BACOTE & BACOTE

[2020] FCCA 262

FEDERAL CIRCUIT COURT OF AUSTRALIA

BACOTE & BACOTE [2020] FCCA 262

Catchwords:
FAMILY LAW – Parenting – Father seeks week-about arrangement – Mother seeks that the children live with her and spend substantial and significant time with the father – Independent Children’s Lawyer supports the Mother’s proposal – Family Consultant recommends a build up to a week-about arrangement over time – orders made in accordance with the Mother and the Independent Children’s Lawyer’s proposal.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Cases cited:

Goode v Goode [2006] FamCA 1346
Hall & Hall (1979) FLC 90-713
Johns & Jasapas [2016] FamCA 471

Applicant: MS BACOTE

Respondent: MR BACOTE

File Number: DGC 2494 of 2017

Judgment of: Judge Burchardt

Hearing dates: 6-7 February 2020

Date of Last Submission: 7 February 2020

Delivered at: Dandenong

Delivered on: 14 February 2020

REPRESENTATION

Counsel for the Applicant: Mr Marchetti

Solicitors for the Applicant: Chris Woods & Associates

Counsel for the Respondent: Self-represented

Solicitors for the Respondent: Not applicable

Counsel for the Independent Children's Lawyer: Ms Buchanan

Solicitors for the Independent Children's Lawyer: Southern Family Law

ORDERS

1. All previous orders be and are hereby discharged.

2. The parties have equal shared parental responsibility for X born in 2007 and Y born in 2010 (“the children”).

3. The children live with the Mother.

4. The children spend time and communicate with the Father as follows:

   (a)Each alternate week from the conclusion of school or 3:30pm on Friday until the commencement of school or 9:00am on Monday;

   (b)Each alternate week from the conclusion of school or 3:30pm on Monday until the commencement of school or 9:00am on Tuesday;

   (c)By telephone once per week when the children are not in his care for a period not exceeding 20 minutes on each occasion;

   (d)On the Father’s and the children’s birthdays from the conclusion of school until 7:00pm if a school day and from 12:00pm until 4:00pm on a non-school day should the children not already be in his care;

   (e)On Father’s Day from 5:00pm on the Saturday before Father’s Day until 5:00pm on Father’s Day in each year;

   (f)During the Christmas period:

   (i)In 2021 and each alternate year thereafter, from 3:00pm on Christmas Day until 3:00pm on Boxing Day;

   (ii)In 2020 and each alternate year thereafter from 3:00pm on Christmas Eve until 3:00pm on Christmas Day;

   (g)On New Year’s Eve as follows:

   (i)In 2020 and each alternate year thereafter from 30 December 5:00pm until 1 January 5:00pm.

   (h)During the term school holidays, for the week that follows the weekend the children would have been with the Father pursuant to the cycle established by Order 3(a) above for 7 nights commencing on the Friday at the conclusion of school or 3:30pm on the night of that weekend and concluding at 3:30pm on the Friday 7 nights later and the parent who has had the last weekend of the term holidays pursuant to the term time weekend cycle if that has not been interrupted by the holidays will have the children for the last weekend except that if that is the Father his time conclude no later than 24 hours prior to the recommencement of school for the term;

   (i)Over the long summer school holiday period by agreement and failing agreement, as follows:

   (i)On a week-about basis with the Father to have the week commencing on the Friday at the conclusion of school or 3:30pm on the night of that weekend and concluding on the Friday night 7 nights later on an alternating basis throughout the school holiday period.

   (j)Such further and other times as agreed between the parties.

5. The father’s time pursuant to Order 3 above be suspended as follows;

   (a)On the Mother’s birthday being from 12:00pm until 4:00pm should the children not otherwise be in her care with the Father to drop the children at the Mother’s home and the Mother to return the children to the Father’s home;

   (b)On the children’s birthdays from the conclusion of school or 3:30pm until 7:00pm on a school day and from 12:00pm until 4:00pm on a non-school day should the children not otherwise be in her care;

   (c)On Mother’s Day from 5:00pm on the Saturday before Mother’s Day until 5:00pm on Mother’s Day;

   (d)During the Christmas period:

   (i)In 2020 and each alternate year thereafter, from 3:00pm on Christmas Day until 3:00pm on Boxing Day; and

   (ii)In 2021 and each alternate year thereafter, from 3:00pm on Christmas Eve until 3:00pm on Christmas Day.

   (e)On New Year’s Eve as follows:

   (i)In 2021 and each alternate year thereafter from 30 December 5:00pm until 1 January 5:00pm.

6. The time the children spend with the Father pursuant to Order 3(a) and (b) above be suspended during all school holiday periods and recommence in the same cycle after the holidays as if the holidays had not interrupted the cycle.

7. For the purposes of changeover, where changeover does not occur at the children’s school, the Father will collect the children from the Mother at the commencement of his time and the Mother will collect the children from the Father at the conclusion of his time.

8. In the event of serious childhood illness or emergency, the parent with whom the children are with, contact the other parent forthwith to inform them.

9. Each parent keep the other informed of all specialist medical appointments arranged for the children providing the other parent the opportunity to also attend and/or contact the treating practitioner to be kept appraised of the child’s or children’s treatment.

10. For the avoidance of doubt, this order expressly permits either parent to contact and discuss the child or children’s treatment with any medical or like practitioner.

11. Both parties be permitted to liaise directly with the children’s school, the children’s sporting clubs, and any other extra-curricular activity bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress at their own expense.

12. Each party is at liberty to attend at the child’s school or sporting club or any other extra-curricular activity bodies for the purposes of any function or activity normally attended by parents.

13. Each party keep the other informed of their current residential address, mobile and/or landline telephone numbers and any email addresses and advise the other parent of any change thereto within 7 days of such change.

14. Each parent be restrained by injunction from:

    (a)Discussing these orders with the children or either of them;

    (b)Denigrating the other parent or members of that parent’s family to or within the hearing of the children or either of them.

15. The Order appointing the Independent Children’s Lawyer be discharged.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2494 of 2017

MS BACOTE

Applicant

And

MR BACOTE

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting case about the best interests of two children, X, born in 2007, and Y, born in 2010.  At present, the children live with their mother and spend time with their father each alternate weekend from Friday to Monday, together with half school holidays.  The applicant mother, who is supported by the Independent Children’s Lawyer, seeks that that time regime be expanded to include an overnight on Mondays in the off-week because that is something that the children are said to want.  The respondent father seeks that there be a week-about agreement or, in the alternative, that any extra time that might be spent with him be added on, as it were, to the extant block.

2. The father’s case is supported by the Family Report writer but opposed by the Independent Children’s Lawyer who has conducted, for reasons that will become apparent, her own investigations into what the children’s wishes are.  For the reasons that follow, I propose to make the orders sought by the Independent Children’s Lawyer and supported by the mother.

Uncontroversial Matters

1. The mother was born in 1970 and works part time as a tradesperson.  The father was born in 1975 and works for an organisation called Employer F.  His job has recently changed so that his hours of work are now more settled, albeit that they are flexible to the extent necessary for these purposes.

2. The parties married in 2001 and separated in 2013 (although there are some minor differences as to exactly when, that is not material).  The father was previously in a relationship with Ms A, but that relationship no longer continues and he now lives, unlike when he was with Ms A, in the same suburb as the mother.

The Affidavits of the Parties

1. I have read, obviously, all of the parties’ affidavit material carefully and, some of what they say is encapsulated in the agreed matters above.  I note that the mother’s first affidavit, filed 11 August 2017 (the matter has been delayed for reasons which I will turn to) appended correspondence from the father.  This correspondence tends to be somewhat intense and prolix.  I note that part of exhibit “B-3” is an email from Mr Bacote to Ms Bacote sent on 8 June 2017 which, relevantly for these purposes, asserts:

   Ms Bacote,
   I’m going to speak with the girls this weekend to let them know openly, and honestly, of our issues and inability to come to an agreement regarding their care arrangement going forward, as well as reassuring them of our love for them.

1. The email went on to make it clear that the father was going to tell the children that he was seeking an equal shared spend time regime.

2. The father’s first affidavit, filed 8 September 2017, is noteworthy because it is prolix.  I note that at paragraph 36 the father responded to an assertion made by the mother in her first affidavit that he had provided no financial support.  The father deposed:

   I deny that I do not financially support the children at all and say that I have always financially supported the children whilst they have been in my care, that I have in the past and continue, whenever possible, to contribute to the children’s expenses and ask you to refer to documents (which were annexed).

1. I note that the annexed bank statements do not show significant payments.

2. I note that at paragraph 46, the father deposes to taking on care of his own father in December 2016, something that caused his time with the children to decrease, but I should emphasise that this is not a matter for criticism in the circumstances.

3. At paragraph 98, the father deposed:

   That the ongoing emotional trauma that I have experienced as a result of Ms Bacote’s controlling, fixed, manipulative, and now litigious ways of relating, have led me to make my own counterapplication for an Intervention Order against Ms Bacote.

4. The affidavit also has criticism of the mother, including assertions that she has committed financial and emotional abuse.  At paragraph 147, the father deposed:

   That in response to Ms Bacote’s inflexibility, for reasons I have been unable to understand, but appear to be motivated by a determination by Ms Bacote to maintain control, to undermine and devalue my relationship with the children, and perhaps also spurred by envy about my new relationship and the strong bonds formed between the children and my new partner and her children, I continue to experience ongoing distress and disappointment but have maintained my commitment to the children to advocate for their right to have an equally significant relationship with me.

5. In her affidavit filed on 10 September 2019, the wife deposed to the desirability of an extra night in the off-week and further, complained of the father’s failure to return the children’s belongings with them.  Relevantly for these purposes she also returned to the question of financial support and deposed that the father paid only $32 per month to her in child support. It should be noted that the mother lives in a home owned by her parents for which she pays a rent which is less than would be the case on the open market, but her means are relatively limited. She earns $800 per fortnight working as a tradesperson 15 hours per week and now receives $800 per fortnight in Centrelink.

6. In his further affidavit filed on 30 September 2019, the father deposed to having obtained employment with Employer F.  I note that the father deposed that in August 2019 he became aware that the spend time percentages on the child support website were an inaccurate reflection of how much time he had the children in his care.

7. In her final affidavit filed on 28 January 2020, the mother relevantly deposed to the rejection by the father of an offer of an extra night.  The relevant email from the father, dated 18 November 2019, as part of annexure “B-2” and says relevantly:

   Scheduling the extra day on the alternate week, which the girls would of course enjoy, is not in their best interest due to there being more disruption than necessary.

   That extra day would best be tacked on to the block that they are with me, to minimise the disruption of moving from house to house, I am sure you would agree. 

   I look forward to hearing whether that will be the first Thursday evening prior to my weekend or the following Monday.

8. It should be noted that the mother rejected this proposal because, as she put it in her correspondence to the father, the girls had wanted an extra night in the off-week because the time spent between visits was too long.

9. In her final affidavit, the mother also deposed to the complete absence of child support from the father, notwithstanding his subpoenaed payslips revealing significant earnings.  The father had only contributed $150 as half the cost of a deposit for a laptop for the older child in secondary school.

The Section 11F Report of Mr C dated 8 May 2018

1. I note that at that time the father’s accommodation was not suitable to have the children overnight.  I further note that the father agreed he had consumed alcohol excessively during the relationship.  I note that the children enjoyed spending time with their father each alternate Saturday and Sunday, but not overnight, and looked forward to this continuing, hoping to spend more time with him once he had obtained suitable accommodation.  In most other respects, the section 11F report has been somewhat overtaken by events.

The Case Outline and Report of the Independent Children’s Lawyer

1. The Independent Children’s Lawyer filed a Case Outline on 26 April 2019 for the hearing of the trial, due to start that day.  The matter was adjourned because of the absence of a Family Report.  The Case Outline relevantly reads as follows:

   1.2 It must be noted that both the mother’s previous solicitors (Chris Woods & Associates), together with the ICL attempted, on numerous occasions, to communicate and correspond with the father in relation to both the appointment of a Family Consultant to undertake a private family report, and regarding general settlement discussions.  The Father elected to ignore all correspondence and has remained silent on all issues.  Therefore, no Family Report has been prepared and the ICL is not aware of the Father’s position regarding final orders sought (other than those detailed in his Response filed 7 September 2017).

1.3 Given that a Family Report was not able to be undertaken in this matter, the ICL in fulfilling her obligations under the Family Law Act 1975 and the ICL Guidelines personally attended upon the children to speak with them and ascertain whether they each had any wishes to which they sought to be communicated to His Honour and their parents. The ICL attended upon the girls, independent of all parties, on 24 April 2019. To that end the ICL communicated the following to both parties following that meeting:-

Given my obligations as Independent Children’s Lawyer, and particularly in the absence of a Family Report, I have this day attended upon both X and Y at my office.  The girls were seen independently from the Mother and they each confirmed that they agreed to my advising the Court and each of you as to any wishes they wished to express. 

To that end I advise as follows:

1.   Both children presented as happy and content children who are very well mannered and engaging.

2.   Both children expressed independently that the current arrangements are working well and enjoy spending time with the Father (and their dog).

3.   They each sought to remain living with their Mother.

4.   They both indicated a desire to see the Father in the alternate week.  Both girls advised me that they considered it too long between alternate weekends to go without seeing their Father, and as such expressed a desire to have one overnight period, or at least a dinner, with their Father in the off week depending on what their Father could accommodate.  They suggested that a Thursday night might be considered given their activities, but were not adamant as to the day.

5.   Both girls confirmed that each of you allowed communication with the other parent whilst in the other’s respective care, and the girls are confident that each of you will continue to adhere to their request to contact the other parent.

6.   They confirmed that each of you attend sporting events and school activities and that you are cordial to one another during these events.

7.   Both girls were happy to spend equal time with each parent during each of the term school holidays, which includes three weeks over Christmas.

1. Having noted that the parties both made allegations against one another, and the Court would need to determine these, the report continued:

   The clear and unequivocal wishes of both children, (who the ICL has assessed as being mature in thought and communicated well-reasoned wishes), the ICL proposes the following preliminary orders.

2. The orders proposed were to add the extra night from Thursday to Friday in the off-week.

The Family Report

1. Ms D prepared a Family Report dated 2 October 2019.  She noted the current arrangements and relevant family background (paragraphs 1 to 9).  She went on to detail the history of the dispute and the proposals of the parties in terms that are not controversial (paragraphs 10 to 17).  Under the heading Risk Factors, Ms D noted that both parents made allegations pertaining to historical family violence and that the mother alleged that the father used to consume alcohol to excess during the marriage.  In paragraph 24, Ms D noted “In addition the report writer identified the risk factors outlined above as well as the poor co-parenting relationship.”

2. The interviews with each of the parents in my view are generally unremarkable.  I noticed that it is the mother’s perspective that the father had an “all or nothing” approach (paragraph 32) and that the mother had generally sought, it would appear, to keep the children out of the parental conflict (this being the substance of paragraph 33).  I note when asked about the current parenting arrangements the father thought they were going well, but the girls were not spending enough time with him and that the mother had started the current proceedings because she was fed up with him asking for more time (paragraph 40).

3. The allegations about family violence, while traversed by the report, are in my view are of no moment.  The original application by the mother for an Intervention Order is at the lowest end of the scale.

4. I note that when asked about his alcohol consumption the father admitted that he was using alcohol during the marriage to combat his anxiety and that “he consumes two to three glasses of wine most nights, “rarely more than a bottle”” (paragraph 48).

5. I note that the mother described the father as “too controlling” (paragraph 50) and that the father was somewhat critical of the mother as a parent for doing “anything and everything for the kids so they miss out on experiences” (paragraph 51).

1. I noticed that X, who was then 12 years and 3 months, was interviewed and presented as slightly reserved but forthcoming.  At paragraph 58-59, she said:

   58. If X was the Judge, she would tell the parents, “You need to try to come to a fair solution so you don’t need to come to Court anymore”. 

   59. When asked what changes, if any, she would make to the parenting arrangements, if she was the Judge, X stated she would “allow Dad more time.  Just more than a weekend is fair”.

2. Y, then 9 years and 6 months, was also interviewed and, like her sister, spoke positively about both homes.  At paragraph 63, Ms D recorded “I might spend too much time with my Mum and not enough time with my Dad. When asked what she might do about this if she was the Judge, Y stated, “I’d make the days more even”.  She thought this would just be better.”

3. At paragraph 64, Ms D stated “Y was asked about wishes she had for the family and one of her wishes was “to see my Dad more often”.

4. At paragraph 65, Ms D recorded, “If she was the Judge, the message Y would give to her parents is, “You need to try harder to make an agreement””.

5. Observation of the children with each of their parents was wholly unremarkable.  The children plainly have a good relationship with both their parents.

6. The Evaluation section of the report runs from paragraphs 72 to 87.  I have, of course, careful regard to all of it.  I note that at paragraph 77, the report recorded:

   Both girls seem keen for their parents to be able to make an agreement rather than have to come to Court again.  Although neither of them was specific about the additional time, they both wanted to spend more time with their father.  X used the word “fair” twice in offering her views and Y’ language was about time being “more even”.  This is commensurate with the developmental stage of both girls.

7. Paragraph 81 of the report noted:

   Ms Bacote is focused on the girls and is attuned to their needs.  There is no identified risk in Ms Bacote’s home.  There is no indication that she has done anything other than a very sound job in raising the girls and Mr Bacote demonstrated his awareness of the girls’ close relationship with their mother.  Being their main carer up until now, she may find it difficult to consider sharing this role equally with Mr Bacote.  Ms Bacote talked about shielding X and Y from parental conflict, which is positive.  There may be subtle ways in which the girls are still aware of parental conflict, for example, Ms Bacote stated that the girls do not talk about their father at home.  There is a possibility they do not do this because they have not been given “permission” to do so, or do not feel comfortable to talk about their father in their mother’s presence.  This may not necessarily be because Ms Bacote is overtly negative about Mr Bacote but she may not be overly enthusiastic either.

8. At Paragraph 82, Ms D reported a warm relationship between the father and the children and noted that his parenting was not likely to be an issue for the girls because they had already adapted to the different styles of each parent.  She noted that the father valued the development of independence in the girls.

9. At paragraph 83-87, the report noted:

   83. The parents currently communicate by text message and telephone calls.  Although they are somewhat critical of each other, it appears they manage their communication effectively enough.  Ms Bacote would like to keep communication to a minimum, however, there needs to be enough communication to support the girls in both homes and academically, socially, and with their extracurricular interests.  Both parents are encouraged to put their differences aside and focus on communicating effectively for the benefit of the girls. 

   84. Ms Bacote’s proposal is to add an additional night to the current arrangements.  Mr Bacote’s proposal is to gradually add an additional night until there is an equal time arrangement in place.  The main source of conflict in the last few years seems to have been around Mr Bacote wanting to increase the time the girls spend with him, and Ms Bacote resisting this.  One of her arguments is akin to, this is the way it has always been, therefore it should continue this way.  However this fails to take into consideration the girls developmental needs.  What is an appropriate arrangement for a (for example) 3 and 5 year old, is different for a 9 and 12 year old.  In addition, Mr Bacote is living in the neighbouring suburb, and this is one factor that makes an equal time arrangement more workable (distance). 

   85. The girls are likely to benefit from spending additional time with their father and therefore build their relationship with him.  When children have close relationships with their father and the fathers are actively involved in their lives, frequent contact is significantly linked to more positive adjustment and better academic achievement in school-age children, compared with those with less involved fathers.  Active involvement includes help with homework and projects, emotional support, age-appropriate expectations for the children.  More paternal involvement in children’s school has been associated with better academic functioning and behaviour, including more As, fewer suspensions, and a more positive attitude towards school, compared with children whose fathers were less involved. 

   86. Mr Bacote’s graduated plan has merit as it presents a gradual change for the girls and also for Ms Bacote, who will likely not be immediately amenable to the plan.  As she sees the girls coping with the gradual changes, she may place more trust in Mr Bacote and trust that the parenting arrangement can work.  If the parents are ultimately able to develop a more cooperative co-parenting relationship, it may be the case that in the future they can have flexibility within these parenting plans, for example, in the week that the girls are with one parent they may be able to have dinner with the other or spend time with them outside of the week-about arrangements.  It is envisaged that this would work best if instigated by the girls, based on their changing wants and needs, rather than the parents’ wants and needs. 

   87. Both parents would benefit from undertaking a post separation parenting program in order to refine their communication and conflict resolution skills.

10. The report went on to recommend equal time albeit introduced over time, a recommendation that the father limit his alcohol consumption when the girls are with him, and both parties undertake the parenting orders program.

The Submissions Made and Evidence Given at Court

1. What follows is taken from my notes.  Self-evidently, it is not a transcript that records matters that I found of note.

The Opening and Evidence of the Mother

1. Counsel opened the case with a helpful background as to the parties and the issues.  He drew the Court’s attention to the children’s views as expressed to the Independent Children’s Lawyer.  He also noted the issue relating to the failure of the father to provide child support.  It was submitted he had a nil assessment since mid-2019 and before that was paying $32 per month.

2. The mother was called and adopted her affidavits as true and correct.

3. Under cross-examination by counsel for the Independent Children’s lawyer, the mother confirmed she works about 15 hours per week, including every Wednesday and Friday, every second Saturday, and every second Monday night.  The mother said that the father works full time and is sometimes on call, and that on one occasion he was absent while the children were in his care.  They share school holidays, during which sometimes he takes the children to work for a few hours.  Counsel traversed with the mother the Independent Children’s Lawyer’s case outline, to which I have already referred.  The mother noted that what the children wanted was happening, except for the off-week.  The father was in Country E in 2019 for two weeks following the death of a younger sister.

4. This cross-examination was relatively brief.  The father expressly elected not to put any questions to the mother, notwithstanding that the potential consequences of failure to challenge her evidence were explained by the Court.

5. In re-examination, the mother confirmed that the children do sports training during the week and play their games on Saturdays.  The younger child has music lessons.  They do not see the father during mid-week because he does not attend training or the music lesson.  He attends all the children’s games.  Y trains for sports on Tuesday and X on Wednesday.  Y did have music lessons on Tuesday but this is about to change to Wednesday.  The girls have said they would like Monday or Thursday with their father in the off week.

The Opening and Evidence of the Father

1. The father, who was self-represented, says he had done everything to spend time with the girls after he had obtained accommodation.  His father became ill and he cared for him for five years.  He had always sought more time.  There had been several unsuccessful mediations.  He had lived with Ms A for a time.  He obtained a full-time job in 2018 and this was continued in March 2019. 

2. His father had died this year (I understood him to mean 2019) and then his brother-in-law.  He can purchase two weeks’ leave per year, which enables him to spend six weeks with the children.  Flights to Country E are expensive (the father is from Country E). 

3. His employer is flexible as to working hours and he has the children from Friday to Monday every second week.  He can make any other arrangements for work if necessary.  He wants a fifty-fifty regime to work up to.  He wants one extra night per school term until equal time is reached.

4. The father adopted his affidavits as true and correct.  Under cross-examination by counsel for the mother, the father said he usually starts work at 9:00am and works a 38-hour week, finishing at 5:00pm.  He works in Suburb G, 20 to 25 minutes’ drive from his home.  On Fridays, he leaves work to pick the girls up.  He is aware of difficulties with Child Support.  He said he pays for the sports registration and club membership but does not have a set amount that he gives to the mother.  He has not made any payments this year. 

5. He had to go to Country E in November.  X is in year 7 this year and he has paid $150 towards her laptop.  He had joined Employer F and had let the Child Support Agency know as Child Support was direct debit.  In September 2018, he had told Child Support of his income.  He did not monitor it.  Last October, he was notified and discovered that the time he was assessed to spend with the children was zero. 

6. It was put to him that he had taken from October until February to notify the department of his employment.  He said he was not aware he was paying nothing.  It took time to update his salary.  It was a time of stress and his attention was elsewhere, as he was dealing with family matters.  He went on to say he earns about $1,800 per fortnight net.  This is paid into his bank account.  Since October last year, he has only paid the $150 for the laptop but will pay half of the total of $1,500. 

7. Before October, he had thought he was contributing.  Since, he has had to take time off without pay as a result of the emergency.  Ordinarily, he is able to support the children.  He thought he was paying about $50 in Child Support and thought he had told the Child Support Agency what his income was.  He would like to be able to contribute more.  When pressed, he conceded that $8 a week was not a meaningful contribution. 

8. I would interpolate and say that the father’s evidence about all matters to do with Child Support was manifestly evasive.

9. It was put to the father that the girls would cost him more money if they spent the week about arrangement.  The father said that, during the school holidays, it is already week on/week off and the children have not gone wanting. 

10. The father was taxed with having rejected the proposal for an extra night made by the mother in November 2019.  He said he did not wish to compromise his case in court.  He was aware the children want in between time and would take extra time if it was ordered.  He used to have a few hours on Wednesday nights.  The Family Report said there should be extra time and there should be minimal disruption.  Any extra time should be added to the block.  The father said that the parents had different parenting styles and thoughts.  It is cordial when they meet and he does not disparage the mother.  There are differences of opinion between them (which seemed to me to emerge that he wanted more time and the mother disagreed).  They have been able to cooperate on holidays.

11. The father was cross-examined about exhibit “B-3” to the wife’s first affidavit.  He said he had let the girls know he would like to have more time.  He had not told the children that he was in Court today, nor had he told the children he was seeking week-about.  He had told them he wanted to be with them as much as possible.  He knows they want more time. 

12. I regret to say I should interpolate again and say that the father simply refused to answer questions put to him and was evasive and non-responsive on this issue.

13. The father said he had the children week-about in school holidays.  He had attended every first day at school.  He had been to parent-teacher interviews but he and the mother do not go together because she refuses.  He does not go to sports training because he is usually at work but this may change.  He attends all their games, whether in his care or not.  He would take the children to music lessons if it was in his time.  The father said he felt resentment at separation and not having the children with him all the time. 

14. This was not, however, why he was seeking equal time.  He disagreed that shared residence was not possible.  He had not embroiled the children in the case.  They want things to be fair; they do not see the parents in conflict when they are together.  He denied being critical of the mother.  He was asked what was good about the mother and said, after some delay, that the mother had never not provided for the children.  She encourages their interests.  There would be no problems if there was equal time.  This would not require resilience for the children. 

15. There had been week on/week off in the Christmas holidays recently.  This was agreed just at the start of the holidays.  He had to go to Country E because his sister died.  He suggested week on/week off and the mother agreed.  The girls went with him to work some days.  There is a skeleton crew between Christmas and New Year and the children went to work with him for two days.  On one day, they were there until 3:00pm and one day until lunchtime.  Communications between the parents are now better.  They communicate by texts or at changeover and sometimes emails.  They do not pass messages through the girls.

16. Under cross-examination by counsel for the Independent Children's Lawyer, the father said he did not have a poor opinion of the mother.  He denied, in a fashion I have to describe again as prevaricating and evasive, having negative views about the mother.  I should make it clear that I do not believe him.  He said that the mother is not so much controlling about time now as she was before.  The father said he had got a new job in January 2020.  There has been a recent pay rise across the sector but not because of a new job. 

17. His work hours are flexible.  He did not agree it would be a huge change to week-about and he did not accept the Independent Children's Lawyer’s Case Outline over the Family Report.  He agreed that the children miss him in the off week.  He agreed that the children were not concerned about disruption that might occur with a day in the off week.  He said he was “knowing in my heart they would like to have more time”.  When asked why he did not accept the children’s views as expressed to the Independent Children's Lawyer, he responded that the views were not decisive. 

18. The father was cross-examined about his drinking sometimes more than a bottle of wine and his answer was prevaricatory.  He said he has two to three glasses of wine per night but does have some alcohol-free days.

19. In re-examination, the father said he had never been unable to look after the girls because of alcohol. 

20. The matter was adjourned overnight to enable Ms D to be available.

The Evidence of Ms D

1. Ms D adopted her report, which is tendered as exhibit “C-1”.

2. Under cross-examination by counsel for the Independent Children's Lawyer, it was put to her that the father had a very negative view of the mother.  Ms D agreed.  Counsel took Ms D to paragraphs 103 and 106 of the father’s first affidavit and suggested that this was not a good scenario for shared care.  Ms D agreed and said this was why she had recommended the parties undertake the Parenting Orders Program.  She conceded that the children had not specified that they wanted week about. 

3. It is her practice just to ask children what equal time might look like and it was in that context that Y said one day with one parent and one day with the other or two days.  She had not ignored the views of the Independent Children's Lawyer.  She did not see any risk factors in the father’s home apart from drinking.  The default position was shared care.  The parents were living in the same suburb and their relationships were not the worst she had ever seen.  X will be 13 in June and her views are significant. 

4. She had asked X how the current orders were going and asked if she wanted change.  X had not specified but just said she wanted more time with her father.  It is possible that the preference of the children had changed over time (ie, since the interview with the Independent Children's Lawyer).  The children did not use the phrase week about and she did not think that the father had exposed them to this. 

5. Ms D conceded that it was not in the best interests of the children that the father had rejected the extra night he was offered, nor was it in their best interests that he had adopted that position for tactical reasons.  When asked how to minimise the risk of the father’s drinking, Ms D says this was still a coping strategy but the father is now seeing a counsellor.  Ms D confirmed the accuracy of paragraph 51 of the Family Report, in which Mr Bacote was critical of the mother as a parent.

6. When it was put to her that the father appeared in the past to join any new partner with whom he had commenced a relationship, Ms D said that it seemed to her that the father has now committed to the children and had reconsidered this practice.  When it was put that a jump to equal care was excessive, Ms D said that she had taken the children’s views into consideration.  X had asked for arrangements to be more fair.

7. Ms D said that, if risk factors are low, and the parties live in the same suburb and have a positive relationship with each other with a graduated plan to move to equal time, then she would consider equal shared care.

8. Under cross-examination by counsel for the mother, Ms D denied the default position was shared care.  She did, however, say words to the effect that, “The default position at family law is equal time” and went on to qualify this by saying “in some ways”.  Her observations with the mother had taken about half an hour.  She was cross-examined about her notes, which were tendered as exhibit “C-2”.  It was put to her that she had had equal time in her mind while interviewing the parties. 

9. Ms D says that she has to visualise such a proposal.  She could not recall if she had asked the parents if they had undertaken the Parenting Orders Program.  If it was not in her notes, it did not happen.  If the mother has undertaken a Parenting Orders Program and the father has not, it would be a good idea for the father to undertake it and possibly for the mother to do it again. 

10. Ms D was asked to comment on exhibit “B-3”, in which the father had said he was going to let the girls know his position.  Ms D was not concerned about that, although the parties should not talk about Court issues.  Counsel put to her the proposition that fairness was something that was often raised by children of this age and that the children were aware of the antagonism between the parents.  Ms D said this did not ring any alarm bells.  Fairness was developmentally appropriate.  It did not mean that they were involved in the conflict. 

1. Ms D did confirm that the children had said they wanted to continue to live with their mother.  Ms D had considered the effect of equal time and that is why she suggested a gradual introduction.  She appeared to equivocate and suggested it might have been better, on reconsideration, to have recommended a weekend and then a day in the off week. 

2. Under cross-examination by the father, Ms D confirmed that, following six years of separation, the children were used to two households.  Children do not like change but if it was supported by both parents, they would adapt.  These are not rigid children because they wanted more time with the father.  The less changeovers, the better.  She had not had the impression there were loud arguments between the parents, who were able to communicate.  They were effective enough communicators.  Neither child has said anything to suggest that the parents were denigrating one another.  Finally, she confirmed that her recommendations in her Family Report still stand.  

Final Submissions by the Independent Children's Lawyer

1. Counsel submitted that the dispute was shared care or one extra night.  The Independent Children's Lawyer still says one extra night.  Shared care does not live well with the children wanting to live with the mother.  The shared care recommendation, it was submitted, arises in a vacuum.  The children expressed clear views in 2019 and the family reporter had not put particular positions to the children.  Neither child was asked what they thought about week about.  The children are very well settled with the mother and also have a very good relationship with their father.  Monday in the off week is preferable.  X is 12-and-a-half and will be 13.  She has just started year 7.  Significant changes were undesirable.

Final Submissions of the Mother

1. Counsel adopted the Independent Children's Lawyer’s submissions.  The evidence was clear that the children wished to live with their mother.  He pointed to the memo prepared by the Independent Children's Lawyer.  It was regrettable that equal shared care came about as default position.  Counsel referred to Ms D’s notes in this regard.  The children were young at separation and have lived in a stable relationship with their mother.  Nonetheless, there is a very good relationship between the father and the children and the mother deserves credit for this.

2. Counsel submitted that the week about arrangement did not address the time between visits but I respectfully disagree.  The father has been dogged.  Counsel pointed to the case of Johns & Jasapas [2016] FamCA 471, in which Tree J traversed the sort of matters that should be borne in mind in considering equal time. Here, the relationship between the parents was not good enough to make equal time workable or desirable and it was unfortunate that the children were involved in the dispute. That was why the children had expressed a desire for fairness. The extra Monday night would be perfect.

Final Submissions of the Father

1. Mr Bacote said that the case was about the girls’ best interests.  He has a house and flexible work.  Ms D is an extremely experienced counsellor (something I accept).  X and Y want more time and equal time.  The equal time leads to better results for children.  He has always sought more time.  He would be happy to have midweek contact if equal time was ordered.  One extra day in the alternate week is disruptive.  Any additional time should be added to the existing block.  He was prepared to undertake the Parenting Orders Program. 

Brief Observations About the Witnesses

1. The mother was a composed and excellent witness who answered all the questions put to her directly and fairly.  I note she was not challenged in cross-examination by the father, albeit that this doubtless springs from his lack of professional skill and experience. 

2. The father, as I have indicated, and I regret to have to do so, on a number of occasions was a poor witness.  He has had the great misfortune to suffer a number of very serious family losses in recent and/or relatively recent times and was very understandably, on occasions, labile.  Nonetheless, the fact is that he simply failed to answer a number of questions in any kind of direct or responsive way and this is unfortunate.

3. Although I will have some criticism to make of the conclusions that Ms D reached, despite being strongly pressed by both counsel, in my view she was answering the questions directly and honestly, albeit that, as I say, I will have some criticisms to make of her conclusions and the way she reached them.

Statutory Pathway

1. Against this background, I turn to the statutory pathway set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:

   “Summary

   [65]    In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2.  The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3.  If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4.  The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5.  When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6.  The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
   (s 65DAA(5)).

   7.  The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (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 and 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.

   8.  Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9.  The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11.    The child’s best interests remain the overriding consideration.”

Parental Responsibility

1. There is no dispute about parental responsibility and there will continue to be an order for equal shared parental responsibility.

The Primary Considerations: Section 60CC

1. Everyone agrees that it is in the children’s best interests to have a meaningful relationship with each parent and, indeed, they already do so.

2. Family violence is not, in my view, a matter of concern.

The Additional Considerations

Section 60CC(3)(a)

1. The children have expressed what I find to be clear views as to what they would wish to see happen.  As Ms D was driven to concede in cross-examination, both children have expressed that they wish to continue to live with their mother.  X, who is rapidly approaching her 13^th birthday, said that she wanted to give her father more time and that just more than a weekend is fair.  Y said that she did not spend enough time with her father and would wish to make the days more even and that it would just be better.

2. These views are not in any way inconsistent with what the two children told the Independent Children's Lawyer in May of 2019.  At that time, they were quite clear that what they wanted was an extra night in the off week.  There is no reason to believe that their views have changed and, as I say, what they told Ms D was entirely consistent with what they had previously expressed.  Ms D appeared, in her evidence, to suggest that the children’s views should not be given excessive weight but, in my opinion, particularly in the case of X, her views, given her age and the clarity of the expression of her wishes, should be given considerable emphasis.

Section 60CC(3)(b)

1. The children have excellent relationships with both of their parents and it is not necessary to say more than this.  There is no significant degree of evidence as to their relationships with other family members.

Section 60CC(3)(c)

1. Both of these parents have taken or at the very least sought to take every opportunity to participate in making decisions about major long-term issues in relation to the children and spend time and communicate with them.  It is true, of course, that there was a period when the father’s presence in the children’s lives was qualified by the fact that he was a full-time carer for his own father, but the fact is that he has an excellent relationship with them now and this, together with the fact that he has prosecuted his case to judgment, properly illustrates both his desire to be with the children and the success of his relationship with them.

Section 60CC(3)(ca)

1. The mother has always been the primary carer of these children and has been, since separation, effectively their sole financial supporter.  One area of the evidence in which the father performed extremely poorly was in cross-examination about his child support.  It is quite clear that he has been dilatory, to say the least, in his Child Support obligations.  He was paying a staggering $32 a month until October last year and has paid nothing since then, save $150 as half of a deposit for X’s laptop. 

2. My impression was that his position, in truth, was that if he had the children half time, then he would provide half their financial care but if he did not, he would limit, so far as the law enables him to do so, his assistance to looking after the children’s financial needs when they were actually in his care.  His failure properly to address his Child Support obligations is unfortunate.

Section 60CC(3)(d)

1. The likely effect of the introduction of the position contended for by the Independent Children's Lawyer and the mother will be entirely satisfactory.  The children have told the Independent Children's Lawyer that they want one day in the off week and have also said that they want more time with their father to Ms D.  The extra week is highly likely to be attractive to them because they feel the gaps between time with their father are too long.

2. The position contended for by the father is likely to be unsatisfactory to the children. They have always lived in the primary care of their mother and to remove them into an equal time regime is unlikely to be of assistance to them. I will return, under section 60CC(3)(m) to what is to be made of the Family Report recommendations in this regard. The father’s alternative position that any extra time simply be added on to his current block shows, in my view, his limited insight. The children are complaining they do not see him often enough and merely to add one extra day to the existing block of time will not significantly reduce that deficiency.

Section 60CC(3)(e)

1. Although something has been made of the practical difficulties of transfer, in my view, there is no significant practical difficulty or expense associated with the regimes contended for by either party.  True it is that the father’s style of parenting is to tell the children to collect their own belongings prior to going to school or transfer as the case may be, whereas the mother supervises this more closely.  Indeed, as I observed during the running, this appears to be the only identified difference in parenting style that the evidence has disclosed.  This may lead to tedious difficulties experienced by the mother because of the father’s lapses, but this is clearly at the margins.  Neither proposal put by either parent, in my view, faces any significant practical difficulty and no one has pointed to any matter of expense. 

Section 60CC(3)(f)

1. Each of these parents are well able to provide for the children’s needs.  The nature of the children’s very good relationships with each of them points very clearly to this conclusion and it is not necessary to say more than that.

Section 60CC(3)(g)

1. In my view, the mother presented as a very well-balanced, thoughtful and insightful parent.  Her evidence was given with composure, even though she was only briefly challenged.  The father, who it must be noted has had to face some appalling personal tragedies of relatively recent times, struck me as slightly self-focused insofar as his relationship with the children was concerned.  His failure to pay Child Support suggests an inability to see where his responsibilities lie.  Nonetheless, and this is implicit in both parties’ positions, the father plainly is appropriately equipped to provide the appropriate care for his children.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. As is often the case, this matter has already largely been dealt with above, notwithstanding its importance.  The mother impressed me as being a person entirely attuned and properly so to her children’s needs.  The father, despite a somewhat possessory attitude which, as I find, has much to do with his, as he would put, dogged determination to achieve equal time, nonetheless, is taken overall an entirely satisfactory parent. 

Section 60CC(3)(j)

1. There is no relevant family violence in this matter as I find.

Section 60CC(3)(k)

1. There have been Intervention Orders in the past but these, to my way of thinking, have been largely tactical and they are certainly not now of any significance.

Section 60CC(3)(l)

1. It is plainly desirable to make final orders now and all parties seek it.

Section 60CC(3)(m)

1. This brings me to the question of the recommendations in the Family Report. 

2. Ms D’s position seemed to me, from time to time, to go close to a presumption in the absence of vitiating factors in favour of an equal time regime.  She said words to the effect that the default position was shared care and said something to the effect that there was something akin to a presumption of equal shared care in family law.  That is plainly not the case, although of course, there is a rebuttable presumption as to equal shared parental responsibility.

3. Ms D conceded that shared care requires good communication as an essential pre-condition and was driven, under cross-examination by counsel for the Independent Children's Lawyer, to concede that the father had a very negative attitude towards the mother.  She conceded that the children did not specify that they wanted week-about but it should be noted that Ms D’s answers were fair when she said that this was something she did not press upon children. 

4. Nonetheless, it is clear from her notes, being exhibit “C-2”, that she was considering equal time and configurations of it when she was interviewing the children.  Tellingly, when under cross-examination by counsel for the Independent Children's Lawyer, Ms D said she had not seen any risk factors in the father’s care apart from his drinking and because the parties were living in neighbouring suburbs and the relationship between the parents were not too bad (I think her words were the relationship was not the worst she had seen), her position was equal shared care.

5. As I say, under cross-examination by counsel for the mother, Ms D said something to the effect that the default position at family law is equal time in some ways.  That is not the case.  I note that the time Ms D had with the children was certainly not as long as the Independent Children's Lawyer in the preceding May.  I further note that the children’s observations about fairness may well be developmentally appropriate, but the fact is that the children have given a clear expression of their views to the Independent Children's Lawyer and what they put to Ms D was not inconsistent with that. 

6. In my view, the conclusion is inescapable that, at least in this instance, Ms D, who had noted the proximity of the parents’ residences and, in the scheme of things, the relative lack of acrimony and risk factors moved of her own notion to considering equal time.  It was an understandable reaction and not one that merits criticism. 

7. Nonetheless, in the end, it is for the Court to evaluate the evidence.  The reservations expressed by the Full Court in Hall & Hall (1979) FLC 90-713 at page 78,819, to which I refer by reference, are plainly relevant here.

8. In my opinion, the equal time regime is not what the children have asked for and to the extent that Ms D formed that conclusion, in my view, she was wrong. 

Conclusion

1. In my view, a balancing of all the competing relevant considerations points inexorably in favour of the orders proposed by the Independent Children's Lawyer and mother.  I have the benefit in this case of an extensive interview by the Independent Children's Lawyer with the children and the clear expression of the children’s views.  I am conscious of the recommendations of the Family Report, which was, in truth, the only matter really relied on by the father in support of his case other than his own desires to have the children with him for an equal amount of time, but I think that the Family Report is not persuasive.

2. First, I think that in these particular circumstances, Ms D leapt too readily to a conclusion that equal time was appropriate.  True it is that the parents live in the same suburb but their communications are fraught.  That is a well-accepted contra-indicator of the workability of equal time.  Furthermore, and contrary to Ms D’s conclusions, it is quite apparent that Ms D elided from the starting point of the proximity of the parents’ residences and, in the scheme of things, the relative lack of significant risk factors to a presumption of equal time that was not warranted.

3. The children did not tell her they wanted it.  They told her they wanted to continue to live with their mother.  What the children did tell Ms D was not inconsistent with their earlier clear expressions of view to the Independent Children's Lawyer and, in any event, may simply reflect, as Ms D herself conceded, an age-appropriate commitment towards concepts of fairness in general.

1. In my view, the orders proposed by the Independent Children's Lawyer and mother are plainly those that are in the children’s best interests, bearing in mind not only these salient matters but the other matters to which I have referred in this judgment. 

2. It should be noted that there are some (minor) differences in the Minute of Orders proposed by the Independent Children’s Lawyer and the mother. The mother’s proposal for a Monday in the off week is clearly preferable because it exactly bifurcates the gap of time between time with the father. It seems also to fit better with the children’s extracurricular activities. I have drawn draft orders consistent with the mother’s proposed orders and will hear from the parties in case there are any matters I have overlooked.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  14 February 2020