision in respect of contested interim parenting proceedings relating to the care and living arrangements for children of the parties' relationship, namely [X] born [in] 2006, [Y] born [in] 2010 and [Z] born [in] 2012.
The applicant mother (hereinafter referred to as “the mother”),
Ms Babeu, a [occupation omitted], seeks interim orders as set out in her minute of order document that forms exhibit A in the proceedings and that provides as follows:
(1)That the children [X] born [in] 2006, referred to herein as "[X]", [Y] born [in] 2010, referred to herein as "[Y]" and [Z] born [in] 2012, referred to hereinafter as "[Z]", referring to hereinafter collectively as "the children" live with the mother;
(2)The children spend time with the father as follows:
(a)[X] and [Y] each and every Wednesday from the conclusion of school/pre-school until Thursday with the father to return [X] to school on Thursday morning and thereafter return [Y] to the mother's residence by 9.30 am;
(b)[Z] spend time with the father each Tuesday between 9 am and 3 pm with the father to collect and return the child to the mother's residence;
(c)Each alternate weekend as follows:
(i) With [X] and [Y] to spend time from the conclusion of school/pre-school Friday until 4 pm Sunday;
(ii) With [Z] to spend time from 8 am to 4 pm Saturday and 10 am to 4 pm Sunday;
(d)Other times as agreed between the parties;
(3)Notwithstanding any other order herein on the following occasions of special significance the children shall spend time with the parties as follows:
(a)With the father from 9 am to 6 pm on Father's Day of each year albeit a day when the children would otherwise be living with the mother pursuant to these orders;
(b)With the mother from 9 am to 6 pm on Mother's Day of each year albeit a day when the children would otherwise be spending time with the father pursuant to these orders;
(c)With the mother from 4 pm Christmas Eve until 4 pm 27 December;
(d)With the father to celebrate Orthodox Christmas:
(i) With [X] and [Y] from 4 pm 6 January 2015 until 4 pm 8 January 2015;
(ii) With [Z] from 10 am until 6 pm on 7 January 2015;
(e)With the mother each and every Easter weekend;
(f)With the father each and every Orthodox Easter from 10 am Saturday to 6 pm Sunday;
(g)With the mother and father on alternate New Year's Eve as agreed or failing agreement with the mother in even-numbered years from 4 pm New Year's Eve until 4 pm New Year's Day;
(h)On the children's birthday the children spend time with the parent with whom they are not otherwise living or spending time with at the time for a period of three hours at times to be agreed and failing agreement from pre-school or school pickup until 6 pm in the event the children's birthday falls on a week day/school day and from 3 pm until 6 pm in the event the children's birthday falls on a non-school day;
(i)On [X]'s birthday until all three children commence formal education the children spend time with the father as follows:
(i) [X] and [Y] from 4 pm [date omitted] until 4 pm [date omitted];
(ii) [Z] from 10 am to 4 pm on [date omitted] and 10 am to 4 pm on [date omitted],
with the father to collect the children from the mother's residence at the commencement of time and return the children to the mother's residence at the conclusion of time;
(4)For the purposes of implementing order 2(a) and 2(b)(ii) herein the father shall collect [X] from school and shall collect [Y] and [Z] from pre-school at the commencement of his time and shall return the children to the mother's residence at the conclusion of time.
(5)That for the purpose of implementing order 2(b)(ii) the mother or her nominee shall deliver [Z] to the father's residence at the commencement of time on Saturday and Sunday morning and the mother or her nominee shall collect [Z] from the father's residence at the conclusion of time on Saturday. The father shall return [Z] (with [X] and [Y]) to the mother's residence at the conclusion of time on Sunday after.
(6)At all other times changeover shall occur as agreed between the parties and failing agreement the father collect the children from the mother's residence at the commencement of time and the mother or her nominee to collect the children from the father's residence at the conclusion of time;
(7)That the children have telephone communication with the father each Tuesday and Thursday between the times of 6.30 pm and 7 pm to be implemented by the father telephoning the children on the mother's mobile telephone number;
(8)Notwithstanding any other order the children spend time from 10 January 2015 until 24 January 2015 with the mother.
Notation: That for the purposes of order 2 it is noted that pre-school concludes at 3.15 pm.
The Court has read and considered the applicant's amended initiating application. The Court notes the respondent father has conceded that [Y] will not commence school in 2015. In support of the orders sought by the mother she relies upon an affidavit sworn by her on 24 November 2014 filed 25 November 2015 that the Court has read and considered. The affidavit provides that the mother is the applicant in the proceedings.
The mother seeks to additionally rely on her affidavit filed on 3 October 2014 in support of the amended initiating application seeking to include an order for the mother to have sole parental responsibility for the children, where the mother deposes that essentially she ran the household and made decisions regarding the children's day-to-day and long-term care, welfare and development and that she would arrange for the children's extracurricular activities that she describes at paragraph 3 included such things as [omitted] and that the mother was responsible for enrolling the children into day care and pre-school where necessary.
The mother deposes to making arrangements for the children to attend such things as medical appointments and attending to all of those appointments. The mother deposes to being the primary point of contact for the children for teachers, child care workers and nannies employed for what she describes as time to time. At paragraph 5 the applicant mother deposes to having what she calls or refers to as nanny diaries and that the nannies would usually write in the said diaries daily regarding the day's activities and leave any questions or important messages for the nannies in the diaries to read.
The mother deposes that she would either verbally respond to messages left in the diaries or write back. The mother deposes that the father never wrote in these diaries. The Court has read and considered some of the diary noted that form annexure A to the mother's affidavit. The Court notes the concession made by counsel for the father to the effect that the writings contained within the diaries are those of the mother and any of the nannies as opposed to the writings of the father.
At paragraph 8 the mother deposes that she and the father had been unable to reach an arrangement as to whether [Y] was ready to commence formal schooling next year, although the Court notes the concessions made by the father in the proceedings to the effect that [Y] will not commence formal schooling next year. At paragraph 22 of the mother's affidavit she deposes that for the time being she will be residing at her parents' home at [omitted], [V] and she describes that as remaining the case for some time pending what she describes at paragraph 22 as the outcome of her property settlement.
The Court also notes that there is an application by the mother for a change of school for [X]. At paragraph 24 the mother deposes to [Y]’s cousin [H] attending the [omitted] pre-school and that [Y] has a close relationship with her cousin and attends [omitted] lessons with her, what the mother describes as every Thursday. The Court also notes the mother deposes to changing [Y]’s pre-schools. The mother deposes that [Y]’s cousin [H] has a play date with [Y] once a week; that they are two weeks apart in age; that [H] is a bright child and she will not be attending school until 2016.
The mother deposes she would like [Y] to attend this pre-school next year; that it is only 10 minutes' drive from where she is currently residing and about a 15-minute drive from what she describes as the former matrimonial home at [M], where the Court notes the father currently resides. At paragraph 27 the mother deposes that it is her belief that it would be better for [X] to attend the [V] Primary School in 2015 that it is an excellent school and has what she described as a well-respected music program. The mother deposes to there being what she describes as less travel time for her to the school and it would be better for [X] to be able to socialise with children from a local school in the [V] area.
The mother deposes to her having an intention to allow [X] to continue her tutoring program in [V] with Ms S twice a week after school as well as attending [omitted] extracurricular activities. The mother deposes to the children's current nanny being that of a person named Ms E. The Court has read and considered an affidavit sworn by her on behalf of the mother in the proceedings. The mother deposes that [Z] has been recently accepted into the [omitted] Day Care two days per week, being Wednesdays and Fridays, and that [Z] is due to commence day care in February 2015 and she believes that [Z] will benefit greatly from attending day care and socialising with other children her age.
The mother deposes to issues to do with what she describes as [X]'s medical needs and at paragraph 30 and deposes that the father has continued to deny or minimise the fact that there are concerns regarding [X]'s development and learning. The mother deposes to there being several years of what she describes as Allied Health investigations as well as input from school teachers which have raised concerns about [X]. At paragraph 31 the mother deposes to taking [X] in 2009 to see a speech pathology and literacy specialist at North Shore Speech Therapy. The Court has read and considered the annexures to the affidavit being those of some reports with respect to [X].
The mother deposes that in 2012 [X]'s school teacher identified what the mother describes as language development issues. At paragraph 33 the mother deposes to [X] requiring what she describes as ongoing occupational therapy. At paragraph 34 the mother deposes to taking [X] in March of 2014 for an assessment at the Newcastle Paediatric Occupational Therapy and that following this assessment it was identified that [X] has postural weakness, reduced grasp efficiency, shoulder and hand weakness, and auditory delays that will require what the mother describes as ongoing therapy.
The mother deposes that on 18 June 2014 she took [X] to an assessment with a speech pathologist, Ms C, and there were identified a number of issues that will require [X] to obtain further assistance. The Court has read and considered annexure G to the mother's affidavit, being a copy of Ms C's report. At paragraph 37 the mother deposes to there being a dispute with respect to the children's extracurricular activities. The mother deposes that [Y] previously attended [sport] on a Thursday at [omitted] and that the friend [Y] used to go to [sport] with on that day stopped going; that [X] attended [sport] at 4 pm on a Friday at [omitted] and [Y] wanted to keep going to [sport].
The mother deposes to changing [X] and [Y]’s [sport omitted] lessons from [omitted] to [omitted] so that they could attend together on the same day, being Friday at 4 pm. The mother deposes to the [sport] at [omitted] being closer to what she describes as the former matrimonial home that the Court notes is in [M]. The mother deposes at paragraph 38 of her affidavit to having some text communication messages with the father that the Court has read and considered. It would appear that there has been some poor communication between the parties with respect to the extracurricular activities.
The Court notes that the extracurricular activities are causing some issues between the parties. For reasons that I will go into further in the proceedings and in the considerations of section 60CC the Court notes that nowhere contained in section 60CC, be it 2(a) or (b), 3(a) through to (m), does the Court notice that the Court is required to take into account and consider the benefit of the child attending such things as extracurricular activities or having meaningful relationships with friends they might meet at sport or otherwise for instance such persons as sports coaches.
The Court notes the mother's response to the father's affidavit sworn on 7 October with respect to what the applicant describes as Ms R having never been employed five days a week from 7.30 am to 5.30 pm and that Ms R contract of employment provided for her to work between hours of 7.00 am to 3.00 pm three days a week which the mother deposes to equating to a 24-hour week. The Court has read and considered the employment agreement dated 20 November 2010 attached to the mother's affidavit.
At paragraph 46 the mother deposes to Ms R's wage being approximately $528 per week with an allowance for mileage if necessary and that her wage was paid from a Commonwealth Bank account and there is a copy of the account attached to the affidavit of the mother. The Court has read and considered the earlier affidavit of the mother sworn or affirmed on 3 October 2014. In that affidavit the mother deposes to being the mother in the proceedings, that she was born in 1973 and that the father was born in 1972; they married in November 2002 and separated in April 2014; and from the time of separation until 13 August 2014 they lived separately and apart but under the one roof in what the mother describes as the family home at [omitted], [M].
The mother deposes to being self-employed part time as a [omitted] working approximately 12 hours per week and that the father is a full-time [omitted] and that the father is enrolled in a PhD of [omitted] and that the father works in what the mother describes as private consulting work as a [omitted] and that as a result of that work the father is required to travel away on business trips for work. The mother deposes that the father had what she describes at paragraph 3 as not less than 15 business trips in 2013 that took the father away from the family home from one to five nights.
The mother deposes to being the mother of the three children and to being primarily responsible for the care of the children since birth. The mother deposes to breastfeeding each of the children for more than 12 months and that she rarely expressed breast milk as she found it difficult and stressful and that she has been primarily responsible for attending to the daily needs of the children including preparing meals, changing nappies, attending to the children during the evening and taking the children to such activities as [omitted] lessons and play dates.
At paragraph 6 the mother deposes that in January of 2006 she ceased working as a [omitted] and enrolled in a [omitted] master's degree and that she took maternity leave when she was 32 weeks pregnant with [X]. The mother deposes that throughout 2007 the father worked full time with the exception of an eight-week paternity leave period. At paragraph 8 of the mother's affidavit she deposes that the time the father took off on paternity leave proved to be what she describes as “a great strain” on their marriage, that he refused to sleep in the same room and would not assist in attending to [X] during the night and that he proudly completed watching an entire seven series of West Wing in this time which the applicant mother deposes to as being 154 television episodes.
The mother deposes that in February of 2007 she attended upon Karitane as an in-patient due to what she describes as mental exhaustion and that she stayed there for four nights, and that the father did not attend Karitane with her. The Court has read and considered the mother's discharge summary that is annexed to the affidavit and marked with the letter B. The mother deposes that when [X] was four months of age she employed what she describes as a “casual mother's helper” and that the casual mother's helper known as Ms N attended upon the parties home twice a week for four to six hours at a time and that she used this time to write what the mother described as her thesis at home.
The mother deposes that on the odd occasion she [occupation omitted] and would be out of the house for no more than four hours on those occasions. The mother deposes to returning to employment in January 2008 when she accepted a position as a [omitted] in [C] in the United Kingdom and that she generally worked for 40 hours a week. She was not on call every second weekend and every second night and she was on what she described as a generous roster providing for her to be on call one night midweek each fortnight and only on call for five weekends during the term of the period when she was employed.
At paragraph 12 the mother deposes that [X] attended [omitted] Day Care three days a week and at other times the father cared for [X] while she was working. The mother deposes that the arrangement between her and the father did not work well and that the father refused to take [X] to what she describes as regular activities that she attempted to arrange such as swimming lessons, play group and music group. The applicant mother says that on no more than three occasions throughout the year the father made an effort to take [X] to what she describes as music group and that during that time it became evident that their parenting techniques were different and as such this caused great tension in the parties' relationship and ultimately the mother ceased full-time work in mid December 2008.
The mother deposes that whilst the parties lived in [C] the father continued to work what the mother describes as remotely for [omitted] for a period of 20 hours a week. Attached and marked with the letter C are copies of bank statements evidencing what the mother says are wages that the father received throughout 2008. The mother deposes that the father undertook studies during a series of courses whilst the parties were at [C] and that the father's online CV with LinkedIn confirmed that during 2008 the father worked with [omitted] and as a [omitted] and that he undertook an [omitted] course at [omitted] University.
A copy of the father's CV is annexed and marked with the letter D to the mother's affidavit that the Court has read and considered. The mother deposes that on a number of occasions she would take carer's leave when the father was required to travel for work or undertake courses and the applicant mother annexes a copy of what she describes as a leave form, annexure E to her affidavit, that the Court has read and considered.
The mother deposes that if she was unable to take leave to care for [X] that the father often sought what she described as extra days at [omitted] Day Care and the mother annexes to her affidavit a copy of what she described as a day care request extra form the Court has read and considered. The mother deposes that they employed a casual nanny who would assist the father with [X] on the days that she worked. The mother deposes that during the periods that she was overseas she attended what she describes as three conferences and that she never attended a 12-day conference.
There was one conference from 18 May to 21 May in 2008 and it was what the mother describes as the first time she was away from [X] overnight and she found it very difficult; there was a second conference between 23 June to 27 June in 2008 and that the father and [X] attended this conference with the mother; and there was a third conference where she was away from [X] for one night. The mother deposes that the parties returned to Australia at the end of December 2008 and that they lived with the mother's parents for about a month while they attended what the mother describes as marriage counselling.
The mother deposes that in 2009 she resumed her role primarily as a stay-at-home parent and [X] attended family day care two days a week with [omitted]. The mother deposes to [Y] being born on [omitted], that she was breastfed until she was 22 months of age, and that the mother returned to part-time work in January 2011 where she set up her own [business]. The mother deposes that [occupation omitted] on 7 March 2011 and, as a new [business], it was very slow for what she describes as the first six months.
At paragraph 22 the mother deposes to employing a part-time nanny in January of 2011 known as Ms L when [Y] was a baby and Ms L worked 24 hours a week from 7.30 am till 3.30 pm Monday, Tuesday and Thursday, and further that she never worked five days a week for 10 hours a day. The mother deposes that she began to return to part-time work after [Z] was seven months of age at that time and she was breastfeeding three times a day on demand. During that period the mother deposes to employing a nanny, Ms G, and that she initially worked four days a week between the hours of 7.30 am to 5.30 pm.
The mother deposes that her hours were flexible for the children. They were on a rotating four-week cycle that the Court has read and considered. The mother deposes to delivering and collecting the children from school, day care and attending [X]'s [omitted] lessons each Wednesday and that she would take [Y] to [omitted] every second Thursday. At paragraph 29 of the mother's affidavit she deposes to the current nanny being Ms E, referred to as "Ms E", who looked after [Z] while she was at work and she would also care for [X] and [Y] when she worked outside of school or day care hours, and that Ms E assisted with some homework and attending to the two younger children while she did homework with [X] or what she describes as “vice versa”.
At paragraph 30 the mother deposes to the father taking [X] to soccer during the soccer season on Wednesday afternoons and Saturday morning games whilst the mother cared for [Y] and [Z]. At paragraph 32 the mother deposes that aside from a period in 2008 at [C] she has not worked full time since the birth of the children and she has never worked 80 hours a week or anything close to that, and with the exception of the period when the parties lived in [C] the father has been in full-time employment since the date of the children's birth and he has worked approximately 40 to 50 hours per week and was often required to travel for business.
The mother deposes that during 2013 the father took 15 business trips away. At paragraph 34 the mother deposes that throughout the period of the marriage she was constantly concerned about what she described as, the father’s attitude towards the children in that he would frequently yell at the children and lose his temper. The mother deposes to evening meals being particularly stressful and that she would regularly raise her concerns with family and friends and there is a copy of a message that she has attached to her affidavit with respect to a message to Ms F raising such concerns.
At paragraph 35 the mother deposes to becoming concerned when [X] brought home a Father's Day card in 2013 that had written on it, "Angry all the time and yells same time" or "sometimes". Annexed and marked to the mother's affidavit is a copy of the Father's Day card. At paragraph 36 the applicant mother deposes that in 2012 the father was diagnosed as suffering from depression and he received treatment from a GP at [omitted] Medical Practice and he struggled to cope with parenting of the children. Annexed and marked with the letter J is a copy of the letter from the father that the Court has read and considered.
The mother deposes that following separation in April of 2014 she and the father and her continued to live together in the family home in [M] and that she continued to parent the children in the manner previously deposed to by her and that she continued to work part time. The mother deposes that the father requested that the parties reconcile in about mid May 2014 and that when he refused to show the mother his phone texts she declined and that the father demanded the children live between them on a shared-care basis but the mother did not agree with such a proposal.
At paragraph 39 the mother deposes that since on or about that time she has observed the father to play a more active role with the children, that he began imposing himself on parenting tasks that she had ordinarily been responsible for, and on occasion the mother turned up at day care to collect [Y] to find that the father had already picked her up, and that the father began waiting in the mornings to take [X] and [Y] to school or day care. The mother deposes to requesting the father to move out of the home on numerous occasions; that he refused to do so and it caused the parties to be under what the mother describes as enormous stress and led to increased conflict.
The mother deposes to there being difficulties in the parties' communication and that they were unable to reach agreement about how to share the children's weekend time, that there was a level of tension between her and the father and it began to increase, and that she was very concerned about leaving the family home with the children because she was fearful about how the father would react. The mother deposes to making a number of requests of the father to attend mediation.
The mother gives some evidence as to what took place on or about 12 August 2014 in that the mother came to the conclusion that she and the father could no longer manage living in the same household; she was worried how the father might react to her decision and that she returned to the family home that evening and planned to move out the next day. The mother deposes that on Wednesday, 13 August she asked the father to deliver [X] and [Y] to school and day care and that she packed some personal effects and belongings for the children and that she did not expect the father to be home until about 4.30 pm that day.
The mother deposes that that afternoon she left [Z] with Ms E and she attended [X]'s [omitted] lessons at school and she collected both [X] and [Y] and drove to her parents' home at [V] and she had arranged with Ms E to bring [Z] to her parents' home after [Z] woke up from an afternoon nap. The mother deposes that as she was driving to her parents' place she received a telephone call from Ms E; that Ms E sounded distressed and said words to her to the effect of, "Don't bring the girls here. You don't want them to see this and you don't need to be here. I'll call you back".
The mother deposes to receiving a second phone call from her father, Mr B, and that Mr B told the mother that the father was at their home and had locked himself in the car with [Z] and refused to get out. The mother deposes to pulling over and speaking to the father on the telephone and that the father began immediately abusing her, saying words to the effect of, "How dare you do this. I can't believe you would take the children from me. Bring them straight back. You can't do this. Why are you doing this?"
The mother deposes that the conversation escalated into what she describes as a heated argument and that she told the father she was going to call the police and hung up. The mother's father, Mr B then called her and told her that the father had driven off with [Z] in the car and at that point the mother then began to drive to her parents' place and she was going to drop off [X] and [Y] to attend the family home to collect [Z].
The mother deposes that as she was driving she noticed the father's car parked on the side of the road near her parents' home, that she drove to her parents, and then sent a text message to the father informing him that if he returned [Z] in five minutes she would not call the police, and that a short time later the father pulled up out the front of the mother's parents' home and that the mother's father Mr B went out to collect [Z] and he returned to the mother to inform her that the father had requested that she send [X] and [Y] outside; that she refused as she was fearful that the father would abscond with them; that Mr B brought [Z] inside to her and then went back outside to talk to the father for about 10 minutes, and thereafter the father left at approximately 4.15 pm.
The mother deposes to the children being most upset and indeed herself being upset. The mother deposes to believing that the current orders made on 8 September 2014 are in the best interests of the children, given their age and what she describes as developmental needs and the children appear happy and relaxed with the arrangements. The mother deposes that since moving out of the former matrimonial home she has done what she describes at paragraph 56 as modifying her work schedule and that she now has every Monday and Thursday free. She works Tuesdays, Wednesdays and Friday mornings, 9.30 to 12.30, plus Friday afternoons until 4 pm and also on the weekends when the father has the children due to financial circumstances. The mother deposes she has reduced Ms E's employment to 10 hours per week.
The mother deposes to still being able to do school drop-offs and pickups and that she is still the primary carer for the children. The mother deposes to the current arrangements for the children in respect of living in her parents' home which is what she describes as a large home with a pool. It has a large yard, three spare bedrooms, one of which has two double bunks and children's books and toys. The mother deposes to [X] being seven years of age, in year 2 at The [J] School and the Court notes she will be in year 3 next year. She has mild developmental learning problems which the mother has deposed to in her latter affidavits the Court has read and considered.
The mother deposes to [X] being engaged in what she describes as extracurricular activities including [omitted] which the mother deposes at paragraph 61 to being important for [X] to develop her gross motor skills and that despite [X]’s learning problems she is progressing well with and enjoys both [omitted]. The mother describes observing [X] to be an anxious child with poor self-confidence and coping strategies and that the father has what she describes as low tolerance for dealing with [X]'s behaviour and on almost what she describes at paragraph 62 as a daily basis, the father would yell at [X] for not completing simple tasks like putting on her pyjamas the first time when she was asked to and not being able to put her soccer boots on without help.
The mother deposes to [Y] attending day care and [K] two days per week and pre-school at [K] [M] one day per week and that [Y] currently attends [omitted] lessons. At paragraph 64 the mother deposes to [Y] beginning to display what she describes as signs of aggressive behaviour and that she has started to wet her pants during the day. At paragraph 65 the mother deposes to taking [Y] to see [Z]'s paediatrician, Dr R, and that she intends to be guided by any recommendations of Dr R. The applicant mother has attached a copy of a report of Dr R dated 26 August 2014 that the Court has read and considered.
The mother deposes that [Z] is only 24 months or was 24 months as at the date of swearing the affidavit in October and she has continued to breastfeed [Z] three times a day and she has never spent an overnight period of time away from the mother. The mother deposes to the children having a close and loving relationship with what she describes as her parents and extended family and that they usually have a midweek meal together with her parents as well as seeing them every second weekend.
The mother in contrast deposes that the children would spend time with the extended paternal family only about six times a year and this would usually only be on special occasions such as Orthodox Christmas and Easter and on birthdays and that the mother has a calendar of records evidencing the same. The mother deposes to the communication between her and the father being strained and that it is limited to email or text message. The mother deposes that since about 8 September 2014 the father has been attending [X]'s school several mornings a week and that she does not want to expose [X] to their conflict so she would generally leave the school immediately if she sees the father and as a result she has missed what she describes as several school assemblies and [omitted] lessons and it has made things uncomfortable for her and it has been confusing for [X].
The mother deposes that since moving to [V] she understands the father has moved back into the main bedroom of the marital home. The older girls have stopped sleeping in their beds and now sleep with him and she finds that it is difficult to settle the girls into their beds at night and they would often want to join her and on several occasions they have described the father joining them in a bubble bath and she is concerned that this is inappropriate given their ages. The Court has read and considered the affidavit of Mr B filed on 3 October 2014.
Mr B deposes that he is the father of the applicant mother and the maternal grandfather of the children.
He is currently 65 years of age and works from home running what he describes as a [omitted] business and that he is aware that the parties separated under the same roof. Mr B deposes to involving himself in attempting to assist the parties in their communication. Mr B deposes to evidence with respect to events that took place on the morning of 13 August and following what appears to be the date on which it was evident to both parties that the separation was real and the date on which the mother really moved out of the former matrimonial home.
It is apparent, having read the affidavit, that the day was extremely strained and probably a regretful occasion for the parties. It was certainly a day of great acrimony. The Court has read and considered the affidavit of Ms S filed on 3 October 2014. Ms S deposes to being a retired assistant principal of the [E] Primary School. She has had 32 years of teacher experience and 16 years as a school executive. She is the maternal aunt of the mother and great maternal aunt to the children. Ms S deposes to observing the parties during the course of their relationship and observing the father to be what she describes as charming, charismatic and an attentive nephew-in-law and he "frequently gave compliments and welcomed us” into what she describes as his home for family gatherings and occasions.
The affidavit goes to the observations of Ms S with respect to what she describes as the father overreacting to the children's behaviour and describing such reactions as emotionally abusive. It is apparent that Ms S visited the parties in [C] with her husband and stayed with them for approximately one week. Ms S deposes to the father's moods changing in what she describes as quickly from cheerful and friendly to agitated and angry because of what she describes as [X]'s behaviour in her high chair. Ms S deposes to an occasion when she attended upon a function at a [omitted] restaurant whereby [X] began to cry, what she describes as uncontrollably, and that [X] was swept out of her chair by the father and placed onto the footpath where he berated her in a loud voice.
Ms S deposes to an occasion where she attended upon what she describes as a special dinner at the parties' home in March 2014 and during the meal [Y] was about to turn four and she refused to eat her meal. The father became furious and using a loud, sharp and threatening tone of voice insisted she do as he said, that when [Y] did not comply he became extremely angry and he kept shouting until such time as [Y] became hysterical. He demanded she stop crying and when she could not, he roughly picked her up and removed her from the dining room, forcing her to be seated on the naughty step until such time as she stopped, and when the father returned to the dining table eventually [Y] returned to the room.
In the view of the Court it is often easy, as an observer of somebody else's family, to sit there and criticise the behaviour of parents who may have been dealing with a child's behaviour for the entirety of the day and to then only see maybe perhaps a two to five-minute period. It is the view of the Court that it is often very easy to criticise parent’s behaviour sometimes unfairly. The Court in an interim hearing cannot make findings as to fact where there is a raft of evidence that contradicts one another.
The Court has read and considered the affidavit of Ms E. She is the nanny of the parties. She was born in 1995 and she describes herself as being a qualified nanny, having attained her certificate III in child services in 2012 and a first aid certificate in 2013 and she has been working in child care for two years, both in day care centres and as a private nanny for four families. She deposes to being employed in February of 2014 by the mother as a full-time nanny to assist in the care of the children, namely, [X], [Y] and [Z]; that her duties included assisting the children in getting dressed, with meals and feeding the children, assisting in transporting the children, and that she assisted with the children's laundry and light household duties such as tidying, packing and unpacking the dishwasher.
She deposes that her duties were largely directed by the mother who appeared to run the busy household and that she often noticed the mother reading and completing the school forms, organising the family calendar and organising and attending to their medical care and making decisions regarding the children's activity and play dates, and that she observed the mother to buy children's clothing and toys. Ms E deposes that if she had any concerns about the children she would discuss them with the mother. She gives evidence as to what she describes as a daily routine involving the mother, and the father getting home at about 5 pm in the afternoon and on what she describes as the odd occasion the father would come home earlier via one school pickup.
Ms E deposes that she noticed that the parties were sleeping in separate bedrooms in about April 2014 and that in June 2014 she noticed what she describes as a change in the family's dynamic. At paragraph 8 she deposes that it seemed as though the father's role in the home began to change and his attitudes towards the children became more attentive. In the mornings the father would often have [X] or [Y] in his bedroom until he got them showered and this made her morning schedule run late and on the odd occasion [X] or [Y] would even join him in a shower.
At paragraph 9 Ms E deposes that the mother and father would occasionally argue about school drop-offs and pickups and this would sometimes occur in front of the children, and that he wanted to take them more often than he had previously, and the father would often encourage the children to come with him by offering to buy them a babycino at a cafe on the way to school, especially with [Y]. It is not clear but it is apparent that the parties were arguing about who was going to drop the children off in that they wanted to drop the children off as opposed to arguing about who would drop the children off in that they did not want to drop the children off.
At paragraph 10 Ms E deposes to begin to notice [X] question the authority of her parents and that she would play the parents off against each other when she wanted something – and this is a warning to the parents: expect this to continue. For example, on a number of occasions [X] would ask either parent for the iPad or to play their phone to play games and if either the father or mother would say no to [X] she would question the other parent who – and it is not really a criticism – 90 per cent of the time would say yes, but what is a criticism, is that it would make the other parent look mean. The criticism is directed at both parents, not just one. It is apparent that [X] appeared to be more attention-seeking and jealous of her siblings when they received attention.
Ms E noticed that [Y] began wetting her pants in July of 2014, and that she noticed that [Y] was probably the easier going of the children although over the past few months she has noticed that [Y] has become less resilient and she is less able to cope with minor issues; that if Ms E prepared her breakfast incorrectly such as pouring things into a bowl in the wrong order [Y] would run away and hide and refuse to eat. Ms E noticed that [Z] became more clingy and she would happily wave goodbye to the father in the morning then the mother would leave and [Z] would become very distressed and other than this she has continued to progress well.
Ms E describes at paragraph 15 of her and the father having what she describes as a good working relationship. His attitude towards her was always professional however there were occasions when she felt uncomfortable about the father and it was on one occasion when she started preparing a Bolognese meal for them and when the father came home he threw out the meal. He was unhappy with the way she had prepared it and it made her feel uncomfortable and belittled, and that on other occasions prior to this she had prepared meals for the family and received praise from the mother and the children.
At paragraph 17 Ms E deposes that the father became particularly attentive towards the children in or about August 2014 and that revolved around the organisation of play dates in that the father was taking an active role in the organisation of play dates for the children. It is apparent that the tensions in the house got to the point where Ms E felt uncomfortable working in the home and that on about 12 August she was provided with information that the mother was intending to move out of the former matrimonial home and indeed that is ultimately what happened and the Court has read and considered otherwise what took place on the day when the parties separated from living in the same home. Again, it is what the Court can best describe as an acrimonious occasion where there was much angst and heat between the parties, particularly from the father's point of view.
Ms E deposes to observing the mother continuing to breastfeed [Z]. She deposes to now working on a Wednesday from 7 am to 1.30 pm and she is helping on two mornings for two hours from 7 am to 9 am on the days that the mother works and she has accepted a permanent part-time position of an out of school hours care which is in afternoons. The Court has read and considered the case outline for the mother that forms exhibit A in the proceedings. The Court has heard and considered the submissions made by counsel on behalf of the mother.
The father, Mr Aamot (hereinafter referred to as the father), relies upon orders sought as set out in his amended response to initiating application filed on 11 December 2014. The orders sought by the father are as follows:
(1)That each party have equal shared parental responsibility for the children, [X], [Y] and [Z].
The Court notes the mother seeks sole parental responsibility.
(2)That the children spend time with the father as follows:
(a)During school term with [Z] in a two-week cycle as follows:
(i)In week one from 9 am Monday until 4 pm Tuesday;
(ii)In week two from 9 am Monday until 4 pm Tuesday; from 2 pm Friday until 4 pm Sunday;
(b)[Y] in a two-week cycle:
(i)From 9 am Monday until 9 am Wednesday;
(ii)In week two from 3 pm Friday until 9 am Wednesday;
(c)With [X] in a two-week cycle:
(i)In week one from 3 pm Monday, from 9.30 am if [X] does not attend school on this day until 9 am Wednesday;
(ii)In week two from 3 pm Friday until 9 am Wednesday;
The arrangement for [Y] and [X] is a seven-night arrangement of equal time. The arrangement for [Z] is somewhat less and provides for an overnight on week one, an overnight on week two in the week from Monday night and an overnight on the week two on a Friday until 4 pm Sunday, so two overnights, so essentially what could be described as substantial and significant time.
(1)That the father's time with [Z] be increased as agreed between the parties or ordered by the Court.
(2)During the Coptic Orthodox Christmas from 4 pm 5 January until 9 January each year;
(3)During the Coptic Orthodox Easter weekend from 4 pm Friday until 4 pm Easter Monday;
(4)That in the event the Coptic Orthodox Easter weekend and the Christian Easter weekend fall on the same dates then from 4 pm Easter Saturday until 4 pm Easter Monday;
(5)On the weekend which includes Father's Day from after school Friday until before school Monday provided that if the children would not otherwise be spending time with the father pursuant to these orders on such weekend then the time the children would have spent with the father on the following weekend shall be suspended;
(6)From 12 noon New Year's Eve until 4 pm 2 January in 2015 and each alternate year thereafter;
(7)During school holidays the pattern pursuant to order 2.1 above shall continue until otherwise agreed between the parties;
(8)At any other times as may be agreed between the parties;
(9)That the children spend time with the mother at all other times;
(10)That the father's time with the children pursuant to order 2 be suspended as follows:
4.1From 4 pm 24 December until 4 pm 28 December each year;
4.2 From 4 pm Good Friday until 4 pm Easter Monday;
4.3On the weekend which includes Mother's Day from after school Friday until before school Monday provided that if the children would not otherwise be spending time with the mother pursuant to these Orders on such weekend then the time the children would have spent with the mother on the following weekend shall be suspended;
4.4From 12 noon New Year's Eve until 4 pm 2 January in 2014 and each alternate year thereafter;
4.5At any other time as may be agreed between the parties in writing.
5.That each party be and is hereby restrained from changing the children's current school, day care or pre-school without the written consent of the other party save as provided for in order 6 herein.
6.That should either party seek to enrol [Z] in day care pre-school in 2015 then each party shall do all acts and things and sign all documents necessary to enrol [Z] in either the [K] [M] pre-school or [K]. In the event there is no availability for [Z] in either [K] [M] pre-school or [K] then the party seeking the enrolment provide to the other party a list of alternative schools and their availability for [Z]'s attendance.
7.That the mother be and is hereby restrained from enrolling the children in extracurricular activities or changing the children's current extracurricular activities to a day care when the children will otherwise be spending time with the father without first obtaining the father's written consent.
8.That the parties be at liberty to contact the children by telephone and/or Facetime when the children are not in their care and that the other parent shall encourage and facilitate the children to communicate with that parent.
9.That both the father and mother are authorised to obtain from the children's pre-school and schools all notices, letters, school reports and invitations and are authorised to attend parent-teacher interviews or other activities to which parents are invited.
10.That the father and mother are to advise each other of their current telephone numbers and address details and any change thereto within 72 hours of such change occurring.
11.That for the purposes of changeovers changeover shall occur at the children's school and when changeover is to occur on a non-school day or out of school hours then the mother or her nominee shall deliver the children to the father's residence at the commencement of the father's time with the children pursuant to these orders and the father or his nominee will deliver the children to the mother's residence at the commencement of her time with the children pursuant to these orders unless otherwise it is agreed between the parties in writing.
12.That the parties contact each other as soon as practicable by telephone if there is a medical emergency involving any or all of the children.
13.That each party is to notify the other of any medical appointment that is to be arranged for any or all of the children prior to the appointment being made and that each parent be at liberty to attend such appointment.
14.That each parent shall ensure the children are to attend any sporting or extracurricular activities in which the children participate as agreed between the parties when the children are in their care and that in the event that that parent is unable to do so they contact the other parent as soon as is practicable.
15.That each party be permitted to attend any extracurricular activities in which the children are participating.
16.That in the event the children do not attend pre-school or school then the parent who has the care of the children on those days pursuant to these orders must advise the other parent of any such absence from school and the reasons why within 12 hours of the absence occurring.
The father relies on three affidavits filed herein being paragraph 13 of his affidavit filed 5 September 2014 with respect to the applicant mother expressing milk, for the children to attend upon her work, and that [Z] is what the father describes as happy accepting regular milk. The father relies upon an affidavit sworn by him on 7 October 2014 that provides that he is the father in the proceedings; he was born on [omitted] 1972; that the parties commenced living together in July of 1998 and they married on [omitted] 2002; that there are the children of the relationship; and that the parties separated under the one roof in approximately April 2014 and the mother moved out of the home on 13 August 2014.
The father deposes to participating in mediation with a family dispute resolution practitioner but there was no agreement reached. The father deposes that there were no prior orders or parenting plans between the parties, save for interim orders made in the Federal Circuit Court in Newcastle on 8 September which were annexed to the father’s affidavit and marked with the letter A, and those arrangements were as follows:
That the children live with the mother and spend time with the father with [X] and [Y] each Wednesday at the conclusion of school or preschool, with the father to return [X] to her school on Thursday, and thereafter return [Y] to the mother’s evidence on a Thursday morning; and [Z] spend time with the father each Tuesday between the hours of 9 am and 3 pm with the father to collect and return the said children to the mother’s residence;
That [X], [Y] and [Z] spend time with the father each alternate weekend as follows with [X] and [Y] to spend time from the conclusion of school or preschool Friday until 4 pm Sunday, and with [Z] to spend time from 8 am to 4 pm Saturday and 10 am until 4 pm Sunday.
The court notes that the time provides for the two eldest children to spend what the court would regard as substantial and significant time, taking into account the definition of “substantial and significant time” found at subparagraph (3) of section 65DAA and that the time [Z] spent was not substantial or significant time with the father.
The orders went on to state that for the purposes of facilitating the alternate weekend time, the father shall collect [X] and [Y] from their school or preschool on Friday, and the mother shall deliver and collect [Z] from the father’s residence or such other places agreed between the parties on the Saturday morning, Sunday evening and Saturday morning, and the father shall return [X], [Y] and [Z] to the mother’s residence by 4 pm on the Saturday.
The father deposes to a history between the parties with respect to their training and employment.
The father deposes that on [date omitted] 2006 after [X]’s birth, the parties were living at the property at [omitted] after having moved to Sydney, and that the mother stopped work approximately one month prior to [X]’s birth. And from the time of [X]’s birth and after the birth of [Y] and [Z], he was significantly involved in the day-to-day care of the children.
The father deposes that when [X] was a baby, he attended to do the following including bathing her, changing her nappies, dressing her, preparing meals, playing with her and general caring for her, and that the mother did that as well when her work allowed it. The father deposes that when [X] was a baby, he and the mother agreed to sleep in separate rooms so he could attend to [X]’s needs in the early morning to enable the mother to sleep and care for her during the night, and this ensured that one of them was rested to relieve the other and maintain [X]’s care; that [X] had difficulties with sleeping. The parties attended Karitane for a week in Sydney to assist with [X]’s care.
The court notes that such evidence is in stark contrast to the evidence given by the mother, and the court is in a position where it cannot make any findings about that issue today on an interim basis as the evidence has simply not been tested.
The father deposes that the mother returned to work three months after [X] was born; that she expressed milk for [X] to allow her to return to work; and that after [X]’s birth, the father attended to her health and medical needs, including attending to her inoculations, including regular check-ups, gave her kisses and cuddles, and generally provided her with love and support and affection to what the father describes as the best of his ability.
The father also agrees that the parties engaged the services of a nanny known as Ms N in 2007 when [X] was three months of age, and that Ms N assisted the parties for three days per week thus enabling the mother to continue her optional fulltime Masters degree and publish numerous, what he describes as, [omitted] papers.
The father deposes that the mother sought and obtained a busy, prestigious 12 month [occupation omitted] in [C]. The father deposes that the parties did indeed move to [C] as deposed to by the mother, and this allowed the mother to undertake training. At that time, the father deposes that [X] was 13 months of age. During this period, the father deposes that the parties agreed that he would cease all employment and care for [X] fulltime, and that that would enable the mother to concentrate on what the father describes as her fellowship. The father deposes that the mother worked between 6 to 7 am until 6 to 9 pm five days a week. She was on call every second weekend and every second night, and she went away for conferences totalling 12 days.
The court notes there is great disagreement about the level of care the father provided to [X] during this period. The father deposes that he attended playgroups, swimming lessons, museums, art galleries, churches, colleges, libraries, zoos, parks and daily food markets so that he could cook for the mother with [X], and [X] travelled to 12 cities and was exposed to a myriad of people and unique experiences, and that he had a child seat on his bicycle and he often took [X] for rides around the city, but he did not work during the periods that they lived in [C]. That is in stark contrast to the evidence given by the mother. And, again, the court is not in a position to make any findings about that, given this is an abridged interim hearing and the evidence is not being tested.
The father deposes that the parties returned to Sydney in December of 2008, and in early 2009 [X] attended family daycare approximately three days per week and, at that time, the father obtained fulltime employment [omitted] and his work hours were approximately 40 to 60 hours per week, and that the mother commenced [occupation omitted] at this time, and her hours of work varied, and she primarily cared for [X] when she was not attending daycare.
The father deposes that in the later part of 2009, the mother indicated to him she was unable to pursue her career further in Sydney and she was considering [omitted] in Newcastle in her home town where her family resided and the parties agreed to a move to Newcastle. At that point, the father resigned from [omitted]. The parties then moved to Newcastle and the father deposes that he obtained employment with [omitted], and he deliberately pursued this position as it allowed him flexibility to care for the children and support what he described as the mother’s demanding career. The father deposes that his [omitted] hours were lower and he was able to spend much more time caring for [X].
The father deposes that he provided the majority of parental care for [X] and [Y] during the period 2013 to 2014. He refers to the affidavit of Ms G filed in the proceedings. It is apparent the parties highly disagree as to who was the primary carer for the children and the level of care provided for the children by each party. And, again, it is a matter the court cannot make findings on today as it is not a final hearing. The evidence is contested and it has not been tested so the court cannot make any findings.
The father deposes to a daily routine in 2014 until what he describes as 13 August 2014 where he was significantly involved in the children’s daily care - day-to-day activities and care, including preparation of meals, taking them to school, and otherwise attending such things as soccer or extracurricular activities.
The father deposes to a conversation that took place on 26 May 2014 with the mother where he said, “I want shared access to the girls”, and the mother is alleged to have said “Children need to be with their mother”, to which the father said he did not agree, and that the mother became hysterical, screaming at him, “Fuck off. They are my children. It’s my house” and other words to the effect of “You will never have my children. No matter what it takes, you will never have them even if I have to take you to the highest court in the land.”
The father deposes to events that had occurred around 13 August. The court has re-considered particularly the event that took place on 13 August. Again, it is an acrimonious occasion of the mother leaving the former matrimonial home. The court cannot make any great findings about the matter, other than to say it was obviously a most displeasing occasion that the court hopes at least the father and perhaps the mother both regret. It certainly in the view of the court falls well short of the definition of “family violence”.
The father deposes to events that have taken place since 13 August to particularly around October 2014 where he deposes to the children missing him, and [X] saying to him, “Very sad not to see you every day and not to be in my home in bed”, and that [Y] said within a conversation, “We don’t want to live at [omitted]” and that this is the name they call their grandmother, and that the children say “We want to stay here forever.” Again, if one takes into account the level of maturity and understanding of the children and, indeed, how the court obtains the views of the children as found at section 60CD of the Family Law Act1975, I cannot give any weight of any views expressed by the children. They’re simply too young. They do not really understand in the view of the court what is going on. That is, the children do not have any great level of understanding about the separation of the parents, given their ages, or any maturity to express any views the court should give weight.
The father visits upon the mother what the court would describe as criticism for what the father describes as unilateral decisions being taken by the mother. Again, the court is not in a position to make any findings about the issues as to whether the mother has made unilateral decisions, where these are interim proceedings and the court has not heard the evidence tested.
The father deposes that he is currently employed as a [omitted]; that he has flexible hours and he is able to manage his time to be available to care for the girls for significant periods of time of any week. He sets out his employment details.
The father deposes to the children’s current schooling arrangements and that [X] currently attends the [J] Public School. She is in year 2. She is progressing well, and that he has recently been attempting to attend upon her morning assemblies at school.
The father deposes to the children’s health and sets out at paragraph 8:
Generally, the girls are in excellent health at present, and are confident, independent and bright children. Recently, [X] has been taking some hearing speech and occupational therapy appointments after some concerns regarding poor handwriting and inattention in class. The specialists have concluded she has some mild to moderate weakness; she needs some help with the area of social communication.
The court has read and considered the annexure to the father’s affidavit which is a copy of a report from Ms B of the [J] Public School dated 1 September 2014.
The father deposes to currently residing in the former matrimonial home that has all the usual facilities, including what he describes as spacious backyard and trampoline, and the girls have their own rooms. The mother is residing with her parents at [V] which the father describes as 25 minutes drive apart from the children’s school and preschool, and 40 minutes away during morning traffic, and that his parents live approximately 145 minutes away in Sydney.
The father deposes that since the orders were made on 8 September 2014, he spent time with the children in accordance with the orders as set out in annexure A - the court has read and gone through - and the children have responded positively to the extra time with him since those orders were made; that [X] and [Y] have what he describes as enthusiastically welcomed the additional overnights and ask for more.
The father deposes to seeking independent advice with respect to the children’s adjustment following the separation of the mother and himself, including child and adolescent clinical psychologist Mr W of [omitted] & Associates; child and adolescent clinical psychologist Ms W from [omitted] Practice; the children’s GP Dr B.
The court has read and considered the father’s affidavit sworn by him on 9 December 2014. The affidavit is one in answer to the mother’s affidavit sworn on 10 October. The father deposes receiving treatment for depression. He deposes to receiving some counselling therapy for depression that was associated with bullying he was deemed suffering from at work and which subsequently resolved in his favour with the other person being dismissed from their employment, and that he received some counselling for what he describes as reactive depression this year following the breakdown of the parties marriage.
The court notes annexure A and B. I will refer to annexure A. Annexure A is a letter from Mr S, psychologist. It is a letter back to
Dr B, the father’s GP. It’s dated 31 October 2014 and states:
Thank you for referring [Mr Aamot] who attended his eighth session today. As you are aware, adjustment disorder is reactive and usually a temporary psychological response to major stressful events. [Mr Aamot] has responded well to counselling and an improvement in his stressful circumstances. He has described and presented with progressive less frequent and less intense symptoms, anxiety and reactive depression. He has implemented simple and daily intervention relaxation strategies to better manage anxiety and mood change through this difficult life event.
Depression, anxiety and stressful scale results taken today, 7:1:9, indicate normal levels of all three measures over the last week. DASS results have improved significantly over the last two months. These psychometric results are congruent with his presentation, observation and self-report.
[Mr Aamot] has continued to work, initially with some difficulty in mood and concentration. His mood has improved corresponding to increased access to his children and to building a positive weekly return, including work and attending to his children’s school to assist in reading groups and [omitted] lessons. [Mr Aamot] related that he now feels fully functional at work and has recently been awarded [omitted].
Further sessions will be used to consolidate gains and to help [Mr Aamot] build distress tolerance as circumstances change. Thank you for involving this practice in [Mr Aamot]’s care. Please feel free to contact me for clarification of his treatment and progress.
The court has read and considered Dr B’s report dated 15 November 2014, written to Whom It May Concern:
The abovenamed has been a patient of mine since May 2014. I’ve been asked to comment on his mental health. He was diagnosed with depression in 2012 following prolonged work related harassment which eventually resulted in the dismissal of the other party. He required antidepressant medication for six months and saw a psychologist regularly. His medication was ceased following resolution of the incident. He maintained his ability to function at a high level and continued to work and provide for himself and his children during his temporary depression.
He later saw another psychologist, Ms H, together with his wife for marriage counselling. When I first started seeing him in consultation in May this year, he had recently recommenced the antidepressant medication following the breakdown of his marriage.
I referred him to a psychologist this time, Mr S. I received a letter from his psychologist dated 31 October 2014. This stated that [Mr Aamot] has presented initially with reactive depression due to his stressful circumstances, but had responded well to treatment. Following eight sessions, his assessment was that [Mr Aamot] was fully functional and on objective psychometric testing had no signs of depression.
In conclusion, [Mr Aamot] has recovered well from his mild reactive depression; is fully capable for caring for himself and his children.
At subparagraph (3)(c), the father deposes that he noticed the mother deposed that she considers bathing with the children to be inappropriate. The father says that both the mother and he had occasionally bathed with the children. At no time prior to this affidavit had the mother raised this, or with the court, any suggestion that she had any concerns with this. The father says:
Clearly as the girl’s age, it is becoming important to have their privacy and I do and will respect that privacy. If there is any implication that I have acted in any way inappropriately with the girls at any time in any way, that I emphatically deny this implication.
At subparagraph (d), the father deposes that pursuant to the orders made by the court on 8 September, he was to have [Y] with him until between 9.30 and 10 am on certain days and subsequently the mother, without prior warning, enrolled [Y] into music lessons that started at 9.30 am on that day, and this has required her to bring her back earlier than anticipated by the orders; that he is aware through conversations with [Y] that the mother had discussed the music lessons directly with her and, so as not to disappoint her, ensure that [Y] is dropped off to her music lessons prior to 9.30 am, thereby minimising at least half an hour of his already limited time with [Y].
In respect of what is describes as the nannie diaries - the father describes them as daily communication books, he says the arrangement was required by the mother as she was not often present at the home during the early hours of the morning or the evenings when the nannies arrived or left. The father states that he worked closely with the nannies regarding the care of the children; that he was physically able to verbally discuss the care of the children and day-to-day activities with the nannies, and therefore was not required to use the diary.
The court has read and considered the father’s evidence with respect to some communication between the parties.
At paragraph 4(h), the father deposes that he does not know or cannot comment on the applicant’s intentions in relation to housing pending the outcome of property proceedings; that the mother seeks that the former matrimonial home at [M], where he currently resides, is transferred to her into her sole name, and that should this occur as part of the final property settlement the mother would need to again change the children’s school or preschool once she moves back to the home. The father deposes that the mother had never discussed with him a change in the children’s schooling or preschool. He does not believe that frequent change in the schooling is in the children’s best interests. He believes it would be detrimental to [X] to have a change of school so soon after the mother and the father’s breakdown of the marriage; that he believes that [X] would be adversely affected by a breakdown of the friendships she has made at school. In relation to [X]’s schooling, he says:
[X] struggles to make friends early on in a school and has since developed a likely group of friends and her growing social confidence has contributed to her academic improvement. She actively has play dates with her school friends outside of school who live locally. That [X] attends [omitted] lessons at schools with her friends and is now in the school [omitted]. [X] plays school for [omitted] and her team is made up of friends from her school year. The school is 500 metres from the home at [M] and access up the road from the ..... and across the road from where Ms Babeu [occupation omitted]. The [J] Public School is an excellent school recognised as one of the best of Newcastle’s; academically, socially and musically. And that he and the mother made a joint conscious decision to move to [M] for this reason.
The father refers to paragraph 62 of the mother’s affidavit whereby she states she observed [X] to be an anxious child with poor self-confidence and coping strategies. The father deposes to discussing the proposed move with [X]’s teacher, Ms A, and that Ms A said, to her, it would be detrimental for [X] to change schools considering the progress she has made socially and academically in the last six months, and there has been enough disruption in her life of late. The father deposes to attending [X]’s [omitted] lessons every Tuesday morning, and morning assemblies three to four days a week, and he is a teacher’s helper every Monday in [X]’s class and stays for recess. Of his observation, [X] is happy and confident and adores her group of friends. The father says that the mother had previously stated the distance from [V] to the [J] school was not a problem, and that the mother had previously disregarded the views expressed by medical practitioners and particularly in relation to [Y] commencing school.
In respect of the move of [Y]’s preschool, the father deposes to [Y] having a good network of friends, and that she has had enough disruption this year and that is one of the reasons why the mother and he had made a decision to put [Y] in preschool pending commencing school in 2015. The court notes that there is no disagreement between the parties any more with respect to [Y] commencing school. She will not commence school in 2015.
The court has otherwise read and considered the balance of the father’s affidavit and the annexures thereto.
The court has read and considered the affidavit of Ms L filed on behalf of the father, sworn on 4 September 2014. Ms L deposes to being a professional nanny and had worked as a nanny for over 12 years, caring for about 22 children; that she was employed by the parties as a nanny between January 2011 and October 2012. The hours of work were Monday, Tuesday and Thursdays from 7.30 am until 3.30 pm. In the second year of her employment, the mother worked more often and she generally worked Monday to Thursday each week from 7.30 am until about 4.30 pm. And as the mother’s pregnancy with [Z] continued, her assistance was required for longer periods; that she continued to work for the parties until about two weeks prior to [Z]’s birth, at which time the mother was home fulltime. Ms L deposes to observing the father bringing the children downstairs and giving their breakfast to them, and generally doing such things as emptying and restacking the dishwasher, and that the mother would come downstairs after breakfast feeding [Y] in the morning. At paragraph 10, she deposes that over the course of her employment, it was the father’s practice to send her home when he arrived home, or otherwise for him to cook dinner for the family and attended the children’s bath times. At paragraph 9, she deposes that the father often played with the children and spent time with them on his arrival home from work. At paragraph 13, she deposes that the father had a very close and loving relationship with [X] and [Z], and that she commented on several occasions to both the mother and father that “I’ve never worked with a family where the dad is so involved.” It appears she was quite a close nanny, having travelled overseas with the mother to New Zealand and being stuck over there with the mother during the Christchurch earthquakes.
There was considerable submission made about the change and likely effect of any change in the children’s circumstances as a result of separations. Of significant weight is the likely effect on the children of any separation from either his or her parents. The parties have given the children a massive change. The parties stayed living under the same roof in what would have been the most acrimonious of all circumstances. Probably only because the parties are high functioning individuals, they held it together; whereas most parties couldn’t hold it together for probably five minutes. In any case - and I hear that said by barristers often when they don’t like the answer they’re given during cross-examination. In any case, the parties separated and it is what it is. The children have been separated from both parents. By virtue of the separation they will continue to be separated from both, whether I make orders for equal time, substantial and significant time, or time that falls less than either of the two. The effect on your children will be minimal. I form that view from the evidence. The effect on the children will be minimised by virtue of the fact that they have two loving parents. I do not think the effect on the two elder children will be so great if it was equal time, but I do think the effect on [Z] will be significant, if there is overnight time at this stage. I think the effect on her will be detrimental for the time being. I think she will get older and the effect will dissipate. But for the time being, the consideration with weight is that relating to the effect of the separation of [Z] from her parents particularly the mother. I think substantial and significant time or anything even close to it for a child of [Z]’s age given her attachment to the mother will be detrimental to her. I am not persuaded to make the orders for overnight time between [Z] and the father as sought by the father.
I turn to the issue of the practical difficulty and the expense of the children spending time with and communicating with the parents and whether that practical difficulty and expense will substantially affect the children’s rights to maintain personal relations and direct contact with the parents on a regular basis.
I note there is some difficulty and to a lesser extent expense of the mother travelling probably what is, having regard to the evidence and concessions of the parties, somewhere between 25 to 40 minutes worth of traffic in the morning. I take into account the decision is Re GChildren’s Schooling. A significant principal in that decision is one where the court should not be tempted to simply defer to placing the children into the school that is closest to the parent with whom the children live. What I am concerned about, and I will say it again. I am concerned about the effect on these children of the recent separation. And I am concerned about the effect on the children generally with respect to their current arrangements. And if I read the family consultant’s memorandum, and I will read it again:
These behaviours will usually settle once they have stability in the arrangements and are able to spend frequent time with both parents.
[X] is not an ordinarily robust normal little girl. She is having some difficulties, and I take that from the information that I have seen. And whilst I understand the desire of the mother to move [X] from her current school to something closer to where she’s currently living with her parents, I feel that at the moment having regard to the current arrangements being in place, the effect of the change in her life, having regards to Re GChildren’s Schooling, I am just simply of the view that a change in her schooling at this stage might further detrimentally affect her more in respect of the separation. There are few constants left in her life or the children’s lives at all. At home, none. Except for mum and dad being around and their siblings. But those arrangements have changed and this resembles nothing at all like what it was 12 months ago, and [X] can remember what it was like 12 months ago. The only constant in [X]’s life is probably her friendship circle and her school. These are not final orders and it is not form a final view, and it may well be on a final basis that I am persuaded. Because by that stage, the court will know perhaps where the mother is living, what her final housing arrangements might be. Perhaps she might be living in the former matrimonial home in [M]. I simply do not know. And at that stage, I will revisit this schooling issue if it still arises. But for the time being, in order to ensure that the children have stability - particularly [X] it is important that she knows where her school is and knows who her friendship circle is. I do not propose to make an order to see her change her school.
With respect to [Y]’s preschool, I’m not persuaded either way. It’s my view, and I will hear some submissions perhaps from the parties’ respective solicitors. I do not think it will make any difference to her best interest if she goes to two preschools; one close to where her mum lives, and one close to where her dad lives. It is simply in my view not a persuasive issue. I am not persuaded to make an order that the parties be required to cause either [X] or [Z] go to a particular preschool. It is only pre-school; it is not school. And they can develop a larger group of friends. It’s not going to make a great deal of difference, in my view, to the children at this stage. But I think for [X], it will. [Y], is not going to go to school next year. For the time being, whatever preschool she goes to on the parties times, in my view, is a matter for themselves. So I am not going to keep them to one preschool. The parties are responsible adults. They know well what they are doing. They should do what is right for the children.
A large focus of this case has been capacity. I consider the capacity of each of the children’s parents to provide for the needs of the children, including their intellectual and emotional needs, and any other person including a grandparent to do the same. I will talk about grandparents. The maternal grandparents - or at least the maternal grandfather has more than enough capacity to provide for the needs of the children, but he does not need to. Because I have before me two parents who have more, in fact bucket loads of capacity, to provide for the needs of their children, including their intellectual and emotional needs.
I wish I had just one of these parties in 90 per cent of all the matters here in this registry; where I often have before me two poor parties hugely lacking capacity, where I’m asked to place often very young children trying to juggle risk between two drug affected or mentally ill parents; asking the department to join the proceedings so I can place the children into foster care; where the department will not join.
Unfortunately for both of these parties, this is a subjective matter. It is subjected to the parties themselves. And the parties appear stuck in their conflict and it is their conflict alone. And it must be the world’s worst thing to hear that from my point of view as an outsider, and I do not say it balancing these parties against drug affect parents, or otherwise parents with mental illness or disability. On their own, individually, looking at both parents as individuals, regardless, without measurement against others who are less, both parties have the capacity to provide well, extremely well, for the children’s intellectual and emotional needs, and just general needs. Both parties really do.
The court considers the background of the father an Orthodox Christian. A person who practices an Orthodox faith. And I note that on both parties’ applications, the non-Othodox Christian Christmas, if I can call it that, will be celebrated with the mother, and the Orthodox Christmas with the father. I’m not aware that either of the parties are Aboriginal or Torres Strait Islander parties, nor are the children.
Given the submission made by counsel I give weight to the consideration as to the parties’ attitudes to the children and towards the responsibilities of parenthood demonstrated by each of the parties. I cannot and do not criticise the parties one bit about the manner in which they have undertaken their responsibilities towards parenthood. Because of the parties’ employment, they have utilised the services of nannies or others help, and good on them for doing it. The parties have made decisions when they have needed to make them; decisions that have suited the best interests of their children. I cannot criticise either of the parties for doing that. The parties have not demonstrated a lack of good attitude. In fact, the parties’ attitudes have been good. They have done the things they needed to do. The parties made the compromises that they made. It is what it is, and despite the vast affidavit material; about who did what the court raises not a criticism.
I am asked by counsel for the mother to consider family violence. Based upon the material it is apparent the parties experienced an acrimonious breakup. The parties separated in circumstances where it was never going to be pleasant. I take judicial notice it is never pleasant leaving; that it is never pleasant ending a marriage, and it cannot be; that separation often comes in circumstances where people do bubble over with emotion. Why? Because the parties were emotionally invested at one stage. They loved one another enough to get together; they loved one another enough to have some children. And it is difficult for parties to come to terms with the fact their relationship is over, and that is demonstrated at least in part in this matter by the father needing some help, reaching out and getting some counselling, taking some medication in circumstances where he has an adjustment disorder because on the face of his evidence he is suffering reactive depression.
I cannot make any final findings about it; but I do not find that what took place necessarily on the face of evidence on the actual date of separation, the date of the mother leaving the former matrimonial home was family violence. I have read what the mother says within the family consultant’s memoranda about being abused during the course of the marriage. I cannot make findings about that allegation now. Perhaps I will in the future. I may make findings after hearing the evidence tested; the evidence that there was family violence; but, for the time being, on the evidence I have before me, I simply cannot.
I make it clear that it does not mean that I will not; but, for the time being, I cannot. I am not aware there is any family violence order in place.
I say this to the father; that he needs to take heed of what occurred and what has been said about what took place at the time of separation; during what was a really difficult period. Perhaps the father did act inappropriately; perhaps the mother and her family did act with restraint. There was not police involvement with AVOs. I have seen more from less. So I want the father to think about that as well.
I consider it preferable to make orders that would be least likely to lead to the institution of further proceedings. No matter what order I make today, there will be further proceedings. I cannot do anything about that. These are interim orders pending further order. It may well be that I will change the orders. It may well be that if I make the orders today and things change for the worse that the orders I make today are not appropriate and I will be make orders for less time.
This is not a court where time is ratcheted up but never comes down. Orders are always made in the best interests of the children. For the time being, I will make the best orders that I can, that I think are less likely to lead to the institution of further proceedings. I do not have a crystal ball. And I do know that this matter is far from resolved and far from over.
I consider the primary considerations and consider the benefit of the children having a meaningful relationship with both of the child’s parents. These children will benefit from having a meaningful relationship with both parents. They really will, in an enormous way.
I considered the need to protect the children from physical, psychological harm, from being subject to or exposed to abuse, neglect or family violence. Having read and considered the parties evidence and having considered the submissions of counsel, the court forms the view that the children will not be exposed to physical, psychological harm, abuse, neglect or family violence in your care. They just simply will not on my reading of it.
I go back to Goode & Goode, and the legislative pathway where I am required to decide whether the presumption in section 61DA that equal shared parental responsibility is in the best interests of the child applies, or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence, is not in the children’s best interest or, in an interim order, the court does not consider it appropriate to apply the presumption. So I turn to section 61DA. Goode & Goode refers to it, and section 61DA subparagraph (4) talks about it. Is it in the best interests of the children that there be equal shared parental responsibility. The court does not make any positive findings about abuse of the children and does not make any findings about family violence.
Much has been said about the parties’ inability to communicate during counsel’s submissions, and the fact that the parties have had disagreements. The parties were together as parents during the course of their relationship. And during the course of that relationship over several years, it is apparent there were disagreements about the children. The court takes judicial notice that parents who are loving and happy still have disagreements about their children, but they still manage to make decisions together about long-term issues such as education, health and religion.
I don’t think that it is against the best interests of your children having regards to section 60CC that the presumption is rebutted and one parent have sole parental responsibility. The presumption is not rebutted. And if I have regard to subparagraph (3) of section 61DA, I do not consider it appropriate the presumption not apply. It is not appropriate. It is my view that there should be equal shared parental responsibility. I have before me two functioning adults; high functioning; much higher functioning than a vast majority of the members of our community. These parties, above many others, should have the capacity, and do have capacity, to have equal shared parental responsibility.
These parties need to sort this out. Exercising parental responsibility is some time like physical exercise. If the parties want to sit in their chairs without moving doing nothing they will get atrophy. If they did not physically move anywhere, they would lose the ability to walk. If these parties want me to give them the inability to communicate, if they want me to give them the inability to exercise parental responsibility, I will make an order against equal shared parental responsibility. And I cannot find it because, in my view, it is in the children’s best interests that the parties share it. It truly is in the children’s best interests. It is in their best interests that the parties exercise it. And that if they stumble doing so, that they pick themselves up and exercise it again until they get it right, because it is in the children’s long-term interests that they do, and that is why I make the finding that it is not in the children’s best interests that the presumption be rebutted. There is a presumption in favour of equal shared parental responsibility for good reason.
In those circumstances, then I am required to consider section 65DAA. Goode & Goode talks to the issue of considering section 65DAA and states:
If the presumption applies and is not rebutted, consider making an order that the children spend equal time with the parents unless it’s contrary to the children’s best interests as a result of considerations of more or one of the matters in section 60CC. If equal time is not to be in the children’s best interests, consider making an order the children spend substantial and significant time, as defined in section 65DAA subparagraph (3), with the parent unless it’s contrary to the children’s best interests.
What section 65DAA requires me to do is to consider the best interests of the child, but also consider what are termed as the reasonable practicalities of equal time or substantial and significant time being spent as set out in subparagraph (5) of section 65DAA. The genesis of that subparagraph, of reasonable practicality, is found in decision in T &N’s case. A decision of Ryan J, as she was then a Federal Magistrate in 2001. T & N looked at a number of things, including how parties might facilitate an arrangement of equal time, how parties might communicate about issues that might arise. Where there was equal time how difficulties might be overcome such as the handing over of sports shoes. If one child left the sports shoes at the other parent’s home for a seven day period or extended period, how would the parents go about delivering them back.
It’s my view that it is not in the best interests of [Z] that there be equal time. She is simply too young. I do not make that finding in respect of [X] or [Y]. So I consider subparagraph (5) of section 65DAA as to whether or not equal time is reasonably practicable for [X] and [Y]. Subparagraph (5) requires me to consider how far apart the parties live from one another. The parties do not live too far apart. I know where they both live.
I consider the parents current and future capacity to implement an arrangement for [X] and [Y] spending equal time or substantial and significant time with each of their parents. Through the parties skill and through their employment, they are able to facilitate a wide variety of things for the children. The parties do not work in a factory where they ‘bundy-in’ and ‘bundy-off’ at the start and end of their day where they are a slave to the hours that they work.
The parties are largely, at least in some part, able to set with some flexibility the hours that they work. The parties have a current and future capacity to actually implement an arrangement for equal time.
The next paragraph, subparagraph (c), is the parent’s current and future capacity to communicate with each other and resolve difficulties that might arise in the implementing an arrangement of that kind. The subsection requires the court to consider the parties current and future capacity. So that I might make it clear the subsection talks about capacity.
The parties might have heard counsel for the father say, “You’ve got bucket loads of capacity”. Bucket loads more than most. My view having read the parties articulate affidavits, they do. Having read what the parties have managed, they managed to communicate sufficiently to live under the same roof; although probably in acrimonious circumstances. The parties managed to communicate sufficiently to move halfway around the world so the mother could study, and the parties made things work, and largely they did. The parties are people with an awful lot of capacity to communicate and resolve difficulties. What the parties do with that capacity ultimately is a matter for themselves. But, in my view, the parties have the capacity to communicate sufficiently. They do have the capacity to resolve the difficulties that you might be encounter if there is equal time. And the parties are managing for the moment substantial and significant time.
I must consider the impact an arrangement of that kind would have on a child. The father is not seeking block weeks. If he was, I wouldn’t be making the orders. It would not be acceptable in my view if I look at the effect on the children. Probably not so much [X], but particularly [Y]. For it to be seven nights on, seven nights off, it would be wholly unacceptable. The effect on [Y] would be a disaster in my view. But the orders that the father seeks by splitting the time is not disastrous. In fact, if I look at the effect on the children, it is not, in my view, going to be detrimental.
It is my view that having regards to section 60CC(2)(a) and (b), (3)(a) through to (m), having regards to section 65DAA(1), considering the best interests of the children set out at section 60CC and considering subparagraph (5)(a) through to (e), and I do not consider any other facts as relevant, that it is both in the best interests of [X] and [Y] that there be equal time in the orders sought by the father.
Now, I turn to the orders sought by the father for [Z]. He seeks, on the face of it, substantial and significant time. And that is defined at subparagraph (3) of section 65DAA as “time that falls on days that are on weekends and holidays, and days that do not fall on weekends and holidays”. In other words, weekdays and weekends. And what it does include, really, is overnight. If I consider section 60CC, the effect of the separation of the child from either of his or her parents, the effect of the separation of [Z] from her mother overnight for the time being, in my view, is detrimental to her. If I consider subparagraph (5)(d) of section 65DAA, the impact of an arrangement of that kind would have on the child, I consider again it would be detrimental. There should not be, in my view, for the time being, currently any overnight time for [Z]. I do not think that the days proposed by the father are out of the question. I just do not think there should be overnight time. I really don’t. I think it would be detrimental to her.
So having considered section 65DAA, with respect to the best interests of the child as set out at section 60CC, I find that it is not in the best interests of [Z] that there be substantial and significant time, and otherwise that it is not reasonably practicable when I consider the effect of the impact; an arrangement of that kind would have on the child. So I do not find for substantial and significant time; that is, I don’t find for any overnight time for [Z], pending further order.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 21 January 2015
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
0
3
0