Bane and Bane

FAMILY COURT OF AUSTRALIA

BANE & BANE

[2009] FamCA 1062

FAMILY LAW – CHILDREN – Parenting orders – conflictual relationship – matter dealt with on submissions and with the assistance of experts’ advice

Family Law Act 1975 (Cth)

APPLICANT:

Mr Bane

RESPONDENT:

Ms Bane

FILE NUMBER:

MLC

312

2008

DATE DELIVERED:

5 NOVEMBER 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

5 NOVEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR HANNAN

SOLICITOR FOR THE APPLICANT:

EALES & MACKENZIE

COUNSEL FOR THE RESPONDENT:

MR JAMES

SOLICITOR FOR THE RESPONDENT:

WESTMINSTER LAWYERS

Orders

That all previous parenting orders are discharged.
That the husband and the wife have equal shared parental responsibility for the children of the marriage M born … May 2005 and K born … January 2007.
For the purposes of paragraph 2 of these orders:
(a)each parent is entitled to obtain all school reports, notices, newsletters, photographs and like information from the children’s schools and kindergarten;
(b)each party is entitled to all medical information in respect of the said children including but not limited to the children’s medical conditions, proposed treatment and progress of treatment and to participate in all medical appointments and appointments with health professionals.
That the husband and the wife each otherwise do all acts and things with any medical practitioner, health practitioner or educational authority or school to provide all such information as may be required to give effect to paragraph 3 of these orders.
That the husband and the wife each have sole responsibility for the day to day care, welfare and development of the children when the children are in the care of that party pursuant to the terms of these orders.
That the children live with the wife at all times other than those set out hereafter.
That until the last day which concludes the first school term for the year 2011 (as defined by the state school system in Victoria), the husband spend time with the children as follows:
(a)each alternate weekend from 10.00am (or the conclusion of kindergarten and/or school commencing in the year 2010) on Friday to the beginning of childcare, kindergarten and/or school on the following Monday and in the event that Monday is a public holiday, until 10.00am on the Tuesday morning commencing on Friday 13 November 2009; and
(b)each alternate Wednesday from 10.00am (or the conclusion of kindergarten and/or school commencing 2010) until 10.00am on the following day (or the beginning of childcare, kindergarten and/or school) commencing Wednesday 11 November 2009.
That from the commencement of Term 2, 2011, the husband spend time with the children as follows:
(a)during school terms, during each alternate weekend from the conclusion of childcare, kindergarten and/or school on Thursday to the beginning of childcare, kindergarten and/or school on the following Monday (and in the event that the Monday is a public holiday to the same time on the Tuesday) commencing on the same cycle as in paragraph 7; and
(b)during school terms, during each alternate Wednesday from the conclusion of childcare, kindergarten and/or school until the beginning of childcare, kindergarten and/or school the following day commencing on the same cycle as set out in paragraph 7.
That regardless of whether either child is of school age and attending school, the husband spend time with the children during school term holidays as follows:
(a)in 2010, for five continuous nights commencing at the conclusion of childcare and/or kindergarten on the Friday of the last day of the term until 4.00pm on the following Wednesday;
(b)during the year 2011 and in each odd-numbered year thereafter, from the conclusion of childcare, kindergarten and/or school on the last day of the school term until 4.00pm on the middle Saturday of the term holidays; and
(c)during the year 2012 and during each even-numbered year thereafter, from 4.00pm on the middle Saturday of the holidays until 4.00pm on the Sunday immediately prior to the resumption of school.
That for the purposes of long summer holidays, the husband spend time with the children as follows:
(a)during the 2009/2010 summer holidays for two periods of five continuous days commencing at 4.00pm on 2 January 2010 and concluding at 4.00pm on 7 January 2010 and from 4.00pm on 15 January 2010 and concluding at 4.00pm on 20 January 2010;
(b)during the summer holidays in 2010/2011 for two periods of seven days being the periods from 4.00pm on 1 January until 4.00pm on 8 January and from 4.00pm on 15 January until 4.00pm on 22 January;
(c)during the summer holidays in 2011/2012 for two periods of seven days being the periods from 4.00pm on 25 December until 4.00pm on 1 January and from 4.00pm on 8 January until 4.00pm on 15 January;
(d)for the summer holidays commencing in the period 2012/13, for a period of one half of the whole holidays by agreement and in default of agreement, the first half in the holidays which begin in odd-numbered years commencing on the last day of the school term and the second half in the holidays which begin in even-numbered years commencing at the midway point of the holidays.
That on the birthdays of each child, the husband spend time with both children from 3.30pm until 5.30pm if a weekday or from 2.00pm until 7.00pm if on a weekend.
That the husband spend time with the children from 4.00pm on 25 December 2009 until 4.00pm on 26 December 2009 and from 4.00pm on 31 December 2009 until 4.00pm on 1 January 2010.
If the Easter holiday break occurs during a period which is not during school holidays then the husband spend time with the children from 4.00pm on Good Friday until 4.00pm on Easter Saturday in odd-numbered years and from 4.00pm on Easter Saturday until 4.00pm on Easter Monday in even-numbered years.
That the husband spend time with the children during a weekend in which Fathers Day is the Sunday from 4.00pm on the Saturday until the commencement of childcare and/or school on the following Monday.
That any time under these orders between the husband and the children shall be suspended as follows:
(a)if the birthday of either child falls on a week day when the child would be spending time with the husband and if so, from 3.30pm or the conclusion of kindergarten or school until 5.30pm or in the event of the birthday falling on a weekend from 2.00pm until 7.00pm;
(b)from 4.00pm on 24 December 2009 until 4.00pm on 25 December 2009 and from 4.00pm on 1 January 2010 until 4.00pm on 2 January 2010;
(c)If the Easter holiday break occurs other than during a school holiday period, from 4.00pm on Good Friday until 4.00pm on Easter Saturday in even-numbered years and from 4.00pm on Easter Saturday until 4.00pm on Easter Monday in odd-numbered years;
(d)On each Mothers Day from 4.00pm on the Saturday of the Mothers Day weekend until the commencement of childcare and/or school on the following Monday.
That all time pursuant to paragraphs 7 and 8 are suspended during all school term holidays and long summer holidays.
For the purposes of the collection and the delivery of the children, the husband or his nominee shall collect the children from childcare, kindergarten and/or school at the commencement of his time with the children and return them there at the conclusion of his time but if the children are not attending childcare, kindergarten and/or school, the father or his nominee shall collect the children from the residence of the mother at the commencement of the period and the mother shall collect the children from the father’s residence at the conclusion of the period.
That unless otherwise agreed, the children shall be enrolled in and attend kindergarten and school in an area zoned to the mother’s residence.
That the parties maintain a communication book in respect of the health of the children, their educational requirements and details of their routine and such book shall travel at all times with the children when moving between households.
That each party advise the other through the communication book of any extra curricula activities in which they wish the children to participate but neither party shall be responsible to contribute towards the costs of such activities organised by the other or be responsible for taking the children to those activities unless otherwise agreed.
Each party shall at all times keep the other advised of their residential address and telephone number and advise the other party no less than 7 days in advance of any change of those details.
Each parent shall notify the other as soon as possible of any serious medical illness or injury affecting the children in their care as well as advise as soon as practicable the names of all the treating medical practitioners.
That all outstanding applications be otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That pursuant to s 65DA(2) and s 62B, 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 312 of 2008

MR BANE

Applicant

And

MS BANE

Respondent

REASONS FOR JUDGMENT

This is a parenting dispute about the time each parent spends with two children.
In the words of the expert Mr. P, this is as acrimonious a dispute as one could find where there is no common sense.
To their credit however, the parties have resolved most of the issues between themselves but require “micro management” in respect of the daily activities associated with parenting.
The saddest thing of all is that they will parent their children in a parallel way. These children are young and vulnerable. Time will tell whether the dysfunctional relationship of the parents adversely affects the children.
The parties began living together in July 2001 and married in May 2003. They separated in October 2007 and divorced on 17 January, 2009.
The husband is an engineer aged 36 years and the wife is an administration clerk aged 32 years.
The two children are M born in May, 2005 who is therefore aged four years and K who was born in January, 2007 and therefore two years of age.
The proceedings began in January 2008. Many things were resolved between the parties themselves. For the purposes of my determination, the parties proceeded by way of written and oral submissions. The only evidence of substance to which both parties pointed and upon which they relied was the evidence of the expert Mr P.
The matter first came before me on 15 April, 2009 at which time I adjourned it at the request of the parties, for six months to allow them to attend upon Mr P. I noted at the time that in line with Mr P’s recommendations, the parties had agreed on a regime of time by the husband with the children of four nights in fourteen.
In the affidavit of Mr P filed 15 April, 2009, he noted that both parties shared concerns about the children and the impact of that upon the whole family. He gave the parties some options. The first was for the father to have the children each alternate weekend from 1:00 pm. Friday to Monday morning and an overnight in the alternate week. Mr P described this as possibly the outer limits of what was tolerable for the children but it did create a clear boundary and ensured continuity for the children. Mr P then said that the maximum time for holidays with the husband should be four days leading up to five in the ensuing summer months.
As an alternative to the proposal above, Mr P said one could speculate about the future but it was better to micro-manage the situation and work with the parents as decisions became necessary.
Mr P made an interesting observation that whilst the parties were not good candidates for mediation, they were good at post-separation parent management, by which I understood him to mean that decisions could be made as they were needed.
Unfortunately, the parties were unable to resolve all matters. Subsequent to April, they returned to Mr P and in September, he completed a report which was attached to an affidavit sworn 6 October, 2009 and filed in the proceedings.
As this was the only evidence of substance upon which I could rely, I propose to deal with the evidence in some detail before I turn to the issues as raised by the parties.
Mr P said that the parties found it enormously difficult to reach any point of compromise. When I turn to the issues that the parties required me to determine, that will be evidence.
Mr P said there was a continuous and persistent theme of conflict, competition and a battle for control. He said that the husband was continuously struggling with the notion of wanting more time and to be actively involved in the lives of the children and in particular decisions, whereas the wife was focusing on issues surrounding the ages of the children. This latter point in relation to the wife becomes important for my determination because Mr P noted the concern of the wife in trying to create a visitation schedule that was in keeping with the developmental needs of the children as well as managing the demands of the husband. Mr P then said :
These two dynamics have been manifest very clearly through every aspect of their interaction, from the choice of kindergarten to the child care arrangements and no extending to future visitation plans. I cannot emphasise enough how quickly and how easily this conflict becomes polarised to a point that their relationship as parents becomes rendered almost non-functional.
Despite all of the doom and gloom, Mr P found that the children appeared to be doing well and had a sense of belonging in the home of each parent.
Almost with an air of resignation, Mr P said that the parties had no capacity to share the care of the children, could not be flexible nor accommodating and did not harbour any goodwill towards one or another. Mr P said that the children spent very separate times with their parents but did so comfortably. Finally he remarked that they parent “in extreme parallel” and there was no semblance of co-operative parenting whatsoever.
Mr P’s recommendation was that there needed to be fixed, immutable arrangements as well as constraint that governed the time spent between each parent and the children. Those restrictions however required consideration of the developmental realities of the children.
Mr P therefore recommended in respect of some of the ancillary issues that I have to deal with, that over the 2009/2010 summer holiday period the children should have two periods of five days with their father and in the following summer break that time could be increased to one-half of the holidays whether it be for a two week period or two periods of seven days. Beyond 2011, the period should be one half of the holidays.
Mr P commented on telephone communication disputes and said this was likely to continue to be an ongoing problem. He thought that any orders would be unworkable and the implementation of them would be punitive and over-bearing. In the next sentence in his report however he said that the children should be free to speak with their father whenever they wanted to. I do not propose to make orders in respect of the telephone communication one way or the other having regard to the fact that I suspect it could be easily manipulated. If I made orders along the lines of the father being able to speak to the children, it would require precise times and in this case that seems problematic. If I was to make orders in respect of the children ringing their father, and they did not do so, I suspect it would lead to accusations that the mother has manipulated the situation. I agree with Mr P that making any orders is unworkable.
I also take into account in respect of telephone communication that these children are very young and that their span of concentration in respect of a telephone conversation must be limited. When the parties ultimately get to the point when they have some trust in one another, they can perhaps work that out in a different way.
Mr P noted that the husband’s major interest was to be actively involved in the lives of the children and their activities, however that desire gave rise to a significant amount of conflict. Mr P’s view therefore was that the family would do better with structure, predictability and routine.
All of that was unchallenged and each of the parties relied upon it, noting Mr P’s expertise as a social scientist.
In many ways this is a case where the objectives of the legislation need to be viewed in the light of the sort of evidence set out above from the social scientist.
The objects of every parenting case are set out in s 60B(1) of the Family Law Act 1975 (Cth) (“the Act”). These are the desired outcomes for all children. The provision reads :
(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.
To endeavour to achieve those objects, a variety of principles have been set out in the Act. The principles are the parliament’s desired considerations for all children in cases where there is parental dispute. The provision reads as follows :
(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).
Having regard to the evidence of Mr P, it is hard to see how a court could positively craft orders which would ensure the objects of s 60B(1) were met because the parties have set themselves to parent in a parallel way and with their focus on themselves. They might disagree with that focus but it would seem that Mr P has a different view. I have little confidence that they could work co-operatively to achieve the objects of the Act.
In respect of the principles to which I have referred underlying the objects, again because of the parallel parenting, neither seems to consider the importance of the other and more importantly, the rights of their children as described in those principles. Section 60B(2)(d) could never be achieved here.

Section 60CA provides :
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Whilst the best interests of the child in a case such as this are the paramount consideration, they must be seen as over-riding the desires of the parents as set out by Mr P. That is, subjectively, I have to determine the best interests of the children notwithstanding that the husband desires to spend as much time as he possibly can with the children and be involved in their lives and the decision making processes. Similarly, whilst the wife is very focused on the developmental stages of the children’s lives, I have to factor in that there is a need for the children to have a significant involvement in the life of their father. However, of the two principles to which Mr P referred, a much greater emphasis must be made upon the developmental stages of the children’s lives as was the focus of the mother.
Section 60CC(1) says as follows :
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
A consideration of the provisions in s 60CC(2) and (3) indicates that the children do enjoy a good and meaningful relationship with both parents, but the court must endeavour to reduce the opportunity for conflict in their lives. Apart from the conflict, all other indicators about parental capacity and responsibility would suggest that the children are in good hands. Mr P warned about the need to consider the considering developmental stages of both children but particularly K and I propose to do that.
The focus therefore in the orders is on reducing the area of conflict as well as disagreement. I cannot see any way of achieving the objects and principles and thus it is in the best interests of the children that they enjoy as much of each parent as they can without the inevitable problems that have occurred until now. There are many problems that I cannot avoid.
I raised with the parties the difficulties that arise from the absence of communication. They have no way of informing each other at short notice of illness that might require changes to the routine of the children.
The parties will have to work out a way of determining what is an illness that justifies one parent saying the child should not go with the other parent on a particular day. I pointed to the problems that arose from relying on medical certificates. I pointed to difficulties about medication and educational issues where the only communication is through a book that travels with the children and hence the delay in the communication.
In time, parallel parenting gives rise to inconsistencies in parenting practises. There is no provision I can think of to assist the parties to resolve those issues. The husband said that I should make an order that the parties go back to Mr P in twelve months time. The wife said that they should go if it was necessary. I see little point in either position. If the parties were serious about the parenting of these children, they would put down the cudgels.
The position of the parties was set out in their respective proposed orders. The distinctions are relatively modest and would normally not require judicial determination. Such is the problem here that the parties require precise orders.
In respect of holidays, in the future, the parties could not agree whether the time should commence at 10:00 am. or 4:00 pm.
The husband wants 10:00 am. and the wife 4:00 pm. I have provided for the latter because I suspect it will be less stressful early in the morning for these children because of their ages.
The parties did not agree on when changes should be made to holidays and what periods of time should be made in respect of holidays. I have carefully considered the evidence of Mr P and I propose to determine the basis along the lines that he suggested.
In respect of a communication book, I see no way around the problem if it is the only way in which the parties can keep the other informed.
The parties have even disagreed about whether there could be attendances at functions involving parents, but to their credit, that issue seemed to resolve in the running of the submissions before me.
There were complications in their respective submissions about the birthdays of the children and the involvement of the husband in them. One of the problems obviously is that K was born in January which means that the summer holidays have to factor in her birthday.
The husband wanted to spend time with the children on his birthday but at the ages of these children, their parental birthdays will not be of much significance. That is something the children can work out with their respective parents as they grow old enough to understand the concept. It seems to me that requesting specific orders in relation to the attendance of children on their parents’ birthdays focuses on the needs of the parent rather than on those of the child.
I have already mentioned the question of telephone contact. I can see no way in which that would do anything other than exacerbate the conflict between the parents. Accordingly I propose not to make any orders in respect of that.
The parties disagreed on the changeover point for times when the collection and return was not at the crèche, kindergarten or school. The wife indicated feeling uncomfortable about having to travel to the residence of the husband. It seems to me however that it is logical that the husband should collect the children at the commencement of the period and the wife should collect them at the end of the period. The children will quickly learn that their parents do not like one another and do not communicate, so will simply collect their bags and return to their mother without much ado. The parties to their credit agreed that the grandparents could be involved in the collection and return of the children and until such time as the situation of conflict lessens, that may be a very sensible solution.
Such is the level of mistrust that the parties could not agree initially on the drafting of words about time notification of changes of address. In discussions with counsel it became clear that there was nothing untoward intended and it is appropriate that each parent gives seven days notice to the other.
The parties also had concerns about whether one would take advantage of the other by moving to a different location which would cause problems if they were sharing the care of the children in some way. That problem should be resolved on the basis that the schooling of the children will have to be in the residence zone of the wife who has indicated through her counsel no desire at this stage to move away. For the time being, the childcare facilities in the future will be G Centre in C.
Accordingly, I propose to make the orders I have drafted on the basis that I can see no other solution. I appreciate that it is impossible to cover every contingency and the parties would do well to find a mechanism for conciliation in the event a dispute arises. Perhaps Mr P might be that mechanism. In the event that the parties do require further determinations of the court, they will have to contemplate the requirements of s.60I of the Act.
Having considered all of the submissions of the parties and the evidence of Mr P, I am satisfied that the orders I am now making are in the best interests of these children.

I certify that the preceding Fifty One (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 11 November 2009

[2009] FamCA 1062

5 NOVEMBER 2009

Key Legal Topics

Areas of Law

Family Law