C and O'N
[2003] FMCAfam 154
•7 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & O'N | [2003] FMCAfam 154 |
| FAMILY LAW – Children – residence – whether mother poses a risk to the children – shared parenting in the interests of the children, notwithstanding differences between the parents. Family Law Act 1975, ss.60B, 60B(2)(b), 65DA(2), 65E, 68F(2) |
| Applicant: | L C |
| Respondent: | T O'N |
| File No: | DGM 2070 of 2002 |
| Delivered on: | 7 May 2003 |
| Delivered at: | Melbourne |
| Hearing Dates: | 1 & 2 May 2003 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Ms C appeared in person |
| Solicitor for the Applicant: | Ms C appeared in person |
| Counsel for the Respondent: | Mr O'N appeared in person |
| Solicitor for the Respondent: | Mr O'N appeared in person |
ORDERS
THAT the mother and father retain joint responsibility for the long-term care, welfare and development of the children of the parties,
C A O'N, born the 11 May 1991, and P H O'N, born the 14 June 1994.THAT the children live with the mother from 7:00pm Sunday to 7:00pm Sunday the following week and when the children are living with her she have the day to day responsibility for their care, welfare and development.
THAT the children live with the father in each other week from 7:00pm Sunday until 7:00pm the following Sunday, and when the children are with him he have the responsibility for their day to day care, welfare and development.
THAT the children live with the mother and father respectively for one half of each of the school term holidays and the Christmas school holidays at times to be agreed.
THAT the children spend time with each of the parents on Christmas Day as agreed.
THAT the children live with the parties at such other times as are agreed.
THAT the parties attend upon J S with the children, at a time to be fixed, to discuss and explain to the children the reasons for and effect of these orders, and how they are to be best implemented in the interests of the children.
THAT pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are out in Annexure A and these particulars are included in these orders.
THAT the Application filed 12 September 2002 otherwise be dismissed and removed from the List of Cases waiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGM 2070 of 2002
| L C |
Applicant
And
| T O'N |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter involves the residence of the two children of the parties
C A O'N born 11 May 1991 (C) and P H O'N born 14 June 1994 (P).
C is now aged nearly 12 and P is nearly 9.
Short background
The parties commenced living together in about 1987. They have never married. The relationship has been deteriorating for some time but both parties agree that it effectively came to an end in June 2002. However the parties have continued to live in the family home with the children since that time. Apart from the breakdown of their personal relationship they have in all other respects continued to live as a family.
This fact coupled with the fact the parties have not yet resolved property issues creates some complications. The parties have not yet adjusted their lives, nor those of the children, to the inevitable split of the family and division of property which may include the sale of the family home.
They have essentially left this decision to the Court and a determination in favour of the proposal of one or either of the parties will put in train a physical separation and lead to a distribution of their property.
I am conscious that as the parties were not married their property rights are beyond the jurisdiction of this Court to determine. Regrettably this leaves them with yet another obstacle to overcome after this decision, before the family members can move on and live their separate lives with new family arrangements in place.
The father would like to continue in what he sees as his role as primary care giver and to remain in the home with the children. Hence he has been unwilling to bring about the physical separation. In addition he would be happy for the relationship itself to continue.
The mother, from her part, has realised that the father would not move out or finalise property proceedings and this in turn has motivated her to remain in the home as well until a decision regarding the children's future has been made. This has led to the unfortunate consequence that C, who does not wish her parents to separate or her life to be disrupted, has not accepted the inevitable separation. Her reactions to any order therefore are difficult to assess.
Applications and proposals
The fact that the parties have still to resolve the division of their property entitlement in the State system does not give me confidence that any order now made will be implemented immediately, or without difficulty.
The applicant mother seeks a joint parenting arrangement, which she describes as shared parenting, week about, Sunday to Sunday.
She proposes to continue to work full time for the A B C. In the week in which she proposes to have the children living with her she will work 9am to 3pm. In the other week when the children are with the father she will work 9am to 8pm. Her employer has agreed to this arrangement.
She will attend to all of the children's needs while they are with her and will ensure the children have contact with paternal relatives on special occasions while they are with her.
The respondent father proposes the children live with him from Monday to Friday each week and with the mother from Friday evening (or Saturday morning) until Sunday evening every weekend.
Both parties propose that holidays will be shared. Both parties propose that the children continue to attend their current school, O L of A P School in C, where C is in grade 7 and P is in grade 4.
The parties each relied upon affidavits identified at the commencement of the hearing. They also relied upon various affidavits sworn by family members and friends.
In the main those affidavits support the view I have formed, that the two children are well loved and cared for by their parents and loved and cared for by members of the extended families. Most of the affidavits were supportive of the family unit and particularly of the children and only two witnesses in total were required for cross-examination.
Both parties concede that the children love them and that they love the children. Both agree that the children have the right to be cared for by both parents however they disagree as to the way in which that care should be provided.
A Family Report was prepared by Ms J S. Neither party wished to cross-examine Ms S and the report was accepted into evidence.
The issues
The father contends that he has been the primary care giver for the children since 1994. At that stage he ceased full time work and has taken on the role of primary care giver since then. The mother returned to work full time about 20 months after P's birth and has been the primary bread winner for the family since that time. The father sees no positive advantage for the children in a change to this caring arrangement which would see him continue in the primary care giver role.
Further he contends that he is by nature the more stable and reliable parent. He asserts that the mother has problems with anger control and drinking and that her relationship with the children, and C in particular, is unpredictable and places them at risk. At the conclusion of the evidence, he contended that even the weekend contact between the children and their mother poses a risk to them, but one that he thinks is acceptable only so that the children may have the opportunity of seeing their mother on a regular basis.
He contends that the mother's parenting proposals will not alleviate the stresses in her life which pose this risk but will add to them if the children are living with her on a week about arrangement.
The mother rejects the assertions of the father as to her unfitness to care for the children. She would like to care for them full time but accepts that they would benefit from being cared for by both parents and thus proposes a shared parenting arrangement which she believes is in the best interests of the children.
She accepts that she has had problems with anger management and her frustrations have at times resulted in verbal and physical altercations with the father. She asserts that there are times when she has drunk to excess. She explains these occurrences on the basis that she has been frustrated with the father and the role of breadwinner, which has been forced upon her. In particular she asserts that the requirements on her to work full time (as the father was not) to support the family, was not her choice of lifestyle and caused some resentment. She asserts that she has had counselling for anger management, and implicit in her proposal is that once the family has physically separated the main stress in her life, her relationship with the father, will be removed.
She does not criticise any aspect of the father's parenting of the children. Her case is presented on the basis that both parents can provide for the children's needs and that it is in the interests of the children to continue to be cared for by both of their parents.
The law
Contact orders and Residence orders are Parenting orders. They arise in proceedings that result from Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underlie those objects. They are subject to Section 65E, that in determining the outcome the best interest of the child is the paramount consideration. That is the overriding principle.
Section 60B (2)(b) has particular relevance in these proceedings. It provides, in effect, that children have the right to contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of the contact. It carries with it a clear understanding that contact should be as frequent as it appropriate and by the various means which could be considered to be in the child’s best interest.
In deciding the residence and contact arrangements that will promote the best interests of the particular child, the Court must consider the various issues set out in section 68F(2). Each subsection comprises a list of matters that must be considered in the context that each is relevant to the particular case.
That section provides as follows:
"The court must consider:
(a)any wishes 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 wishes;
(b)the nature of the relationship of the child with each of the child's parents and with other persons;
(c)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, with whom he or she has been living;
(d)the practical difficulty and expense of a child having contact 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;
(e)the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f)the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(i)any family violence involving the child or a member of the child's family;
(j)any family violence order that applies to the child or a member of the child's family;
(k)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;
(l)any other fact or circumstance that the court thinks is relevant.”
The Family Report
In evidence, both of the parties described their good relationship with the children and consistent observations were made by the counsellor. The counsellor observed that both C and P appeared to have a warm and close relationship with the father. Similarly she noted that from her observations C and P appeared to have a warm relationship with their mother. During the observations both children were relaxed and at ease with their parents and the observations were otherwise unremarkable.
As far as the children's wishes are concerned C presented as a confident young girl exhibiting maturity over and above her age.
C described positive attributes about both of her parents and no negative ones. However when asked about the arrangements being proposed by the parties C said that she would miss her mother if she had full time with her father and had alternate weekend contact with her mother. When asked how she would feel living week about with each parent she said, "I don't know, weird, I would not like it, I would probably run away." When asked how she would feel if she lived full time with her mother and alternate weekends with her father she said she wouldn't like it. She spoke about wanting to continue living in the family home with family as she now is.
P presented as a confident eight and a half-year-old who was clear about what he wanted. Despite the fact that he wanted his parents not to split up he said that he wanted to live week about with each parent and thought that was a good choice. He understood that although he wanted them to stay in the same house that that would not happen. He too spoke positively of his parents and had no negative comments to make about them. The counsellor noted that P seemed to be “a young boy who has thought through how he feels about each parent and has come to the conclusion that he feels he does need to have as much time as possible with each of his parents.”
In relation to C the counsellor noted that she was unable to express a wish about which parent she would like to live with and seemed to be having some emotional difficulty with the present situation changing in the future. The counsellor concluded the report by noting that one of the difficulties with the shared care is that usually for shared care to work in the children's best interests it is necessary for the parents to cooperate and facilitate this arrangement and that one of the difficulties with shared care is at the present time C does not feel happy about it. It was the counsellor's view that P would benefit from, and manage a shared care arrangement whereas it was unclear whether C would. Nevertheless on balance the counsellor believed that the shared care arrangement may well suit the children best, especially C who is more likely to have to adjust regardless of any arrangement. The counsellor felt that C would benefit by being able to have time with both parents.
These recommendations were made with the caveat that the assertions by Mr O'N that the mother had difficulties with her drinking and anger and that the children were consequently at risk was a matter that would have to be assessed by the Court.
Evidence and findings
I propose to make findings about the matters in issue under the various headings in s.68F(2).
The children's wishes
Both children were assessed as being mature. P has firm wishes and appears to have clearly thought them through. Although he does not want his parents to separate he is realistic about the future and considers that a week about arrangement would be best for him. C is obviously in a situation of some denial and has not really faced the inevitability of her parent's separation. Consequently she rejected all of the proposals put to her. Her rejection of the various proposals itself leads me to the conclusion that she wishes to spend a significant amount of time with both parents.
The nature of the relationship with the parents and others
Both children are clearly attached to both parents. Neither child expressed negativity towards either of their parents and both children clearly wish to be cared for by both of their parents. The children's attitude to the father's extended family was not explored in the Family Report but it is clear from the affidavits filed on his behalf that he has a supportive family. Similarly the mother has friends and family support.
The effect of separation from the parents
There will be some effects on the children, especially C when the parties ultimately separate. However unless the parties remain together the proposals of either party will inevitably involve separation of the children from both parents. I accept the conclusion of the counsellor that there is benefit to these children continuing to have a great deal of contact and to be cared for by each of their parents to the extent that that is possible after their parents physically separate;
Any practical difficulties with contact or residence arrangements
It is likely that both parents will live in reasonable proximity to each other once they have physically separated. It is certainly desirable that they do so and therefore unlikely that there will be any practical difficulties in the children changing households. Neither party led any evidence of this.
The capacity of each parent, or any other person, to provide for the needs of the child, including emotional and intellectual needs
The father describes himself as having been primarily responsible for meeting the children’s physical needs and making a contribution to their financial support. Each of the parties had differing versions of how they saw the responsibilities that each of them undertook and conducted in relation to the children. Neither of them presented any corroborative evidence about what occurred in the household. This may simply have been because there was no one else in the household save for the parents and children, though in my view it also extends to a desire by the parties, laudable in this case, to minimise the involvement of other parties and to preserve and maintain their respective families and friends as a support for the whole family, rather than a support for the individual parent.
The fact that the parties represented themselves however makes fact finding, where there are disputed facts, difficult. This is because although the parties presented differing versions of events in the affidavits, neither of them was able to robustly challenge the other party in cross examination as an experienced advocate might have been able to do. There was a challenge by both parties to the evidence of the other but not in all respects as probing as might have been the case if they had been represented and I am left to do the best I can to determine which version is to be preferred.
The mother contends that she has been the major bread winner in the family and is critical of the father, in his unilateral decision to cease full-time work and take on the role of full-time parent, his gambling, his lack of financial contribution to the family and his presentation, therefore as a poor role model in this regard to the children.
Some of these criticisms relate to her view of the father’s capacity to be the full-time parent that he wishes to be, but they do not impinge upon her proposal that the children spend equal time with the parties on a weekly basis. Indeed, it is implicit in her case that this is a positive arrangement for the children and enables what she asserts are the defects in his present proposals (poor role model for the children in not having full-time employment) as being offset by her role with them.
The other part of her criticism of the father is really self directed in the sense that she contends that the fact that he took this role upon himself, without consultation with her has, in a sense put her in the position where she had to go to work full-time and had no choice, creating tensions in the marriage which led to much of their unhappiness and some of the incidents between them about which the father complains.
The father contends that he did provide for the family and sought in my view to minimise the mother’s contribution. He was unable to quantify his own contribution from his casual employment. He sought to do so by reference to a budget that he had worked out. The budget was presented on the basis that he had calculated the total needs and expenditure of the family in a notional sense, deducted the wife’s earnings, and contended that the balance necessary to provide the notional support for the family must have come from him, and therefore represented his contribution. In my view this budget was nothing more than a fiction and did not accurately represent his financial contribution to the family. He was unable to provide any real data such as tax returns or other documents that might establish what he had been providing and I am satisfied from the evidence that the wife was the major provider for the family. I am also satisfied from the evidence that the husband did gamble and that he had a T account, which he regularly used. His gambling was not, I find, to the financial detriment of the family as the family apparently had sufficient funds, but it was undoubtedly a source of friction between the parties and a cause of considerable irritation to the mother. Similarly I am satisfied that the father has exaggerated the role that he played in caring for the children. Undoubtedly the major role fell to him as the mother was at work and this arrangement worked well for the children. Never the less she also contributed to their day to day needs and the responsibility for their care was not in my view the province of the father to the extent that he asserts it to have been.
There are other indicators that this is the case. In particular the children’s excellent relationship with both parents and desire to have both parents playing an important role in their lives suggests not only a need for both parents to be involved, but also in my view a reflection that that has been the case in the household.
It is apparent from the family report that an involvement of each of the parents is necessary to fully meet the children’s emotional needs. The mother continues to work full-time and the father does not, and their physical needs will be met in slightly different ways. The fact that the father is more available during the week when the children will be with him than the mother does not derogate from her capacity to physically care for the children even though she is working when they are at school. There will be some greater pressures on her due to the fact that she is working. This is not necessarily a bad thing and children can benefit from exposure to seeing a parent under pressure going about their day to day lives.
I accept the contentions of the wife as well that it is important for the children to have the opportunity to see one of their parents engaged in full-time employment. This is not necessarily a criticism of the father but rather an advantage of the mother’s proposals. It is clear from the Family Court report, and I accept the mother’s evidence in this respect, that C, who is presently experiencing puberty, has particular needs which are met by her mother.
The need to protect the children from physical or psychological harm
The question of whether the children will be at risk of harm if they live with their mother week about is a significant part of the father’s case. He asserts that by reason of three factors, the children are at risk from living week about with their mother;
a)the mother’s excessive drinking;
b)the mother’s violence to him;
c)the mother’s relationship with the children.
The father asserts that the mother drinks to excess. I accept that this has on occasions caused physical altercations between the parties. There are two aspects to this allegation however, which need consideration. The first is that there is no evidence that the mother’s capacity to care for the children has been affected by excessive alcohol. The father says that she does not drink at home, although he asserts that in February 2002 he had to call the police because she had been attacking him under the influence of alcohol. On this occasion he asserts that C heard the altercation between the parties. He asserts that, “L’s anger is not always at its worst on the night of the drinking session. Usually on the day after drinking L is quite calm, the following two or three days are times when her anger can be at times at its most volatile. C and L do not always enjoy great communication, but at these times L shows less tolerance for any mistake or any bad attitude that C may show.”
There is no evidence in my view to suggest that, even if the evidence supported that the mother and C have a strained relationship, it can in any way be connected to the wife’s drinking. There are a number of other factors in the household, the most important one of which is the deteriorating relationship between the parties, which has contributed to her frustration with the father.
Secondly, in my view the father has exaggerated the extent to which the mother drinks and all allegations have to be seen in context.
I accept that there have been occasions when she has certainly become more volatile with the husband after drinking. However T G, who swore in an affidavit in support of the wife, was cross-examined. Ms G was a long-term friend of the wife and husband. She put the father’s allegations, in my view, into context. She said that they did not binge-drink (as alleged) and said that they socialise regularly. On some of those occasions they would not have a drink but on some occasions they would. The description she gave was of modest social drinking. She accepted that they would occasionally drink to excess but that it was a rarity. She confirmed that on the occasions when the wife had been drinking, the children were being cared for by the husband.
I am satisfied from the evidence that the husband has exaggerated the extent to which the wife drinks and that, on occasions when the wife has drunk to excess this has not been when the children have been under her care, nor has it effected the children. The only manner in which her drinking to excess during the relationship has effected the children was on the occasions when she and the father had altercations, which might not otherwise have occurred. These also, I am satisfied, were a rarity, and allegations of the wife’s drinking do not, in my view, make her an unsuitable parent to care for the children on a weekly basis, nor do they put the children at risk in her care.
The mother concedes that there have been occasions on which she and the father have had altercations however she asserts that this has occurred in the context of her frustrations with the father. She has attended a course on anger management and had counselling. She is aware that she has to control her anger. I am not satisfied that there is any evidence to support the view that the children are in any sense in any physical danger from the wife. The violent incidents between the husband and wife occurred in the context of their relationship, and once that relationship is at an end the opportunities for further incidents to occur will disappear.
The father’s case to a large part rests upon his assertion that the children are at risk (of being subjected to the mother’s temper) if they are with her even for half of the time in a shared arrangement. Indeed, the father submitted during the course of the hearing, that when the wife was at home with the children that they were at risk with her even at the weekends. This assertion is in my view a gross exaggeration and a completely untenable proposition unsupported by evidence.
The mother admitted to some frustrations with the children caused by her general frustations about the role that she had been obliged to undertake and the deterioration of the relationship with the father. She also conceded, in my view, properly that her temperament is different to that of the father and that she has a more volatile temperament. She is however aware of this and has taken steps to improve it. However I do not find that there is any evidence which would support the children in any sense being at risk of some inappropriate behaviour by their mother. The main incident which their father referred to was an incident which occurred in early 2002 when C had had an argument with her mother and had gone to their grandparents home. P had accompanied C. The children were in no danger and as far as I can tell from the evidence, this is the only occasion on which such an event had occurred.
Many years earlier, when C had been sent to her room, she had apparently climbed out of the window. This also appears to have been an isolated incident.
I accept that when the children were much younger the frustrations felt by the wife and the likelihood of her becoming angry with the children might have given some concern if she was to be their full-time carer and to work full-time. However, the ages of the children must be considered. These children are not babies. C is approaching her teenage years and P is not far behind. Both children are clearly mature children. Their parents have different personalities and they have no doubt already learnt that this is the case. The evidence which the father relies upon does not in my view support the finding that the mother’s relationship with C, which is the relationship which he is most concerned about, is one which would put C at risk if she was to live with her mother for half of the time. Mother/daughter relationships are notoriously difficult at C’s age. However, the most telling evidence in my view is the Family Report itself. Both of the children exhibited a close and excellent relationship with each of their parents. None of the tensions that the husband contended were present in the relationship between C and her mother were apparent from the views expressed by C to the counsellor, nor in the interaction between C and her mother. Both of the children expressed a continuing wish to be cared for by each of their parents. I find that the positive attributes that they can both give to the children by continuing a significant role in their lives outweighs any disadvantages. Indeed it may be important for the children to learn to cope with differences in approach and different personalities.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents
Both parents are concerned to ensure that the children have the best possible care and the best possible opportunities for growing into mature, responsible adults. In my view however the mother has a more objective view of the children’s needs than the father. She appreciates the need for them to be cared for by both of their parents and I accept that although she would like to be the primary carer giver, she has accepted the father’s role in the past and the important role he has to play in the children’s life on an ongoing basis. I do not believe that the father has the same understanding of the mother’s important role to the children.
I would not be satisfied if the children were in the father’s care as proposed and seeing the mother at weekends that they would have the sort of relationship with their mother which is necessary for them. The mother pointed out the conundrum for her about weekend contact if the father’s proposals were accepted. The father admitted to some degree that this would be a problem. The problem is presented by the fact that there would be other activities at weekends whereby the children would need to visit extended family, engage in their own activities, and as they became older spend time with their own friends. This would place the mother in the invidious position of competing with other activities which the children should and would like to do, for time with them, and will inevitably diminish the time she has with them. In the week about proposal each of the parties will have an opportunity to spend time with the children but the children will also have the chance to do activities with other people without impinging on a particular parent’s time.
Furthermore it is apparent that the father’s proposal s are very much bound up with his wish to continue to live in the former matrimonial home. He put forward his proposal on the basis that the existing situation in the home would continue. That is he would continue to live in the home and the children would remain with him. I do not know to what extent that is possible, having regard to the division of property between the parties, but it seems to be an unlikely scenario.
I have the impression that the father is hoping that if his proposal is successful it will enable him to retain the home in the present arrangement, whereby he lives there, and put him at a significant advantage as far as property division is concerned. I do not necessarily suggest that this is solely so that he can obtain a financial benefit in the form of property settlement, but rather that he can secure a situation where he does not have to move from the home. It does appear however to be a factor in his case. He, to some extent, has not fully accepted that the relationship has come to an end and that there will be an inevitable separation between the parties.
What I have found to be an exaggeration of the mother’s difficulties with the children and her capacity to care for them, leads me to find that it is likely that if the father’s proposals were accepted he would not promote the children’s relationship with their mother they need. It may be that in this respect he is motivated by a genuine belief that the children are at risk of spending too much time alone with their mother, but whatever the cause, he does not understand and accept the importance of the mother’s relationship with the children and the importance of her role in their live. Nor has he understood the importance of the children’s responses that emerged from the Family Report.
Conclusions
This is a fortunate case in which both parents are capable of looking after the children and of providing well for them both emotionally and physically. It is a case in which it is necessary to choose which of the proposals is the more preferable. The children are fortunate in that they have two parents who love and care for them and who are loved in return. Both parties want the best for their children and will undoubtedly work towards that end. However I am satisfied that the children want and need a significant relationship with each of their parents and significant input from both. This is all the more important because the children have up until now continued to reside under the one roof with both of their parents. The father’s proposals reflect his view that he has been the primary care giver and the important person in the lives of the children. The relationship with the children as explained in the Family Report does not support this proposition. It is clear that the children have an excellent relationship, and wish to continue it, with both parents. It is clear that neither child wishes the present situation, whereby they are cared for by both parents, to come to an end. To accept the father’s proposals would be to constitute a drastic change in their arrangements in my view.
I am satisfied that the proposal by the mother, which involves her continuing to work, with reduced hours in the week when the children are with her, will continue to allow her to provide financial support for the children and the provision of a role model of a working parent which is important. I do not accept that the pressures that full-time work will put her under will cause any significant risk to the children. In my view the husband has exaggerated this aspect of the case and the children’s relationship with their mother is an indication of the strength of her relationship with them. Neither child indicated any concerns about their mother nor any indication of the difficulties that the husband asserted existed. The father proposals whereby he does not engage in full-time work will enable him to adequately care for the children when they are with him.
The father raised some issues about the care of the children during holidays and the difficulties that would be caused if he was to seek employment in the week when the children were not with him and the potential for the children to have to be cared for in after school care during holiday periods. In my view this is an unwarranted complication. It may never arise. To the extent that the mother is not able to have holidays at times when the children would be with her on a shared basis, if the father is available no doubt they would be cared for by him. If neither party is available then they will no doubt make proper arrangements for the care of the children. This practical problem, if it can be described as such, is not one which in my view should detract from the importance of each of the parties continuing to care for the children.
It is unfortunate that C has not yet accepted the inevitable separation of her parents and was unable to really discuss the proposals with the counsellor. However the counsellor took this into account in coming to the view that “whilst there are other options, on balance the counsellors assessment is that the shared care arrangement may well suit the children best, especially C, who more than likely will have to adjust regardless of any arrangement. While this is not an issue for P, and he will benefit from the shared arrangement. C will also benefit by being able to have time with both parents, which also enables her to have her female needs met by Ms C.” I accept with this assessment of the children’s needs.
It should be emphasised that both of the parents are excellent parents and the children are fortunate to have all of the advantages that their parents have provided for them and wish to continue to provide. What is important is that it is clear that both parents should have a significant role in the lives of the children.
Both parties agreed that it is important that the children understand the inevitability of the parties’ separation and that it is not the fault of one or other, in particularly the mother. C in particular will need to have the separation and arrangements carefully explained to her. Both parties, to their credit, understood that this was necessary and both agreed that it would be beneficial to have some assistance in explaining this to the children. Both were comfortable with an arrangement whereby Ms S, who has prepared the Family Report meets with the parties and children and assists them by explaining the effect of my decision and discussing the best way of implementing it.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate: Peter Smith
Date: 7 May 2003
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