Braddon and Braddon

[2007] FamCA 1382

FAMILY COURT OF AUSTRALIA

BRADDON & BRADDON [2007] FamCA 1382

FAMILY LAW – CHILDREN – Equal time

Family Law Act 1975 (Cth)

APPLICANT: Ms Braddon

RESPONDENT: Mr Braddon

FILE NUMBER: SYF 3398 of 2005

DATE DELIVERED: 27 November 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Cohen

HEARING DATE: 28 March 2007, 29 March 2007, 30 March 2007, 22 August 2007, 23 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Barkus Edwards Doolan

SOLICITOR FOR THE RESPONDENT: Adrian Twigg & Co.

Orders

1. That the child U live with each parent for an equal time at such times as agreed by the parents or in the absence of agreement during school term from the cessation of the school day on Monday to the cessation of the school day on the immediately following Monday in each alternate week with the wife and at all other times during school term with the husband.

2. My reasons for judgement in the parenting issues determined in order 1. are reserved.

3. Judgement is reserved on all other issues between the parties.

4. Costs of the parenting issues are reserved until the expiration of 1 month after judgement in the property issues is published.

5. That the parties shall have equal shared parental responsibility for the child’s care, welfare and development.   

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3398 of 2005

MS BRADDON  

Applicant

And

MR BRADDON  

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the living arrangements to be made for the parties’ daughter, U, and the division of their property. It is appropriate to determine the children’s issues before the property issues because the decision in the former may affect the decision in the latter.

2. The parties married in August 1985 and U was born in June 1996, so she is now aged 11 years. The parties’ have another daughter, J, who is approaching 20 years of age. The husband has two children of a former marriage; a daughter L who is 29 years old and a son B who is 28 years old. He left the former matrimonial home in June 2004 when U was aged about 8 years, although for a few months he slept there on an average of about one night each week. The child U continued to live with the wife as did J and B.

3. The issues over U are limited. The wife seeks that she reside with her on 9 nights per fortnight during school term, whereas the husband asks that she live with the parties during school term in a week about arrangement. The wife does not seem to be strongly opposed to a compromise where U spends 6 nights with the husband each fortnight if she cannot convince the Court that 5 nights with him is appropriate and she cannot therefore have the division she primarily seeks.

4. There was some suggestion that, if it is decided that U should spend equal time with each parent, a different pattern might be preferable, but no substantial argument or evidence in favour of the suggestion was put to me and I can see no benefit to U adopting other than a week about arrangement if equal time is held to be better for her than spending a higher proportion of her time during school term with the wife.

5. There is no other dispute over the orders needed to make complete arrangements for U’s future care. The parties agree that there should be equal shared parental responsibility for her future and that there should be a parenting order to that effect. Therefore s65DAA applies and the Court must decide whether it is in U’s best interests to spend equal time with each parent and whether it is reasonably practicable for her to do so and, if both these matters are answered affirmatively, an order for U to spend equal time with each parent must be considered. The holiday and special occasion orders which the parties have agreed on will result in U spending these times equally with each parent.

6. Since consent interim orders were made in late March 2007, U has been spending 5 nights in 14 during school term with her father as well as half of all school holidays. Her regime has been that she stays with him from Friday after school until Monday morning in alternate weeks and from Tuesday after school until Wednesday morning every week. Before that, from December 2005, in school term, although she spent on 2 nights in each 3 weeks living with the husband, she actually spent 3 days and an additional 3 afternoons in 3 weeks with him. She spent half the school holidays with him too. Immediately after separation until the orders which instituted this regime were made, U did not spend as much time with the husband during school terms or school holidays.

7. Because, irrespective of the outcome of these proceedings, the parties’ claims only differ over 40 days each year or one day each week in school term, the factors which can have an affect on the decision are quite limited and there is no need to provide a comprehensive history of events which might be germane to the issue of residence. This is because, essentially, each party accepts that the other parent has a history of good parenting. U’s lack of the symptoms of less than effective parenting confirms this. Apart from the area of dispute between the parties, the parties have, consistently with the principles of the Family Law Act1975 (Cth) in relation to children which are specified in s60B(2),  parented U in manner which benefited her rather than indulged themselves. They have ensured that her best interests have been met by being properly involved in her life, by protecting her from harm and abuse and the like and by properly and responsibly parenting her. That is why she is such a healthy child psychologically.

8. In coming to my decision on the parenting issue, I must strive to ensure that her best interests continue to be promoted. In doing so, I must give full effect to the provisions of the Act. Although a child’s best interests are not the only factor to be weighed in deciding what orders for the child’s upbringing are to be made, it is the paramount factor.

9. The evidence about the practicability of U spending time with each parent favours equal time. The parties live close to one another. The husband said they were “one minute away” from one another. In fact, the distance is probably a little more than that, but not much more. Both live in T. The child U attends primary school in T. She will complete primary school at the end of 2008, then will probably attend a Catholic high school in G. Each party has and will continue to have much the same capacity to get her to school while she is at primary school. She will be old enough to travel independently by the time she attends high school.

10. The current proximity of the parties’ living arrangements may end soon. The wife is likely to continue living in T because she owns the home she lives in. The husband is renting at present. On resolution of the property dispute, he hopes to be able to purchase a home but may not be able to do so. If he can, it will probably be in a cheaper area. He says that if he has to continue to rent he is likely to continue to rent the premises where he now lives because the rent is as low as he is likely to be able to find for a suitable home. I think it is probable, whatever the arrangements for U’s residence, that he will endeavour to live reasonably close to the wife or closer to G. Much more importantly, whether the living arrangements involve equal time on a week about basis, a 9 to 5 day split each fortnight or some other compromise between these, I am satisfied that while U attends primary school the husband or his current wife will be able to and will drive her to and from school if he moves further away from it and that, when they move, they are likely to live closer to her high school than the wife will. This situation favours U spending more school days with the husband rather than fewer, but only slightly favours such an arrangement because T is quite close to G. Nevertheless, the reality is that it will be reasonably practicable for U to spend equal time with each parent even if it is slightly less convenient for her and/or them than some other arrangement.

11. The Act prescribes how the Court decides what is in the child’s best interests. S60B contains the objects of the Act in relation to arrangements for the raising of children. Here these objects will be easily met irrespective of the orders I make. U will in any event have the benefit of the meaningful involvement of her parents in her life; she will be protected from physical or psychological harm; she will receive adequate and proper parenting and will experience both parents fulfilling their duties and meeting their responsibilities in caring for her. She will largely have her best interests assured. By s60CC the Court must consider certain matters to decide what is in her best interests in relation to the parenting dispute. In my opinion, this section covers the field because, apart from specified considerations, the Court must consider other facts or circumstances which it regards as relevant (see s60CC(3)(m)). The considerations which must be undertaken are listed in 2 groups in s60CC. A group of two factors is to be regarded as the “primary” or what I would call “fundamental” considerations. These are:

    a)the benefits of the child of having a meaningful relationship with both parents; and,

    b)the need to protect the child from harm, either physical or psychological from being subjected or exposed to abuse, neglect or family violence.

12. In the proceedings now before the Court, U will, as a result of any parenting order the parties seek or I might make, be in a position to maintain and further develop the meaningful relationship which she already has with her mother and father. She will spend substantial and adequate time with each parent in any event. There is no suggestion that U may be exposed to abuse, neglect or family violence in either household, so there is no need to make orders which are designed to better protect her from physical or psychological harm.

13. S60CC(3) provides for what it calls additional considerations. These must be undertaken but, it seems from s60CC, do not necessarily have the same impact as the primary considerations. I shall discuss them in the order in which they appear in s60CC(3).

    a)The child’s expressed views and factors affecting the weight they should be given. – Each party claims that U has told him or her that she really wants the residential regime he or she seeks. It is highly likely that she told each parent what she believed that parent wished to hear. The Family Consultant, Ms F, whose report was made in December 2006, is of the view that U “expressed a clear desire to spend equal time with both her parents.” I accept that this is an accurate assessment of U’s expressed and actual views, despite the wife’s counsel’s attempts to show that Ms F did not come to this assessment in a balanced way based on all the valid and relevant facts. The wife admitted to Ms F that U “probably does want to see her Daddy more.” I am satisfied that, when U has told the wife anything which differs from a wish to spend equal time with each, she was attempting to meet the needs of the wife rather than her own essential needs. I accept, in particular, Ms F’s view that U feels a sense of responsibility for the wife’s emotional well-being. An illustration of that, one which Ms F relied on, is U’s statement to Ms F that “week about during school term ‘might be too long for mum to be away from me.’” I regard this to be U’s statement of her mother’s needs and her attempt to meet those needs in preference to her own. U was of an age in December 2006 when her level of maturity and understanding was probably such that her wishes should be given some weight. Not as much weight as one would give to a teenager, but not a lot less. 10 year olds of ordinary maturity have a high level of understanding but are not likely to appreciate the distinctions between their own essential needs and their need to care for their parents by meeting the parents’ needs in preference to their own, especially the needs of the parent who is more self-indulgent.

    b)The child’s relationship with her parents and others of relevance. – Both parents accept that U has a good relationship with the other. J lives with the wife and has a poor relationship with the husband because she has sided with the wife over the marital breakdown. There is not much information about the husband’s eldest daughter, but B has sided with the wife too. It does not reflect well on the wife that she has failed to ensure that B and J did not judge the husband on the superficial aspects of the marital breakdown. She either encouraged this view or was unable to convince them that marital relationships and people’s needs are not as simple as they may superficially appear. The more time U spends with the wife the more likely it is that she will spend more time with J and B. Time spent with them does not seem to have been critical to U’s relationship with her parents or siblings. The fact is that, according to Ms F whose evidence I accept, “[U] has strong bonds with all her family members and they with her.” Because of this, the little extra or less time with them involved in this parenting dispute is unlikely to greatly undermine or strengthen those bonds, but continuing exposure to J and B may tend to undermine U’s relationship with the husband because I accept that each has made an attempt to do this by blaming the husband for the marital breakdown. The husband claims the wife has actively attempted to achieve this too. The wife denies it. My own impression of her and my assessment of all the evidence on this issue satisfies me that the wife would be very satisfied if U took the same stance as the two other children in her household and regarded the husband as having wronged the wife maritally and became more distanced from him. The best way to overcome this situation is to provide for U to be exposed optimally to the likely countervailing influence of spending more time with the husband.  

    c)The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. – It must be emphasised that irrespective of such willingness and ability, U has maintained excellent and beneficial bonds with her parents and her siblings. In the circumstances, either the wife has done little which has actually undermined U’s bond with her father or the husband has been skilled at maintaining it despite adverse influences in the wife’s home and U has the strength of character to have avoided any influences which might have undermined her bond with her father. The reality is likely to be a combination of each of these elements. There is no suggestion that the husband has done anything which might have tended to undermine U’s relationship with her mother or which ought to undermine U’s relationship with him.

    It seems to me that the wife has, nevertheless, to an unacceptable degree failed in her obligation to encourage the relationship between U and the husband or at least has done and is likely to continue to have a tendency to do little to avoid any attempt by the two older children, especially J, to undermine U’s attachment to the husband.

    J has considerable animosity toward the husband. So does B. Each has taken the wife’s side over the marital breakdown. As I have already said, the wife has not done enough or has been unable to prevent their animosity. I think it is highly likely to have been because she believes their attitude is correct and appropriate. She appears to continue to resent the fact that the husband has formed a relationship with another woman. She is so resentful that she finds it difficult to accept that U attends the same school as the husband’s current wife’s daughter who is about the same age as U. I am satisfied that there is a deficit of appropriate willingness and/or ability in the wife to fully support a continuing close relationship between U and the husband. She is being selfish in this respect. Her concern about U living with the husband as much as with herself is for her own needs rather than those of U. She said of this to Ms F “I’d feel like I’d be having something taken away from me” and “I don’t want her to be raised by someone else.” J’s attitudes as expressed to Ms F reflect those of the wife.

    d)The likely effect any change from the current residential arrangements including of greater separation from the wife, J and B. – Any change which is within contemplation is quite unlikely to cause any significant adverse reaction in U and is not likely to be much more inconvenient for her and may be more convenient, but not to a significant degree. The major effect of any change to having more time living with the husband is that U will be slightly more distanced from the influences of the wife, J and B which tend to influence her relationship with the husband. The husband will gain more opportunity to overcome these.

    The husband’s wife, Ms M, has an excellent relationship with U. U thinks she is “really nice.” She gets along “really well” with Ms M’s daughter, H, aged about 11 years. H regards U as like a sister and friend combined. She told the family consultant that U is “like a perfect friend.” Ms M appears to me to be very well disposed toward U and the obligations which will be attached to U living with her to any greater extent. I am very favourably impressed by the husband’s wife who I regard as an ideal surrogate parent who bears no bad will towards the wife or the husband’s older children.

    e)Any practical difficulty and extra expense involved in communicating with either parent in the alternative circumstances. – There are no significant difficulties or expense created by any possible alternative. U will be able to continue virtually the same level of direct contact with her parents as she now does irrespective of my decision. Practical difficulties and expense will not substantially increase whatever arrangements for her residence are made provided changeovers are kept at their current levels. Equal time on a week about basis will have the advantage of lessening changeovers when compared with the current arrangements. However, it is my view that if 5/9 or 6/8 in 14 days division is reached U would be best served to live with each parent under a regime where in school term she stays with each for her whole fortnightly allocation in a single block, where each has one weekend with her, for example, with the husband from after school on Friday to after school on the following Wednesday or Thursday with the balance of each fortnight with the wife.

    f)The capacity of each adult with who she might live and each other significant person to provide for U’s needs including educational and emotional. – I have little doubt that all adults who will live with U and can meet U’s needs so far as they might be expected to do so by their relationship with her with one exception. The wife and, to a lesser extent, J and B, are not likely to adequately meet U’s emotional needs in the respect I have already mentioned, her need to have her relationship with her father maintained or strengthened. I have already discussed this. There is no requirement to repeat this discussion here.

    h)This paragraph is not applicable here.

    i)The parties’ attitude to U and to parental responsibility. – The parties generally are responsible parents who are largely able to discuss parenting issues and co-operate with one another over them. Each recognises the importance of the other to U and to her welfare. The only relevant matter which is adverse to either is the wife’s self-centred attitude to the issue of U’s residence. Although it must assume importance in these proceedings, relatively it might not otherwise be given such significance. After all, U’s relationship with her father does not seem to have been harmed by the wife’s approach to residence and wish for U to spend more time at her home than at the husband’s in order to meet her own needs rather than those of U.

    j) & k) These paragraphs are not applicable.

    l) The need to make children’s orders which tend to avoid further proceedings over U’s care. – It is nearly always preferable to attempt to make orders which are most likely to end litigation over a child. Here, any of the orders which might be made are equally likely to end litigation between the parties.

    m)Other circumstances of facts which the Court regards as relevant. – There are none.   

1. Overall, I am of the view that it is in U’s best interests to spend equal time with each parent. That is what she wants. She is of an age where her wishes should be given some weight and, most importantly because there are in the wife’s home influences which will tend to distance U from her father and to overbear these influences, U should spend optimal time with her father. I regard equal time as optimal time because U is also very close to her mother and needs optimal time with her too. I shall order that U live with each party on a week about basis during school term with changeovers being at agreed times or in the absence of agreement after school on Monday. This will allow her to spend full weekends with each parent. Changeovers on Monday do not require arrangements for Sundays to factor in a limitation to permit collection by or delivery to the other parent. It will however mean that U might need to take more to school on Mondays than she might otherwise need. This is a minor inconvenience in the light of the benefits this arrangement gives in relation to Sundays.   

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate

Date:  27 November 2007