Boulle & Dinan
[2023] FedCFamC2F 101
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Boulle & Dinan [2023] FedCFamC2F 101
File number(s): HBC 762 of 2021 Judgment of: JUDGE TAGLIERI Date of judgment: 8 February 2023 Catchwords: FAMILY LAW – parenting – where parties agree on equal shared parental responsibility and equal time arrangement – only outstanding issue is configuration of spend time arrangement due to Father’s roster work – orders made as sought by Mother in a 2/2/5/5 arrangement Legislation: Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 60B(1) Division: Division 2 Family Law Number of paragraphs: 74 Date of hearing: 30 and 31 January 2023 Place: Hobart Counsel for the Applicant Ms Mooney, SC Solicitor for the Applicant Simmons Wolfhagen Respondent Self-represented Litigant ORDERS
HBC762 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BOULLE
Applicant
AND: MR DINAN
Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
3 FEBRUARY 2023
THE COURT ORDERS THAT:
1.The children X born 2009 and Y born 2011 (“the children”) live with the MS BOULLE (“the Mother”) and MR DINAN (“the Father”) on a two week cycle as follows and commencing from Monday 6 February 2023:
(a)From Monday at the conclusion of school (and at 3:00pm if not a school day) until Wednesday at the conclusion of school (and at 3:00pm if not a school day) with the Father;
(b)From Wednesday at the conclusion of school (and at 3:00pm if not a school day) until Friday at the conclusion of school (and at 3:00pm if not a school day) with the Mother;
(c)From Friday at the conclusion of school (and at 3:00pm if not a school day) until Wednesday at the conclusion of school (and at 3:00pm if not a school day) with the Father;
(d)From Wednesday at the conclusion of school (and at 4:00pm if not a school day) until Monday at the conclusion of school (and at 4:00pm if not a school day) with the Mother; and
(e)Such further alternate times as agreed between the Mother and the Father.
2.During the gazetted mid-term school holidays, the children live with each parent as follows:
(a)In the year 2023, and each alternate year thereafter;
(i)With the Father for the first seven (7) nights of the mid-term holidays, commencing on the Monday after the conclusion of school term; and
(ii)With the Mother for the next seven (7) nights of the mid-term holidays, with changeover to occur at 3:00pm.
(b)In the year 2024, and each alternate year thereafter;
(i)With the Mother for the first seven (7) nights of the mid-term holidays, commencing on the Monday after the conclusion of school term; and
(ii)With the Father for the next seven (7) nights of the mid-term holidays, with changeover to occur at 3:00pm.
(c)Such further and alternate arrangements as agreed between the Mother and the Father at least four (4) weeks prior to any school holiday period commencing;
(d)Should either parent elect not to exercise mid-term holiday time pursuant to this order, the parent electing not to exercise this time will give the other parent at least forty two (42) days’ notice and Order 1 will apply during that period;
(e)If there are any days/nights not covered by the mid-term school holiday period arrangements, Order 1 will apply.
BY CONSENT, THE COURT ORDERS THAT:
3.The Parenting Orders made 4 February 2020 be discharged.
4.The Mother and the Father have equal shared parental responsibility for the children.
5.Both parents comply with all reasonable directions from any of the children’s treating medical practitioners, including administering any prescribed medication for the children.
(a)During the gazetted school summer holidays the children shall live with each parent in accordance with Order 1 subject to the following:
(b)The parents may agree upon an alternative arrangement in writing;
(c)Either/each parent may elect in writing, by no later than 1 December in the year immediately prior to the time being exercised, to spend a two-week block with the children commencing:
(i)on the first Monday in January for the Mother; and
(ii)the third Monday in January for the Father.
NOTING that if only one parent makes that election, time will no longer be equally split between the parents for those summer holidays and no compensatory time will occur.
6.The children spend time with each parent on special occasions as agreed by the parents at least four weeks prior to each special occasion, and failing agreement as follows:
(a)Christmas 2023 and each alternate year thereafter:
(i)with the Father from 3:00pm on Christmas Eve until 3:00pm on Christmas Day; and
(ii)with the Mother from 3:00pm on Christmas Day until 3:00pm on Boxing Day;
(b)Christmas 2024 and each alternate year thereafter:
(i)with the Mother from 3:00pm on Christmas Eve until 3:00pm on Christmas Day; and
(ii)with the Father from 3:00pm on Christmas Day until 3:00pm on Boxing Day;
(c)New Year’s Eve 2023 and each alternate year thereafter with the Mother from 3:00pm until New Year’s Day at 3:00pm;
(d)New Year’s Eve 2024 and each alternate year thereafter with the Father from 3:00pm until New Year’s Day at 3:00pm;
(e)Easter 2023 and each alternate year thereafter:
(i)with the Mother from 3:00pm on Good Friday until 3:00pm on Easter Sunday; and
(ii)with the Father from 3:00pm on Easter Sunday until 3:00pm on Easter Monday;
(f)Easter 2024 and each alternate year thereafter:
(i)with the Father from 3:00pm on Good Friday until 3:00pm on Easter Sunday; and
(ii)with the Mother from 3:00pm on Easter Sunday until 3:00pm on Easter Monday;
(g)The children’s birthdays:
(i)If the children are not already spending time with the Father that day, with the Father from 4:30pm until the commencement of school the next day (or 10:00am if a non-school day);
(ii)If the children are not already spending time with the Mother that day, with the Mother from 4:30pm until the commencement of school the next day (or 10:00am if a non-school day);
(h)Father's Day: If the children are not already in the care of the Father pursuant to these Orders, with the Father from 5:00pm the day before Father's Day until the commencement of school the next day;
(i)Mother’s Day: if the children are not already in the care of the Mother pursuant to these Orders, with the Mother from 5:00pm the day before Mother’s Day until the commencement of school the next day;
(j)Such other or alternate time as may be agreed between the parties in writing.
7.Both parents will communicate directly with each other using respectful, non-intimidating and neutral language.
8.Neither parent will discuss these Orders or any issues arising from these Orders in the presence and/or hearing of the children, other than to inform them of the arrangements pursuant to these Orders.
9.In the event of an emergency or illness the parent who has the children will inform the other parent as soon as reasonably practicable.
10.If a parent books or arranges a non-routine medical appointment or specialist appointment for one or both of the children that parent is to notify the other parent within 24 hours and both parents are at liberty to attend.
11.Each parent be at liberty to take the children on interstate or overseas holidays for a period of up to three weeks at a time (or longer, if agreed), on one occasion in each calendar year (unless otherwise agreed) subject to the following if the intended travel impinges upon the other parent’s time with the children:
(a)The travelling parent provides the other parent with written notice of the intended travel dates no later than six (6) months prior to any overseas travel and three (3) months for interstate travel;
(b)The intended dates of travel do not interfere with the other parent's time on special days pursuant to Order 7 herein, unless otherwise agreed;
(c)The intended dates of travel do not interfere with any dates of the other parent's intended travel, that the other parent has already provided written notice for;
(d)The travelling parent provides the other parent with copies of a travel itinerary including (if relevant) return airline tickets booked in the children's names no later than four (4) weeks prior to travel for overseas travel and two (2) weeks for interstate travel; and
(e)Prior to travel the travelling parent provides the other parent with a brief itinerary and contact details to facilitate reasonable communication with the children.
12.Changeovers are to occur at the children’s school on school days, and on non-school days outside the home of the parent who is scheduled to have the children live with them.
13.The Father enrol in and complete the Parenting Separately course conducted by L Support Services within six (6) months of the date of these Orders or as soon as practicable thereafter.
THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boulle & Dinan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
The parties to these parenting proceedings have two children, now aged 13 and 11, X (born 2009) and Y (born 2011).
The parties separated in 2019. Between then and August 2021, they had various agreements about the parenting arrangements for the children including pursuant to a consent order made in 2020 and later a parenting plan in effect from 11 May 2020.
It was uncontentious that further changes to the arrangements were sought by the Father and not agreed, eventually leading to the Mother commencing these proceedings in the Court on 2 August 2021.
In the Amended Initiating Application filed by the Mother on 9 January 2023, she seeks extensive parenting orders. Comparison of the orders she seeks with those sought by the Father in his Amended Response filed on 16 January 2023 revealed agreement about a number of orders.
At the defended hearing before me on 30 and 31 January 2023, Counsel appeared for the Mother and the father was self-represented.
Counsel for the Mother tendered a document entitled ‘proposed consent orders’, which consist of a minute of the orders that the parties told me were sought by consent.[1]
[1] Exhibit A-4.
Noting the orders sought by consent, it was apparent that the only issue of substance in dispute between the parties and for determination by the Court was the question of how the equal shared live with and spend time arrangements for the children should be structured.
I was told that the Court would need to make a determination about how the children would spend time and live with each parent during school term time and during the term school holidays, noting that it was agreed the time should be equal.
The parties had agreed orders for the children’s time with the parents during the summer school holiday period.[2]
[2] Proposed order 4 of Exhibit A-4.
MOTHER’S CASE
In addition to the Amended Initiating Application, the Mother relied on her affidavit filed on 9 January 2023. Given the narrow scope of the issues in dispute, it was agreed that certain paragraphs from her affidavit would not be read into evidence, as they were not relevant. Those paragraphs were identified in a handwritten note marked as Exhibit A-13.
The Mother also relied on certain documents from her tender bundle and the Father’s tender bundle, in particular:
·Parenting orders made 4 February 2020 by consent, marked Exhibit A-5;
·Variation to the parenting orders, as at May 2020, marked Exhibit A-6;
·Email from the Father to the Mother 28 February 2021, marked Exhibit A-7;
·Child Dispute Conference Memorandum authored by Ms B and dated 19 December 2019, marked Exhibit A-8;
·Current child support assessment, marked Exhibit A-9;
·Emails between the parties dated 22 to 27 November 2019, marked Exhibit A-10;
·Surveillance video footage dated 1 May 2022, marked Exhibit A-11;
·Email from Mother to Father dated 28 February 2021, marked Exhibit A-11; and
·Child Impact Report authored by Ms C dated 11 November 2021, marked Exhibit R‑18.
Counsel for the Mother tendered three coloured schedules, which were received as an aid memoire but given an exhibit number for identification purposes.[3] The parties confirmed that the schedules pictorially depicted the existing care schedule for the children on page 1, the Father’s proposed live/spend time arrangements on a 4/4 rotation on page 2, and the Mother’s proposed live/spend time arrangements based on of a 5/5/2/2 schedule on page 3.
[3] Exhibit A-3.
Having noted that the Child Impact Report at [23] referred to limiting changeovers, I enquired whether the parties had calculated or assessed the number of changeovers involved in the respective proposals and orders sought by the parties. The parties advised they had not done this assessment, but agreed to confer to ascertain if that could be subject to agreed facts.
Subsequently, I was advised by consent that the parties were agreed that the Father’s proposal over an eight-week period entailed 14 changeovers and in the same period the Mother’s proposal entailed 16 changeovers. This agreement had been recorded in a handwritten note which was received as Exhibit A-14.
FATHER’S CASE
The Father relied on and asked the Court to read into evidence:
·His trial affidavit filed 16 January 2023;
·Affidavits of Mr D filed 17 January 23;
·Affidavit of Ms E filed 16 January 23; and
·Affidavit of the Father’s partner Ms F, also filed 16 January 2023.
The Father also tendered into evidence, without objection, documents from his Trial Court Book, being:
·Correspondence of 16 January 2023 from Mr G of the Public Service, marked Exhibit R-6;
·Correspondence of 14 January 2023 from Mr H of the Public Service, marked Exhibit R-7;
·Various emails and text messages exchanged between himself and the Mother, marked Exhibit R-8, Exhibit R-9, Exhibit R-12, Exhibit R-13, and Exhibit R-15;
·Email exchange between Ms J, the Mother’s solicitor at the time, and the Father 23 October 2019, marked Exhibit R-10;
·Letter received by the Father authored by Dr K, clinical psychologist, and dated 2 December 2020, marked Exhibit R-11;
·Various SMS text messages between the Mother and the child X variously dated in 2022, marked Exhibit R-13; and
·Child Impact Report authored by Ms C dated 11 November 2021, marked Exhibit R‑18.
UNCONTENTIOUS FACTS AND ISSUES.
The content of the case outlines filed by the parties demonstrated that they were agreed and I find, in summary, as follows:
(a)The children have a meaningful relationship with each parent, which is of benefit to them;
(b)There is no current relevant issue concerning the need to protect the children from abuse, neglect or violence. Although the Mother had referred to past statements made by Y to the Court Child Expert about being fearful of the Father and the Father made allegations that the Mother fails to impose boundaries. These contentions were not given focus or significance to the current circumstances. Further, the contentions and related evidence in the parties’ affidavits should be viewed in context that they have agreed to an order for equal shared parental responsibility and seek equal time with the children. Accordingly, I do not attribute any material weight to the evidence and contentions;
(c)The children have expressed views to the Court Child Expert and family members that they would prefer equal or near equal time between the parents, and that X would prefer fewer changeovers than under the present arrangements;
(d)The children have close and loving relationships with each parent, their extended family members and Ms F, who are all well able to provide for their needs;
(e)Each parent has been an integral part of the children’s lives, each participating actively and able to do so, including making decisions regarding their well-being;
(f)Both parents work and contribute to the maintenance of the children and there was no suggestion that their needs are not being met. To the extent that the Mother’s case outline contends that the Father’s contribution has been “constant source of tension,” this did not appear to be heavily relied upon in submissions by Counsel for the Mother, except to identify it as a source of conflict or ineffective communication at times.
(g)The Father is paying child support pursuant to administrative assessments. Although he has challenged those assessments, he is exercising his legal right to do so and I ought not to infer adversely merely because of this;
(h)The parties live in close proximity to one another, with the Father in M Town and the Mother in N Town. There is no practical barrier to facilitating the children’s’ time with each parent; and
(i)Both parties say the other is generally capable of providing for the children’s physical, emotional and intellectual needs. Despite this each makes some criticism of the others parenting in their affidavits and remarks made to the Court Child Expert. I find the criticism is a reflection of their subjective opinions based on very different parenting styles and values. Despite the conflict this causes at times, I accept the expert views of the Court Child Expert. Namely, that their respective conduct “falls inside the range of acceptable limits of parental empathy and guidance”.
SUMMARY OF OTHER RELEVANT EVIDENCE
Given the narrow issues to be determined by the Court, being the schedule by which the children will spend equal time with each parent, a considerable amount of evidence contained in affidavit material and traversed in cross-examination is not directly relevant. An example of this is the exploration of Exhibit A-11, a copy of video surveillance of the Mother when she attended the Father’s property to collect items for the children.
As such, it is unnecessary for me to recite the totality of the evidence. Rather, I will focus on the evidence most relevant to my determination.
There was no contest to the evidence of Father’s three witness affidavits. They endorse or support the capabilities of the father as an exemplary parent, motivated to ensure the children’s well-being. They are unsurprising subjective corroborative witness accounts, closely connected to the father. I accept the general tenor of their evidence, but it does not particularly assist the Court in deciding what is in issue because of the uncontentious matters just described and the order the parties agree should be made.[4]
[4] At [6] of these reasons.
The cross examination of the Father quite properly targeted his view as to why arrangements for his time with the children should follow a four-on-four-off structure. It explored the actual work undertaken by the Father in the past and present, how his rosters had changed since the parties’ separation, and how often those changes occurred or could occur in future.
It became apparent that the Father, although working currently on part-time hours of 30 hours per week, was intending in the future to revert to full-time hours. The four-on-four-off pattern of care he sought was compatible with what he described as fixed and predictable work hours.
However during cross-examination, he stated and/or conceded that:
(a)He does not work 4 days on and 4 days off, currently he works .75 of full-time hours, namely 30 hours per week;
(b)His regular shift would usually begin on a Monday and involve working day shifts followed by night shifts;
(c)Day shifts are worked between 7:00am and 5:00pm and night shifts between 2:00pm until midnight on weekdays, but on weekends from 4:00pm until 2:00am;
(d)He also undertakes or does training during some of his day shifts, which would normally occur on a rostered day off, being a Monday. I understood this to mean when he was only working part-time hours, but it was unclear;
(e)Within the typical four-on-four-off roster, he had a degree of flexibility in negotiating which days he worked his current 30 hours per week work, and he “may” arrange to have Mondays off;
(f)He usually has between three and five days off in a row, but sometimes six days;
(g)Whether he works part-time hours or full-time hours, his shifts will always be rotating. Meaning, that the first day of any four-day-on block will always begin on the day of the week after his\block began the previous week. For example, if a block begins on Monday in Week 1, it will begin on Tuesday in Week 2 and Wednesday in Week 3.
(h)On his proposal of four-on-four-off, the children would spend variable days of the week with each parent, but know that they are spending four consecutive days with one and then the other on rotation;
(i)The children would be confused in understanding what days of the week they are with which parent, particularly in future weeks;
(j)The children would have no understanding of which parent they may be with at times proposed in the future, when invited to undertake an activity with a friend or an extracurricular activity; and
(k)He too could not predict, based on his proposal of four-on-four-off, with which parent the children would be living on specific dates suggested by Counsel that were more than two or three weeks into the future.
The Father cross-examined the Mother at length. As a self-represented litigant he approached the task admirably in seeking to elicit concessions advantageous to his case. However, a considerable part of his cross examination traversed what I consider to be peripheral matters rather than focussing on relevant evidence, given that the parties were agreed that there should be orders for equal shared parental responsibility and equal time.
It was evident from the Father’s line of questioning that he sought to demonstrate that his attitude of the Mother, being unfavourable at times and one of distrust, was reasonable and justified. For example, cross examination about the letter from Dr K and his insistence that the parties only communicate in writing. Further, he focussed on the Mother’s knowledge and acceptance of the nature of his shift work during their relationship.
Additionally he sought to demonstrate:
(a)The Mother as being unreasonable by denying reasonable requests for changed arrangements to ensure he was not at work when he had the care of the children;
(b)The Mother as excessively permissive and “feeding” some of Y’s issues and emotional difficulties; and
(c)The interests of the children required a parent to be present at all times.
The Mother’s answers to many questions put to her by the Father were excessively long, narrative in style, and often defensive or explanatory of her actions and statements. It was apparent from her manner and the content of her answers that she thought deeply and emotionally about many of the topics traversed. Her presentation was a stark contrast to that of the Father, whose presentation was direct, succinct and businesslike. The contrast in demeanour correlated closely with the evidence of the Court Child Expert about the parties’ different personalities and parenting styles.
The Mother did not make concessions about key issues as sought by the Father. Her evidence persuasively conveyed the importance of predictability, certainty, and the children themselves understanding the arrangements, to avoid ongoing conflicts or disadvantage to the children.
Both parties mostly made concessions when their evidence was challenged in the face of objective evidence demonstrating the contrary.
The Father cross-examined the Court Child Expert, Ms C, about the contents of her report of 11 November 2021. He established that she considered the opinions expressed in the report to remain “contemporary” despite the passage of 14 months, although Ms C stated that as X was now in high school he would be developing greater independence and face new issues such as adapting to a different school and friends/peers.
Ms C was also directly asked which of the parties’ proposals likely better met her recommendations. Ms C stated that each proposal had advantages and disadvantages and that it was a difficult balancing exercise for the Court. She agreed that both proposals were worthy of consideration. However, she rejected the Father’s suggestion that it is necessary for a parent to be present at all times when that parent had the children’s care.
The Father sought to elicit evidence from Ms C about the importance of prioritising the children’s time with him according to his work roster and suggested his proposal better achieved this. Ms C expressed difficulty answering the questions put because she did not have knowledge of the father’s precise roster and what that looked like superimposed on the various proposals. Not surprisingly, she commented that it was difficult and confusing, adding she could not really assist the Court.
The father sought to press the questioning, but an objection was made by Counsel for the Mother on the basis that the father was asking Ms C to give evidence based on propositions he was putting from the bar table and not the subject of or consistent with the evidence he gave.
The Father sought to be allowed to recall himself to give further evidence.
After hearing the submissions, I ruled that the Father should not be permitted to give further evidence or pursue his questions. I gave oral reasons for so ruling, which I do not need to repeat.
I sought clarification of the recommendations of Ms C expressed at [23] of the Child Impact Report and in summary her evidence was follows:
(a)On balance, the Mother’s proposed schedule is likely to work better for the children than the Father’s proposed schedule, and as such using the Mother’s proposal as the primary basis is preferable;
(b)She acknowledged that the Mother’s proposal would have children living with the Father at times when he is rostered to work and they may not see much of him as a result at these times; and
(c)The orders need to particularly avoid changeovers on the weekends as, given children’s ages, it is preferable they spend the whole of each weekend with one parent.
CLOSING SUBMISSIONS OF THE PARTIES
In essence, the Mother’s case was that the existing live and spend time arrangements for the children are no longer suitable, working effectively, or in the children's best interests. In particular, they are confusing, irregular, lack predictability and cause instability for the children and the parties. This leads to unpleasantness or dispute between the parties, compounded by the parties’ innate inability to effectively communicate.
On the Mother’s case, the care arrangements for the children need to follow a regular pattern, to eliminate or reduce the risk of conflict between the parents, and be conducive to certainty in planning for each of the parents around their work and care commitments. It also has to be consistent to ensure that the children understand their arrangements. She contends that the 5/5/2/2 proposal achieved all these objectives, and also aligns with the view of the Court Child Expert and her recommendations, noting the wishes expressed by the children.
The cornerstone of the Father’s case was that it was optimal for and in the best interests of the children that they be able to live and spend time with him when he is not rostered on to work. Consequently, the care arrangements for the children needed to closely follow or correlate with his work roster.
The Father submitted that it is of the highest priority that he not be at work when they are in his care so he can see them off to school and put them to bed each night, to spend meaningful time with them on weekends and school holidays, as the mother has opportunity to do. The Father contended that a 4/4 arrangement achieved what was said to be important for the children according to Ms C.
RELEVANT LEGAL PRINCIPLES
In parenting proceedings, the paramountcy principle applies and the Court is required to make orders that are in the best interests of the child/children.[5] Express direction is provided in section 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interest. The Court is to inform itself of the child’s best interests by the considerations in ss 60CC(2) and (3) of the Act.
[5] Section 60CA of the Act.
EVALUATION AND DETERMINATION
Having regard to the extensive evidence given by the parties under cross examination, I have no reason to draw any adverse inference about their truthfulness or bona fides. I am entirely satisfied that they both have the well-being of the children at the forefront of their actions. However, because of their very different styles of parenting and personality, and the Father’s expectation that the Mother should continue to support his shift work and accommodate the changes/variations that entails for the sake of him being available to the children at all times when they are in his care, they have been unable to resolve their dispute.
The issues in this case must be determined according to the principles I have set out at [41] of these reasons, applying those in conjunction with the findings I have made. In addition, to my mind, the expert opinions of Ms C have greater weight than the subjective evidence of the parties about what achieves the best interests of the children. I have been greatly assisted by her evidence, particularly her clarifying evidence given during the hearing and as noted at [36 of these reasons.
I consider that the opinion at [23] of the Child Impact Report, remains key to determining what orders should be made. There Ms C stated:
… Deciding on the most suitable arrangements will need to balance minimising changeovers in the context of prioritising children's time with their father when he is not working with the arrangements being too disruptive for [the Mother] or confusing for the children.
It is self-evident from this opinion there are four important factors to be weighed or balanced for the purpose of the court making its determination. They are:
·Minimising changeovers;
·Prioritising the children’s time with the Father;
·Not being too disruptive to the mother; and
·Not being too confusing to the children.
It was agreed that in an eight-week period the Father’s proposal would involve 14 changeovers. By comparison, the Mother’s proposal would involve 16 changeovers.
I consider this difference in the number of changeovers is relatively minimal and likely to be immaterial, even more so as the children grow older, noting their current ages and increasing independence. I accept the evidence of Ms C as to this and there is no persuasive evidence that 16 changeovers instead of 14 would particularly disadvantage the children’s overall well-being. I note that both proposals involve a considerable reduction in the number of changeovers from the present arrangement, which will be conducive to less disruption for the children, is consistent with X’s wishes, and will reduce likelihood of conflict and of unpleasant and ineffective communications between the parties.
There is no doubt, based on Ms C's opinion, that a consideration is prioritising the children’s time with the father when he does not work. I accept her view as to this, but her oral evidence highlighted and clarified that it would not be particularly problematic for the children not to have the father present at all times, particularly as they age and gain independence. Especially so because he has a number of persons who can assist with the children’s care.
Noting the 2/2/5/5 arrangement proposed by the Mother, my analysis discloses that in an 8 week period (being 56 nights), the Father on a 50/50 arrangement will have 28 nights with the children. On the described four-on-four-off roster entailing two days and two night shifts, even if the Father returns to full time employment, it will be 7 nights in the 28 days he spends with the children that he will need to coordinate care at night.
The Father has sought to elevate this consideration to most important and greater than any other considerations identified by Ms C. This elevation is not supported by her evidence. Ms C's evidence was that if it is possible to structure a stable and predictable equal shared time arrangement which enables the children to be in the Father’s care and coincide with his days off roster that is a commendable goal.
However, the evidence relied on by the Father fails to persuade me about the underlying assumption in his case, namely that his hours of work are fixed and predictable such that I can be satisfied that he will continue working a fixed pattern of hours as he currently works or the rotating four days on and off as pictorially demonstrated in Exhibit A-3.
As I put to the Father during his closing address, his own evidence establishes that his rostered hours of work are at the mercy of his employer and there was no evidence that he had agreed to fixed hours/rostered days to remain the same in the future. Instead, the evidence by his own concession was that there had been multiple changes in his shifts in the past and he accepted under cross-examination that there were up to 11 in the past two years.
I invited a submission as to why the Court should not rely on the evidence about history of changes as the most reliable indicator of what likely would occur with his work hours in the future. The Father did not quibble with the proposition that I should have regard to the history and simply maintained that he would be working fixed hours. He pointed to his own evidence and the letter from Mr G.[6]
[6] Exhibit R-6.
I give less weight to the Father’s evidence about what work hours he will have in the future because he does not have control of those and because it is subjective and inconsistent with practical experience in the past.
To the extent that the Father emphasised the contents of Mr G’s letter, I consider it to be internally inconsistent and give it less weight. Mr G describes a “fixed roster known as four on four off”, but the Father gave evidence that the commencement of each consecutive four days shift moves forward by a day. It cannot be regarded as a fixed roster because the days of the week on which the Father is required to work varies from week to week and over an eight week period varies a number of times.
Furthermore, Mr G describes a number of scenarios that have potential to cause variation of the so called “four-on-four-off” roster. It is self-evident from the Father’s own evidence and the contents of Mr G’s letter that a number of variations to the four-on-four-off roster can arise by either agreement or direction. This evidence accords with the changes that have historically occurred in the Father’s work roster.
Noting the above reasons, while I accept prioritising the children’s time with the Father when he is not working is a consideration, I reject the contention that is it the most important consideration. To elevate that consideration to having the highest importance would impermissibly limit the necessary assessment of what is in the best interests of the children.
The convenience of the Mother was a consideration explored during the hearing. I understood this to mean the convenience of stable arrangements, so the mother could plan and organise herself and the children when they are in her care. If it means this, it applies equally as a consideration for the Father, but it ought not to be accommodated for one parent at the complete expense of the other. Instead, I consider that having a stable and regular pattern of time is for the benefit of both parties convenience, but more importantly for the children, so that they do not constantly have to cope with change and uncertainty and they are not confused or disappointed by discord between the parents about their activities.
It is not unreasonable to expect both parents to organise and plan for the care of the children if they are not personally available to do so during court ordered time. The capacity for both parents to do this is better when there is a fixed and stable pattern of days when the children are with each parent. If one or both parents wish to negotiate favourable hours of work with their employer to coincide with their care responsibilities, they are at liberty to do so, albeit that one employer may be more accommodating than another.
However, there was no evidence given by the Father that he has tried to secure a genuinely fixed roster and been refused. To the contrary, his evidence has been that he has negotiated variations of his permanent position, including a part-time hours. Further he acknowledged that he may arrange to have Mondays off, and he has voluntarily accepted various secondments to suit his needs.
In my view, the convenience of the parties is of less weight than the importance of a stable arrangement which minimises disruption and reduces the risk of ineffective or unpleasant communication demonstrated by the parties’ evidence to have arisen.
I accept the submission of Counsel for the Mother that arrangements that allow each parent to take responsibility for the children’s arrangements, including extracurricular activities, when the children are in their care is to be preferred. This will avoid or significantly limit unpleasantness or dispute between the parties and the need for actual or implied criticism of the other parent, all of which have a tendency to be perceived by children and are known to be detrimental to their emotional well-being. This is noted in the Child Dispute Conference Memorandum at [24].
The Father conceded that the current arrangements were confusing to the children and that they do not have an understanding of what they are. This is entirely consistent with what the Court Child Expert ascertained during interviews with the children and is likely to have at least an adverse emotional impact.
The Father’s current proposal and orders sought have the same disadvantage of confusion for the children. That is because:
·It does not allow fixed or consistent days of each week/fortnight with each parent; and
·Some weekends would be split between the parents, creating a high likelihood of disappointment and distress when the children are unable to commit to activities with their peers and friends. Ms C stated and I accept this is an important consideration, particularly as the children get older and gain independence.
In addition to the discussed considerations and evidence preferred, I consider that the Father has an expectation that the Mother should continue to accommodate his shift work roster, whatever that may be. The Father’s evidence was telling in this respect, and it was as follows:
That’s the issue with a shift worker, who she started a relationship with and who she had children with, and unfortunately carries over to co-parenting.
In my view this evidence demonstrated an entrenched attitude that because the Father worked shift work habitually when the parties were a family unit, he should be able to continue to do so, but still have equal time with the children regardless of what his hours of work are.
I do not consider the Father malicious in this belief, but his expectation is not one that I consider to be particularly relevant to the Court’s task of determining what parenting orders should be made. The expectation has an implicit tendency to elevate his choice of work or career as a factor for consideration, but I have not been directed to a basis for accepting that to be so either at law or on the evidence.
The expectation also fails to recognise that the parties are no longer a family unit and what may have been acceptable and appropriate then, is not necessarily so now. Neither parent has a stronger claim to a structure that aligns with their previous employment or careers and both now are required to work in order to provide financially for the children.
Concerning the gazetted mid-term school holidays, the Father’s objection to Order 3 contained in Annexure A to the Mother’s Case Outline was only that he wanted the order to be expressed in terms that enabled him to opt-in to having one whole week of each holidays with the children.
There was considerable cross-examination about this topic and I was not persuaded by the Father’s evidence that the arrangement should be opt-in. Instead, to ensure certainty and planning for activities during the school holidays it is preferable that the Father be obliged to give notice to the Mother in advance if he does not intend to exercise time with children in the mid-term school holidays.
That being the case, I consider that there should be an order similar in the terms proposed by the Mother and the Father can easily set electronic reminders in his diary or calendar to prompt him to give the notice as contemplated in Order 3(d) of the Mother’s proposed orders. This was something he conceded he could do.
As the Father’s rostering according to the general tenor of the evidence occurred in 8-week blocks, I do not foresee and no evidence was given about the practical difficulty of a notice period that permits planning, providing it is a period of 42 days rather than 60 days. The reasoning for the shorter period is that, if 60 days, the Father may not have his future roster and may not be able to comply with the notice period.
CONCLUSION
I consider the Mother’s proposal for an equal time and shared care arrangement accords more closely with the objectives opined by Ms C, whose evidence I accept. Further, the other considerations expressed by her and noted at [45] of these reasons reinforce the conclusion that it is preferable and in the best interests of the children while not excessively inconvenient to either party for there to be a 2/2/5/5 shared care arrangement.
In addition, there will be an order that the Father complete a parenting course, and I will make the orders sought by consent.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 8 February 2023
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