BROMLEY & LOGAN
[2015] FCCA 473
•14 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BROMLEY & LOGAN | [2015] FCCA 473 |
| Catchwords: FAMILY LAW – Parenting – finely balanced competing applications – where parental attitudes about a child’s individuation become important. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 61DA, 65DAA, 60CC |
| MRR v GR [2010] HCA 4 |
| Applicant: | MS BROMLEY |
| Respondent: | MR LOGAN |
| File Number: | WOC 646 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 9-10 February 2015 |
| Date of Last Submission: | 10 February 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 14 May 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Lo Schiavo |
| Solicitors for the Respondent: | Jennings Law |
ORDERS
That the parties have equal shared parental responsibility for the Child X born on (omitted) 2003 (‘the Child’).
That each party be solely responsible for issues concerning the day to day care, welfare and developments of the Child while the Child is in his or her care.
That the Child shall live with the Mother.
That the Father spends time with the Child as follows:
(a)Each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday and if the Monday is a public holiday, the time shall be extended to the commencement of school on the Tuesday.
(b)The time that the Father spends with the Child pursuant to order 4(a) shall be suspended during school holiday periods and he will spend time with the child during school holidays as follows:
(i)For the first half of the Term 1 school holiday period commencing from the conclusion of school on the last day the child is required to attend school until 7.00am on the Monday in the second week of the holiday period.
(ii)For the whole of the Term 2 school holiday period commencing from the conclusion of school on the last day the Child is required to attend school until 7.00am on the Sunday prior to the first day that the child is required to recommence school.
(iii)For the first half of Christmas school holidays commencing from the conclusion of school on the last day the Child is required to attend school until 7.00am on the day that represents the mid-point of the holidays.
(c)The Father will spend the following additional time with the Child:
(i)On Father’s Day weekend from the conclusion of school on Friday until the commencement of school on Monday.
(ii)If the Child is not ordinarily in his care, on the Child’s birthday for a minimum of three hours as agreed but failing agreement then from the conclusion of school until 6.00pm on a school day or if a non-school day then 10.00am until 1.00pm.
The time the Father spends with the Child shall be suspended on the following occasions where the Child will spend additional time with the Mother:
(a)During the whole of the Term 3 school holiday period which is deemed to commence at the conclusion of school on the last day the child is required to attend school and to conclude on the first day the child is require to recommence school.
(b)From 4.00pm on Christmas Eve until 12.00noon on Christmas Day.
(c)On Mother’s Day weekend from the conclusion of school on Friday until the commencement of school on Monday.
(d)If the Child is not ordinarily in her care, on the Child’s birthday for a minimum of three hours as agreed but failing agreement then from the conclusion of school until 6.00pm on a school day or if a non-school day then 10.00am until 1.00pm.
That for the purposes of these orders changeover will be facilitated by the parent whose care the Child is going into collecting the Child from school (or a suitable arrangement for the Child to travel home) if a school day and if a non-school day then the Father shall collect the Child from the Mother’s residence at the commencement of his time with the Child and return the Child to the Mother’s residence at the conclusion of the time.
If the Child is not attending school due to illness on a changeover day when entering the Father’s care then the Mother is to inform the Father and changeover will be facilitated by the Father collecting the Child from the Mother’s home at 4.00pm.
That the Child have liberal telephone communication with the other parent and that each parent will facilitate reasonably requested telephone communication by the Child.
That the Child be provided with a mobile telephone to be paid for by the Mother to take with her for the purposes of liberal communication with each parent.
That in circumstances where extra time is negotiated at the Child’s request or the other party’s request then makeup time will be given to the party who is losing time with the Child.
That the parties will both be entitled to attend all events involving the Child including:
(a)Sporting fixtures;
(b)Extra curricula activities that allow for parental attendance; and
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions and the parent who has the Child in their care on the day of such activity will be responsible for their day to day care at such event and the Child transportation to and from that event.
That each parent keep the other informed as soon as reasonably practicable of:
(a)Any medical problems or illness suffered by the Child whilst in their care;
(b)Any occasions that the Child is due to be hospitalised or has been hospitalised; and
(c)Any medication that has been prescribed for the Child.
That each party is to authorise the school which the Child attends to supply to the other with copies of school reports and other important communications regarding the Child.
That both parties be and are hereby restrained from making derogatory comments about the other party or members of the other party’s family to or in the presence of the Child.
That both parties be and are hereby restrained from discussing parenting matters and decision making with the Child.
By consent, that the Mother be restrained from relocating to another area such that the implementation of the present orders would be rendered impractical, or unreasonably arduous for either the Child or the Father.
NOTATION
(A)The Court notes that the purpose of ordering that the child spend the whole of one of the mid-year school holidays with each of her parents is to create the opportunity for travel during that holiday. Despite the terms of these orders, the Mother did signal her willingness to be flexible as regards which of the mid year school holidays would be the holiday in question.
IT IS NOTED that publication of this judgment under the pseudonym Bromley & Logan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 646 of 2013
| MS BROMLEY |
Applicant
And
| MR LOGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about X, who was born on (omitted) 2003 and is now 11 years old. Her mother is the Applicant. She describes herself as a (occupation omitted) and (occupation omitted) and lives in (omitted), in the (omitted) area of New South Wales. She is 41 years old. X’s father is the Respondent. He describes himself as a (occupation omitted), lives in the (omitted) area and is 53 years old. X’s parents were in a de facto relationship for about five years, which ended in 2006.
The current arrangement in relation to X is reflected in a consent order, entered into by her parents on 31 March 2014. They agreed that they would share parental responsibility. They agreed that X would live with her mother but also live with her father in accordance with order 2 of the said order:
The Child live with the father as follows on a four week cycle:
a)
i) Week 1 from 4:00pm Thursday to 7:00am Monday the following week;
ii) Week 2 from 4:00pm Thursday to 7:00am the following Tuesday;
iii) Week 3 from 4:00pm Thursday to 7:00am the following Monday
iv) Week 4 from 4:00pm Thursday to 7:00am Friday morning.
v) If the weekend is a long weekend then the time with either party is extended to cover the public holiday.
b) With orders to commence in week 2, as at 31 March 2014.
In relation to school holiday time, X’s parents agreed that this would be shared as agreed in writing, but with the weekend cycle being suspended during this time.
The practical impact of the existing arrangements in relation to X is that both parents share her care.
It needs to be recognised early in these reasons for judgment that both X’s parents are good people, and capable parents to her, despite the fact that they have a chronic inability to trust each other or to communicate on any constructive basis. In many respects, X is very fortunate to have the mother and father that she does. This is a finely balanced case. Both proposals advanced have merit, and it is highly unlikely that any harm would be caused to X if the Court were to make one proposal rather than the other. It is unfortunate that the Court has to make a decision and, in the course of so doing, make fine distinctions about each parent’s personalities and character insofar as these things have an impact on X. These parents, however, had ample opportunity to settle this case but chose not to do so. The role of this Court is to adjudicate in those circumstances and make the order that it considers is best for X, having regard to the relevant provisions of the Family Law Act 1975 (“The Act”) that will be discussed below.
Background
The relationship between X’s parents was not a long one. Even when they separated, they continued to live in the same home. X was quite young when her mother and father physically separated. Between separation and the making of the consent orders in March 2014, she probably spent about five nights each fortnight with her father, as well as block time in the school holidays.
It is clear that X has spent considerable time in her father’s care, including overnights. The Father has re-partnered and it is also clear that X has an excellent relationship with his partner. Each parent raises concerns about various aspects of the other’s parenting, but none of these concerns are of seismic proportions. The parents just cannot get on with each other. Indeed, after observing them both in the witness box, they present as fundamentally different people, who certainly have different approaches and philosophies about parenting, but both love X and have very much to offer to her.
Competing Proposals
At the final hearing, the Applicant Mother represented herself, though she had been legally represented until shortly before the hearing. She is clearly an intelligent and articulate person who is more than able to capably represent herself. The order she sought at the hearing is set out in her case outline document. In effect, she sought equal shared parental responsibility, that X live with her, and spend time with her father each alternate weekend from after school on Thursday until the commencement of school on Monday, together with shared school holidays. The precise orders sought by the Mother are reproduced in the first schedule to these reasons.
The Father was represented by his solicitor and counsel. Having had the opportunity to also observe him in the witness box, he too is obviously an intelligent and articulate man, with very firm views about what is in his daughter’s best interests. The orders he seeks were contained in his Amended Response filed 31 December 2014 and are reproduced in the second schedule to these reasons. He sought an order for sole parental responsibility in relation to X, that X live with him and spend time with her mother each alternate week commencing from after school on Friday until the commencement of school on the following Monday, as well as shared school holidays, special days, etcetera.
It will become evident that both parents advance proposals that would bring about a significant change to the current arrangements relating to X. The Court infers from this that both parents are confident that X will be able to cope, in every way, with the changes contemplated by each of them.
The Evidence
The Mother relied upon the following documents:
·Affidavit of the Mother, Ms Bromley, affirmed 28 January 2015; and
·Affidavit of the maternal grandmother, Ms I, affirmed 10 December 2014; and
·Amended Initiating Application filed 29 19 January 2015.
Both the Mother and the grandmother were cross-examined.
The Father relied upon the following documents:
·Affidavit of the Father, Mr Logan, sworn 22 December 2015;
·Affidavit of the Father, Mr Logan, sworn 25 October 2013;
·Affidavit of the Father’s partner, Ms K, sworn 25 October 2013; and
·Amended Response filed 31 December 2015.
A number of documents came into evidence including some photos, one of X’s homework workbooks, a Child Inclusive Conference Memorandum of 20 March 2014, and a Family Report dated 28 April 2014, prepared by Dr H. Dr H was cross-examined and her evidence will be discussed below.
All the witnesses who gave evidence did so candidly and, for the most part, co-operatively. The Father was somewhat unresponsive at times during cross-examination by the Mother, but that partly reflected the questions asked, as well as the emotional context of the cross-examination. Nothing turns on this. No credit issues arise in this case. These are both good parents who simply cannot agree about what is best for their daughter.
Overview of Reasons
It is intended to set out a statement of the applicable law. Following that, the evidence of the Family Consultant, Dr H, then the Mother, and the father, will be discussed in that order. There will then be a discussion about the evidence, viewed through the lens of the various relevant provisions of Part IV of the Act.
Applicable Law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether 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 child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Family Report and Evidence of Dr H
Page 4 of Dr H's Report, dated 28 April 2014, contains the following useful executive summary, being an evaluation of assessment issues:-
| Issue | Evaluation |
| a) The benefit to the child of having a meaningful relationship with either parent or any other persons; | Meaningful relationships with both parents are beneficial. Relationship with Ms K could also be beneficial |
| b) Whether the child is at risk of being any physical or psychological harm from abuse, neglect, family violence; | No significant risk proven |
| c) Any views expressed by the children and any factors that may affect the weight to be accorded to those views; | X wants both her parents to participate as fully as possible in her everyday life, weekly routines and activities. |
| d) The nature of the relationship of the child with each of her parents or other persons; | Mutually affectionate and trusting with both parents. As X is a child who does not like to reject or displease anyone she may not freely express her views to both parents |
| e) The willingness / ability of each parent to facilitate a close continuing relationship between the child & the other parent; the extent to which each of the child’s parents has participated in making decisions about, spending time with the child and communicating with the child; | Both express a commitment to facilitating the child’s relationship with the other parent BUT The father suspects the mother plans to progressively exclude him from contact |
| f) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either parent | Extinguishing contact with either parent is not mooted and could not be recommended. X would grieve a long or permanent separation from either parent. She is grieving separation from Ms K |
| g) The capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs; | The mother contends the father is emotionally intrusive, the father contends the mother is negligent about hygiene, safety and supervision. Nonetheless, it seems both parents can meet community standards. |
| h) The attitude to the child, and to the responsibilities of parenthood demonstrated by each parent; | Both seem responsible, although the father contends the mother is not diligent |
| i) The mental state of both parents in regard to parenting issues; | Normally nurturant towards X, but their reactive states of mind towards each other impede effective co-parenting |
| j) Whether or not any treatment or therapy is recommended for either parent and if so, its nature; | May benefit from counselling and POP as per previous CIC recommendations |
| k) Whether or not the child has any treatment needs. Recommendations | Not essential although supportive counselling may assist with psychological individuation |
| l) Any other matter that the Court Expert considers relevant. | The father’s fears regarding future relocation should be addressed explicitly in Court |
Between paragraphs 5 and 11, Dr H sets out some of the relevant background to the dispute. The issues she identified continued to resonate in the evidence of the parents. For example, from the Mother’s perspective, it was important to have some weekend time with X, but the current arrangement does not allow this to happen, and she found the Father exceedingly difficult to co-operate with in relation to issues such as changing the existing parenting arrangements. She experienced the Father to be bullying, controlling, critical and angry.
Dr H also accurately sets out the Father’s concerns about various aspects of the Mother’s capacity to look after X, particularly in terms of health, hygiene, environmental hazards, etcetera.
Dr H also accurately acknowledged what X said in the Child Inclusive Conference, held 20 March 2014, which is that, at times she felt that she had to be “a different person in each household”.
There is an interesting observation about the Father at paragraph 16:-
Thereafter Mr Logan cooperated with the structured interview until the topics I probed provided him with the opportunity to press me to read the letter, which I did at a glance then tore it up and threw it in the wastepaper bin. I explained the difference between my role and that of the judicial officer. I asked how many times he had written such letters to the mother – innumerable. How often had his concerns been addressed? Never. Why persist? Mr Logan asserted the futility of giving the mother corrective feedback, apparently without any conscious irony. It is worth noting that although Mr Logan initially tried to control the agenda he accepted my authoritative re-direction with good grace. He answered my questions about the child’s welfare mostly relevantly – although he seemed unable to prevent himself from straying off-topic onto criticisms of the mother. For example when I asked “What worries you most about X” he itemized the mother’s failings. When I rejected that answer and asked for one which related to X’s way of being in the world Mr Logan immediately re-oriented to the task without overt resentment.
As it turns out, some of the correspondence between the parents was in evidence. The tone of the Father’s written communications with the Mother could in fact be described as critical, single-minded, strident and paternalistic.
One of the concerns expressed by the Father to Dr H was that the Mother had an agenda to progressively reduce his time with X. He was very afraid of being sidelined. His concern was matched here about what he perceived to be the Mother’s failure in her duty of care as a parent, particularly with regards to hygiene. It is important to record that, at the time of the report interviews, the Father was not seeking sole parental responsibility and an order that X lives with him, but rather a continuation of the existing arrangement with some modification.
In her interviews with the Mother, Dr H recorded her concern about wanting quality leisure time with X. She expressed frustration at what she perceived to be the Father’s constant criticism. At paragraph 28, the Mother expressed a concern in relation to an issue that assumes quite some significance:-
Ms Bromley expressed the view that Mr Logan might find it difficult to cope when X developed her own views as a teenager - particularly when she wanted to spend more time with her peers than with her parents. Ms Bromley was concerned that X might find it difficult to assert herself in this regard for fear of hurting her father’s feelings, and this would cramp her growth to social independence. She said “X is worried about letting him down”. Ms Bromley said that although she is worried about the negative impact on X of her father’s dominating personality she recognises that her daughter adores her father. She seemed resigned to the fact that she could not mediate her daughter’s relationship with her father.
Dr H observed the Mother to be quite different to the Father. In paragraph 29 Dr H said that the Mother:
…did not drift off onto diatribes against the father. It seems that she is less preoccupied with her hostility towards the father than he is with his hostility towards her. Nonetheless, she holds a negative view of the father.
It is important to note that the Court’s impression of both parents observed in the witness box is consistent with Dr H's Report and observations at paragraph 29.
In the observations of X with both her parents, the strength and affectionate nature of her relationships with both was plainly obvious. X’s views on the issues before the Court are set out at paragraph 32:-
X expressed a preference to have “at least one weekend a month” with Mum and “some Mondays” with Dad. What would they do? Kick a soccer ball in the backyard (Mr Logan coaches the soccer team) She would like to have alternate Thursdays with each parent as that is the afternoon of her (hobby omitted) lesson. X says that is good if Mum comes to (hobby omitted) “50:50” because then “she knows where I am up to.” X appreciates home support with her (hobby omitted). She likes to go to soccer training with Dad on Fridays, but would like Mum to attended her soccer matches.
X’s accurate insight about the nature of her mother and father’s relationship with each other is recorded at paragraph 34.
What is it like to have parents who cannot get along together? X said her parents “Absolutely hate each other” and expressed amazement that they could ever have liked each other enough to produce a baby. X said that if one parent suggests something the other refuses automatically, and for that reason they would not listen to her if she wanted to take up the other parent’s idea. What could she do? X shrugged her shoulders and indicated that most of the time she accepted the situation because she dislikes arguing. Sometimes X says to a parent “Listen to me!” How often does that work, how many times out of 10? “About 5/10.” X said she was scared to ask Mum if she could ring Dad because mostly Mum said no but Dad was “OK about ringing Mum.”
Dr H’s formulation commences at paragraph 38 of her Report.
On the face of it Ms Bromley’s application for some weekend time with her daughter seems eminently reasonable and Mr Logan’s fixed opposition unreasonable. However, Mr Logan’s argues that his current level of participation in his child’s life is necessary to ensure an adequate standard of care for X as it allows him to compensate for the mother’s deficits as a parent. If so the obvious question is why does the father not seek to restrict the child’s time with the mother even further than his proposal to spend 8/14 nights with the child? Mr Logan’s justification was that he considers it important to honour X’s wishes. Since considerations of child welfare must trump the child’s views such an argument is specious, if risks are real. There is no insurmountable practical impediment to X residing with her father Monday – Friday as it seems Mr Logan could arrange appropriate before and after school care for X during the week.
It is quite likely that Dr H’s comments in this regard precipitated the Father amending his proposal to that for one to X to live with him.
In relation to the appropriateness of the current arrangement, Dr H observes at paragraph 39:-
Up to this point the parenting arrangement has effectively been shared care. Not what would normally be recommended for parents with teamwork as weak and acrimony as strong as these parents report! Research with Australian children finds substantially shared care (ratios of more than 5:9 nights per fortnight) delivers poor outcomes for children of high conflict parents, with the worst outcomes for children who transition often. Remarkably X appears to have weathered various noxious situations graciously. She seems to be an intelligent, adaptable girl with an agreeable temperament and a compliant response style. She reports loving both her parents dearly, and finding both of them consistently responsive. She does not want to reduce time with either of them. However, there is no ideal, suffering-free alternative for X. Separation and loss are what children separated families must learn to live with.
In relation to the Mother’s concerns about the Father, Dr H observes at paragraph 41:-
The mother describes the father as tyrannical. I would characterise Mr Logan somewhat differently - as a man with a commitment to quality. He likes things to be done properly and wants standards to be maintained – for example with regard to equity, promises, appointments, routines, manners, cleanliness, risk management. Both the propositional content of his discourse and his discourse style enact a high degree of social and attachment-related anxiety. He is very anxious that the standard of care he wishes for X will not be met by the mother. One (maladaptive) way of dealing with anxiety is to try to control everything and everyone in the social environment in order to avoid adverse outcomes. Others in relationships (especially intimate relationships) are likely to perceive such anxiety-reducing manoeuvres as hostile, intrusive and oppressive, to the bafflement of high-minded individuals who seek to impose their unrelenting standards for idealistic motives. Individuals with an unrelenting commitment to quality often fail to appreciate that none of us is entitled (or empowered) to set the priorities for other adults. We cannot expect others to have allegiance to gaols they did not participate in setting.
In the next paragraph, however, Dr H explains that it is because the Father loves X so much, that he wants the best for her. He was, perhaps, being somewhat idealistic.
Whilst Dr H referred to the Father being critical of the Mother, she accepted (for example, at paragraph 43) that not all of his criticisms could be dismissed as groundless. She referred to the example of the Father’s concerns in relation to X’s hygiene. She opined that “unless those concerns are so serious that the State might legitimately intrude into family life, Mr Logan must tolerate the imperfections”. She suggested that the Father has “no means of enforcing his standards of hygiene in the mother’s home.” As it turns out, the Court has heard the Father’s concerns about hygiene in the Mother’s home and has come to the view that his concerns reflect the differences in the parenting styles and personalities of the parents, but otherwise raise no issues of concern in relation to X.
Dr H framed this issue in the context of how X is likely to experience it, particularly in future:-
X seems to be trying to navigate the contradictions of her heart by sailing in alternatively in opposite directions. She is a sweet-natured child who wants everyone to belong and nobody to be left out. Adolescence is the first time young humans become cognitively equipped to objectively assess their attachment relationships. Disillusionment with parents who have been uncritically idolised in childhood is a normal part of the process of individuation for teens, as are experiments in individuality and clashes of strong opinions with parents. Young people who feel their parents are too fragile to withstand opposition are not free to individuate. This may be X’s predicament in time.
At paragraph 47, she specifically addresses the Father’s concern about the Mother’s supposed strategy to exclude X from his life, including relocation. The possibility of relocation is not an issue in this case. In cross-examination the Mother agreed to the Court making an order that would effectively prohibit her from relocating in a manner that would affect X spending time with her father, in accordance with orders made.
Dr H’s concluded opinion was that, as co-parents, the Mother and Father did not display the hallmark characteristic which makes a substantially shared care work well for children. She recommended that X live primarily with one parent and spend every second weekend, Thursday afternoon to Monday morning, and half the school holidays with the other parent, with all changeovers being at school. In her Report, she could not make a recommendation as to which parent this should be. In effect, she said that it depended on the evidence. If the matter were finely balanced, or to use Dr H’s words at paragraph 41, if “the Court is not convinced that there is a difference that makes a difference between the parenting capacity of” the parent, then X should live principally with her mother, and spend every second weekend and half the school holidays with her father.
Dr H gave her oral evidence on the second day of the hearing. The Mother had little to ask her, but unsurprisingly, the Father’s Counsel’s questioning of her was extensive. By the time of Dr H’s evidence, it needs to be appreciated that both the Mother and Father had been cross-examined and the Court had already formed an impression of the various matters adverted to by Dr H in her Report as regards to parents. A number of important issues arose from her oral evidence.
Counsel for the Father pointed out to Dr H that the Father was seeking an order for sole parental responsibility. Dr H acknowledged that the parents could not make shared care work, could not speak civilly to each other and, indeed, were quite deluded about the feedback given to them. In those conditions, she acknowledged that, sometimes, sole parental responsibility might be better, if conflict impeded decision making. She suggested that sole parental responsibility should follow for the residential parent. The Court makes two observations in this regard. Firstly, only the Father sought sole parental responsibility, whereas the Mother sought equal shared parental responsibility. Secondly, in the Court’s opinion there was no evidence that would suggest that the conflict was actively impeding decision making.
Counsel for the Father sought Dr H’s acknowledgement that the evidence in this case raised no safety issues relating to X. Dr H confirmed this, but also explained that that did not mean that there was no difference in each parents’ parenting capacity. Dr H was taken to an example of the conflict between the parents relating to X sleeping in her Mother’s bed, an issue raised in the evidence. In this regard, it must be noted that not even the Father raised this issue as a child safety concern, but rather as something that he considered inappropriate. Dr H explained, however, that this was an example of the Father seeking to be intrusive in terms of the Mother’s parenting and was, in this regard, a boundary violation. The fact that the Father was well-intended in raising this concern was not the primary focus.
Counsel challenged Dr H about the individuation issues raised at paragraphs 28 and 46. Dr H confirmed her concern that the Father had maladaptive ways of seeking to control his anxiety about X by trying to control what happens in her life, an issue that becomes of considerable significance as X progresses to her teen years and individuates. She suggested that the role of parents was to foster their children’s independence and not inhibit it, even inadvertently. The clear inference was that the Father’s “unrelenting standards” was more of a problem for X at this time of her life, than a benefit. She emphasises, however, that there was no doubting the father’s good intentions.
Counsel for the Father, quite correctly, explained the Father’s proposal to Dr H, namely that there would be an order for sole parental responsibility in his favour and X live with him. Dr H was frank in her assessment of this. She indicated that the Father’s proposal was far better than shared care, but she did not necessarily think he was the better of the two parents. If the Court was convinced of the existence of a clear reason to change the existing arrangement that saw X living predominantly with her mother, then all good and well, but otherwise her preference was that X remain living principally with her mother as she was less repressive of the child as compared to the Father. Again, the clear concern was about individuation. Indeed, Dr H suggested that even if the Court found that the Mother’s parenting was sub-optimal (which the Court does not find) that in itself would not be a reason to change where she primarily lives.
As the Mother had indicated that she would have little, if anything, to ask Dr H, the Court asked her to comment on evidence that the Father had given in cross-examination. The Father confirmed in cross-examination that he had, indeed, instructed X to have bowel movements in the morning. Indeed, the Father sought to extol the virtues of morning bowel movements to all present in Court. He agreed that he had rung X whilst at the Mother’s home to remind X to have bowel movements in the morning. When the Father was asked by the Mother whether or not X was capable of doing that without being reminded, given her age, the Father responded with words to the effect: “she has to be guided in her life…”
To put this evidence in context, however, in re-examination it emerged that the reason for the Father’s concerns about X’s bowel movements was that there had been a toilet incident at school when she was young.
In any event, Dr H was asked by the Court to comment on this evidence. Her response was that this action by the Father, although well motivated, undermined X’s sovereignty, was again intrusive into the Mother’s household, and confirmed her impression about the Father.
By the end of Dr H’s evidence, it became clear that she strongly recommended an order that X live primarily with one parent, and spend alternating weekend time with the other. It was also clear that she believed, particularly having regard to her concerns about X’s freedom to individuate, that the parent with whom she should live is her mother.
Of course, the Court makes orders in the best interests of a child based on far more than just a Family Consultant’s evidence. Nonetheless, Dr H’s evidence was independent, expert, survived critical scrutiny and was persuasive.
The Mother’s Evidence
The Mother’s primary evidence is contained in her Affidavit of 28 January 2015. For present purposes, the most relevant evidence related to what she perceived as the Father’s relentless criticism of her parenting. She experienced this as bullying and controlling. She found him to be critical and angry. In paragraph 22 of her Affidavit, and the several letters annexed thereto, she gives examples of the Father’s criticism about the Mother’s choice of X’s clothing, her underwear, X’s hairstyle, jewellery and make up. Paragraphs 23-28 inclusive are of similar vein, including the annexed letters. It is unnecessary to go into the details contained in these lengthy letters. Some themes become apparent. There is no doubt that the Father is a well-meaning, if perhaps, a somewhat over-protective parent. He is very concerned about the minutiae of X’s life. There is a tendency to “nitpick” and catastrophize issues. The Court is left in no doubt that the Mother’s evidence that she felt bullied and controlled by the Father as regards X’s parenting is correct, and further that it was not unreasonable for her to respond by so feeling.
In her Affidavit, the Mother also contends that she had demonstrated a flexibility with arrangements and willingness to communicate with the Father. There is, after seeing the Mother in the witness box, far less basis for her perception of this in reality. There can be no doubt that the Mother contributed to the communication problems that existed between the parents as well as the conflict between them.
The Mother expresses certain concerns for X in the Father’s care, particularly what she regarded as his bullying behaviour towards her, that is, his inflexibility. However, the Mother was really quite positive about the Father’s partner, Ms K, her importance in X’s life and, indeed, of Ms K’s capacity to mitigate some of the what she perceived to be the less desirable aspects of the Father’s parenting.
The Mother was skilfully cross-examined by Counsel for the Father. A number of themes emerged. Whereas the Father’s parenting style could be described as very proactive, the Mother’s would be described as reactive. She was far more relaxed about certain aspects of X’s life. She is clearly less assiduous about supervising X’s homework than the Father. This is in the context of a child, however, who is not reported to be having any serious concerns at school and, indeed, seemed to be progressing well at school.
She refuted many of the Father’s hygiene concerns. For example, when challenged about her capacity to force X to brush her teeth, she explained that she does in fact get X to brush her teeth twice a day. Nonetheless, the Mother acknowledged that there were a few times when she sent X to school not wearing her normal school uniform. When the Court asked her why that happened, she could not give an answer. The Mother is clearly more relaxed about this issue than the Father is.
She was cross-examined about why she had failed to take X to her scheduled (hobby omitted) lessons and explained that while she had not told the Father about these, what in fact happened was that these lessons had been rearranged. When the Court asked her why the lessons had to be rearranged in the first place, she could not say. Again, a clearly more relaxed attitude about parenting is evident.
The Mother was cross-examined about the possibility of relocation, and she indicated that this was not a plan and, indeed, consented to an order to this effect.
While she agreed with Counsel for the Father’s proposition that he had high standards and was consistent in their application, she also explained that she found what he described to be consistency as intrusiveness.
When challenged about her own proposal for equal shared parental responsibility, she agreed that the communication between them was strained, she wished it could be better, she was open to obtaining assistance in this regard, and she was confident about making equal shared parental responsibility work.
As foreshadowed earlier in these reasons, there is absolutely nothing to suggest that the Mother was being less than candid in her evidence.
The Father’s Evidence
The Father’s primary evidence is contained in his two Affidavits of 22 December 2014 and 25 October 2013. He, clearly, has had a big involvement in X’s life. He has been a very caring, hands-on father. He has significant concerns about the Mother’s care for X including that, “she hasn’t had a shower all week” (reported to him by X), that X’s ears were pierced for her eleventh birthday, that she had head lice, that the Mother was disinterested in spending time with X at times, that she was inconsistent in applying rules in the household and, generally, that the Mother “does not appear to make X a priority”.
At paragraph 18 of his Affidavit of 22 December 2014, he gives evidence about the Mother’s cat, and a stray cat, entering the Mother’s home and fighting outside of X’s bedroom. This, according to the Father, frightened X and that she “still is fearful of sleeping with the window open, but her mother will not close windows.” The Father gives evidence about a dance rehearsal on 6 December 2014, when, as a result of miscommunication perhaps, X did not have her dance shoes and costumes.
It does need to be observed that even before the Father got into the witness box, the evidence that he gives in his Affidavits goes nowhere near suggesting there are any risk of harm issues in the Mother’s household and, indeed, raises no serious issues about her parenting capacity. The Father seems to have unequivocally accepted whatever it is that X told him, thus completely overlooking the dynamic that existed in the family relationship, particularly for X who is caught in the metaphorical crossfire of her parents’ conflict and chronic inability to communicate. The concerns he raised about issues in the Mother’s household were minor in the overall scheme of things.
The Father was briefly cross-examined by the Mother. The Father was genuinely surprised at the proposition that X might tell him something, but her mother something else. Indeed, even the Mother asking the question seemed surprised by this! When asked to comment on what X told the Family Consultant in the Child Inclusive Conference in relation to her distress about the differences in the households, the Father was quite quick to respond with words to the effect, “you create the issues”, referring to the Mother.
The Court has already set out the evidence that he gave about bowel movements.
There is no question about the Father’s honesty in cross-examination. Equally, however, there is no question that Dr H’s concerns about the Father were adequately borne out by his own evidence.
Evidence of Ms K, the Father’s partner.
Ms K’s primary evidence is contained in her Affidavit of 25 October 2013. No issues arise from her evidence. Clearly, she enjoys a good relationship with X. She has been involved in X’s life since about age three. Nothing arises out of her evidence. The Father’s evidence is that they enjoy a long-distance relationship, but cohabit over extended weekends. Ms K appears to have a very positive influence on X’s life whilst in the care of the Father.
Evidence of Ms Bromley, the maternal grandmother.
Ms Bromley’s evidence is contained in her Affidavit sworn 10 December 2014. She too was cross-examined. There is nothing in her evidence that influences the outcome of this case.
Section 60CC Considerations
There is no issue about X enjoying a meaningful relationship with both of her parents. Whether the Court makes the order proposed by the Father, or the order proposed by the mother, the obvious strength in the relationship between X and her parents will ensure that the meaningful relationship that already exists is continued into the future.
As previously indicated, there is no evidence which would suggest there is any need to protect X from harm in any of the ways contemplated by section 60CC(2)(b). The only foreseeable harm to X is if her parents do not find a way to better manage their conflict and communication.
X has expressed certain views. Those views are set out at paragraph 32 of the Family Report as follows:-
X expressed a preference to have “at least one weekend a month” with Mum and “some Mondays” with Dad. What would they do? Kick a soccer ball in the backyard (Mr Logan coaches the soccer team) She would like to have alternate Thursdays with each parent as that is the afternoon of her (hobby omitted) lesson. X says that is good if Mum comes to (hobby omitted) “50:50” because then “she knows where I am up to.” X appreciates home support with her (hobby omitted) practice. She likes to go to soccer training with Dad on Fridays, but would like Mum to attended her soccer matches.
In the evidence of both parents they set out matters that, from their perspective, relate to X’s views. The evidence of the parents is unreliable in this regard and the Court places no weight on it. Apart from the obvious fact that each parent is a party to these proceedings, with a vested interest in its outcome, the likelihood is that X is telling each of her parents what she believes they want to hear, which is something different in the case of each parent.
X appears to enjoy a very strong relationship with each of her parents, Ms K (her Father’s partner), Ms K’s children and the Mother’s partner. None of the proposals advanced to the Court will change this. Other than her parents, it is possible that X’s most significant relationship with another adult is with Ms K. Even on the Mother’s proposal, there is no reason to believe that this relationship will not continue subject, of course, to the nature of the Father’s relationship with Ms K.
Section 60CC(3)(c) invites the Court to consider the extent to which each of X’s parents has taken, or failed to take, the opportunity to participate in decision making, to spend time, and to communicate with her. It is part of the Father’s case that the Mother has denied him the opportunity to participate in decision making about X, but also failed to avail herself of opportunities to spend time with her. Even if this evidence were accepted at its highest, it would not give the Court any concern. If the Mother has failed to include the Father in decision making, it simply reflects the dysfunctional nature of the relationship between them, and their different parenting styles.
There are no issues about each parents’ obligations to maintain X.
Section 60CC(3)(d) is an important consideration in this case. It invites the Court to consider the likely effect of changes in X’s circumstances, including separation from her parents or other significant persons. Both proposals involve a change for X. In other respects, change is an inevitable feature of X’s life, particularly as she enters her teen years and, according to Dr H, starts to individuate, including asserting her own autonomy. This may well be challenging for both parents, but particularly the Father who does seem to need to be far more involved in X’s life than the Mother. X clearly wants to spend at least one weekend a month with her mother, thus suggesting a dissatisfaction with the current order that provides for her to spend almost every weekend with her father.
Whilst X will experience change on the Mother’s proposal, in that she will spend less time with her father, she would expose even greater change on the Father’s proposal as she would be removed from the person with whom she has spent the most time in her life, but even this is a matter of degree.
There are no issues of practical difficulty and expense in this case.
There are no issues about the capacity of each parent to provide for X’s physical and intellectual needs. The concerns expressed by the Father in relation to aspects of X’s life in her mother’s care amount to nothing but manifestations of different parenting styles. Based on Dr H’s evidence, however, there is a concern about the Father’s capacity to provide for her emotional needs. Dr H believes, and the evidence confirms, that the Father is less capable of allowing X to individuate, that is to become her own person who makes her own developmentally appropriate decisions within the broader parameters of the appropriate boundaries set by her parents. The Father is well meaning in this regard. He only wants what is best for X. The Court would not, however, assess the risk to X arising from her Father’s somewhat controlling parenting style as being a serious one. But in a finely balanced case, such as this one, and in circumstances where the Court believes that a change must be made having regard to the strong recommendations of the Family Consultant, even relatively minor differences between the parents can result in a different assessment of what is in X’s best interests. Despite these comments, the Father is a caring, loving father to X and he has much to offer her. Nothing will change in that regard as a result of the making of these orders.
The Court is required to consider characteristics of both X and her parents that might be relevant. The different personalities of the parents and their different parenting styles have already been noted. There are characteristics of X that do need to be taken into account. The assessment which is reported at paragraph 35 of the Family Report is both a positive and negative. It is positive in the sense that it demonstrates the strength and closeness of X’s relationship with both of her parents. It is negative in that it is an indicia of what Dr H describes as “lack of psychological individuation”.
At paragraph 36, Dr H observed that:
X does not like anyone to feel left out or rejected, and she carries this to the extent of disguising personal preferences to even things out in the peer group… she is a child who prizes peaceful, socially inclusive relationships. She rewards others more often than she seeks rewards for herself.
Whilst demonstrating some sensitivity in this regard, at paragraph 39, Dr H observed that X “appears to have weathered various noxious situations graciously” notwithstanding a shared care arrangement that Dr H clearly considered inappropriate. She is described in that same paragraph as “an intelligent, adaptable girl with an agreeable temperament and a compliant response style”.
The dilemma for X is poignantly expressed by Dr H at paragraph 46 in these terms:-
X seems to be trying to navigate the contradictions of her heart by sailing alternatively in opposite directions. She is a sweet-natured child who wants everyone to belong and nobody to be left out. Adolescence is the first time young humans become cognitively equipped to objectively assess their attachment relationships. Disillusionment with parents who have been uncritically idolised in childhood is a normal part of the process of individuation for teens, as are experiments in individuality and clashes of strong opinions with parents. Young people who feel their parents are too fragile to withstand opposition are not free to individuate. This may be X’s predicament in time.
This is unchallenged evidence. It is consistent with the Court’s impression about X and her parents, particularly her father. Doing nothing is not an alternative in this case. Indeed, it would seem to create a risk of unacceptable emotional burden on her, distracting her from progressing through her teenage years and into adulthood.
Both parents criticised each other’s attitudes to X and to the responsibilities of parenthood. It is regrettable that two such good parents, who are such highly functioning individuals in almost all areas of their lives, have a dysfunctional relationship as co-parents for X. The Mother did present as being more flexible than the Father, but even this is a matter of degree. Perhaps it is curious to observe that the Mother sought equal shared parental responsibility and the Father sole parental responsibility. This does seem to reflect the Mother’s slightly more positive attitude about the Father, and the Father’s slightly more negative attitude about the Mother. Consistent with her parenting style, there is little to suggest that the Mother would seek to control the Father’s relationship with X, despite his protestations about this regard. Conversely, the Court is somewhat concerned that to give the Father sole parental responsibility when his attitude towards the Mother is so negative, actually has more to do with the Father’s relationship with the Mother than decision making about X. Again, the Court is anxious to record that these are matters of degree and that these fine distinctions are being drawn because this is a finely balanced case.
Parental Responsibility
The Father seeks sole parental responsibility, the mother equal shared. Dr H opined that whoever is made responsible for the principal care of X should have sole parental responsibility, provided there is evidence to suggest that decision making has been problematic in the past. As it turns out, the Court believes that in a finely balanced case, the considerations suggest that it is in X’s best interest that she live primarily with her mother. There is no evidence to suggest that there has been any serious issues with decision making in the past, despite the conflict between the parents and their communication problems. As it turns out, the mother seeks equal shared parental responsibility anyway, and that is the order that the Court will make.
Of course, this means the Court must consider equal time or substantial and significant time, provided it is in X’s best interests and it is reasonably practicable.
Neither party sought equal time. It would not, in any event, have been in X’s best interests. For the reasons explained in Dr H’s report, she was strongly of the view that it was inappropriate. Indeed, Dr H was quite concerned with the existing shared care arrangement and felt that it needed to be changed. In any event, equal time would not be reasonably practical because the Court could not be satisfied, on the evidence, about the matters referred to in paragraphs of ss.65DAA(5)(b)-(c).
Is substantial and significant time in X’s best interests and reasonably practicable? Dr H believes so. The Mother believes so. The Father believes so, except his proposal was made in the context of X living primarily with him. On balance, the matters considered earlier in these reasons lead the Court to conclude that an order for substantial and significant time is in X’s best interests, and is reasonably practicable. It must be acknowledged, however, that the Court’s concerns in relation to the matters set out in ss.65DAA(5)(b)-(c) do not disappear simply because the order will be for substantial and significant time rather than equal time. These concerns persist, of course, but in a completely different context of less time and where, on the facts of this case, by the careful drafting of orders one hopes that the obstacles to implementing an arrangement for substantial and significant time are minimised, and the need for the parents to communicate is likewise minimised. Importantly, from X’s perspective, there is less time and opportunity for her father to control or micro-manage her life, there are less opportunities for him to seek to intrude in the Mother’s parenting of X, and X’s exposure to two completely different households is likewise reduced, although not removed.
Orders in the Best Interests of X?
The effect of Dr H’s recommendations are that X live with her mother and spend time with her father every second weekend from Thursday after school to Monday before school, with changeovers at school, together with the half the school holidays. The Mother’s proposal is the same, in substance, though fleshes out some of the detail. The Court notes that the Father’s proposal for X to spend time with her mother was each alternative weekend from after school on Friday to before school on Monday. It again becomes apparent how, expressed in degrees, the Mother and Family Consultant’s recommendation bring about less change than the Father’s proposal.
On balance, the Mother’s proposal is, based on the evidence, more consistent with what is in X’s best interests.
There was an issue between the parents about mid-year school holidays, with opportunities to travel. The Mother’s proposal means that each parent would have the benefit of the whole of one of the mid-year school holidays, thus facilitating travel and her proposal is much more flexible and child focused and accommodates the Father’s needs as well as her own.
The Mother’s orders mean that both parents can attend all of X’s curricular and extra-curricular activities. X told Dr H that this is something that she would like her parents to do. The Father’s proposal is silent in this respect.
Having regard to all the evidence, the Mother’s proposal is in X’s best interests and the Court will base its orders on the orders that she seeks.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 14 May 2015
Schedule one
Orders sought by the Mother
That the parties have equal shared parental responsibility for the child X born on (omitted) 2003 (‘the Child’).
That each party is solely responsible for issues concerning the day to day care, welfare and developments of the child while the child is in his or her care.
That the child shall live with the mother.
That the father spends time with the child as follows:
(a)Each alternate weekend (being the fathers “flexi weekend”) from the conclusion of school on Thursday until the commencement of school on Monday and if the Monday is a public holiday, the time shall be extended to the commencement of school on the Tuesday.
(b)The time that the father spends with the child pursuant to order 4 (a) shall be suspended during school holiday periods and he will spend time with the child during school holidays as follows:
i.For the first half of the Term 1 school holiday period commencing from the conclusion of school on the last day the child is required to attend school until 7.00am on the Monday in the second week of the holiday period.
ii.For the whole of the Term 2 school holiday period commencing from the conclusion of school on the last day the child is required to attend school until 7.00am on the Monday prior to the first day that the child is required to recommence school.
ii.NOTE – If it suits the father to have the whole of Term 1 school holidays rather than the whole of Term 2 then orders 4(b)(i) and 4(b)(ii) are interchangeable annually at his request provided he gives notice to the mother in advance.
i.For the first half of Christmas school holidays commencing from the conclusion of school on the last day the child is required to attend school until 7.00am on the day that represents the mid-point of the holidays.
(c)The father will spend the following additional time with the child:
(i) On Father’s Day weekend from the conclusion of school on Friday until the commencement of school on Monday.
(ii) If the child is not ordinarily in his care, on the child’s birthday for a minimum of three hours as agreed but failing agreement then from the conclusion of school until 6.00pm on a school day or if a non-school day then 10.00am until 1.00pm.
5. The time the father spends with the child shall be suspended on the following occasions where the child will spend additional time with the mother:
(b)During the whole of the Term 3 school holiday period which is deemed to commence at the conclusion of school on the last day the child is required to attend school and to conclude on the first day the child is require to recommence school.
(c)From 4.00pm on Christmas Eve until 12.00noon on Christmas Day.
(d)On Mother’s Day weekend from the conclusion of school on Friday until the commencement of school on Monday.
(e)If the child is not ordinarily in her care, on the child’s birthday for a minimum of three hours as agreed but failing agreement then from the conclusion of school until 6.00pm on a school day or if a non-school day then 10.00am until 1.00pm.
That for the purposes of these orders changeover will be facilitated by the parent whose care the child is going into collecting the child from school (or a suitable arrangement for the child to travel home) if a school day and if a non-school day then the father shall collect the child from the mother’s residence at the commencement of his time with the child and return the child to the mother’s residence at the conclusion of the time.
(b)If the child is not attending school due to illness on a changeover day when entering the father’s care then the mother is to inform the father and changeover will be facilitated by the father collecting the child from the mother’s home at 4.00pm.
(c)That the child have liberal telephone communication with the other parent and that each parent will facilitate reasonably requested telephone communication by the child.
(d)That the child be provided with a mobile telephone to be paid for by the mother to take with her for the purposes of liberal communication with each parent.
(e)That in circumstances where extra time is negotiated at the child’s request or the other party’s request then makeup time will be given to the party who is losing time with the child.
(f)That the parties will both be entitled to attend all events involving the child including:
(a)Sporting fixtures;
(b)Extra curricula activities that allow for parental attendance; and
(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions and the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child transportation to and from that event.
(g)That each parent keep the other informed as soon as reasonably practicable of:
(d)Any medical problems or illness suffered by the child whilst in their care;
(e)Any occasions that the child is due to be hospitalised or has been hospitalised; and
(f)Any medication that has been prescribed for the child.
13. That each party is to authorise the school which the child attends to supply to the other with copies of school reports and other important communications regarding the child.
14. That both parties be and are hereby restrained from making derogatory comments about the other party or members of the other party’s family to or in the presence of the child.
15. That both parties be and are hereby restrained from discussing parenting matters and decision making with the child.
10. That in circumstances where extra time is negotiated at the child’s request or the other party’s request then makeup time will be given to the party who is losing time with the child.
11. That the parties will both be entitled to attend all events involving the child including:
(a) Sporting fixtures;
(b) Extra curricula activities that allow for parental attendance; and
(c) School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions and the parent who has the child in their care on the day of such activity will be responsible for their day to day care at such event and the child transportation to and from that event.
12. That each parent keep the other informed as soon as reasonably practicable of:
(a) Any medical problems or illness suffered by the child whilst in their care;
(b) Any occasions that the child is due to be hospitalised or has been hospitalised; and
(c) Any medication that has been prescribed for the child.
13. That each party is to authorise the school which the child attends to supply to the other with copies of school reports and other important communications regarding the child.
14. That both parties be and are hereby restrained from making derogatory comments about the other party or members of the other party’s family to or in the presence of the child.
15. That both parties be and are hereby restrained from discussing parenting matters and decision making with the child.
Schedule two
Orders sought by the Father
That the father have sole parental responsibility for the care, welfare and development of the child of the relationship namely X born (omitted) 2003 (the child) to include by not limited to issues about:
(a)The education of the child;
(b)The religion of the child;
(c)The health of the child;
(d)Any change of the child’s living arrangements that may make it significantly more difficult for the child to spend time with each parent.
That the child live with the Father and spend time with the mother as follows:
(a)During school term each alternate week commencing from the conclusion of school on Friday until the commencement of school on the following Monday. With those weekends being the opposite weekend to the father’s Rostered Day Off weeks.
(b)If Mother’s day falls on a weekend when the child is not already spending time with the Mother, from 9:00am until 4:00 p.m. on Mother’s day;
(c)During each of the short school holiday periods at the end of terms 1, 2 & 3 each year the first weekend of the holidays as per Order 2(a) above then in a seven day block commencing from the Monday of the first week of the gazetted NSW school holiday period at 8:30am and concluding at 8:30am the following Monday morning. With normal weekend time being suspended during the holiday period.
(d)During the long summer holidays at the conclusion of term 4, the first weekend of the holidays as per Order 2(a) above, then commencing 8:30am of the 3rd Monday of the gazetted NSW School holiday period until 8:30am on the Thursday of week 5 of the holiday period, with normal weekend time suspended during the holiday period.
(e)At Christmas:
(i) In even numbered years, from 12:00 p.m. on Christmas eve until 12:00 pm Christmas day; and
(ii) In odd numbered years, from 12:00 pm Christmas day until 12:00 p.m. Boxing day.
(f)Such further and other times as may be agreed between the parties in writing.
That the Mother’s time with the child be suspended:
(a)If Father’s day falls on a weekend when the child is to be spending time with the Mother, from 9:00 am Father’s day;
Wherever possible changeover to occur at school, however, if the child is not attending school on the day of changeover, the Mother to collect the child from the Father’s residence at the commencement of time and the Father to collect the child from the Mother’s residence at the conclusion of time with the Mother.
That each parent encourage and facilitate telephone communication between the child and the other parent whilst the child is in their care as requested by the child.
That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
That in the event of childhood illness or emergency the parent with whom the child or children are with, do contact the other parent forthwith to inform them.
That each of the parties, their servants and agents be hereby restrained by injunction from abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so.
That both parents be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents.
That neither party shall enrol the child in any sport or extra curricular activity that takes place during the time the child is to spend time with the other parent without the written consent of the other parent.That the Mother be restrained from relocating the child outside of the (omitted) area until the completion of Secondary School.That pursuant to Sections 62B and 65DA 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 and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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