BELL & BELL
[2006] FMCAfam 692
•21 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BELL & BELL | [2006] FMCAfam 692 |
| FAMILY LAW – Equal shared parental responsibility – 50/50 arrangement. |
| Family Law Act 1975, Part VII, Division 6, ss.60CA, 61DA(1), 61DA(2), 61DA(4), 65AA, 65B(i), 65DAA(2) |
| T&N [2001] FMCAfam 222 Goode & Goode [2006] FAMCA 1346 |
| Applicant: | MR BELL |
| Respondent: | MS BELL |
| File number: | BRM 9532 of 2005 |
| Judgment of: | Burnett FM |
| Hearing date: | 13 December 2006 |
| Date of last submission: | 13 December 2006 |
| Delivered at: | Brisbane |
| Delivered on: | 21 December 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jordan |
| Solicitors for the Applicant: | Emerson Black Lawyers |
| Counsel for the Respondent: | Dr Kellie |
| Solicitors for the Respondent: | Walker Pender Solicitors |
ORDERS
That the parties submit a minute of order giving effect to the rulings in this judgment and that such draft be submitted to the Court within fourteen (14) days of today’s date.
IT IS NOTED that publication of this judgment under the pseudonym Bell & Bell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 9532 of 2005
| MR BELL |
Applicant
And
| MS BELL |
Respondent
REASONS FOR JUDGMENT
Introduction
In this application, MR BELL (the applicant) seeks final parenting orders in respect of the children to his marriage with MS BELL (the respondent) in respect of the children of their marriage [T] born in April 2000, [H] born in November 2001 and [N] born in September 2005 (the children).
Relief claimed by Applicant
The orders sought by the applicant are particularised in paragraphs 1 to 13 of the amended application filed 24 November 2006. In broad terms, the applicant seeks orders that the children live with him. The contact orders proposed by the applicant would see the respondent enjoy contact from after school on Thursday to before school on Monday of each alternat week and after school on Thursday to before school on Friday of every other week. He also seeks orders that he and the respondent have equal shared parental responsibility for the children, and orders concerning the time the children should spend with the respondent in default of any agreement between them concerning that matter. There are incidental orders sought concerning other matters relevant to the children particularly including school holidays, birthdays and special days and the provision of information.
The respondent also seeks orders. In broad terms, the orders sought by the respondent constitute her proposal concerning the joint parenting of the children. They are that the children live with the applicant and respondent respectively in alternate weeks with handover to take place each Wednesday; equal shared parental responsibility (although I note this to have been expressed in her case outline as “joint and equal” which I take to mean the same thing); and incidental orders particularly including school holidays, special days and the provision of information.
In broad terms the parties are in dispute on the issue of where the children live. The applicant seeks orders directing the children live with him subject to contact orders. The respondent seeks orders directing that the children live with she and the applicant in equal measure. There are no substantial differences in the incidental orders sought by each party or the other. Each proposal broadly recognises that future arrangements should be shared. Once the principal dispute is determined it appears the parties will be able to resolve those incidental matters.
Background Facts
The applicant was born in 1978. He is presently 27 years of age and is in the process of establishing an [omitted] business which he proposes to conduct from his principal place of residence. He proposes to commence trading in January 2007.
The respondent [was born in] 1979. She is presently 26 years of age and is currently employed as a part time [occupation omitted]. She presently works part time from Monday to Wednesday every week while in evidence she said that she was in a position to be able to negotiate her hours and could do so once matters arising from these proceedings were resolved.
The parties commenced cohabitation in 1998 and married in October 1999. In April 2000, [T] was born. He is presently 6 years of age and is about to commence Grade 2 at the [X] Primary School. In November 2001 [H] was born. She is about to commence Grade 1. She is presently 5 years of age and is about to commence Grade 1 at the [X] Primary School. [N] was born in September 2003. He is presently 3 years of age and presently attends kindergarten. It is proposed next year that he will attend two days kindergarten per week. The days that are presently proposed are Thursday and Friday.
Subject to matters discussed below, the health of each of the applicant and the respondent is good. So too is the health of each of the children. There appear to be no general health considerations relevant to these proceedings.
Neither party appears to have formed any further relationship since the date of separation. Both the applicant and the respondent impressed me as parents who had reasonable and loving expectations in respect of the children and in all respects held as a paramount concern the best interests and welfare of the children.
Post Separation Care of children
Following initial separation no formal arrangements were put in place concerning the care of the children. The children stayed with the respondent and on average the applicant would see them every second weekend from 5.00pm Friday until 5.00pm Sunday and for one night during the week. That night was a Tuesday night. The arrangement continued for approximately six weeks.
In about August 2005 it became apparent to the applicant that the respondent was putting the children in day care five days a week together with before and after school care for [T] because of her employment with [omitted] at Eight Mile Plains. The applicant indicated he was available to assist the respondent by looking after the children instead of placing them in day care and he was available to care for the children. He was concerned the children were spending too much time in day care. He claims that the respondent was not interested in that proposal and refused to allow the applicant to look after the children.
The applicant swears that on 25 August 2005 he had become so concerned about the respondent not coping with the children that he collected the children from school and day care. He says that after collecting the children he spoke to the respondent and offered to cease working in order to assist her and to reduce the number of hours that the children spent in day care. This unilateral conduct on the part of the applicant caused the respondent some distress. The respondent refused the applicant’s assistance and the children were returned to her that night.
Matters had apparently deteriorated by the evening of 23 September 2005 for on that night the respondent informed the applicant that he was not allowed to see the children on the basis that she was concerned that the applicant would not return them. He says he had given her no reason to cease contact and that there was no basis for her concerns that he would not return them to her. He attended the residence the next day to find that the respondent and the children had moved house. At that time he was not aware of either the respondents or the children’s whereabouts as he had not been informed of the proposed move. It should be remembered that these events occurred approximately three months post separation. Contact between the parties was shortly thereafter reinstated formally by the exchange of solicitors’ correspondence.
I note from the correspondence exchanged on 26 September 2005 and 27 September 2005 between the parties’ respective solicitors that the respondent’s complaint was that contact had not been ceased by virtue of the respondent’s attitude or conduct but because of the varying attitudes of the applicant to contact arrangements and his continuing attempts to alter contact arrangements. The letter noted that the respondent had recently changed residence and revealed the new residence address. It also alleged that the respondent had informed the applicant of a proposal of contact arrangements for that weekend and of an ongoing interim arrangement which she hoped would address concerns she had about the disruptive effect of mid week contact.
Further correspondence ensued over the following days between the respective solicitors and agreement appears to have been quickly reached concerning ongoing contact arrangements. Having regard to the broader events occurring in the lives of each of the applicant and the respondent this event appears to represent something of a hiccup and I do not regard it in any manner to be a particularly adverse reflection upon either party.
The applicant swore that after that event matters settled down and contact proceeded relatively smoothly. Matters proceeded with a view to a legal aid conference on 26 October 2005. There was agreement by both parties to attend that conference.
However in the week before the scheduled legal aid conference, the respondent had what the applicant described as a “breakdown”. He claims this was the second breakdown in six months, the first being one which occurred shortly before separation.
The applicant swore that on 20 October 2005 a friend of his by the name of Ms S informed him that the respondent was not coping and was an emotional wreck. He says that the respondent confirmed this herself and that she informed him that she had dropped the children off at day care that day and that it was while she was driving she was suddenly overwhelmed by feelings of despair and could not operate the car and had to pull over on the side of the road.
The applicant says that on that day the respondent asked him to take the children as she needed some time alone to sort herself out. Accordingly on 21 October 2005 the applicant collected the children from Ms S’s residence. He says there was never any set period of time discussed for him looking after the children and that it was implied by the mother that it might have been for some period of time given that she was so unwell. He says that the respondent never indicated that she only ever intended that the care be limited to that for a weekend. He says further that was to be further inferred by later events when he collected the children from Ms S’s residence. He noted the respondent had packed the children’s bedding, clothing, car seat and nappies all of which indicated to him that the respondent was of the view that he was to have the children for some time given that he thought these articles suggested a transfer of care of a more permanent nature. He swore he subsequently took the respondent to the Ipswich Hospital Mental Health Unit for assessment and that the hospital did not admit her but provided her with “acute” in-home care and referred her to a community health centre and a psychologist for assistance. He says he stayed with her that evening as he was concerned for her welfare and made arrangements for his parents to care for the children.
In terms of events which occurred on 21 October 2005 those comments are to my mind quite significant. The respondent was fairly distressed and suffering the effects of the trauma of recent events. In those circumstances it does not surprise me that there was as the applicant says some miscommunication between the applicant and the respondent at that time. She says in her affidavit that the purpose of asking the applicant to care for the children on the weekend was so that she could catch up with some sleep and have some time out before having the children back on Monday. She says that she phoned the applicant on 21 October explaining that she was feeling tired and low and could not cope and asked if he would collect the children so that she could get some help. She says that when the applicant arrived and collected their blankets and clothes he spoke at some length to her. She says the applicant in fact took her from her residence on that occasion to see her doctor who in turn referred her to the emergency department of Ipswich Hospital. She says the applicant drove her there and that after consulting health practitioners, health professionals at that hospital, the applicant then took her to her residence and stayed the night with her.
It is clear from the evidence of the respondent that for that weekend and the following weeks her emotional state remained fragile. It is also clear to me and I accept the respondent when she deposed that she did not intend to transfer the care of the children to the applicant on a permanent basis but merely intended for the applicant to provide some additional support while she was in a fragile emotional state.
Equally I accept that the applicant was motivated by the best intentions for the children in seeking to retain the care and control of the children in his custody in his household. Undoubtedly because of the continuing fragility of the respondent’s emotional state, both parties proceeded without any real view as to long term arrangements although I have no doubt in accepting that the applicant himself thought the continued arrangement involving his primary care was the preferred arrangement in the interests of the children.
It appears that in the following couple of weeks matters concerning contact were somewhat unsettled and that although contact was exercised regularly until interim orders were made in January 2006 the actual events of contact were not themselves attended with a pattern of regularity.
An interim hearing was conducted on 30 January 2006 and consent orders were achieved between the applicant and the respondent. In broad terms it was agreed that the children would reside with the respondent from 12noon on Thursday to 3.00pm Sunday each alternate week and from 12noon on Thursday to 12noon on Sunday on the other week. It was also agreed the mother would have contact with the children on special days such as her birthday and the children’s birthdays. No provision was made for holiday contact. As the applicant swore in his principle affidavit the essence of the agreement by consent was that the respondent would have the children in her care for five days a fortnight whilst he would have them in his care for nine days a fortnight. This arrangement has continued since 30 January 2006. The only other relevant observation concerning background facts relates to the place of contact. Initially the applicant was residing in accommodation with his parents. Provision was made for him to occupy a part of the residence of his parent’s residence which permitted some privacy for his family. However he and the children were required to share common facilities including a kitchen and dining area.
For the respondent’s part there was a history of relocating from various properties until reaching her present place of accommodation. In broad terms, she sought to adjust her residential circumstances to suit her then immediate requirements. For instance, initially she remained in the original matrimonial home. Obviously the cost of maintaining that property was beyond her means and she made appropriate adjustments to her accommodation circumstances. Since the principle care of the children has vested in the applicant, she has again tailored her accommodation needs to suit those circumstances.
I do not draw any adverse inferences from these circumstances of either party concerning their accommodation arrangements since separation. Their arrangements appear to me to have been appropriate having regard to their individual circumstances including the need for each of the applicant and respondent to make appropriate provision for the care of the children whilst exercising contact rights.
He swore that the conference subsequently held on 26 October was unsuccessful and that he in turn ceased working in order to care full time for the children. He filed his application on 16 November 2005 noting however that the respondent was wanting the children to return to her full time care but he was hesitant at that stage given his perception of her state of mental health.
Whilst there are some differences between the parties concerning events following separation in my view nothing turns upon them.
That is with the exception of one matter and that concerns the circumstances the passing of the care of the children from the respondent to the applicant. The matters preceding the events of
21 October 2005are consistent with the suspicion that one party might suspect of another in those circumstances. I do not consider that any party could be particularly blameworthy and consider all of these matters have arisen by reason of poor communication during a period of significant adjustment on the part of each of the applicant and the respondent shortly following their separation.
However what appears to be of more significance is the occasion of transfer which occurred on or about 21 October 2005.
The respondent says that on 20 October 2005 she felt she could not cope because during that week she had not been sleeping well due to the children having nightmares and constantly waking up. She says she accepted an offer by a friend for the children to stay overnight at the friend’s residence. She said that on 21 October 2005 she was feeling tired and run down and felt she needed to be alone to have some time for herself in order to recover. I find none of that remarkable. The respondent had recently separated from the applicant, she had had full time parental responsibilities, she was working on a full time basis and had recently relocated from one residence to another. The fact that she and the children were experiencing some adjustment difficulties which manifested in sleeplessness and irritability is not in the least bit surprising. In the course of cross examination of the respondent the applicant’s counsel sought to make something of these events. Whilst I appreciate the applicant’s counsel’s efforts were directed to advancing his client’s case I do not accept that the respondent’s behaviour during this period was indicative of her general state of mind or of her character. It seems plain to me that her conduct at this time arose from the confluence of life stressors then apparent. Likewise I do not accept that the conduct complained of by the respondent concerning the applicant related to his service in Timor reflected the true character of the applicant. Clearly he was traumatised by events and circumstances surrounding his service in Timor with the Australian army and required some adjustment upon his return to his family.
In assessing the general character of each of the applicant
and respondent, I have accepted the evidence prepared by the
Family Consultant appointed by the Court, Margaret Rathbourne.
Ms Rathbourne conducted her assessment of each of the applicant and the respondent following an assessment by her in September 2006. That assessment was conducted well over twelve months post separation during which time each of the applicant and respondent had had sufficient time to effect that adjustment necessary to their new lives. In my view the occasion of her assessment afforded her a better opportunity to report upon their true character rather that which would otherwise be apparent by reference to conduct shortly following separation. In respect of both the applicant and the respondent,
Ms Rathbourne made very positive observations concerning them being straightforward and cooperative. She noted concerning the applicant that his comments were succinct and well focussed on his perception of the children’s needs. She noted that he tended to project himself as the more stable and caring parent and believed he had provided a consistent and loving environment for the children.
She noted the applicant’s previous depressive disorder and that he had been subject to treatment and overall it was not an issue in these proceedings. Likewise concerning the respondent the report writer noted that the respondent presented an open and forthcoming person talking freely about herself and her situation. She impressed the report writer as a thoughtful, conciliatory and child focussed parent when regarding questions put forward. She concerned her presentation was commensurable with her description of herself (as the respondent) as easy going. I find her assessment more accurately reflects the true character of each of the applicant and respondent.
Legal Principles
As each of the applicant and respondent apply for orders for equal shared parental responsibility for the children, regard must be had to the relevant sections contained within Part VII, Division 6 of the Family Law Act. Generally the approach to be followed has been discussed in Goode & Goode [2006] FAMCA 1346.. I have adopted that approach with appropriate modification to allow for the fact that the relief claimed in this proceeding is final relief.
At the outset in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the children as the paramount consideration: Section 60CA. this consideration remains at the heart of each and every other provision within Part VII directed to the issue of parenting orders.. How the best interests of the child are determined is by consideration of those matters provided for in s.60CC. In a proceeding for a parenting order the court may, subject to sections 61DA and 65DAB and Division 5 make such parenting order as it thinks proper: Section 65D(1).
Section 60CC provides how the Court determines what is in a child’s “best interests”. It provides that in determining a child’s best interests regard must be had to the matters particularised in section 60CC(2), the primary considerations and section 60CC(3), the additional considerations. It also requires that the Court must consider each parent’s fulfilment of parental responsibilities both by themselves and toward each other: s.60CC(4). As well the Court must have regard to post separation events: s.60CC(4A). I have considered each of the matters required by s.60CC.
In this case each of the parents have expressed a positive attitude toward the development by the other of a meaningful relationship with the children. Likewise there is no suggestion in this case that any of the children is subject to exposure to physical or psychological harm, abuse, neglect of family violence.
In terms of the additional considerations, it is clear that each of the children enjoys a good relationship with each of the parents and the parents have expressed a willingness and ability to facilitate and encourage a close and continuing relationship between each child and the other parent. I make this observation despite there having been early difficulties experienced between the parties. As noted above, those difficulties were transitory and more reflective of the circumstances immediately following separation rather than, in my view, any true indication of the parents’ true feeling and attitude toward their responsibilities. There are in my view no practical difficulties or unreasonable expenses involved with the children spending time with and communicating with each parent and each parent has exhibited the capacity to provide for the needs of the children including their emotional and intellectual needs.
Generally each parent has from the material placed before me fulfilled their responsibilities as a parent and have taken the opportunity to participate in making decisions about the major long term issues in relation to the children, i.e. education and religion and spent time with and communicated with the children.
Since separation nothing extraordinary appears in the evidence concerning post separation events.
Section 61DA of the Act imports a presumption of equal shared parental responsibility when making parenting orders. Relevantly in this case it provides in 61DA(1) for a presumption of equal shared parental responsibility subject to rebuttal: s.61DA(4).
I note in the circumstances of this case as there is no suggestion that either the applicant or respondent have engaged in abuse of any child or any family violence and this is an application for final relief. Accordingly s.61DA(2) and (3) have no application in this case.
Whilst the presumption provided for by section 61DA(1) is refutable, it may only be rebutted by the production of evidence that would satisfy the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case no contention to that effect is made. This is a case where in my view it is in the best interests of the children that there be equal shared parental responsibility. Indeed it would appear from an examination of the amended application and the orders sought by the respondent that each of the parents seek orders for equal shared parental responsibility for the child. By inference I infer that each party accepts the other as being as satisfactory party to have equal shared parental responsibility for the children.
The section 61DA presumption has not been rebutted by any evidence and I commence from the premise that it is in the best interests of the children in this case for the parents to have equal shared parental responsibility for them.
Equal time or substantial and significant time
The matter of equal shared parental responsibility has been further refined by the introduction of Section 65EAA of the Act which requires the Court to consider children spending equal time or substantial and significant time with each parent in certain circumstances. Relevantly Section 65DAA provides:
“65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) provision in the order for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(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.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (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.”
The issue of shared parenting was examined in some detail in the decision of T&N[2001] FMCAfam 222 where at paragraph 93
Ryan FM observed: paragraph 93 and various dot points.
“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. “
It was submitted by Counsel for the applicant that those principles still held true despite the recent authority of Goode & Goode. I agree as those principles to not appear to have been disturbed in that later case. I am guided by the decision of T & N in deciding that issue in this proceeding.
Capacity to Communicate
The evidence to date between the parties demonstrates that but for the difficulties that were encountered shortly after separation and during a period when it was apparent the respondent was suffering from the emotional burden of her then evident position, communications between the parties appear to have been relatively open and amicable. Neither party in their affidavit makes any substantial reference to issues of communication. By reason of that matter I infer that there had been no significant difficulties between the parties. I note that during the course of cross examination of the respondent by the applicant’s counsel it was suggested that there had in fact been communication difficulties of a limited form. That is despite the fact that in the Family Report at paragraph 23 the report writer noted that the applicant was sceptical that he and the respondent possessed the necessary level of communication to easily facilitate a week about shared care arrangement. The report writer noted the applicant’s assertion that they do not speak at changeover times and use a communication book and that he made a number of references to the fact that the respondent does not listen to him or follow his instructions; for instance, in relation to medication for the children. She noted however that the applicant did agree they had been able to agree to cooperate on issues relating to [T]’s needs for grommets and the children’s religious education and to negotiate some flexibility in arrangements to take account of the children’s activities. In cross examination the respondent expressed the view that she thought the applicant did not like to communicate with her. She did not seek to place all the blame on him. I accept that her assessment of the situation was realistic. She noted that she had occasionally neglected to communicate because of forgetfulness on her own part. However she also observed that whilst there may have been blame on her side, blame was to be attributed to some extent on both sides. As she noted “everyone has faults”. Whilst there was a basis for a suggestion on the applicant’s counsel that there was some hostility by the applicant toward the respondent and some perception of the respondent of an attitude of hostility by the applicant toward her the respondent noted that she did not consider this could impede her capacity to communicate with the applicant “because it’s not about us, it’s about the children”. She stated that she believed that if he was ordered to communicate, he would.
I was impressed by the manner in which the respondent gave her evidence. She was in my view realistic her concessions and willing to accept matters put to her which were not favourable to her. For instance, when it was suggested to her that she may have been to blame for some of the difficulty with communication, she willingly acknowledged that matter notwithstanding it being caveated by a response that there may be blame to be found on both sides. Overall I was more than satisfied with the evidence she gave and formed the view that whilst there may have been some difficulties experienced over the course of the past 18 months, those difficulties have largely passed and that any tension between the parties presently existing was more a function of the pending litigation rather than a reflection of their true character.
This assessment by me accords very much with the assessment made by the Court counsellor and fortifies my own views.
Concerning the applicant, when asked whether he had been able to communicate on matters with the respondent and have a positive approach to matters affecting the children, he responded in the affirmative.
Overall I am of the view that on the evidence presented to me, there is a clear capacity of the parties to communicate on matters concerning the children’s welfare and that once orders are made in this proceeding, those lines of communication will be enhanced beyond what is already in my view a very satisfactory situation.
Proximity of Households
The applicant’s house and the respondent’s house are within a suburb of each other. Although I was not provided with any precise details it seems apparent from the addresses of each of the applicant’s and respondent’s residences that they reside within the Ipswich city area. It seemed that neither address nor intention of further proposed residences would constitute an issue in this case.
Proximity of Homes viz a viz Friendship in Both Homes
For reasons expressed above I consider that this is not an issue. The children continue to reside in the Ipswich city area. The two older children will attend the [X] Primary School and in my view will be able to well accommodate social relationships in the Ipswich area despite a shared parenting arrangement between two separate houses.
Prior History of Caring for the Child
Although the early history post separation suggests that the respondent was the principal carer for the child, the fact remains that since the interim orders made in January 2006 the principal care has been afforded by the applicant. The question is whether the parties have demonstrated they can implement a 50/50 living arrangement without undermining the child’s adjustment.
As matters stand the only real impediment to immediately instituting a 50/50 living arrangement without undermining the child’s adjustment is that which concerns the youngest child.
The youngest child [N] is presently enrolled at kindergarten and will attend kindergarten until the end of 2008. That child will commence at preschool and then the following year Grade 1 in primary school.
The Queensland Department of Education has recently prescribed that the preschool year will be a compulsory year of school. To that end it seems apparent that for at least the next two years [N] will continue at kindergarten and/or with some day care arrangement. That arises because [N] was born in September 2003. The applicant swore that by reason of his date being after 1 July in the relevant year, he is included in the next year for school commencing purposes. As preschool commences for five year olds it means he will not commence preschool until 2009. Accordingly I need to consider the fact that there will be two years of further kindergarten and/or child care in place before the routine of school commences for [N]. In all other respects however, I accept the evidence of the report writer that a once the routine of school is established the implementation of a 50/50 living arrangement would be for the benefit of the children who she observed are close to both parents and would benefit from such an arrangement. However in the meantime an unconditional shared parenting order would be disruptive because of the out of hours child care arrangements such a regime would require.
In terms of the overall satisfaction of such arrangement there is of course a need to consider the physical environment in which the children will live. As matters stand, the applicant unquestionably has and offers a better physical environment. He has had the advantage of incumbency because of his more extensive parenting responsibilities since consent orders in January 2006. I do not however consider that the respondent is in any sense disadvantaged by that matter. Clearly because of the nature of the orders consented to, the applicant did need to make more permanent arrangements. The respondent however says that once her position crystallises following the making of orders in this application she will then be able to determine the appropriate level of physical accommodation necessary for her circumstances. In my view, her approach in this regard is not unreasonable and I certainly do not consider that she should be unduly criticised or held to criticism on account of her decision to date to tailor her physical environment to suit the then present circumstances. I accept her evidence of that once she has some certainty as to the future she will make appropriate arrangements and I accept further that those arrangements will be appropriate as I accept she is genuinely interested in the welfare of her children and wishes to afford them every possible opportunity despite these difficult circumstances. In my view accepting that each of the applicant and the respondent will put in place living arrangements which will not undermine the children’s adjustment to their social situation, I am satisfied this criteria has been met.
Disagreement on Day to Day Matters for the children
Although the applicant’s counsel sought to make something of minor differences between the parties concerning their approach to day to day matters I did not consider there was anything of substance giving rise to difficulty in respect of those matters. It is always to be expected that there will be differences in style and emphasis between different parents. That matter is evident even in established and functional marriages. It would set an impossible task to expect parties who have separated and/or divorced to achieve a standard in this regard which exceeds that which would otherwise ensure.
It was apparent to me from the evidence of both parties that they wished to ensure that the children as best as is possible could continue to receive a reasonably constant set of values. Perhaps the most significant evidence in respect of this common goal by both the applicant and the respondent was their joint desire that the children continue to be brought up in the Catholic faith. No doubt their exposure to a commonly accepted religion between the applicant and respondent will provide some constant moral guide posts to assist the children in their future development.
Although there was some criticism of the applicant by the respondent in respect of matters such as the homework of the child [T] I accept that those instances are generally isolated. It can be seen from the timing of that compliant that the event complained of was at a time when the children were otherwise being traumatised by the difficulties between the parents. Although not necessarily acceptable, the circumstances provide a reasonable excuse for an occasion when homework may not have been attended to in a manner which would otherwise be desirable.
Overall I am of the view that the parties have substantial agreement in relation to matters which are relevant to the children’s day to day lifestyle.
Where there is disagreement will there be compromise
For reasons which I have articulated in that section above concerning communication I am satisfied that the parties will be able to reach a compromise in relation to any issues of disagreement that may arise between them. I note that the applicant has undertaken a parental training program and the respondent accepts such a program would be beneficial to her and proposes to undertake such a program. Undoubtedly the performance of such a program by the respondent will assist her in relation to any strategies that may be necessary to invoke to assist on those occasions when compromise proves difficult.
Furthermore I note that to date there has been a reasonable amount of dialogue between the parties. It has of course on occasions not always been as free as one would like but in any event it is apparent to me that there has been such dialogue. I note that from my observations of both the parties in Court that despite the difficult circumstances in which they found themselves on that day there appeared to be a relative degree of goodwill between the parties as was reflected in the mannerisms and respectful behaviour by one toward the other which was apparent to me watching the parties at the bar table interacting on occasions when that was appropriate.
I am satisfied that in the event of any disagreement the parties will be able to reach a compromise.
Ambitions for children
I accept that in this case it is apparent that there is a shared level of ambition for the children. For instance there is a common acceptance of the children being brought up in the Catholic faith. Each of the parents supports each of the children’s pursuit of extra curricular activities. It could not be said that by reason of the separation of the parents that the children have otherwise been disadvantaged. They have been encouraged by their parents to pursue those activities which are of interest to them and the parents each have contributed to the encouragement of that pursuit. I am satisfied the evidence demonstrates the fulfilment of that criteria.
Can they address on a continuing basis the practical considerations
Perhaps in the immediate short term the most practical consideration which would require addressing is that level of cooperation that might be necessary between the applicant and the respondent to assist the other on those occasions when by reason of work or other commitments they may not be able to afford the children or a particular child some consideration which might otherwise be desirable. The point was perhaps best made by the applicant in the cross examination by his counsel of the respondent. In the course of cross examination the applicant’s counsel sought to extract a concession that the applicant would prefer to have any child in her care placed into after school care or some other form of care rather than left with the applicant in circumstances where on the occasion in question the child was in the care of the respondent. It was suggested by the applicant’s counsel that the respondent could not “find it in her heart” to afford the applicant the opportunity to care for the child on occasions when the child would otherwise go into child care and that she could not see that as a much better outcome than the child going into child care.
Whilst I am sympathetic to the argument in effect put in cross examination, I do not ignore that notwithstanding that it might be considered as preferable by the applicant to have the care of a child in preference to a child being placed into child care, the fact remains that on those occasions when the child is in the care of the mother, such a decision is one for the mother to make. As was debated in the course of the proceedings, the fact of child care is a reality in modern society where now a large percentage of married persons with children both undertake full time employment or employment of some description which requires children to be placed in care be it on a full time basis or even for after school purposes. I consider the mother is a person who is appropriate to enjoy substantial and significant time and eventually equal time in respect of care of the children. I am also confident that she will in accordance with her responsibilities make appropriate decisions concerning those matters. They are in effect operational decisions which the parent with the care of the child should be free to make without interference by the other parent or the Court. Clearly my view would be otherwise if the relevant parent were not regarded as suitable for such a parenting order.
Mutual respect between parties
Despite the differences between the parties and despite some attempts by each party to discredit the other it appears to be something done more in the nature of a tactic for litigation than what could be regarded as a serious attack. The affidavits made mutual references to psychological disability. I accept that there may have been difficulties occasioned in with instances of each of the applicant and the respondent but there not matters of any great moment. I am not unduly troubled by those matters. Assertions were made concerning the care for the children by the respondent. Again they appear to me to have been at the margin and matters raised more in the nature of small points to make in litigation. As counsel for the applicant submitted, these are all small points that needed to be considered in a cumulative way on the premise that each small piece when considered collectively comprised a mosaic which suggested the respondent to be less worthy than one may initially consider.
Overall however I do not consider these matters do create such a picture. A reference to isolated and unsubstantiated allegations which are explained by the respondent in her affidavit (particularly concerning suggestions of any impropriety involving the children) do not in my view constitute any proper basis to support such a submission.
In forming this view, again I am particularly persuaded by the report of the family reporter who when conducting her assessment of a family some 12 months after separation (when by all accounts matters had settled between the parties) observed that the children were all “delightful children who were alert, bright and responsive”. She noted that they were observed as separating confidently from each parent and played cooperatively and independently. She noted the children were observed to move more easily between the parents in a waiting area and appeared confident in demonstrating affection to one in the presence of the other. There was no indication of either parent either attempting to either hinder this or demonstrating any discomfort of annoyance.
She concluded all three children presented with loving and affectionate relationships with each parent.
From such evidence one can only conclude that the children do not appear to be experiencing any significant distress by reason of these matters and certainly none which would suggest any real substance to the allegations contained in the competing affidavits.
Overall I accept all the evidence demonstrates that there will be respect between the parties in respect of each other as a parent and that as each has indicated to both the court in evidence and also to the report writers, they are genuinely motivated by their desire to see what is best for their children.
The child’s wishes
The children are of course young and although they have desires and wishes they are perhaps too young at this stage to express any informed view of their own best interests. I take account of the matters identified by the report writer in her report.
Where the siblings live
Each of the siblings live together as a unit. This is important. There is no reason why this family should be broken up and in fact that is not sought by either of the applicant or respondent. Again this is another factor which demonstrates a level of maturity between the parties to this proceeding which assists in making my decision.
Reasonable Practicability
In the event of either an equal time or a substantial and significant time order, material consideration concerns a reasonable practicability:
Section 65BAA(5)
In terms of reasonable practicability it is apparent by reason of the matters considered above that:
a)The parents live in reasonable proximity of each other;
b)There is in my view an apparent capacity on their part, both present and future, to implement an arrangement for the children spending equal time or substantial and significant time with each of the other parents.
c)The parents have a current and in my view a future capacity to communicate with each other and resolve difficulties that may arrive in implementing arrangements of that kind.
d)An arrangement of that kind would be of benefit to the children. In my view an arrangement involving either equal time and/or substantial and significant time is a reasonably practicable arrangement and should be ordered.
Equal Shared Parenting
In conclusion, having considered the matters above, I consider that ultimately this is a case where the children spending equal time with each of the parents would be in the best interests of them. I consider that the children spending equal time with each of the parents is a reasonably practical matter and accordingly I consider that generally it is a circumstance where I should consider making an order to provide for the children to spend equal time with each of their parents.
The only caveat to immediately making an order in those terms is the age of [N] and the fact that he will not commence preschool for another two years. Pending his commencement at preschool an unconditional shared parenting order would be disruptive, especially for the child [N]. I accept the evidence of the report writer that once [N] commences preschool and the routine of school is entrenched a shared parenting arrangement would be an appropriate arrangement. I further accept that in the interim it would be most unsatisfactory to split the siblings.
It is with that in mind that I consider the recommendation made by the report writer to be an appropriate recommendation in these circumstances.
Accordingly I consider that in the short term this case falls within the circumstances contemplated by section 65DAA(2) wherein there should be equal shared parental responsibility but that the Court should not make an order immediately providing for the children to spend equal time with each of the parents. In those circumstances, I consider that at least until January 2009 the children should spend substantial and significant time with each of the parents as that would be in the best interests of the children and that spending substantial and significant time with each of the parents is a reasonably practical matter. With that in mind. I consider that I should make an immediate order to provide for the children to spend substantial and significant time with each of the parents but with the prospect of an equal time order in two year’s time.
I should mention that it was urged upon me by counsel for the applicant that I should not make such an order. He for instance suggested in argument that the prospect of such an order would involve a significant “crystal ball” gazing on my part. With respect that is indeed what any order involving the long term parenting of a child requires and given the child [N] will commence school in 2009 absent some unforeseeable event such as an intervening accident or other trauma, it is in my view appropriate to formulate orders in such a manner as to reflect the long term intent for which are in effect orders constituting final relief. In reaching that conclusion I am particularly mindful of the recommendations contained at paragraph 56 of the family consultant’s report and in particular recommendation 5. I hasten to add that concerning recommendation 5, her recommendation was premised upon the child [N] commencing school in 2008. That was made in error on her part not realising that the Education Queensland policy is that the age for school commencement is taken from mid year and not the commencement of the year.
In any event it is clear from the report of the family consultant that this is an occasion where equal time parenting is appropriate and I agree with her conclusions. In the circumstances I propose that orders be made giving effect to the recommendations of the family reporter. That includes in particular an order which will have the effect of extending the amount of time which the children now spend with the respondent from that which is currently provided for in the interim orders to the time provided for in the family report.
Orders
I will hear the parties as to appropriate orders giving affect to these reasons for judgment.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Bev Schmidt
Date: 1 February 2007
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