Black and Clare
[2011] FMCAfam 477
•20 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BLACK & CLARE | [2011] FMCAfam 477 |
| FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – equal shared parental responsibility – substantial and significant time – two children aged three and nearly six – overnight time. |
| Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 61DB, 65DAA |
| Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 |
| Applicant: | MR BLACK |
| Respondent: | MS CLARE |
| File Number: | SYC 3529 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 14 March 2011 |
| Date of Last Submission: | 14 March 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mrs Messenger |
| Solicitors for the Applicant: | Neville & Hourn Legal |
| Counsel for the Respondent: | Ms Smyth |
| Solicitors for the Respondent: | Watts McCray Lawyers |
ORDERS UNTIL FURTHER ORDER
All previous parenting orders are vacated.
The Father and the Mother are to have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2008 including but not limited to:
(a)The children’s education, including but not limited to enrolment at school, preschool and day-care;
(b)The religious and cultural upbringing;
(c)The children’s health;
(d)The children’s names; and
(e)All changes to the children’s or the parents’ living arrangements that make it significantly more difficult to bring about the time the children spend with or live with each parent under these Orders.
Each parent is to have the sole responsibility for making decisions about aspects of the care, welfare and development of the children on a day to day basis when the children are living with or spending time with that particular parent.
The children are to live with the Mother at all other times subject to the periods provided by these Orders when the children spend time with the Father.
The children are to spend time with the Father at times when he is in Sydney and not required to work as follows:
(a)[X] is to spend time with the father from the conclusion of school until 5:30 pm each Tuesday and Wednesday or such other day as the parties agree;
(b)[X] is to spend time with the Father from the conclusion of school on Friday until the commencement of school on Monday on each alternate weekend with the first of such weekends commencing on the first Friday immediately after the Father returns from working offshore according to his roster and every alternate Friday thereafter PROVIDED THAT if the Monday following the Sunday is a public holiday then [X] will spend time with the Father until the commencement of school on the Tuesday morning;
(c)[Y] is to spend time with the Father from 9:10 am until 5:30 pm each Tuesday and Wednesday or on such other day as the parties may agree;
(d)
[Y] is to spend time with the Father each alternate weekend being the same weekend as [X] spends time with the Father from
2:30 pm on Friday until 5:30 pm on the Saturday and from
8:00 am until 5:30 pm on the Sunday immediately following PROVIDED THAT if the Monday following the Sunday is a public holiday then [Y] will spend time with the Father from
8:00 am until 5:30 pm on the Monday;
(e)[X] and [Y] are to spend time with the Father from 8:00 am until 5:30 pm on Father’s Day and on the Father’s birthday in each year if those days should fall on days when the Father is in Sydney and not required to work and the children would not otherwise be spending time with the Father;
(f)[X] is to spend time with the Father on his birthday from the conclusion of school until 5:30 pm if that day should fall on a day when he would not otherwise be spending time with the Father;
(g)[Y] is to spend time with the Father on [X]’s birthday in 2011 from 9:10 am until 5:30 pm on [X]’s birthday if that day should fall on a day when he would not otherwise be spending time with the Father;
(h)[Y] is to spend time with the Father on his birthday in 2012 from 2:30 pm until 5:30 pm if that day should fall on a day when he would not otherwise be spending time with the Father; and
(i)[X] is to spend time with the Father on [Y]’s birthday in 2012 from 2:30 pm until 5:30 pm if that day should fall on a day when he would not otherwise be spending time with the Father; and
(j)[X] and [Y] are to spend time with the Father from 12 noon on Christmas Day until 12 noon on Boxing Day 2011.
For the purposes of giving effect to Order (5) above the Father is to collect the child [X] from school and return him to school on those days when his time concludes at the commencement of school and to the Mother’s residence on the days specified in Orders (5)(a), (e), (f), (g), (i) and (j).
For the purposes of giving effect to Order (5) above the Father is to collect [Y] from the Mother’s residence or her nominee at [address omitted] and return him to the Mother’s residence and the Mother is to return [Y] to the Father’s residence on the Sunday and the Monday as provided by Orders (5)(d).
The parties will do all things to encourage and facilitate at all reasonable times communications by the other parent (who shall initiate contact) with the children by telephone.
The parties will keep each other informed in writing at all times of their residential addresses, an email address for the purpose of communication and contact telephone numbers both mobile and landline and advise each other of any change within twenty-four (24) hours.
Each party must keep the other informed of the details of all health professionals consulted in relation to the children or either of them as soon as is reasonably possible.
Both parties are at liberty to attend all extra-curricular activities for which the children are enrolled or registered and to which parents are invited or otherwise expected to attend.
Both parties are at liberty to and are hereby authorized to communicate with, obtain information, documents and communications in relation to the children or either of them directly from the preschool of the school or either of them.
In the event of a parent with whom the children would otherwise be living or spending time) is unable to care for the children for a period of more than 24 hours then that parent shall contact the other parent in order that the other parent may look after the children for that period unless the parties otherwise agree.
Each party must immediately inform the other of all details relating to any illness, injury, medical treatment, medical procedure or hospitalisation of the children or either of them whilst in his or her care.
IT IS NOTED that publication of this judgment under the pseudonym Black & Clare is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3529 of 2010
| MR BLACK |
Applicant
And
| MS CLARE |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the father of two little boys, [X] and [Y], to vary interim orders so as to provide that they should spend more time with him, particularly overnight time. He also seeks to reduce the number of changeovers between parents each week as that appears to be a cause of tension for the children. The mother believes that a more cautious approach should be adopted.
Background
The father and mother are aged 41 and 40 years respectively. Their accounts differ as to when they started living together, but they were married [in] 2004. They separated under the one roof in February 2009 and separated physically in August of that year, when the father moved out of the matrimonial home. They are now divorced.
There are two children of the marriage, little boys named [X] and [Y], who live with the mother.
[X] was born [in] 2005, so he is nearly six years old. He started school this year.
The younger boy, [Y], was born [in] 2008. He is three years and one month old.
The children have remained living with the mother since the parties separated. The arrangements for them to spend time with their father have been dictated by the father’s work schedule and, to a lesser extent, the mother’s attendance at university.
The father is employed as a [omitted], with what is often referred to as a “fly in-fly out” roster. This roster is described by the father in his affidavit sworn on 14th March 2011:
My roster is usually that I am away for work for three (3) weeks, then home for three (3) weeks, then away again for three (3) weeks, and then home again for six (6) weeks.[1]
[1] Affidavit of Mr Black 14.3.2011 at paragraph [3]
There are slight variations to that pattern during the year. The father deposes that his roster usually causes him to be away for two Christmases out of three.[2] He is also required to attend training in Perth from time to time. The mother estimates that it is for “approximately 17 days per calendar year”.[3]
[2] Ibid at [4]
[3] Affidavit of Ms Clare sworn 28.7.2010 at paragraph [9]
The parties have consulted Dr M, a psychiatrist who has particular experience in dealing with children, for advice on parenting arrangements.
The father commenced proceedings in this Court by filing an Application for parenting and property orders on 23rd June 2010.
The parties attended a Child Dispute Conference with a Family consultant on 2nd September 2010. The Family Consultant reported in her Memorandum to Court that they had agreed on certain interim arrangements for the children to spend time with the father during the weeks when he is in Sydney:
Monday: Both children 8am – 4.30 pm
Wednesday: Both children 8am – 4.30 pm
Friday: [X] 8am until Sunday 8am
[Y] 8am – 4.30 pm
Saturday: [Y] 8am – 4.30 pm[4]
[4] Family Consultant Memorandum to Court 2.9.2010
The Family Consultant noted the issues remaining in dispute as:
· When [Y] should commence overnight stays with his father.
· When and how [X] should transition to 4 nights per week with his father
· When and how [Y] should transition to 4 nights per week with his father.[5]
[5] Ibid
The Family Consultant recommended a further Child Dispute Conference later in the year and, if no agreement was reached, a Family Report to be undertaken.
The parties entered into Interim Consent Orders on 13th September 2010. Those orders provided that:
a)The parties should have equal shared parental responsibility for the children;
b)The children should live with the mother;
c)The children would spend time with the father when he was in Sydney (noting that he was required to inform the mother in writing of his work roster) as follows:
i)Both children from 8:00 am to 4:30 pm on two mid week days, being Mondays and Wednesdays;
ii)[X] to spend time with the father from 8:00 am on Friday until 8:00 am on Sunday; and
iii)[Y] from 8:00 am until 4:30 pm every Friday and Saturday.
d)There were other orders relating to the parties keeping each other informed about various issues, and two undertakings:
8. The parties undertake that they will be polite to each other at changeovers.
9. The mother undertakes that during this next three month period, she will continue preparing [Y] for him to have overnight stays with his Father in the future.
As arranged, the parties attended a second Child Dispute Conference on 26th November 2010. The Family Consultant reported that no agreements were reached and the issues remaining in dispute were:
· How much time each child spends with the father
· When [Y] should commence spending overnight time with the father.[6]
[6] Family Consultant Memorandum to Court 30.11.2010
A Family Report was prepared by Dr H. It was released on 7th March 2011. The mother’s solicitor wrote to Dr H on 9th March 2011, with the consent of the father’s solicitor, asking her a number of questions by way of clarification. Dr H forwarded a written reply on 13th March 2011.
Areas of Agreement
The parties agree that they should have equal shared parental responsibility for the children and that the children should live with the mother. Otherwise, they remain apart.
Issues
The issues between the parties remain the amount of time the children should spend with the father when he is in Sydney. A particular issue is overnight time with the father, especially in the case of the younger boy, [Y].
Orders Sought
The father seeks orders as set out in the Minute of proposed orders prepared by his solicitor, Mrs Messenger. They are lengthy. Basically, they provide that;
a)The parties will have equal shared parental responsibility for the children;
b)The parties will have sole responsibility for making decisions when the children are living or spending time with them;
c)The children will live with the mother;
d)The children will spend time with the father when he is in Sydney and not required to work.
The father proposes these arrangements for the boys:
a)[X] to spend time with him from 3:00 pm to 6:00 pm every Tuesday and Wednesday;
b)
[X] to spend time with him from 3:00 pm every Friday until
9:00 am on Monday;
c)[Y] to spend time with him from 9:10 am to 6;00 pm every Tuesday and Wednesday;
d)[Y] to spend time with him from 2:30 pm on Friday until 6:00 pm every Saturday;
e)[Y] to spend time with him from 8:00 am to 6:00 pm every Sunday.
The father proposes that [Y]’s time with him should increase to overnight time from 26th June 2011, in that he would stay overnight on the Saturday night until 6:00 pm on the Sunday.
He then proposes that [Y]’s overnight time would again increase from 26th October 2011, when he would also stay overnight on the Sunday until 9:00 am on the Monday.
However, when the children have spent three consecutive weekends with their father they would return to their mother at 8:00 am on the fourth Sunday.
The father suggests that the children would be with their mother on various special occasions:
a)12 noon on Christmas Eve until 12 noon on Christmas Day in odd numbered years;
b)12 noon on Christmas Day until 12 noon on Boxing Day in even numbered years;
c)From 8:00 am until 6:00 pm o Mother’s Day;
d)At Easter from 6:00 pm on Easter Thursday until 6:00 pm on Easter Saturday;
e)On the mother’s birthday and on the boys’ birthdays, from after school on a school day until 6:000 pm or , if the day does not fall on a school day, from 10:00 am to 3:00 pm in even numbered years and 3:00 pm to 8:00 pm in odd numbered years.
The father also proposes that if the boys are not otherwise spending time with him on special occasions, the arrangement should be as follows:
a)From 12 noon on Christmas Day to 12 noon on Boxing Day in odd numbered years;
b)From 12 noon on Christmas Eve until 12 noon on Christmas Day in even numbered years;
c)From 8:00 am to 6:00 pm on Father’s Day;
d)From 6;00 pm on Easter Saturday until 6:00 pm on Easter Monday; and
e)On the father’s birthday and on the boys’ birthdays, from 6:00 pm to 8:00 pm on a school day or, if the day does not fall on a school day, then from 10:00 am until 3:00 pm in odd numbered years and from 3:00 pm until 8:00 pm in even numbered years.
The father seeks an arrangement to cover the fact that he may well be away working on one of the boys’ birthdays which I will set out in full:
In the event that the Father has been away for work the preceding year on either his, [X]’s or [Y]’s birthday, then for the person whose birthday he has missed in the previous year, as from 6:00 pm the night before the birthday until 9:00 am on the actual birthday if a school day, or, if not a school day, then until Midday on the birthday.[7]
[7] Punctuation corrected
The father also proposes that changeover will take place by his collecting [X] from school and the mother delivering [Y] to his home at the commencement of the time with him and his delivering the children to the mother’s home at the end of the time, except on the days when the mother has to attend university, when he would collect [Y] from [address omitted].
The mother proposes orders as set out in her Minute of Orders dated 14/3/2011:
a)The parties are to obtain professional assistance from “Embracing Your Uniqueness” at [P] (“Professional Assistance”) as recommended by the Single Expert;[8]
[8] Dr H recommended a private psychology practice called Embracing the Other Half, which is at [P] NSW
b)The father is to spend time with [Y] from 9:10 am on one midweek day each week until 4:30 pm and with [X] from after school;
c)The arrangement for weekends is set out as follows:
On alternate weekends from Friday, for [Y] from 2.30 pm and for [X] from the conclusion of school until the commencement of school on Monday and as follows:
4.2.1 The father to collect [Y] from the Mother’s residence at the commencement on the Friday;
4.2.2 The Father to collect [X] from school at the commencement on the Friday;
4.2.3 [Y] shall commence staying overnight on the Fridays (and not other than on Fridays, subject to the following sub-sub-sub- paragraph or unless agreed between the parties) from may 2011;
4.2.4 [Y] shall commence any additional over night time with the Father in accordance with recommendations in writing from the Single Expert or from the “Professional Assistance” as a result of the professional assistance having monitored and reported on [Y]’s best interests in this regard.
4.2.5 On each day when [Y] is not staying over night the father shall return him to the Mother’s residence by 4.30 pm.
4.2.6 On the Saturday and Sunday, the Mother shall return [Y] to the Father’s residence at 8am.
4.2.7 The Father shall deliver [X] to school at the commencement of school on Monday.
4.28. This weekend contact shall commence on the first Friday immediately returning from being off shore for work as per his roster provided to the Mother, and each alternate Friday thereafter (but re-starting in the same way each time he returns).
The mother also seeks other ancillary orders.
The Family Report
Dr H, as a Single Expert, prepared a Family Report for these proceedings. For the purposes of her report, Dr H interviewed the parents and the two children.
Dr H noted that the father said that he wanted to make a significant contribution to the children’s lives. He considered the mother to be overly protective of the children and intrusive into his relation with them. He also considered that the children were both old enough to have overnight stays.[9]
[9] Family Report page 7 [16]-[17]
The mother told Dr H that it was important for the children to spend time with the children;
She knows he loves them and she wants him involved in their lives. However she wishes the children to spend time with their father in accordance with what is suitable for their age and developmental stage. She considers that Mr Black’s proposal involves the children being separated from her for too long and disrupts their familiar home and routine.[10]
[10] Family Report at 8 [20]
Dr H noted that both children showed secure base behaviour in the presence of both of their parents and were able to tolerate a brief separation from their parents. She said:
Both showed physical affection to both parents and seemed confident that either parent (or grandmother[11]) would meet their needs if they asked directly (drinks, toys, toilets, permission, guidance etc). All adults treated the children appropriately, kindly and gently in my presence, and encouraged pro-social behaviour (replacing toys, picking up, polite salutations).[12]
[11] The children’s maternal grandmother accompanied the mother to the interviews to assist her with the children
[12] Family Report at 13 [35]
In her evaluation, Dr H noted that the children were affectionately bonded to both parents, who were adequately protective and responsive. She concluded:
There is no reason the boys could not have a meaningful relationship with both parents.[13]
[13] Ibid at 16 [43]
Dr H considered but rejected the notion of shared care, noting that the research showed that it was not suitable for very young children of high conflict parents. She considered that there was no benefit to [X] in the proposal that he would be delivered by his mother to the father before school. Children are at their most vulnerable at transition times.
On the other hand, the end of the school day would be an ideal time for [X] to engage with his father, as he would have news from school to tell him. It would also give the father the opportunity to get to know the child’s friends and their mothers and organise play dates for [X].
Dr H raised concerns about the father’s ability to deal with [Y] when he starts spending overnight time with him, especially as he wakes during the night.
She also raised the concern about the benefit of splitting the times that the children have with their father, because it increases the contact between the parents, whose communication and cooperation levels are low.
Dr H had this suggestion:
This tension could be reduced if the boys moved as a phalanx rather than as singletons. When [Y] is ready to tolerate sleepovers at Dad’s on alternate Friday, Saturday and Sunday nights then there would only be handovers on a Friday and Monday mornings ([Y] from Mum to Dad).[14]
[14] Family Report 18-19 [54]
The Family Report contains a number of recommendations, which are worthy of consideration:
a)The number of handovers should be minimised as much as practicable, particularly at parents’ homes
b)As far as possible the boys should be kept in a routine with a short time horizon (a week about cycle)
c)As far as possible the boys should travel as a pair, especially to overnight and weekend stays with their father
d)Every second weekend they should stay with their father from Friday afternoon until Monday morning. If [Y] cannot tolerate this, then [X] only for the time being.
e)They should have weekday contact with their father but not overnight during the school week at this stage, until it is clear that [X] has made a good school adjustment:
Ms Clare should take [X] to school then deliver [Y] to Mr Black on weekdays designated for contact. (Alternatively Mr Black could meet her at the school gate to collect [Y] on those mornings if he wishes to wave [X] off as he goes into class, although I do not recommend it).[15]
f)The parents should be encouraged to seek professional assistance to increase parental mindfulness.
[15] Family Report at 23 [69]
Dr H recommended a private psychology practice called Embracing the Other Half. There are clinical psychologists there who are experienced in dealing with sensitive children who are reacting to post-parenting stress.
Submissions
The father’s solicitor submitted that the arrangements need to be changed for the children’s benefit, as there are currently nine changeovers between the parents each week. He seeks to reduce the changeovers to five. He is not pressing a shared care arrangement. He proposes that after the mother takes [X] to school he will collect [Y] from her to avoid [X] seeing any tension between him and the mother.
The father does not believe that it is in the children’s best interests to reduce the time that they spend with him. He particularly does not want to be restricted to alternate weekends as suggested by Dr H.
Ms Smyth, who appeared for the mother, submitted that the real issue was what was right for the two boys. It is not just a question of tension at changeovers or just a mathematical exercise as to how much time is spent with each parent.
Ms Smyth told the Court that the mother had suggested that overnight time for [Y] with the father should commence in May 2011.
The Relevant Law
Section 60CA of the Family Law Act provides that, in deciding whether to make a parenting order, the Court must regard the best interests of the children as the paramount consideration. To determine what is in children’s best interests, the Court must consider the matters set out in subsections 60CC(2) (the primary considerations) and subsection 60CC(3) (which are referred to in the Act as “additional considerations”).
The Court is required by subsection 60CC(4) of the Act to consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent. Further, where the parties have separated, as they have in this case, the Court must have regard to events that have happened and circumstances that have existed since the separation occurred (see s.60CC(4A)).
I have considered all of those matters.
When making a parenting order, the Court is required by subsection 61DA(1) of the Act to apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them (see Goode & Goode[16]).
[16] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
The presumption does not apply in cases of abuse or family violence (subsection 61DA(2)) and it may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility (see s.61DA(4)).
Subsection 61DA(3) provides that when the Court is making an interim order the presumption applies unless the Court considers that it would not be appropriate in the circumstances.
Where a parenting order provides that children’s parents are to have equal shared parental responsibility for them, the Court is required by subsection 65DAA(1) to consider the practicability of the children spending equal time with each parent and whether it would be in the children’s best interests.
If the Court does not make such an order, subsection 65DAA(2) provides that the Court must consider:
a)whether spending substantial and significant time with each of their parents would be in the children’s best interests; and
b)whether it would be reasonably practicable.
I have also considered those matters.
Conclusions
First of all, I propose to make an order that the parties should have equal shared parental responsibility for their two children. In each case they seek that order, and in identical terms. There is nothing that would indicate that it would not be appropriate in the circumstances.
Of course, these are interim proceedings. When the time comes for final parenting orders to be made, the Court is required by s.61DB of the Act to disregard the allocation of parental responsibility made in the interim order.
The Court must consider whether it is both in the children’s best interests and reasonably practicable for the children to spend equal time with each parent. It is, in my view, neither in their best interests nor reasonably practicable.
The children are still very young, both under six, and their parents are in a state of conflict. The communication is poor and there is considerable tension at changeover. Dr H has referred in her report to shared care being contra-indicated in these circumstances with these particular parties:
· Shared care should never be the starting point for discussions about parenting arrangements for very young children of high conflict parents…
· It is my concluded opinion that these parents do not exhibit the benchmark features (as individuals or a team) which predict good outcomes for any parenting plans calling for parental collaboration to support substantially shared care.[17]
[17] Family Report at 17 [46]
The father’s work roster, involving him in being away for three weeks at a time working [omitted], does not make equal shared care a reasonably practicable proposition (see s.65DAA(5)).
In any event, I note that the father is not pressing equal shared care at this time. His solicitor has submitted that the father’s proposed parenting arrangements would probably not be sufficient to qualify as “substantial and significant time” as defined by s.65DAA(3).
The best interests of the children are the paramount consideration in this matter.
I am satisfied that it is to the benefit of the children for them to have a meaningful relationship with their parents. Dr H refers specifically to that point in her Report at paragraph [43] on page 16.
There is no evidence of any risk of either physical or psychological harm to the children from being subjected to or exposed to abuse, neglect or family violence.
Dr H had difficulty in obtaining the children’s views and, in any event, they are too young for their views to be given much weight.
The children appeared to Dr H to have a positive and nurturing relationship with each parent and with their maternal grandmother.
Dr H states in her Report that the children’s mother is their main attachment figure.
The father is of the view that the mother is restricting his ability to have a close and continuing relationship with the children, especially [Y], but the mother maintains that she is merely seeking an arrangement for the children that it appropriate for their development. Dr H describes an
Extremely poor parenting alliance compromised by mutual misunderstandings and intrinsic characteristics of both parents.[18]
[18] Family Report at 3 [2]
In considering the likely effect of any change in the children’s circumstances, the most obvious consideration is [Y], who is yet to spend any overnight time with his father. Whilst it appears that the time has come for this to start happening, and the mother has proposed that this should commence in May, the new arrangement still needs to be handled with sensitivity. [X] has made the transition to school this year and arrangements need to bear this in mind.
There does not appear to be any practical difficulty in the children spending time with either parent whilst the father is living in Sydney.
The capacity of the parents to provided for the physical needs of the children appears to be adequate, but in other areas Dr H expresses the view that “mother seems too intrusive and father too rigid for optimum parental sensitivity”.[19]
[19] Family Report at 3 [2]
As to the children’s maturity, sex, lifestyle and background, Dr H finds the demands of the father’s work roster to be “a huge barrier to establishing routines”. [X] is not yet six years old, [Y] has only just turned two and has not spent a night away from his mother yet.
The mother appears to have an overly protective attitude to the responsibilities of parenthood and the father may not have as sensitive approach as may be necessary, especially when dealing with a young child like [Y].
There is no evidence of any family violence and there are no family violence orders in place.
It would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. However, these are interim proceedings and, if the matter has not settled, it will proceed to a final hearing. I note that the parties have endeavoured to resolve the property matters between them at a Conciliation Conference before a Registrar but that matter remains unresolved.
The Court will make interim orders that are in the best interests of the children.
I am not prepared to make a finding that either parent has failed to fulfil his or her responsibility as a parent.
The parties have separated, initially under the one roof but later physically. They are now divorced. There is no evidence that either one has formed a new relationship.
These are interim orders. The arrangements for the children will later be considered on a final basis. It is clear that orders should be made to allow [Y] to start spending time at his father’s residence overnight. I am not prepared to make an order at this stage for him to spend more than one night at a time in his father’s care but if this arrangement goes well during the year then consideration should be given to extending this arrangement to two nights by about the end of the year.
It does not appear to be desirable for the children to spend every weekend with the father when he is in Sydney. Dr H recommends alternate weekends and I propose to follow that recommendation.
The father seeks that [X] and [Y] should spend time with him for two days during the week, [Y] from 9:10 am till 6:00 pm and [X] from
3:00 pm until 6:00 pm. The mother seeks that the children should be returned to her at 4:30 pm. The reason for this is that she wants the children to be in bed by 6:00 pm, as [X] is tired after school and it takes [Y] until about 7:00 pm to get to sleep.
Obviously, if the children are not returned to their mother until 6:00 pm, there is no chance for them to go straight to bed by that time. However, if the children are returned to the mother at 4:30 pm, he will only see his father for an hour and half at most, which hardly gives him time to tell his father about his day and relax after school. The mother’s proposal of only one day a week would mean that [X] would only see his father for one and a half hours until the weekend and, if the children were only spending alternate weekends with the father, [X] would only spend time with his father for one and half hours in the alternate week.
That is insufficient time for [X] to spend with his father, with whom he has a positive relationship.
It is desirable for the children to be together as much as possible when in the care of each parent, although those arrangements cannot be entirely simultaneous whilst [Y] is not at school.
I accept Dr H’s opinion that changeovers should be minimised, as they are a source of tension between the parents which will impact on the children.
The father seeks orders that would permit him to spend time with the children on special days such as birthdays and Father’s Day. This is desirable and I propose to make such orders.
However, he also seeks orders that would allow him some compensatory time with the children or either of them if he has missed out on spending a birthday with them due to his being away because of his work. In my view this unrealistic. If the parties were still living together and he still had the work roster that takes him away for three weeks at a time, it would almost inevitably be the case that he would miss one of the children’s birthdays or he would be away on his own birthday. Plenty of parents have to face that eventuality.
If the father misses a birthday because he is away at work, he can always arrange another day to celebrate it with the children once he returns. That is what parents do as a matter of course.
The father may be away on Father’s Day, too. If that happens, then he can arrange to celebrate it on another day when he is back in Sydney.
It is not desirable that the father’s time with the children should be reduced from what it presently is, but time with the children is a matter of spending time with them in an arrangement that assists them to form a close and continuing relationship with them, rather than a compilation of hours spent together.
The mother must also accept that these children have a positive relationship with their father which needs to be strengthened and encouraged.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 19 May 2011