Backwell and Backwell

FEDERAL CIRCUIT COURT OF AUSTRALIA

BACKWELL & BACKWELL

[2013] FCCA 1968

Catchwords:
FAMILY LAW – Parenting – equal time between parents for children who are five and three years of age.

Legislation:

Family Law Act 1975

Federal Circuit Court Act 1999

Federal Circuit Court Rules 2001

H & H (2003) FLC 93-168

Tait & Densmore [2007] FamCA 1383 (170)

Applicant:

MS BACKWELL

Respondent:

MS BACKWELL

File Number:

MLC 472 of 2013

Judgment of:

Judge McGuire

Hearing date:

21 November 2013

Date of Last Submission:

21 November 2013

Delivered at:

Melbourne

Delivered on:

6 December 2013

REPRESENTATION

Solicitors for the Applicant:

Unrepresented

Solicitors for the Respondent:

Unrepresented

ORDERS

That all extant orders in respect of the children X born (omitted) 2008 (“X”) and Y born (omitted) 2009 (“Y”) (“the children”) be discharged.
That the father and the mother have equal shared parental responsibility for X and Y.
That the children live between the parents on a week-about basis with changeovers to take place on Fridays at 5.00 pm or otherwise as agreed between the parties in writing.
That the children spend time with the parent with whom they are not living each Wednesday between the conclusion of school (or kindergarten) and 7.30 pm with the parent then enjoying time with the children to return them to the other parent.
That in any event the children spend time with the parent with whom they are not otherwise living on Christmas Day from 3.30 pm until Boxing Day at 5.00 pm.
That except for order 4 hereof, changeovers for the purposes of these orders which do not occur at the children’s schools or kindergarten take place with the father or his agent collecting the children from the mother’s residence at the commencement of time and the mother or her agents collecting the children from the father’s residence at the conclusion of time or otherwise agreed between the parties in writing.
Not later than 28 February 2014, the mother enrol in and then complete as directed a recognised Post Separation Parenting Course.
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 472 of 2013

MS BACKWELL

Applicant

And

MS BACKWELL

Respondent

REASONS FOR JUDGMENT

These are proceedings concerning two children, being X (X) born (omitted) 2008 (aged five years) and Y, born (omitted) 2009 (aged three years).
The applicant father seeks parenting orders whereby X and Y live in an equal time basis between the parents, week-about. He proposes that each week be broken by the children enjoying an evening meal with the other parent.
The mother’s preference is for the children to spend each second weekend with the father from Friday at 4.30 pm until the following Monday at 9am or the commencement of school. She also proposes an evening meal in the off-week with the father. She would, however, be content with the continuation of the current interim arrangement whereby X and Y spend time with the father on a fortnightly cycle, being in the first week from 4.30 pm Friday until 4.30 pm Monday and in the second week from 4.30 pm Thursday until midday Saturday.
These parents commenced cohabitation in 2001 and married in 2004. Separation under the one roof occurred in April 2012 until both parties left the home in about July. They then agreed a regime with the children to be with the parents on a fortnightly cycle of three days in one week and four in the next week resulting in X and Y spending seven days each fortnight with each parent. The mother unilaterally ended that arrangement in February 2013 claiming that the children were coping. The father’s initiating application was in fact filed on 24 January 2013 citing the mother’s threat to change the arrangement.
The father argues that the parents have significantly improved their abilities to communicate, cooperate and collaborate in respect of their children and despite their personal difficulties which followed the breakdown of their marriage. He says that he has a strong bond with the children and has historically been a hands-on and involved parent. Mr Backwell argues that there was an equal time arrangement agreed between the parties post-separation and that this worked satisfactorily in the interests of the children, despite their young ages. That arrangement saw the children spending four days with one parent and three days with the other each week of the fortnight cycle from August 2012 until February 2013. Mr Backwell implies that the mother unilaterally changed this arrangement out of self-interest and contemporaneously with there being a dispute as to use of a family motor vehicle.
The father acknowledges that the parents provide different parenting styles and models but that these are complementary and not contrary to the children’s interests.
The father says that the current arrangements are impacting negatively on the children’s relationship with him. He says that they suffer separation anxiety and express to him that they wish to spend more time with him and miss him when they are with the mother. In his affidavit evidence and in Court, Mr Backwell was at pains to emphasise his own parenting capacity and that he can provide better for the children’s health and welfare than the mother, saying that he fed the children healthy meals and was more inclined than the mother to involve the children in outside and extracurricular activities.
My observation of Mr Backwell’s evidence was that it was given with an emphasis on the negative aspects of the mother and he was inclined to be critical of her parenting at every opportunity, although conceding at times that “she is a good mother”.
Mr Backwell relied on three affidavits sworn 13 February, 14 March and 31 October 2013. He also adduced evidence from his mother, Ms S.
Ms S, not surprisingly, was a partisan witness for her son. There was a striking similarity in answers given by both of them in cross-examination. She deposed to an active role in these young children’s lives. She has cared for the children when both parents have been working. She is willing to do so within the confines of her working herself as a (occupation omitted). Significantly, however, Ms Backwell volunteered a good, communicative, friendly and regular relationship with the maternal grandmother, which has continued post the separation of their son and daughter. Her evidence is that she and the maternal grandmother facilitate time for each with the children and speak regularly in respect of them. They invite each other to their homes.
The mother’s case is that she does not believe that the children could cope with a week-about arrangement. She says that the children are happy with the current routine and that the children manifested anxiety and behavioural issues with the previous four/three and three/four arrangement due to the numerous changeovers. She says that Y had regressed with her toilet training, although this has improved since February when the previous arrangement ceased and the current interim orders were put into place. She refers to the children having difficulty in settling on their return to her and having sleeping problems. She says that the children are “clingy” when it comes time to leave her care. She says that the children question the amount of time that they will be away from her. Ms Backwell says that the children’s primary attachment is to her and that they look to her for comfort.
The mother also argues as to the practicality of the father’s proposal. She says he works long hours, currently does not have a motor vehicle, and lives at (omitted), which is some distance from the children’s proposed schools at (omitted), whereas she lives adjacent to the schools.
Finally, Ms Backwell does not accept that the previous communication, respect and trust issues between the parents have dissipated.
My observations of Ms Backwell in the witness box and the contents of her affidavit material are similar to those of the father. Her evidence was negative in respect of his capacity and commitment. She took every opportunity to criticise the father’s motives and parenting capacity.
At this point, it is pertinent for me to note that the conduct of this case by both parties had an emphasis on financial matters, despite me informing them both regularly that such issues would play a minimal or nil role in my determination. Each cross-examined the other at length as to child support issues. Each used this parenting case to inquire as to the circumstances of the father removing a particular motor vehicle from the mother in February 2013. This was one of a number of indicators suggesting to me that these two parents have not yet been able to dispose of their personal residual issues following the breakdown of their marriage. Given that both parties represented themselves, it was at times difficult to have each of them focus on the matters before me which were those of the children’s best interests. Nevertheless, both conducted themselves professionally and with courtesy in the trial.
The Court had the great assistance of a family report prepared by Ms D, psychologist. Interviews for that report took place in April 2013 and the report was filed with an affidavit on 15 May 2013.
Ms D’s recommendations are as follows:
a)That both parents have equal, shared parental responsibility for the children.
b)That the current routine remains in place (being the interim orders made by consent on 18 March 2013, whereupon the children live with the father on a fortnightly basis from Friday afternoon until Monday afternoon in the first week and from Thursday afternoon until midday Saturday in the second week and live with mother at all other times).
c)That both parents complete a post-separation parenting course.
d)That both parents attend for ongoing professional parenting advice to address a range of parenting issues, to establish and improve communication and establish complementary households.
e)That if the matter proceeds in the Court, the progress of arrangements for the children be reviewed, if necessary, prior to a final hearing.
Despite these recommendations being available to the parties as long ago as May of this year, the mother has not yet completed the post-separation parenting course. She says that she is now enrolled to do so in February 2014. The father has completed the course and gave evidence that it had greatly assisted him in focusing on the children’s issues and the need for communication and cooperation with the mother. He says that he has committed to those improvements.
Ms D’s report notes the acrimonious nature of the separation, no doubt complicated by the mother initiating it and forming a new relationship. She also observes the financial issues between the parties which seem to have permeated the marriage, the separation and issues between them since.
The mother emphasised to Ms D the ongoing communication difficulties, including an alleged assault by Mr Backwell on the mother’s new partner. Ms D was privy to numerous abusive and threatening text messages from the father to the mother and annexed to the mother’s affidavit. Notably, the father alleges that the tenor of such communications was mutual.
Ms Backwell reported to Ms D that she was the primary and more available parent for the children, whereas[1]:
Commenting on the children’s relationship with their father, Ms Backwell contends the relationship is based on the children “seeing him as someone who buys them new toys”. In terms of his parenting, Ms Backwell claimed, “He won’t play with them; he’s not very emotionally available to them”: a view she repeated a number of times. Indeed, she claimed no bond – “I don’t think it’s a bond – between the children and their father.”
Ms Backwell described X as a sensitive child, and claimed Mr Backwell is more focused on X:that way “…do boys’ things together”. Y she described as having “an affiliation with females”, who has never had an attachment to Mr Backwell. Ms Backwell claims that, generally, Mr Backwell does not like women, and is “quite harsh” with Y.
[1] Family report paragraphs 26-28
Ms Backwell repeated to Ms D the general theme of her case before me at paragraph 30 of the report thus:
Ms Backwell opposes Mr Backwell’s proposals of a shared care rotating four/three routine; “I am strongly against it. I will never support it. It’s disruptive; our parenting styles are different”. She illustrated these differences as the children being able to jump on couches and bed at their father’s or paternal grandmother’s homes. More significantly, Ms Backwell believes the sleeping patterns are different for the children in each household; with the children going to bed too late at their father’s home.
Ms Backwell wants an outcome whereby the children can have a continuing relationship with their father, but believes the overnight stays are not working. She believes overnights are an issue for Y; since they impact on the child’s insecurities, as the child gets up during the night. Ms Backwell said, however, “I’m open to more than two nights a fortnight” if the parenting styles are similar.
Ms D concludes in respect of Ms A at paragraphs 32 and 34 as follows:
Ms Backwell presents as a woman who seems threatened and undermined in her parenting role by Mr Backwell. Clearly, she feels financially unsupported given the reduction in child support and her claim that Mr Backwell has told her he will no longer pay 50 per cent of the kindergarten and school fees. There is a sense that, at times, she struggles in her parenting role; both to meet the children’s financial needs and to manage and accept their continuing relationship with their father.
Ms Backwell herself is, however, child-focused; and there is no information that she does not, or cannot, attend to the children’s needs, if perhaps she can be a little overzealous and controlling. The implementation of a behaviour modification program for 2 young children, who are not reported as having behavioural difficulties, seems a little over the top and unnecessary.
Ms D’s interview with Mr Backwell also highlighted the financial aspects of the relationship although he tended to deflect some blame to the mother.
Mr Backwell was noted at paragraph 43 of the report saying:
Of their current relationship, Mr Backwell said he could be “amicable”, but, “in front of the kids we are immature”. His view of the children’s relationship with their mother is that it is “…pretty good; I think Ms Backwell is a valuable part of their life; she’s a good mum; she’s loving; she buys them nice clothes”. On the downside he feels her parenting needs to be “tempered”; that she “showers them with gifts; I think they’re spoilt”.
Ms D notes Mr Backwell acknowledging the different parenting styles between he and the mother but says that he provides boundaries and routines for the children. He was critical of the mother “not feeding them vegetables” and “the children are not socialising with other children, not playing outside, and, that it was he who pushed for day care”. Mr Backwell repeated that he thought the four/three arrangement from August 2012 had worked well and emphasised his shared parenting of the children in the couple of months that the parents had separated but remained living under the one roof.
Ms D had the advantage of seeing the children with each parent. With the mother she observed[2]:
Notably, Ms Backwell’s response to the children was ambiguous. She was unable to assert herself with the children; did not speak firmly or decisively to them, or give them a serious look. Rather, she asked, or implored, Y to return to the playroom, with “Honey, we’ve got the whole day together” or, “Mum’s going to be a little bit cross”, in a soft, gentle voice.
[2] Family Report paragraph 58
And with the father: (family report paragraph 60)
When Mr Backwell arrived, the children greeted him enthusiastically; running to the door to greet him, grabbing his legs with mutual hugs. Mr Backwell brought refreshments for the children. The observed play was calm, focused, quiet and organised. In observation there was no evidence that Mr Backwell is emotionally unavailable to the children as Ms Backwell asserts. On the contrary, he was child-focused, able to attend to their needs with no indication that he favours X over Y, or that Y does not have an attachment to her father, as Ms Backwell asserts.
What was noteworthy was the children’s attempts to re-unite their parents during these interviews. Y first ran from the playroom to the interview room to tell her mother that her father had arrived; “Daddy’s here”, and attempted to take her mother’s hand to lead her into the playroom.
Interestingly, at paragraph 70, Ms D notes:
X impresses as an anxious child, trying to loyal to both parents. While both children can manipulate their mother in different ways, X’s way is by being affectionate towards her. It may also be that he is attempting to parent his mother.
Neither party required Ms D for cross-examination. She concluded inter alia the following:
a)The parents have different recollections as to whether the previous shared care living arrangement had worked for the children;
b)Neither parent is entirely happy with the interim orders from March 2013 in that Mr Backwell wanted more time with the children and Ms Backwell wanted less time for the children with the father;
c)The parents’ criticism of each other, as people, demonstrate a lack of good will towards each other and that both described continuing personal and parenting differences and difficulties;
d)That the financial issues between the parties stood out as being significant as to the nature of the parental relationship and the “level and adequacy of their communication with each other”;
e)There are differences in parenting styles across the households that might confuse the children “who require similar routines, similar parenting styles and approaches, as best as possible, across both households”;
f)That, overall, X and Y are well cared for, well loved, well fed children;
g)That a problem with the current arrangement is that it encroaches on the children’s weekend time with their mother.

Relevant Law

Part VII of the Family Law Act 1975 (“the Act”) provides for parenting orders. Section 60CA of the Act stipulates that the Court must consider the best interests of the children as its paramount consideration in making such parenting orders.
Section 60B of the Act lays out the objects of part VII and the principles underlying those objects as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

The Act applies a presumption that parents have “equal shared parental responsibility” for their children (section 61DA of the Act) being for practical purposes that they are able to communicate and cooperate in the important decision-making functions for those children. The presumption does not apply if the Court is able to find that there has been family violence within the definition in the Act. Alternatively, the presumption is rebutted if it is found to be contrary to the children’s best interests. In the matter now before me, each party seeks an order for equal shared parental responsibility and despite their various arguments as to difficulties with communication and cooperation and also despite the allegation by the mother that the father has assaulted her partner. On reflection, I am of the view that there should be equal shared parental responsibility in these parents. I adopt the comments of Ms D that these are essentially good and loving parents and that the children are bonded to each of them. They have not long been separated and are understandably dealing with their own personal difficulties emanating from the marriage breakdown. The father, to his credit, has completed a post-separation parenting course and alludes to the benefits. The mother is to complete such a course.
Significantly, if there is an order for equal shared parental responsibility then the Court must enter into a course of consideration of parenting regime options. Firstly, the Court is to consider whether the children’s best interests are served by them spending equal time with each parent which is in line with the father’s proposal. The Court must also be satisfied that such a regime is “reasonably practicable”. If the answer to either of those questions is in the negative, then the Court turns to consider whether the children spending “substantial and significant” time with each parent is both in their best interests and reasonably practicable. The mother being content with Ms D’s recommendations, such a model would fit with “substantial and significant time”. The definition of substantial and significant time is defined in the Act (section 65DAA(3) ) as:
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The Act defines “reasonably practicable” as: (section 65DAA(5) of the Act)
In determining for the purposes of sub-sections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
In H & H (2003) FLC 93-168, Ryan FM (as she then was) provided a more comprehensive list of reference points for such a determination. I am assisted by her Honour’s observations despite H & H being a judgment prior to the significant amendments to the Family Law Act made in 2006. At paragraph 47 of that judgment, her Honour states:
Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child’s welfare;
·The physical proximity of the two households;
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
·Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern;
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise;
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities;
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent;
·The child’s wishes and the factors that influence those wishes;
·Where siblings live;
·The child’s age.
At paragraph 48, her Honour goes on to say:
This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s.65E nor s.68F(2) (now read section 60CC).
Section 60CC of the Act sets out the considerations that the Court is obliged to address in the ultimate question of what orders would be in the children’s best interest. That section is divided into “primary considerations” and “additional considerations” as follows, although there is no hierarchical importance save that recent amendments oblige the Court to place greater weight on s.60CC(2)(b) if there are findings that the children have been subjected to or exposed to family violence. Rather the Court is to address each factor as to the probitive evidence together with the proposals of the parties and to attribute weight accordingly.

The evidence in respect of the section 60CC factors

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of the children’s parents.

The observations of Ms D are of these two young children having an attached, bonded, loving, and comfortable relationship with each of their parents. This is to be expected given that I accept that each parent was involved in the care of the children prior to separation. After separation they lived under the one roof and this involvement continued. There was then soon an informal arrangement of shared care.
Having noted the current relationship between children and each of the parents, it is the task for this Court to make orders which assist those relationships in a prospective manner. The authorities make clear, however, that it is the quality of the relationship rather than simply the quantity of time that underlines a meaningful relationship between children and parents. As Cronin J observed in Tait & Densmore [2007] FamCA 1383 (170):
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.

Section 60CC(2)(b) – the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

Despite one serious allegation by the mother against the father, neither party relies on this subsection. Significantly, the mother’s “fall back” proposal is that the children spend unconditional time with the father on five days per fortnight. I infer, therefore, that she does not fear that the children’s safety is compromised in the care of the father.

Section 60CC(3)(a) – any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views.

These children are still very young and, as such, they would be unable to rationalise any views or preferences in respect of their living arrangements.

Section 60CC(3)(b) – the nature of the relationship of the children with each of the children’s parents and other relevant persons.

The tenor of the mother’s evidence, in her affidavits, in Court and to Ms D, was that the children are hesitant and reluctant in their relationship with their father. I reject this evidence. Rather, the observations of Ms D were to the contrary and that these children are comfortable in their relationships with each of their parents. Importantly, it seems that these two young children benefit from close and regular relationships with grandparents on both sides. They are fortunate in being regularly cared for by their grandmothers and manifest the benefits of the grandmothers having a mature, friendly and cooperative relationship which are traits not necessarily evident in the parents themselves.

Section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, (1) to participate in making decisions about long-term issues in respect of the child; and (2) to spend time with the child; (3) to communicate with the child; (CA) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain the child.

There is much argument in this matter as to the father discharging his financial obligations to the children and in particular in respect of child support. A history of financial difficulty and dispute highlighted this case. Generally, however, I find both that the mother tends to overstate and the father tends to understate the reality. There was little doubt that the father is not spontaneously financially generous to the mother. They tend to seek “contributions” from each in respect of every financial outlay for the children and each guard their own financial positions jealously. Both parents are, however, in employment. I am satisfied that they each provide financially for the children although each remains suspicious as to the motives and intentions of the other.
There is no doubt on the evidence that the mother acted unilaterally to end the informal but mutually agreed shared care arrangement from August of last year. Again, the father was quick to argue the contemporaneity of her doing so with he having also unilaterally removed a motor vehicle from her possession. She denied any connection.
Each is now critical of the other’s parenting and motivations and reluctant to concede positive parenting traits in the other. Notably, the mother’s views of the father’s parenting skills and his relationship with the children is at odds with the observations of Ms D which, together with her unilateral change of the previous arrangement, suggests that she is not objectively encouraging of the children’s relationship with the father. Similarly, however, the impression I got at times from the father’s evidence was of him being somewhat empowered and entitled in his application for equal time also at the expense of an objective focus on the children’s best interests. In this respect, each parent in their evidence was prone to phrases such as “I want…” and “It’s not fair…”.

Section 60CC(3)(d) – the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either parent.

The mother’s case focuses on this consideration. Undoubtedly, the children are young and these Courts regularly take evidence from behavioural scientists as to the preference for very young children to have a primary home base and attachment rather than the confusion of multiple home bases and regular changeovers between parents. Nevertheless, these two young children have already experienced a shared care regime. They have done so with there being up to five changes for them in a fortnight on their parents’ prior informal arrangement. Significantly, in my view, the observations of Ms D suggest that there has been little negative impact on the children. They were certainly not hesitant in their relationship with their father. They were able to transit easily to him from the mother and whilst the mother has noted some anxiety and behavioural issues with the children, she is not privy to how they settle with the father which, of course, on his evidence, is easily and comfortably.
The mother says that there have been improvements in the children’s behaviour and level of anxiety since the interim orders in March. It follows then that she argues that a further change to the father’s proposal would cause the children to regress. Whilst this is a possibility, it is also speculation and neglects that there may be other explanations for the children being more settled including that they are becoming more socialised and adaptable as they get older. I am of the view that Ms D’s observations of the children and their relationships is noteworthy and that it follows that a change from the current five nights per fortnight to the seven nights proposed by the father is not a significant change either in number nor in regime. Indeed, the father’s proposal would involve less changeovers of residence for the children each fortnight than is currently the situation.

Section 60CC(3)(e) – the practical difficulties and expense of the children spending time with and communicating with each parent.

The mother also relies on this consideration. She lives close to the children’s proposed primary school. The father lives in (omitted) and is currently without a motor vehicle. His evidence is, however, that he has an income of $90,000 a year and has savings that would easily allow him to purchase a motor vehicle. The father intends to move to (omitted) so as to be close to the mother and the children’s school. His evidence is that he is in the process of seeking out such new accommodation. The mother argued that the father’s poor credit rating would be likely to prevent this occurring.
Importantly, each of these parents works but has the great benefit of the paternal and maternal grandmother being willing and able assistants in collecting and caring for the children as needed. Again, the (perhaps unusual) mature and friendly relationship between these grandmothers serves to alleviate any practical difficulties between the parents.
Generally, I do not see there being any practical exclusions to the father’s proposal for the children to spend equal time between the parents and, in fact, such practical considerations are equally as relevant to a five day/nine day fortnightly arrangement.

Section 60CC(3)(f) – the capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs.

The mother says that the children look to her for comfort. She implies that the father is, in a way, distant from the children’s needs. Again, the observations of Ms D were contrary to those of the mother. Similarly, my observation of the parties in the witness box was of each being a capable parent. They each acknowledge different parenting styles and models. The mother relies on this as a reason for her to be the primary parent. The father says that complementary parenting styles can be of benefit to the children in giving them a broader perspective. Each argument can be valid. It remains incumbent upon the mother to recognise that the father may have a different parenting style but that they need not be necessarily exclusive. Similarly, it is for the father to be more respectful and less petty in his criticisms of the mother’s parenting style. For example, the father in his evidence in Court volunteering that he had observed the mother “feeding the children sausages” was unnecessarily critical and says more about the father’s lack of insight than it does as to the mother’s parenting.
Although these parents have been together for almost 10 years and parented together for four years, they both impressed in the witness box as somewhat immature and self-interested in their parenting and their personal priorities. I accept the father’s evidence that he has benefited from the post-separation parenting course and suggest that the mother would do likewise.
Again, each parent’s criticism of the other’s capacity is tempered by their own proposals being, on the father’s part, that the mother have care of the children on seven days per fortnight and the mother’s concession that she would agree to the children being with the father on five days per fortnight. I must necessarily infer, therefore, that each concedes the capacity of the other.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks are relevant.

This subsection is not relevant.

Section 60CC(3)(h) – if the child is an Aboriginal or Torres Strait Islander.

This subsection is not relevant.

Section 60CC(3)(i) – the attitude to the children, and the responsibilities of parenthood, demonstrated by each of the child’s parents.

I am satisfied that each has generally accepted the responsibilities of parenthood. Their attitudes, however, need attention. The sense of priority in the trial of this matter was in respect of the parents’ own negative attitudes to each other and financial matters. They then tended to use these parenting proceedings as a vehicle to espouse criticisms of the other. These parents must quickly realise that their responsibility is to parent these children until they are 18 years of age. Whether or not they maintain personal hostility to each other is a matter for them but they must show the maturity and objectivity to put aside these often petty differences and issues and focus on their parenting responsibilities cooperatively.

Section 60CC(3)(j) – any family violence and intervention orders involving the children or a member of the children’s family.

There is evidence that the mother’s partner has taken out an intervention order against the father. Otherwise, family violence issues do not feature highly in this matter.

Section 60CC(3)(l) – whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.

The possibility or probability of further proceedings between these parents is not related to whether the Court makes orders for equal time or substantial and significant time for the children with each of them. Rather, it is related to the personal animosities and sense of entitlement of each parent.

Section 60CC(3)(m) – Any other fact or circumstance that the Court thinks is relevant.

These proceedings, both in evidence before me and in the Family Report, are highlighted by the negativity of each parent towards the other. Undoubtedly, the marriage broke down in acrimonious circumstances and that each parent, in their own way, has had difficulty in moving on given that they share children. There has been a lack of open communication. There has been a lack of trust. There has been little mutual respect. Ms D’s report makes it clear that the children, despite their young ages, and particularly X, has felt his parents’ antagonism towards each other. The father professes a newfound understanding and commitment to communication and cooperation. He speaks of “collaboration”. Nevertheless, his evidence in Court showed a continuing tendency to take every opportunity to be critical of the mother and to focus on personal financial issues rather than those relevant to the children.

The mother was similarly critical and negative. I am concerned that she tended to rely upon the fact of poor communication and trust to support her case whilst not having completed the suggested and ordered post-separation parenting course. Generally, I saw the mother as being less optimistic and showing less inclination than the father to improve their communication and it is open for me to find that she has taken this position out of self-interest and so as to shore up her own case rather than ultimately for the benefit of the children.

Discussion and conclusions

The mother seeks a traditional regime of the children living primarily with her and having every second weekend with the father. She would, however, concede an arrangement whereby the children spend substantial and significant time with the father on five days per fortnight in accordance with the recommendations in the Family Report. In the witness box, however when pressed, she volunteered that her preference would be for the children to have the more limited time with the father. Generally, I gleaned that she was prepared to emphasise negative aspects of her relationship with the father in order support her own case. Similarly, however, the father impressed as also being self-interested and entitled in his application.
I place substantial weight on the observations of Ms D. Those observations of the parents were generally in accord with my own. I note that Ms D saw a close, loving and easy relationship between the children and their father. This is contrary to the mother’s opinion and evidence.
These children have already experienced a shared care arrangement and perhaps one more onerous than now proposed by the father in the number of changeovers. Whilst they are still young, there is no objective evidence, other than that of the mother, that these children have suffered or reacted negatively to that previous regime. I must view the mother’s comments as to negative impact on the children within the context of her not being privy to the children being in the care of the father and to the contrary observations of Ms D.
Any arguments by either parent as to the capacity of the other must also be seen in the context of the orders that they seek or that they would concede. To put it simply, a parent must have a similar capacity in respect of skills and facilities in caring for children on five days per fortnight as they would for seven days per fortnight.
In summary, I find that these children have enjoyed a meaningful relationship with each of their parents and remain at ease with those relationships. It is the parents who emphasise any negative aspects. The difficulties between these parents seem to be personal and often petty and not always related to the children. The pity is that these proceedings seem to have been an opportunistic conduit for them to air those unresolved personal matters.
I must firstly consider whether the children spending equal time between their parents is both in their best interest and reasonably practicable. I am so satisfied. I repeat, that there is little manifest difference between parenting for five days and parenting for seven days. There is no evidence before me that the children’s relationship with either parent is reluctant difficulties as changeovers are between the parents themselves. I am satisfied as to the capacity of each of the parents and heartened by the assistance they receive from the grandmothers. I accept the father’s commitment to greater communication and cooperation although there is clearly still work remaining to be done by both parents evidenced perhaps by a dispute at changeover only about a month ago which resulted in the father making a threat to call the police when the transit became difficult.
I am of the view that the mother’s primary proposal would result in a gap of some ten or so days in the children spending beneficial time with the father and in this respect I do not accept that a meal “for a few hours” on a Wednesday night is a sufficient substitute.
I am satisfied that the father’s proposal is reasonably practicable. Indeed, the practicalities are similar, if not the same, for the substantial and significant arrangement conceded by the mother.
In all of the circumstances, I am satisfied that the children’s best interests are served by them living in an equal shared care regime between the parents. Despite the limited practical value, I accept that these children are young and that a meal for the children with the other parent on a Wednesday night of the off-week is appropriate.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 6 December 2013

[2013] FCCA 1968

6 December 2013

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Family Law

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