Burnham and Burnham
[2009] FMCAfam 379
•22 May 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURNHAM & BURNHAM | [2009] FMCAfam 379 |
| FAMILY LAW – Parenting – equal shared care. |
| Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 61DA, 61DAA, 65DAA |
| AMS and AIF (1999) 24 Fam LR 756 Goode & Goode (2007) 36 Fam LR, (2006) FLC 93-286 Mazorski v Albright (2008) 37 Fam LR 518 Jones v Dunkell (1959) 101 CLR 298 T & N (2004) 31 Fam LR 281 |
| Applicant: | MS BURNHAM |
| Respondent: | MR BURNHAM |
| File Number: | NCC 778 of 2008 |
| Judgment of: | Lapthorn FM |
| Hearing dates: | 11 & 12 February 2009 |
| Heard at: | Armidale |
| Date of Last Submission: | 20 March 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 22 May 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Rugendyke |
| Solicitors for the Applicant: | Slater & Gordon Lawyers |
| Counsel for the Respondent: | Mr Davies |
| Solicitors for the Respondent: | P J Byrne & Associates |
ORDERS
That the mother and father have equal shared parental responsibility for the child [X] born in 1997.
That each of the parents have sole parental responsibility for the day to day care, welfare and development of the child whilst the child is in their respective care.
That until the last day of school term 2 in 2009 the child live with the father and spend time with the mother in accordance with the parenting plan entered into between them in December 2004.
That from the commencement of the school term 2 holidays in 2009 the child live with the mother and father as agreed in writing from time to time but failing agreement as follows:
(i)On a week about basis during school terms and during the school holidays at the ends of terms 1, 2 and 3 with each period commencing after school Friday or from 3pm Friday if during the school holidays.
(ii)For one half of the December/January school holidays, as defined in Order (6) herein, each year with the child to live with the father for the first half and the mother for the second half in 2009 and each alternate year thereafter and with the mother for the first half and the father for the second half in 2010 and each alternate year thereafter.
(iii)The party having the second half of the Christmas school holidays will have the child live with them from 3.00pm Christmas Day to 3.00pm 26 December with that party to both collect and return the child for that purpose from and to the other party’s residence.
(iv)That notwithstanding any other specific Order in these Orders, if Father’s Day falls at a time when the child is not spending time with the Father, the child shall spend time with the Father from 6.00pm Saturday until 6.00pm Sunday.
(v)That notwithstanding any other specific Order in these Orders, if Mother’s Day falls at a time when the child is not spending time with the Mother, the child shall spend time with the Mother from 6.00pm Saturday until 6.00pm Sunday.
(vi)That notwithstanding any other specific Order in these Orders, the child shall spend time with the parent she is not otherwise living with pursuant to these orders on her birthday from 3.00pm to 9.00am the next day.
That the parents have telephone communication with the child at all reasonable times.
That for the purpose of these orders, the December/January school holidays are deemed to commence at 3:00pm on the Friday of the last week of school term and conclude at 3:00pm on the Friday of the week immediately prior to the week in which the child is required to return to school.
That for the purposes of Order (4)(i) herein the child’s period of time during the first week of the new school year will commence at the conclusion of the school holidays as defined in Order (6) herein and the child will live with the parent in that first period of school term with whom she spent the first half of the school holidays.
Each party is restrained from denigrating the other, or members of the other’s family, to or in the presence or hearing of the child and must ensure that no other person does so.
That the child not be left at any time to be cared for by the mother’s daughter Ms H.
This order is sufficient authority for each school attended by the child to allow each parent to undertake parent/teacher interviews and to discuss the education of the children, to forward to each parent copies of all school reports and notices concerning activities to be undertaken by the child and to permit each parent to attend school sporting activities.
That the party that receives school notices, information, newsletters, school reports and school photographs is to provide copies of them to the other party within seven days of receipt by that party.
This order is sufficient authority of each medical and dental practitioner to discuss and supply to each parent reports on the health of the children on an ongoing basis.
That each party keep the other informed of the child’s health and any health issues (including notification of any treating practitioner’s details) as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the party in whose care the child are to inform the other party as soon as possible).
That both parties keep each other informed of their respective operational telephone numbers (including land line and mobile) and addresses and keep each other informed of any change of address and telephone number(s) within two days of any such change.
IT IS NOTED that publication of this judgment under the pseudonym Burnham & Burnham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 778 of 2008
| MS BURNHAM |
Applicant
And
| MR BURNHAM |
Respondent
REASONS FOR JUDGMENT
Introduction
The parents of [X] who is 11 years old cannot agree about her future parenting arrangements. Her mother, Ms Burnham, would like [X] to live with both parents in a week about arrangement where as her father, Mr Burnham, would prefer the child live primarily with him and spend alternate weekends with her mother.
Background
The parties commenced living together in late 1994 and married in November 1995. They separated on 15 May 2004.
[X] was born in 1997.
The mother who is 41 years of age has another daughter, Ms H who is 18 years of age. Ms H lived with the parties until separation but now lives independently of the mother and has two young children of her own. The mother lives in Armidale and works as a [omitted].
The father also lives in Armidale and is a [omitted]. He was born in 1971. Until recently he lived with his partner Ms D with whom he has a daughter, [Y]. [Y] is 10 months old.
Following separation [X] remained living primarily with the father and spent regular periods of time with the mother. In October 2004 the parties participated in mediation and agreed on a parenting plan[1] that provided for [X] to live primarily with the father and spend time with the mother for 5 nights in each fortnight.
[1] Exhibit M3
The parenting plan provided for a trial shared care arrangement over the December/January school holidays in 2004/2005. This trial was on a week about basis. The father did not agree to continue the week about arrangement after the trial period so the parties reverted to the previous arrangement. This meant that [X] would spend time with the mother from the conclusion of school on Wednesday until the commencement of school on Friday in each alternate week, and in the other alternate weeks from the conclusion of school until 6.30pm Monday and from the conclusion of school Friday until the commencement of school the following Monday.
The mother filed her Application for final orders in the Armidale Local Court on 23 January 2008 seeking orders for [X] to live with both parties on a week about arrangement. The father responded on 19 February 2008 seeking a reduction in the time the child would spend with the mother to alternate weekends.
Issues
The mother told the Family Report writer that she wanted the week about arrangement because [X] wanted to spend more time with her. The court has been invited to determine what weight should be given to the child’s views.
The father has expressed concerns as to the mother’s attitude to parenting. He is critical of the way Ms H behaved as a teenager and how she continues to live her life. He believes that she is a bad influence on [X]. He invited the court to find that the mother has minimised her responsibility in relation to Ms H. The father has sought an order restraining the mother from allowing the child to be cared for by Ms H.
The evidence suggests the parties have different expectations of their role as parents and that they have real difficulties in communicating with each other. These are important considerations in assessing their ability to effectively share the care of [X].
The Evidence
In support of her case the mother relied on the following:
a)Her affidavits filed 21 July 2008 and 28 August 2008
In support of his case the father relied on:
a)His affidavits filed 1 July 2008 and 10 September 2008; and
b)The affidavit of Ms B also filed 10 September 2008.
A family report was prepared by Mr John Lemaire, a regulation 7 Family Consultant and was released by the court on 13 August 2008.
Both parties gave evidence and were cross examined as was Mr Lemaire.
A number of documents were tendered by both parties.
The court has had regard to all of the evidence both oral and written.
Legal Principles and Approach to be taken in Parenting Applications
Parenting proceedings are governed by the provisions of Pt VII of the Family Law Act1975. In determining the outcome of parenting matters the Court must consider the best interests of the child as the paramount consideration.[2] Whilst that is the paramount consideration it is not the only consideration. In AMS and AIF his Honour Justice Kirby held: [3]
[144] ……a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides.
[2] Section 60CA
[3] (1999) 24 Fam LR 756 at page 792
The principles and objects of Pt VII are to ensure that the best interests of children are met by both parents having a meaningful involvement in their children’s lives; that the children are protected from physical or psychological harm; that they receive adequate and proper parenting; and the parents fulfil their duties and meet their parental responsibilities.[4]
[4] Section 60B lists the objects and principles for Pt VII.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.[5] This presumption may not apply or may be rebutted in cases of child abuse and/or family violence or when the evidence establishes that it is not in the child’s best interests for it to apply.[6] Neither party submitted that the presumption had been rebutted and I am satisfied that it is appropriate to apply it. I am further satisfied that it would be in [X]’s best interests if an order was made giving effect to the presumption.
[5] Section 61DA
[6] Section 61DA(2) & (4)
Having applied the presumption the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the court finds that is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents.
The legislative framework provides a number of considerations which the court must analyse in determining what is in a child’s best interests.[7] I will address the relevant considerations below.
[7] Section 60CC, Goode & Goode (2007) 36 Fam LR 422, (2206) FLC 93-286
The primary considerations: s.60CC(2)
Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
[X] clearly has a good relationship with both parents. Whilst neither party sought to sever those relationships both proposals sought to reduce the time [X] would spend with the other parent.
A “meaningful relationship” is not necessarily one that is achieved by ensuring a child spends a certain amount of time with a parent. It is more likely to be achieved by the quality of that time. With respect I adopt the view of her Honour Justice Brown in Mazorski v Albright[8] where her Honour says:
[26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one.
[8] (2008) 37 Fam LR 518 at 526 [26]
The Family Report writer observed the child to have equal enthusiasm when with each parent and he was not able to discern the strength of the child’s attachment to either.
The father’s proposal of reducing the mother’s time to alternate weekends would not be received well by the child[9] and may have a negative impact on her relationship with the mother. It would also see her time with the mother limited to non-school days other than the Friday afternoons. This change would alter the way the child’s relationship with the mother would grow over time as she would see her only in the context of weekends and holidays rather than seeing her in a normal day to day routine. This would reduce the opportunities for the mother and child to converse about school work and activities and take away the mother’s opportunity to get the child ready for school.
[9] para.29 Family Report
Although the mother’s proposal would also see a reduction in time the child would spend with the father she would still be with him for a whole week. This should not seriously affect her relationship with him. She would also then have an opportunity to live in both homes during school days and weekends benefiting from both parents assisting her with her schooling and day to day life.
A consideration of this issue would favour the mother’s proposal.
The current arrangement although not as “neat” as a week about arrangement, also provides an opportunity for the child to experience the different facets of life in each household and appears to have ensured the child has developed a meaningful relationship with both parents.
Section 60CC(2)(b) The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
The father’s counsel submitted that the child was at risk of harm if she were to continue to live with the mother under the current arrangements or if she were to spend more time with the mother. The basis of the father’s concern is twofold. Firstly he believes the mother would not exercise her parental responsibility appropriately to ensure the child is protected from going down the same path he says Ms H went and secondly that Ms H would have a significant influence on [X] such that she may adopt Ms H’s way of life.
I intend to address these concerns of the father elsewhere in this judgment as there is no evidence of the child being subjected to physical or psychological harm to date.
The additional considerations: s.60CC (3)
Section 60CC(3)(a) Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
The family report writer has recommended the court give consideration to [X]’s views. He concluded that she was a mature 11 year old who was a pleasant and conscientious child who is emotionally secure and intelligent. [X] told the family report writer that she wanted to spend more time with her mother.
[X] indicated to the report writer that she was sometimes confused about the current arrangements and had difficulty remembering where she was supposed to go. When she was asked what changes she would like she told the report writer:
“Maybe, I guess…change to probably a week with each parent or something.”[10]
[10] Para.28 Family Report
She went on to explain to the report writer that she would like to spend the same amount of time with each parent. She thought there would not be as many fights between the parents if that arrangement was put into place.
[X] did not want her time with the mother reduced and told the report writer that she would miss he mother too much if that were to happen.
According to the mother [X] had told her on many occasions that she wanted to spend the same amount of time with each parent. The father told the report writer that her views change from being happy with the current arrangement and wanting an equal time arrangement. He believes that the mother has influenced this view. He also believes that [X] would have a preference for spending more time with her mother because there were fewer rules in the mother’s household than in his. The difference in rules appeared to be borne out by [X]’s own comments to the report writer.
[X] told the report writer that although she loved her father she wanted to spend more time with her mother but she had not told him that. The court was invited to question how firmly the child held those views given she had not told her father. It would not be unusual for a child not to tell a parent they want to spend more time with the other parent. Especially with an 11 year old no matter how mature she is. This is particularly so in the context of her knowing that her parents have had fights over when she is to see the other parent.
I am satisfied that [X] wants to spend more time with her mother and she has expressed a wish to spend equal time with both parents. Given her level of maturity and that the family report writer considers her to be emotionally secure and intelligent I propose to give significant weight to her wishes. In doing so the proposal of the mother is to be favoured over that of the father and of continuing the current arrangement.
Section 60CC(3)(b) The nature of the relationship of the child with each of the child’s parents and other persons
[X] has a good relationship with both parents that has continued to grow and develop since separation almost 5 years ago.
[X] complained to the report writer that she did not always get on well with the father’s former partner Ms D. Despite this there was no evidence to suggest that the relationship was having a negative impact on [X]. The father gave evidence that Ms D had found the litigation difficult and they had agreed to separate for a while. He did not consider the relationship over saying that he hoped they could build on their relationship. He said that [X] often asks to see Ms D.
The father raised serious concerns about Ms H. He clearly does not approve of her and the way she has been living her life. Ms H commenced a sexual relationship at 13 years of age and had a defiant relationship with her mother and the father. I will consider the evidence of that period in her life later in this judgment. The father does not want to see [X] go down the same path and does not want [X] to be cared for by her if the mother is not able to. He is concerned that [X] has “lifted her to hero status”.
Ms H has been living independently of the mother since she was 16. She is now 19 years of age and has two children, [B] who is almost 3 years old and [K] who is 16 months old. The Department of Community Services have been involved with Ms H and her children. The Departmental file[11] indicates that reports have been received of inadequate parenting, drug use and domestic violence. Ms H appears to have not followed up on medical care of her youngest child. The Department continues to work with Ms H.
[11] Exhibit F1
The father says that Ms H’s partner has spent time in prison.
The court was invited to find that as the mother did not call Ms H as a witness her evidence would not have assisted her case.[12] Ms H did not present for interview with the Family Report writer either and it was submitted that consequently her views as to her past are not known. I do not accept these submissions. Ms H does not live in the mother’s household and therefore it would not be necessary for her to be interviewed by the report writer. Calling of children, even adult children, in parenting disputes should be discouraged. Whilst occasionally such evidence may be important and assist the court to determine the appropriate parenting arrangements for a child, in this case there was sufficient evidence from the parties as to their view of Ms H’s younger life to assist the court determine their approaches to parenting. I appreciate the father sought a restraint on the child being cared for by Ms H and the mother opposes that order however when I weigh up the preference for keeping children out of court proceedings and the need to determine that issue I am satisfied there is sufficient evidence from the parties and the subpoenaed documents to properly assess that issue.
[12] Jones v Dunkell (1959) 101 CLR 298
The father complains that when [X] returns from spending time with the mother she uses poor grammar and her manners have deteriorated. He ascribes this to the influence of Ms H. Apart from these complaints however the father has not seen any signs of rebellion or antisocial behaviour. He believes that [X] is aware that a lot of the things Ms H has done is not the way to be. No doubt he has been influential in parenting [X] to accept his views in that regard.
The mother’s employment has required her to start early of mornings. For some time she would arrange for [X] to be cared for by Ms H and for Ms H to get her to school. A couple of months prior to the hearing [X] requested to go to work with the mother prior to school. She had only done this occasionally before. The mother’s evidence was that they leave home at 7.45 and get the [omitted] ready before [occupation omitted]. During that run she drops [X] at school. I accept the evidence that Ms H is not caring for [X] prior to school.
The evidence from the Departmental file suggests Ms H may be using drugs and is having difficulties with parenting her two very young children. Whilst that evidence was not tested I am satisfied out of an abundance of caution that it would not be appropriate for Ms H to care for [X] when the mother is not able to do so. I have formed this view notwithstanding I accept the evidence that [X] is yet to be significantly influenced by Ms H and that she shies away from watching television programmes that portray violence, drinking or drugs. She is approaching impressionable years and it would not be appropriate for her to be cared for someone who has had difficulties with her own life. I will make the order the father seeks as the mother has no objection to Ms H caring for [X].
[X]’s relationship with Ms H would not be compromised by making such an order as she would still be able to see Ms H with her mother. When the family report interviews were conducted Ms H was looking after [X] before school but the only other times [X] saw her was with her mother. [X] is no longer cared for by Ms H before school.
Section 60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
The mother argued that the father is unlikely to promote a positive relationship between the child and her because he holds very dim views as to her parenting capacity. It was submitted that his proposal of reducing the time [X] spends with her mother is consistent with this attitude. The father argued however that despite his concerns he has continued to comply with the parenting plan that has been in place for 4 years and that the court would have confidence that he would continue to promote a positive relationship between child and mother.
There has been a period of 5 years since separation. Despite the differences between the parties [X] has a close relationship with both parents. I am satisfied that neither party would back track on supporting that relationship. The father is likely to maintain his concerns about the mother’s ability to parent [X] in a way that he would consider appropriate but despite this he would not want to jeopardise the relationship she has with her mother. He commented to the family reporter that [X] loved her mother saying “she hugs her the second she sees her”.
Section 60CC(3)(d) The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living
Both proposals would see a significant change in the child’s circumstances in that she would be spending less time with one parent and more with the other. It is not possible however to predict with any accuracy the likely effect of either change.
If the father’s proposal was adopted [X] would be disappointed as that would be clearly against her wishes to spend more time with her mother. I am confident she would miss her mother given that would amount to a reduction in the time she spends with her. This may also effect her relationship with her father over time if she was to form the view that he was responsible for her spending less time with her mother.
If the mother’s proposal was adopted the way the child spends time with her mother would alter to a block period of a week rather than two nights one week followed by an afternoon and a weekend in the other week. A simpler routine of week about may bring stability and be less confusing for [X]. This was a point she raised herself with the family reporter.
When I weigh both proposals in the context of this consideration I am satisfied that there is potential for negative consequences if the father’s proposal is adopted but there may be some benefit to the child if she had a week about arrangement with both parents. Continuing the current arrangements would of course bring no change to the child’s circumstances.
Section 60CC(3)(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.
The parties live only a 5 minute drive from each other and under either proposal there would be no change to the child’s school enrolment.
Neither proposal would adversely affect the ability of the child seeing or communicating with the parents regularly.
Section 60CC(3)(f) The capacity of each of the child’s parents and 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
Section 60CC(3)(i) The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents
Section 60CC(4) The extent to which each of the parents has fulfilled or failed to fulfil, his or her responsibilities as a parent
I propose to consider these three headings together.
The father is very critical of the mother’s parenting capacity arguing that there is a risk that [X] will follow in her sister Ms H’s footsteps if the mother has a greater role in parenting her.
The evidence suggests that Ms H commenced a sexual relationship when she was 13. Her partner at the time was 18 years old. The father believes the mother did little to protect her daughter. He complained that the mother has continually downplayed the seriousness of the lifestyle chosen by Ms H such that the court would be concerned that the mother would not be able to monitor or supervise [X] appropriately especially as she approaches her teenage years.
The mother denies not being protective of Ms H and disagrees with the father that she would not be able to appropriately monitor or supervise [X].
The file notes from the Department of Community Services[13] indicate that the mother took Ms H to the doctor after Ms H told her of the sexual relationship and that a condom had broken during intercourse. The father had spoken to Ms H’s partner and when he refused to cease the relationship he reported it to the Police.
[13] Exhibit M4
On a number of occasions Ms H ran away from the parents’ home but the police would bring her home from her boyfriend’s place at the request of the father.
The file has a notation that upon analysis of the issues an officer of the department assessed the mother to be supportive of the child in obtaining medical attention and that both the mother and father were not supportive of the relationship. They were recorded as attempting to ensure the safety of Ms H as much as possible.
The father presented as genuinely concerned about the risk of [X] taking the same course as Ms H and believing the mother did not treat this issue with the necessary seriousness. The mother who appeared more laid back than the father impressed as having a different parenting style but also concerned that [X] not follow Ms H’s ways. I accept the submission on behalf of the mother that there was no evidence to suggest the mother encouraged Ms H to behave as she did and that she acted appropriately, as did the father, when details of her sexual relationship became known.
I am not satisfied that the mother displayed a lack of parenting capacity in relation to Ms H but appreciate that the mother’s laid back approach would frustrate the father.
The father is also critical of the mother for taking the child to her work prior to going to school of a morning. It was submitted that that showed an attitude to parenting which was not conducive to the child having a proper regard to her education. Such a submission is disappointing and maybe indicative of a father clutching at straws to run down the mother’s parenting. There was no evidence of the work place being unsafe. There was no evidence of the child being late for school. Many parents arrange before school care or take their children to their employment before getting them off to school. I make no criticism of the mother for this approach. On one view of it, it provides [X] with a positive role model in seeing her mother work for a living.
The mother does not express any adverse view as to the father’s capacity to provide for the needs of [X] except the potential to compromise her emotional needs. [X] has expressed a wish to spend more time with her mother. The father seeks to reduce that time. It was submitted on the mother’s behalf that the father lacked an understanding of [X]’s need to spend more time with her mother as she approached puberty and adolescence. I am not persuaded the father lacks this capacity but rather is being protective. He takes a much more conservative approach to parenting than the mother and he considers the need to direct [X] down a different path to Ms H is more important than following her express wishes.
Whilst I respect the father’s belief in the need to protect [X] I am not satisfied there is sufficient evidence to suggest [X] is likely to turn out like Ms H if she is cared for more by the mother.
Section 60CC(3)(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
The parties have been able to work together in implementing the parenting plan for more than 4 years despite their different approaches to parenting and their different aspirations for spending time with [X]. The mother says she brought the proceedings because [X] had been saying for some time that she wanted to spend more time with her. [X] clearly does not want her time with the mother reduced.
If the father’s proposal was adopted there is some risk that [X] will grow to resent the reduction in time with her mother such that her placement with the father may break down which in turn may lead to further litigation.
The same could be said if the status quo was to continue as [X] has clearly stated she wants to spend more time with her mother.
Section 60CC(3)(m) Any other relevant fact or circumstance:
The mother submitted there is uncertainty surrounding the father’s relationship with Ms D and invites the court to be cautious when considering the father’s application to reduce the time [X] will spend with the mother given this uncertainty. Whilst there may be some changes and instability in the father’s household as he and Ms D work on resuming their relationship I am satisfied the child and father have a good relationship that would withstand any difficulties in his relationship with Ms D. However if the child’s time with the mother was reduced against her wishes and the father’s household circumstances experiences change the child’s sense of security may be compromised. The father’s position is not favoured when this factor is considered.
Consideration of equal time or substantial and significant time
Having indicated that I will apply the presumption of equal shared parental responsibility and make an order to that effect I am required to consider the provisions of s.65DAA. In doing so I must commence by considering whether it is in the best interests of the child and reasonably practical for the child to spend equal time with the parents. If I form the view that it is either not in her best interests or reasonably practicable I must consider whether it is in her best interests and reasonably practical for her to spend substantial and significant time with the parents.
In the decision of T & N[14] her Honour Federal Magistrate Ryan, as she then was, considered the factors a court should examine when determining applications for equal shared care. Many of those factors were ultimately incorporated into the 2006 amendments to the Family Law Act.[15] I propose to list the more pertinent of those factors to address the capacity of these parents to share the care of [X]. They have also been considered in my analysis of the provisions of s.60CC.
[14] (2004) 31 Fam LR 281
[15] s.65DAA(5)
The parties’ capacity to communicate on matters relevant to the child’s welfare:
The different outlook on life and parenting coupled with the resentment that has developed between the parents has compromised their ability to freely communicate without difficulty.
The father complains that he is not able to talk to the mother about [X] in an adult manner especially when it comes to care arrangements. He said that there was no problem discussing matters such as school projects but he is abused if he raises any issue about how the mother is caring for [X]. He said that he is often threatened with legal action. He has no confidence things will improve.
The mother concedes that they are not able to sit down and have a discussion about [X] but she feels they are able to communicate sufficiently about her needs. She denies abusing the father when they do have discussions.
The father said that it is has been frustrating in organising the care of [X] during the holidays as the mother will not commit to particular days until just beforehand. The mother denies this saying they have prepared rosters of holiday time. Exhibits M1 and M2 were tendered to show how the rosters were used. [X] also complained to the report writer about not knowing for ages who she was going to be with during the holidays.
The frustration expressed by the father is not surprising given the different approaches each parent takes to life. The father clearly takes a more planned approach and the mother is more laid back. Despite this the parents have been able to work around their different approaches to ensure that [X]’s needs are met. The report writer gave evidence that he saw no evidence to suggest that the poor level of communication between the parents has had an adverse impact on the child.
I am satisfied that there are real differences in parenting between these parties and their inability to communicate effectively and without discord compounds the problem of the different approaches. Fortunately this does not appear to have had a significant impact on the child although I am satisfied that she is not happy with it given she has suggested one solution would be to spend equal time with each parent to overcome this discord.
Poor communication is not a good indicator of shared care working for the benefit of the child. Mr Lemaire confirmed this in his evidence. He believed a parenting programme may assist the parties however after hearing their evidence and observing them in the court I was left with the impression they are entrenched in their view of each other. The father said they would need a lot of professional help. With respect I accept that evidence and am not persuaded a parenting programme would assist this family.
The communication difficulties militate against adopting an equal shared parenting arrangement. The parties have however been sharing the care of [X] for more than four years. Despite their difficulties there is no evidence of [X] suffering detrimentally as a result of their inability to communicate. The current shared care arrangement is not equal shared care and is split into three parts during the fortnight. A week about arrangement may minimise the conflict between the parties although this issue would tend to favour the child living primarily with one parent and spending significant but not equal time with the other parent. Mr Lemaire however gave evidence that when all of the issues were considered together it was better for [X] to cope with parents who have difficulty communicating than to have her time with the mother reduced.
The proximity of the two households:
The parties close proximity to each other would assist with a shared care arrangement whether by way of equal time or a continuation of the status quo.
The prior history of caring for the child:
The parties tried a week about arrangement during the school holidays in 2004. The father did not continue it and they have since then had a form of shared care but not equal shared care. The child has spent
5 nights in each fortnight in the manner set out earlier in this judgment.
[X] indicated that she sometimes gets confused as to where she is supposed to be under the current arrangement. She would prefer a week about arrangement believing that it would be less confusing and the parents may fight less.
Despite the ongoing problems with communication discussed above the parties have been able to effectively share the care of [X] in a way that has served her well.
Whether the parties agree or disagree on matters relevant to the day to day care of a child such as discipline, health and dental care, diet, sleeping patterns and attitudes to homework:
[X] told the family report writer that there is little difference in the two homes in relation to discipline.[16] She did say however:
I guess mum is a bit easer to be with because I’m allowed to cook, and go to the kitchen, and have friends to sleep. At Dad’s I get treated like a little five year old or something. At Dad’s I’m not allowed to put sauce on a sausage roll by myself, at mum’s I’m allowed to.
[16] Para.30
Clearly the parties take different approaches to parenting but the transition between the two homes does not appear to have compromised [X]’s care.
Whether if the parties disagree on these matters, there is a likelihood that they would be able to reach a reasonable compromise:
The mother rejects the father’s criticism of her parenting. It is this criticism that adds fuel to their inability to communicate. That is unlikely to change. Notwithstanding this however I am satisfied that they have been able to make the current arrangement work despite their differences.
Whether they can address on a continuing basis the practical considerations that arise when a child lives in two homes:
There are often ongoing practical issues when children live in two homes. One example is when a child needs a book for school that has been left in the home he or she was living in the week before. Another could be coordinating the preparation of a school project. The father said they are able to communicate about these matters despite their differences over parenting. I am satisfied that the parties are able to work together in this aspect.
Whether each party respects the other as a parent:
The mother feels that the father does not respect her as a parent. There is no doubt the father does not approve of the mother’s parenting style.
The mother does not like the more rigid approach to parenting adopted by the father. Despite all this both parents respect the importance of each other in [X]’s life and value [X]’s relationship with the other.
The report writer has concluded that [X] has grown into a pleasant and conscientious child who is emotionally secure and intelligent. That emotional security may not have been present if the parents had used their dislike for the other and their parenting approach to undermine the child’s relationship with each parent. I am satisfied that despite their differences they are not so great that the child would not be able to continue to grow in an emotionally secure way if the current arrangement continued or in an equal shared care arrangement. To reduce time with the mother however may compromise that security.
The child’s wishes:
For the reasons I have set out above I am satisfied [X] wants to live week about with both parents and given her age and level of maturity her views should be accorded significant weight.
Conclusion
Whilst the lack of positive communication is a concern as to whether the parties are able to effectively implement an equal shared care arrangement when I weigh up all of the factors considered above especially the desire of [X] to live in a week about arrangement with both parents I am satisfied that it is in her best interests for her to do so.
The issue of communication is also important in assessing the reasonable practicality of an equal shared care arrangement working for the benefit of the child. Despite this aspect of the parent’s relationship being concerning, when I consider all the factors discussed above and taking into account that the current arrangement has not fallen down as a result of the difficulty in communicating, I have arrived at the conclusion that it would be reasonably practical for [X] to be cared for by both parents in an equal shared care arrangement. In arriving at that conclusion I have also considered the Family Report writer’s recommendation that the current arrangement continue but also his comments:
But, apart from the parent’s reluctance to communicate and the differences in their parenting style, nothing emerged to suggest that [X] should not be cared for equally by both parents.[17]
[17] Para.39
I have therefore concluded the child should live with both parents in a week about arrangement however in order not to disrupt her schooling during the transition I will make orders that will come into effect from the end of the current school term.
For these reasons I make the orders set out at the beginning of this judgment.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Associate: Helen Drysdale
Date: 22 May 2009
0