Cagan and Chesney
[2012] FMCAfam 56
•24 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CAGAN & CHESNEY | [2012] FMCAfam 56 |
| FAMILY LAW – Parenting – 2 girls aged 6 and 4 years – poor relationship between parties – protracted litigation – younger child suffering anxiety – health issues for Mother – issues relating to amount of time with the Father – overseas travel. |
| Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC |
| MRR v GR [2010] HCA 4 |
| Applicant: | MS CAGAN |
| Respondent: | MR CHESNEY |
| File Number: | SYC 699 of 2009 |
| Judgment of: | Sexton FM |
| Hearing dates: | 24, 25, 26 October and 7 December 2011 |
| Date of Last Submission: | 7 December 2011 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Campton |
| Solicitors for the Applicant: | Humphreys & Feather Solicitors |
| Counsel for the Respondent: | Mr P. Livingstone |
| Solicitors for the Respondent: | Armstrong Legal |
BY CONSENT ON A FINAL BASIS THE COURT ORDERED ON 26 OCTOBER 2011:
All previous parenting orders be discharged.
The parties have equal shared parental responsibility for the children [X] born [in] 2005 and [Y] born [in] 2007.
The Mother attend a Focus on the Child – Parenting after Separation Course conducted by Relationships Australia, as soon as practicable, but within 6 months.
The children live with the Mother save as to time the children live with the Father pursuant to these Orders.
By way of telephone communication between the hours of 6.00 p.m. and 7.00 p.m., each party be at liberty to contact the children at the party’s home with whom the children are living.
The Father’s time with the Children abate from 9.00 a.m. to 5.00 p.m. on Mother’s Day each year.
Except in an emergency, when the parties will communicate by way of telephone call to the other, the parties communicate in relation to the Children at all times in a respectful manner, such means of communication shall be accomplished in descending order of priority by means of:
a)For a period of 12 months from the date of these Orders, a communication book, being a hard copy book to be purchased by the Father and to be provided to each party at change over.
b)Personal (not work) email.
c)Text message.
d)By telephone call at a mutually agreed time.
The party delivering the Children send an email or if not possible, a text message, to the other party within an hour of every changeover to advise whether any issue of significance relating to the welfare of either child arose during the period the Children were in that party’s care.
The parties not discuss issues regarding the Children in the presence or hearing of the Children or use the Children as a means of communication between the parties.
The parties not denigrate the other party or members of their family to or in their presence or hearing of the Children and shall use their best endeavours to ensure that any third party does not so denigrate the other party.
The parties keep each other informed of any change to their residential address, not less than 7 days prior to such change taking place, and the parties keep each other informed of any change to their landline and mobile telephone numbers and personal email addresses within 48 hours of such change taking place.
The parties keep each other informed of any major medical issues involving the children, particularly of any medical attention or treatment received by the children and provided that this notification shall be as immediate as practicable in the event of a medical emergency.
The parties keep each other informed as to significant events occurring in the children’s lives, including parent/teacher interviews, school plays, sporting events, invitations received by or on behalf of the children and the like.
The parties do all acts and things necessary and sign all documents necessary so as to ensure that each of the parties receives a copy of the children’s school reports, newsletters and other relevant notices issued by the school/pre-school.
It is noted that the Court also made interim orders and notations by consent in relation to the children’s time with the Father which are not repeated here.
BY CONSENT THE COURT FURTHER ORDERED ON 9 DECEMBER 2011:
The Children spend time with each parent at Christmas as follows:
a)With the Mother, from 11.00a.m. on Christmas Eve until 11.00a.m. on Christmas Day in 2011 and each alternate week thereafter and from 11.00a.m. on Christmas Day until 6.00p.m on Boxing Day in 2012 and each alternate year thereafter;
b)With the Father, from 11.00 a.m. on Christmas Day until 6.00 p.m. on Boxing Day in 2011 and each alternate year thereafter and from 11.00 a.m. on Christmas Eve until 11.00 a.m. Christmas Day in 2012 and each alternate year thereafter.
For the purpose of changeover at Christmas time in 2011 and each alternate year thereafter, the Father deliver the children to the Mother at the commencement of the period and the Mother deliver the Children to the Father at [A] at the conclusion of the period the children spend time with the Mother at Christmas, or otherwise as agreed by the parties.
For the purpose of changeover at Christmas time in 2012 and each alternate year thereafter, the Mother deliver the children to the Father at [A] at the commencement of the period and the Father shall deliver the Children to the Mother at the conclusion of the period the children spend time with the Father at Christmas, or as otherwise agreed by the parties.
THE COURT FURTHER ORDERS THAT:
During school terms
Unless otherwise agreed between the parties, the Children live with the Father during school terms as follows:
a)Until the commencement of Term 4 in 2014:
i)In week one of a two week cycle from 4.00 p.m. Friday on school days or 3.00 pm if a non-school day, until before school/pre-school on Monday and in the event that the children are not attending school/pre-school until 9.00 a.m. on Monday;
ii)In week two of a two week cycle from 4.00 p.m. on Thursday or 3.00 pm if a non-school day, until before school/pre-school Friday and in the event that the children are not attending school/pre-school until 9.00 a.m. on Friday.
b)From Term 4 in 2014 until [Y] commences Year 6 of primary school:
i)In week one of a two week cycle from 4.00p.m. Thursday on school days or 3.00p.m. if a non-school day, until before school on Monday and in the event the children are not attending school until 9.00a.m. on Monday;
ii)In week two of a two week cycle from 4.00 p.m. on Thursday or 3.00 pm if a non-school day, until before school Friday and in the event that the children are not attending school until 5.00p.m. on Friday.
c)When [Y] commences Year 6 of primary school, unless otherwise agreed, the parties consult a counsellor at Relationships Australia to consider whether or not the children would benefit from a variation in these arrangements so they spend 5 consecutive nights a fortnight with the Father instead of 4 consecutive nights in one week, and a single night in the other week noting this would only alter the structure of the parenting arrangement, not the number of nights the children spend with the Father during school terms;
d)From 9.00 a.m. to 5.00 p.m. on Father’s Day each year;
e)For a period of not less than 2 hours on each child’s birthday each year if a school day, and not less than 4 hours if a non-school day; and
f)At any other or alternate times by agreement.
The children’s time with the Father be suspended for a period of not less than 2 hours on each child’s birthday each year if a school day, and not less than 4 hours if a non-school day.
Short school holidays
Unless otherwise agreed between the parties, the Children live with the Father during short school holidays, commencing in the first term school holidays in 2012 as follows:
a)In 2012, for a period of 5 consecutive nights as agreed between the parties, and in default of agreement, for the first 5 nights commencing on the first Saturday of each school holiday period at 10.00a.m.; and
b)From 2013, for half each school holiday period as agreed between the parties, and in default of agreement, for the first half in 2013 and all odd numbered years thereafter, and for the second half in 2014 and all even numbered years thereafter.
Christmas school holidays
Subject to Orders made on 9 December 2011 in relation to the period from Christmas Eve until Boxing Day each year, unless otherwise agreed between the parties, the Children live with the Father during Christmas school holidays as follows:
a)In 2012/2013, for two periods of 5 consecutive nights as agreed between the parties, and in default of agreement, from 10.00a.m. on 28 December until 5.00p.m. on 2 January and from 10.00a.m. on 21 January until 5.00p.m on 26 January;
b)In 2013/2014, for two periods of 7 consecutive nights as agreed between the parties, and in default of agreement, from 10.00a.m. on 28 December until 5.00p.m. on 4 January and from 10.00a.m. on 21 January until 5.00p.m on 28 January;
c)In 2014/2015 until [Y] starts Year 6 at primary school, for two periods of 10 days as agreed between the parties, and in default of agreement as to precise times, for the first 10 nights commencing on the first Saturday of the holidays at 10.00a.m, and the second 10 nights ending on the last Sunday of the holidays at 5.00p.m;
d)From the holidays immediately prior to [Y] commencing Year 6 at primary school, for half the school holiday period as agreed between the parties and in default of agreement as to precise times, for the first half in even numbered years (commencing at 10.00a.m. on the first Saturday) and the second half in odd numbered years (ending on the last Sunday at 5.00p.m.)
The children’s time during school terms with the Father be suspended during all school holiday periods and recommence on the first weekend after the school holidays if the children spend time with the Father during the first half of the holiday period, and on the first Thursday night after the school holidays if the children spend time with the Father during the second half of the holiday period.
Changeovers
For the purpose of changeover, except as otherwise provided, or unless otherwise agreed, the Mother deliver the Children to the Father’s home at the commencement of their time with him and the Father deliver the Children to school/pre-school/Mother’s home (whichever is applicable) at the conclusion of their time with him.
Overseas holidays
Each party be restrained from removing the children or either of them from the Commonwealth of Australia without the prior written consent of the other party.
In the event either party wishes to take the children on an overseas holiday, the travelling party provide full details of the proposed travel, including itinerary, destination, accommodation and contact arrangements, to the other party as early as practicable but no later than 6 months prior to the proposed travel on condition that firstly, the Father makes no request in accordance with this Order for the children to undertake travel to Europe before 2016 and secondly that neither party unreasonably withholds consent.
In the event the parties are unable to reach agreement about overseas travel in accordance with this order, the party seeking to travel make arrangements necessary for the parties to consult a counsellor at Relationships Australia (or another agreed counsellor) to discuss the proposal, and the other party attend appointments as requested noting that the purpose of this Order is to minimise the chance of the children being subjected to further litigation between the parties.
[Y]’s therapy
If arrangements are not already in place, the Mother make arrangements as soon as practicable for [Y] to receive professional assistance to address her anxiety issues and each party facilitate [Y]’s attendance at therapy sessions and cooperate fully with any recommendations made by [Y]’s therapist.
The Mother provide a copy of Dr G’s report to [Y]’s therapist prior to her first appointment.
Each party take all steps necessary to enable [Y]’s therapist to speak to Dr G should the therapist wish to do so.
Future schooling
THE COURT NOTES THAT the parties agree in principle to the children attending [N] School from Year 7, subject to the parties’ financial and other circumstances at that time and also subject to agreement between the parties concerning tuition fees.
Pursuant to section 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 set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Cagan & Chesney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 699 of 2009
| MS CAGAN |
Applicant
And
| MR CHESNEY |
Respondent
REASONS FOR JUDGMENT
Introduction
When this hearing commenced on 24 October 2011, the parties were in dispute about parenting and property issues. The property hearing was adjourned until 12 and 13 December 2011 and directions were made in relation to valuation and disclosure issues for that hearing. The Court heard all of the evidence in relation to parenting issues on 24, 25 and 26 October 2011, but each party’s counsel requested the opportunity to make further submissions in relation to parenting issues at the commencement of the property hearing on 12 December 2011.
At the conclusion of the hearing on 26 October 2011, the Court made a number of parenting orders by consent including interim orders varying the existing parenting arrangements during school terms.
On 7 December 2011, the Court was advised that all property issues had been resolved and the parties were awaiting the advice of the Trustee of the relevant superannuation fund that the Trustee had no objection to the splitting order sought. The Court still awaits that advice. Neither party’s counsel sought to tender any further material in relation to parenting issues.
The Court now makes orders and gives reasons for decision in relation to the outstanding parenting issues.
The matter concerns the parties’ only two children, [X] aged 6 and [Y] aged 4 years. [X] attends [H] School and [Y] was at [H] Day Care for
2 days each week in 2011.
Dr G, child and adult psychoanalyst, prepared an expert report for the Court.[1] Each party was represented by counsel.
[1] Exhibit 1
Background facts
The parties married in 2003. [X] was born [in] 2005 and [Y] was born [in] 2007. After the birth of [X], the Mother left the work force and cared for the children full time until after the parties’ separation. The Father was employed throughout the marriage and continues to work as a [occupation omitted].
The parties separated in October 2008 when the Mother left the former matrimonial home at [A] with [X] and [Y]. The children have always lived primarily with the Mother. A few months after separation the Mother recommenced casual employment. The Father has remained living in the [A] property since separation. The parties divorced in January 2010.
The Mother is 40 years of age and is a [occupation omitted] employed on a casual basis. She is in a relationship with Mr C, a [occupation omitted], but was not living with him at the time of hearing. She lives with the children in rental accommodation in [suburb omitted]. The Mother was diagnosed with breast cancer in May 2010 and is still being treated.
The Father is 49 years of age. He says his working hours are flexible as he works close to his home. He remarried in March 2010. His wife,
Ms G, aged 33 years, is [European] and her family live in [Europe].
Ms G was expecting their first child in December 2011.
The children have been the subject of litigation since 2009. The parties have difficulty communicating in a constructive way and have lost trust in each other. There has been occasional conflict between them at changeover and each party believes the other undermines him/her in front of the children. The Mother has resisted the Father’s proposal for the children to spend equal time with each party and for her to live close to the Father’s home in [A]. The Mother’s attitude has upset the Father who believes the Mother is deliberately obstructing the children’s relationship with him by making unilateral decisions about the children’s schooling, insisting on living 40 minutes from his home, and limiting the children’s time with him.
Previous orders
Interim Orders were made by consent in the Family Court in October 2009 providing for the children to live with the Mother and to spend time with the Father on each weekend from Friday afternoon to Sunday afternoon and on each Wednesday afternoon. In August 2010, further orders were made by consent providing for the children to spend time with the Father on alternate weekends from Friday afternoon until Sunday afternoon and Tuesday over night each week, and for those arrangements to continue during school holidays. On 30 March 2011, the proceedings were transferred from the Family Court to this Court.
Current arrangements
Until final submissions at this hearing, the children were living with the Mother and spending time with the Father on alternate weekends from 5.00p.m. Friday until 5.00p.m. Sunday as well as overnight each Tuesday. This arrangement continued during school holidays. In accordance with interim orders made by consent on 26 October 2011, the structure of the children’s time with the Father has been varied. The children are now living with the Father on each alternate weekend from 4.00p.m. Friday afternoon until 9.00a.m. Monday morning, and on each alternate Thursday from 4.00p.m. until Friday morning before school/pre-school or 9.00a.m. On 9 December 2011, the Court was advised by each party’s counsel that the parties had agreed, on a final basis, to arrangements for the children from Christmas Eve until Boxing Day each year, and consent orders were made accordingly in relation to this issue.
Issues
The issues for determination are:
a)Whether or not an order should be made in relation to the children’s future overseas travel;
b)Whether or not an order should be made to give the other parent the option of caring for the children overnight if the caring party is unable to care for them;
c)Whether the children should spend Tuesday night (as sought by the Father) or Thursday night (as sought by the Mother) with the Father in the alternate week;
d)When or whether the children’s time with the Father should increase in the future, and if so, on what terms; and
e)When the children should commence spending holiday time with the Father and the length of those periods.
Orders sought by each party
The parties agree that the children should live primarily with the Mother.
The Mother seeks orders[2] providing for the children to live with the Father:
a)During school terms from Friday at 5.00p.m. until before school/pre-school on Monday in one week (or 9.00a.m. if not attending school/pre-school) and from 5.00p.m. Thursday until before school/pre-school Friday (or 9.00a.m. if not attending school/pre-school) in the alternate week;
b)During short school holiday periods for 5 consecutive nights;
c)During Christmas school holidays (from 2012/13) for 2 periods of 5 consecutive nights;
d)From 9.00a.m. until 5.00p.m on Father’s Day each year; and
e)On each child’s birthday for at least 2 hours if a school day, and 4 hours if a non-school day.
[2] Exhibit 2
The Mother seeks orders for the children’s time with the Father to be suspended on Mother’s Day, and for the same periods on each of the children’s birthdays as in paragraph 16(e). The Mother does not want specific orders in relation to the children travelling to [Europe] in the future or in relation to the other party having first option to care for the children when either party is unavailable overnight.
At the commencement of the hearing, the Father sought orders, inter alia[3], for the children to live with him during school terms from Friday afternoon until Monday morning in one week and from Tuesday afternoon until Wednesday morning in the other week for a period of 6 months. For the following 6 months, he sought an increase in the alternate weekend time from Thursday afternoon until Monday morning. Thereafter he sought an order providing for the children to spend 6 consecutive nights each fortnight with him during term time. He sought half of each school holiday period commencing immediately, and an order permitting him to take the children to [Europe] during a 3 week block period in 2011/12.
[3] Exhibit 3
After hearing Dr G’s oral evidence, the Father amended his Minute of Order[4]. The Father agreed the children should spend Mother’s Day with the Mother. He sought orders[5] for each party to have the first option to care for the children in the event the other party is unable to do so for any overnight period, unless an emergency. He sought orders providing for the children to be permitted to travel to [Europe] with him for up to 3 weeks after [Y]’s 9th birthday.
[4] Exhibit 6
[5] Ibid
In relation to the children’s time with him, he sought orders as follows:
a)During school terms in accordance with the Mother’s application, but from 4.00p.m. on Friday, for a period of only 18 months, and on a Tuesday night rather than a Thursday night in the alternate week. From the expiration of an 18 month period from the date of Order, the Father sought an order for the children’s time with him to increase by one night a fortnight from Thursday 4.00p.m. until Monday in alternate weeks. From the expiration of a further 18 month period, the Father sought an order for 6 consecutive nights each alternate week;
b)During Christmas school holidays (in 2012/13 and 2013/14) for a period of 2 weeks and thereafter for half the school holidays;
c)During short school holidays, from July 2012, for half of each school holiday period;
d)On Father’s Day each year; and
e)At other times by mutual agreement.
Expert’s recommendations
Dr G recommends against an equal time arrangement, including a 6/8 night arrangement, because of the parties’ poor relationship, the young age of the children, and the geographical distance (up to a 45 minute drive in heavy traffic) between the parties. Dr G says there could be no guarantee that the parties would work cooperatively together to coordinate the care of the children which is essential to their welfare.[6]
[6] At page 54 of the 24 October 2011 transcript of proceedings
Dr G says it would not be in [Y]’s best interests to be separated from her mother, her primary attachment relationship, for significant periods of time. She says that [X] is more emotionally robust than [Y], in part because of her older age, but in her opinion (shared by both parties) the children should not be separated. In relation to [Y] she says:[7]
I suggest that [Y] needs the opportunity for a settled experience with her primary attachment figure in order to develop a felt sense of security and capacity for emotional regulation.
[7] At page 23 of Exhibit 1
Dr G recommends that the children live with the Mother and spend time with the Father during school terms from Friday afternoon until Monday morning in one week until at least late 2013, and from Thursday afternoon until Friday morning in the other week, extending to 5.00p.m. Friday in late 2012 or early 2013 if the Father is available to care for the children. She recommends a cautious approach to any increase in time.[8] From late 2013, Dr G recommends the children spend an additional night with the Father without specifying how those nights should be arranged. She suggests 3 options: 3/2 or 4/1 or 5/0 in alternate weeks. In relation to school holidays, Dr G recommends 4 night blocks every 3 weeks in the 2011/12 Christmas school holidays with the term time arrangement continuing in all but one of the other weeks. From 2012, Dr G recommends the children spend half the short school holidays with each party, and week and week about in the 2012/13 Christmas school holidays, with a possible increase to a 2 week block period when [Y] is 7 years of age. Dr G recommends the parties arrange professional help for [Y] to address her anxieties.
[8] At page 48 of the 24 October 2011 transcript of proceedings
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that I must regard the best interests of the child as the paramount consideration. To determine the child’s best interests I must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires me to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, I must consider all the factors before making a determination. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the child of having a meaningful relationship with both of the child’s parents and secondly, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which I must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·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
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Primary Considerations
The benefit to the children of having a meaningful relationship with both of the child's parents
In Dr G’s opinion, which I accept, the children relate positively and warmly to both parents. They have their primary attachment relationship with the Mother but have a “significant and meaningful” relationship with the Father.[9] Although she could see the strength of [X]’s relationship with the Father much more clearly than she could see the same with [Y], Dr G expects [Y]’s relationship with the Father to strengthen over time.
[9] At pages 20/21 of Exhibit 1
Dr G highlights the particular importance of the children enjoying a strong relationship with the Father given the vulnerabilities in the Mother’s health.
As each party proposes that the children spend weeknight and weekend time with the Father as they have done in the past. I am satisfied that on either party’s proposal, the children will benefit from a meaningful relationship with each parent. The critical question in this case is how to continue to strengthen [Y]’s relationship with the Father in an emotionally supportive way.
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
“Abuse” is narrowly defined in section 4 of the Family Law Act as sexual abuse or an assault of a child which is an offence under the law. This is not an issue in this case.
“Family violence” is defined at section 4 of the Act, as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety.
It is common ground that at a changeover in August 2010, the parties had a heated exchange in front of the children and the Mother exclaimed to Ms K, at their first meeting, that the Father was abusive and violent. The Mother acknowledges that her behaviour was inappropriate and caused distress to the children. She says she was under a lot of stress as she had been told she needed chemotherapy for breast cancer, her children had been ill and she had been unable to make contact with the Father for 48 hours. The Mother says she now relates well to Ms K and regrets her behaviour which she says has not been repeated. I accept that the Mother was under extreme stress at the time of this altercation and that her outburst was uncharacteristic.
The Mother told Dr G that she was subjected to domestic violence and emotional abuse by the Father during the marriage.[10] The Mother also says in oral evidence,[11] “my history with [the Father] is that I feel intimidated. He badgers me.” The Mother includes in her Affidavit sworn on 7 October 2011 allegations about the Father’s aggressive conduct towards her and towards her mother. The Father denies the allegations. However, counsel for the Father did not cross-examine the Mother in relation to her allegations. It was agreed between counsel that such cross-examination could only worsen the parties’ already strained relationship and that it was unnecessary in circumstances where the parties had already reached agreement on a number of aspects of the parenting dispute. I find it noteworthy that a police report of August 2010 discloses the Mother was not fearful of the Father, and that the Mother confirmed her position at interview with Dr G.
[10] Exhibit 1
[11] At page 146 of 25 October 2011 transcript of proceedings
I agree with both parties’ counsel that I can make no findings under this factor and it is not necessary for me to do so.
Additional Considerations
Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the children’s views
This is not a factor I take into account given the young ages of [X] and [Y].
The nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the child)
As already noted, the children are primarily attached to the Mother, but enjoy strong relationships with the Father, particularly [X].
Dr G observes relaxed, positive and warm relationships between the children and the Father’s wife, and between the children and the Mother’s partner. I accept her observations. Dr G was obviously impressed by Ms G and by Mr C when she says:[12]
I suggest that this reflects their positive relationships with their parents, as well as their step-parents’ warm and loving interest in them.
[12] At page 21 of Exhibit 1
I am satisfied that the children also enjoy close relationships with the Mother’s mother, the Father’s parents, their cousins on the Father’s side and other members of his extended family on the central coast.
The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
I find the parties’ low regard for each other, and lack of trust in one another, has impacted negatively on their ability to help the children adjust to moving between separate households in order to have the benefit of both parents in their lives in a meaningful way.
For her part, I am satisfied that the Mother has wanted to limit the children’s time with the Father because she does not like the Father herself, describing him as self-centred and lacking in insight as to the children’s needs. For his part, I am satisfied the Father has wanted the children half the time because he believes it is right that the children should be shared equally between their parents. He believes that he (and his new wife) have much to offer the children, and he has been frustrated by his inability to persuade the Mother to think like he does.
However, despite each party’s negative feelings about the other, and the children’s very young ages at separation, the children have been spending regular and reasonably consistent time with the Father since the parties’ separation, including alternate weekends and a week night each week for well over 12 months prior to this hearing. As well, I am satisfied the children have, for the most part, spent time with each party in accordance with the parties’ private arrangements or with Court orders with relatively minor difficulties.
I find it likely that each party has now taken heed of Dr G’s evidence and understands the importance to the children of stability and certainty in their arrangements. I find it likely that the Mother accepts the significance of the children’s relationships with the Father, and the importance to their short and long term welfare that those relationships are developed and nurtured. I find it likely that the Father now realises that the Mother’s concerns about [Y], in particular, were justified and that sensitivity to [Y]’s vulnerabilities is critical to her emotional welfare in the longer term.
By reaching an agreement on some of the parenting issues, including the children spending 4 nights a fortnight with the Father for a considerable period into the future, I am satisfied that the parties will physically facilitate the children’s relationship with each other. I find the critical issue is whether the parties can cooperate sufficiently to emotionally facilitate the children’s relationship with the other parent.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either parent, or any other child, or other person (including any grandparent or other relative of the child), with whom they been living
I agree with Dr G that it is difficult to speculate as to how the children, particularly [Y], will manage any changes in their arrangements in the future. This is certainly a factor to which I refer in more detail later, and to which I have careful regard.
The practical difficulty and expense of children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
The parties are presently living approximately 40 minutes apart, sometimes slightly longer, depending on traffic. There are therefore practical consequences to be taken into account when considering parenting arrangement options, to which I have regard. The practical issues, however, will not affect the children’s right to enjoy regular time with each party.
The capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs
The Mother deposes to the Father having limited involvement with the children during the marriage and to being unwilling to vary his own routine to make himself available to help her in her parenting role. She says that during the marriage, the Father saw it as very much her role to care for the home and children, making such comments as[13]:
[13] Affidavit of Mother sworn on 7 October 2011
… this is your job [Ms Cagan]. I am out earning the big bucks and it is your job to care for the girls and the house.
…
[When the Mother asked him to bring in the washing] That is your job. What have you been doing all day?
…
I am not going to look after the children if you go out, I’ll leave them in their room.
The Father describes it differently. While acknowledging the Mother’s greater role in caring for the children and the home, the Father says he was actively involved in the children’s day to day care during the marriage, and engaged in activities with them on an almost daily basis.
Given the Father engaged a housekeeper after separation, I find it likely that the Father did make the comments as recalled by the Mother and that he has taken and continues to take a limited role in domestic tasks. His latest housekeeper is now the Father’s wife and according to the Father, Ms G does all domestic tasks associated with the children including their cooking, washing, ironing, cleaning, clothes shopping and assisting them in the mornings to get ready for school/pre-school.[14] While I accept that when not at work, the Father would have assisted the Mother to some extent by engaging in activities with the children, I am satisfied that the Mother took the far greater role in caring for the children during the marriage. However, I do not give this finding significant weight in reaching my decision.
[14] At paragraph 24 of Father’s affidavit sworn on 21 October 2011
Since separation, the Mother complains that the Father has engaged with the children in ways convenient to him. She says that he has chosen to go on holidays or attend a social engagement rather than spend time with them; he resents having to travel to see the children and avoids travel to the detriment of spending time with the children; he wanted to send [X] to one pre-school near his home and another near the Mother’s home to avoid travel; he made only rare appearances at the children’s [extracurricular activities omitted], despite the Mother’s many invitations to him to attend; he chose not to attend the information night or orientation days for [X] before she started school; he chose not to attend [X]’s first day at school; he chose not to facilitate [X]’s attendance at a school welcome barbecue; he chooses not to take the children to birthday parties when they are staying with him. According to the Mother, the Father has wanted the children to live in [A] because he is not prepared to travel far to collect and return them.
The Mother raises other concerns about the Father’s capacity to meet the children’s emotional needs. For example:
a)He did not return the children to her at the agreed time on a number of occasions when [X], in particular, likes certainty in the arrangements. In October 2009, he kept the children away from her for 4 days, a longer period than the children had ever experienced being away from her in the past.
b)He has denigrated her in front of the children which confuses and upsets them. After spending time with the Father in October 2009, [X] told the Mother she was “mean” for “trying to hurt Daddy” and that “Daddy said you’re naughty, you’re sick… you are a grumpy person… you want to hurt daddy… you do mean things to daddy… you’re a bully.” “If I spend too much time with you, I won’t know Daddy.” [15]
c)The Father’s concerns about transport issues has resulted in the children missing out on special events.
d)The Father has failed to advise her promptly after contact periods about the children’s medications, or incidents relevant to their welfare that she needs to know.
[15] Affidavit of Mother sworn 7 October 2011
I accept the Mother’s evidence on these factual issues. In particular, I accept the Mother’s evidence that the Father has sometimes had difficulty understanding and respecting the children’s perspective. I accept that the Father resents having to travel to collect and deliver them. At the end of the hearing, when the parties, through their counsel, were trying to resolve how the children would see Ms G and the new baby after the birth in December, the Father clearly demonstrated his resentment about having to travel, when he was insistent that the Mother help with the children’s transport. I found his attitude unreasonable given the Mother’s obvious willingness to be flexible about making the children available to the Father to be involved in the excitement of the first few days of the new baby. I therefore accept the Mother’s evidence that the Father has said to her:[16]
…unfortunately your choice of school is going to have ongoing implications for our family as it will be impractical for us to attend many of their social events.
[16] At paragraph 122 of Mother’s affidavit sworn 7 October 2011
I find that the Father has genuinely held the view that the children should be with him half the time, and has not understood why the Mother has not accepted this approach. I find that the Father has been focussed on the need for “fairness” to him, rather than on the needs of the children. I find it noteworthy that even after reading Dr G’s report about [Y]’s vulnerabilities in particular, and Dr G’s recommendations in that regard, the Father was still seeking an order for him to take the children away to [Europe] in the Christmas holidays for 3 weeks, and was still seeking orders for the children to ultimately spend approximately equal time with each party. I have concluded that the Father’s determination to achieve this “fair” result has affected his capacity to see things from the children’s point of view. By way of example, I have regard to the Father’s decision to seek an equal time arrangement for the children in July 2009 when [X] was under 4 years of age, and [Y], not yet 2 years of age. I have regard to the Father’s decision in August 2010 to seek orders for the children to attend a school half way between the two parties’ residences, without regard to the ramifications of such an arrangement on the children. The Father also momentarily suggested at the hearing that it might be appropriate for a newborn baby to bath with [X] and [Y]. While he now acknowledges having very limited knowledge of children’s developmental needs in 2009, and to learning a lot from a Parenting After Separation course in September of that year, I find the Father and the children would benefit if the Father better understood these developmental issues. I urge the Father to undertake further reading and expert advice in this area.
The Father complains about the Mother failing to adequately support the children’s relationship with him and his feelings of powerlessness in this regard. As already noted, I find that the Mother has at times, wished to minimise the Father’s involvement with the children because of her poor opinion of him and his parenting skills. I accept the Father’s evidence that the Mother has been unreasonably inflexible at times when he has sought additional or alternate times, including refusing him extra time in June 2011 so he could take the children to the snow. I accept the Father’s evidence that in the Local Court on one occasion the Mother said (and meant):[17]
[17] At paragraph 42 of Father’s affidavit sworn on 21 October 2011
I feel obliged for the children to see their father even though I am not comfortable with the idea.
The Father alleges that the Mother did not consult him about where the children would attend pre-school and school and ignored his suggestions. I accept his evidence. I am critical of the Mother in this respect. However, I find the Mother has, for the most part, demonstrated a child-focussed approach to the post-separation parenting arrangements and is better attuned to the children’s emotional needs than the Father. However, I also find, from a reading of a bundle of emails between the parties annexed to the Mother’s affidavit[18], that each party needs to improve the tone of their communication. I am in no doubt that the parties’ strained relationship has been and continues to adversely affect the children.
[18] At Annexure F of Mother’s affidavit sworn on 7 October 2011
I give significant weight to my findings under this factor.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Court thinks are relevant
[Y]’s particular vulnerabilities are a significant issue in this case.
Dr G says that [Y]’s sense of security is fragile and she is easily disrupted. At aged 4 years, she has difficulty in relation to security and emotional regulation. [Y] reports to Dr G being frightened at night at the Father’s home and wanting her Mother. She talks about “[finding] monsters inside the blankets.”[19] Dr G describes [Y]’s start to life as “vulnerable and complicated …” as a result of being only 18 months when the parties separated, the number of changes of residence she has experienced since then, and her young age when the Mother was diagnosed with a life threatening illness (breast cancer). She also experienced an unplanned separation of 4 days from her Mother in October 2009. Dr G predicts that the Father’s new baby will be another significant change for [Y] and is likely to affect her more acutely than a 4 year old in different circumstances. This is particularly so given her attachment vulnerabilities, and the fact that the Father’s wife will be a first time mother.
[19] At page 10 of Exhibit 1
I accept Dr G’s opinion, and give careful consideration to my findings under this factor.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents
As already noted, the Mother has been troubled by the Father’s failure to communicate important details of the children’s time with him in a timely way. For example, the Mother finds herself asking [X] whether she has taken her medication and pestering the Father for details. The Mother asks for communication within 2 hours of changeover, which I find is a reasonable request. The Father says he has been equally irritated by the Mother’s failure to involve him in important decisions involving the children, and it seems likely there has been a “tit-for-tat” attitude from the Father, and at times from the Mother too, carrying potentially serious ramifications for the children’s well being. It is pleasing, however, that in cross-examination the Father acknowledged that he could and would do better and the Mother says she is happy to communicate with the Father through his wife, whom she finds helpful. The parties have now agreed on a method of communication, and I am hopeful these changes will help. I give some weight to these findings.
The Mother gives a detailed history of the Father’s child support payments. She alleges that he has been unreliable and erratic in his payments and that he has requested the Agency to treat funds provided for specific capital purchases as non-agency payments. As a result, the Mother says she has suffered considerable financial hardship. For his part, the Father says that whether or not he has paid child support consistently, he has paid the Mother substantial sums of money and her complaints are unjustified.
The Father’s liability for child support has changed from time to time but is presently $365.78 a week.[20] Although the Mother deposes to him being in arrears on 5 October 2011, I am satisfied on the Father’s evidence that he was in credit a week later.[21] I find there is some basis for the Mother’s complaint against the Father, given the Child Support transaction statement for the relevant period[22] discloses no payments by the Father for child support between 9 September 2009 and 22 February 2010.
[20] See Index 11 to Exhibits Folder of Mother
[21] At page 171 of Father’s Affidavit sworn on 21 October 2011
[22] At Annexure C to Mother’s affidavit sworn on 7 October 2011
Financial support of children is a fundamental obligation of parenting. While I accept that the Father has paid child support, and is now up to date with his obligations, it is imperative that he develop a consistent and reliable method of payment. I am persuaded that if he does so, the parties’ co-parenting relationship is likely to improve. I give some weight to these findings.
Any family violence involving the child or a member of the child's family
I have already addressed this factor.
Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or, the making of the order was contested by a person
This factor does not apply.
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 children have been the subject of litigation since 2009. On that basis alone, I find the parties’ relationship is understandably strained. However, for a number of reasons, I am now cautiously optimistic that these parties will not seek to pursue further litigation, and will find ways to work together to resolve any differences that might arise between them in the future.
The Father has sought an equal time or almost equal time arrangement from the beginning, though with expert advice from Dr G, accepted during the course of the hearing that any increase in time should be on a slower graduated basis than sought by him, given the history of the children’s care arrangements and [Y]’s particular vulnerabilities. The Mother acknowledges the importance of the children’s relationship with the Father and the need to promote the children’s relationship with him. The Mother recognises the benefit to the children of their relationship with the Father’s wife, and their excitement about having a new half-sibling. Both parties have had the benefit of reading Dr G’s report and of hearing her views in oral evidence. During the hearing, both parties acknowledge the importance of improved communication between them for the sake of the children. They were able to reach agreement on some of the issues between them and both parties made concessions. By the time this Judgment is handed down, the Father and his wife will have their new baby. I am satisfied that both parties have found this protracted litigation stressful, expensive and time-consuming, and now recognise the importance of harmony, stability and improved cooperation between them to the children’s emotional health.
Any other fact or circumstance that the court thinks is relevant
The Mother was diagnosed with breast cancer in May 2010 which necessitated a mastectomy in June 2010, several rounds of chemotherapy and ongoing medication which the Mother continues to take. She has undergone a breast reconstruction. The Mother has experienced a very stressful and difficult time with frequent medical appointments, the awful side effects of treatment, significant expense and time away from work with physical, emotional and financial consequences. She may have a further reconstruction later and faces a risk reducing mastectomy in the next 18 months. She understands her prognosis is positive, but has been made aware that the greatest risk of recurrence of the breast cancer is within the first two years after treatment concludes. She is taking anti-depressant medication to better manage the emotional impact of her condition.[23]
[23] At paragraphs 59-68 of Mother’s affidavit sworn on 7 October 2011
In her report of October 2011, the Mother’s oncologist, Dr B highlights the importance of the Mother avoiding unnecessary stress and confrontation “which may impact on her full recovery from her breast cancer diagnosis, chemotherapy treatment and further ongoing surgery.”[24]
[24] Affidavit of Dr B affirmed on 19 October 2011
I have regard to these matters in reaching my decision.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, and to spend time with the child, and to communicate with the child; and has facilitated, or failed to facilitate, the other parent participating in making decisions about major long-term issues in relation to the child and spending time with the child and communicating with the child; and has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
I have nothing to add under this factor.
Parental Responsibility
The parties agreed to an interim order for equal shared parental responsibility in October 2009 and that order has now been made by consent on a final basis. Section 65DAC applies whenever a parenting order provides for shared parental responsibility and requires the parties to consult the other person and to make a genuine effort to come to a joint decision about any major long term decisions concerning the children.
When an order is made for equal shared parental responsibility, section 65DAA(1) requires the Court to consider whether making orders that the children should spend equal time, or if not equal time, substantial and significant time with each parent would be in the best interests of the children and whether either such arrangement is reasonably practicable[25].
[25] Section 65DAA Family Law Act 1975. See also MRR v GR [2010] HCA 4
The Court does not have the power to make an equal time, or substantial and significant time pursuant to section 65DAA unless the Court makes a finding that such an arrangement is in the child’s best interests, and is reasonably practicable, having regard to the factors set out in section 65DAA(5).
The children are presently spending substantial and significant time with the Father. Each party seeks orders which, if made, would satisfy the definition of “substantial and significant time” in section 65DAA(3). As already addressed in these Reasons and outlined in my determination, I am satisfied that it is in the children’s best interests and reasonably practicable for the children to spend substantial and significant time with each party. Neither party seeks an order for equal time, and I agree with Dr G that such an arrangement is not in the children’s best interests or reasonably practicable, particularly given the geographical distance between the parties and their poor communication.
Discussion and Conclusion
Dr G recommends that [X] and [Y] spend alternate weekends from Friday afternoon until Monday morning with the Father as well as overnight on Thursday in the alternate week. She believes [Y] will manage 3 consecutive nights a fortnight on condition she is back with her Mother on Monday morning and the Mother can devote that day to her. She recommends a cautious approach to increasing the children’s time with the Father so that for the next 12 months or so, the children have a stable and simplified arrangement “to give [Y] a chance to feel, develop a sense of security, and for everyone to develop a sense of recovery.”[26] It was on this basis that the parties agreed at the end of the hearing to interim orders providing for orders in terms of Dr G’s recommendation. The Mother would like this arrangement to be put in place on a final basis. The Father seeks increased time.
[26] At page 38 of the 24 October 2011 transcript of proceedings
Dr G believes that if the Father is available to care for the children, their time on a Friday in the “off week” could be extended until 5.00p.m and that in (perhaps) 2 years time, their time might increase to 5 nights a fortnight, but no more. She says it is difficult to predict what will work best for the children beyond the next two years but does not support arrangements being constantly the subject of review and change.[27] She says this creates tension and anxiety and you have the effect of children growing up with very stressed parents.[28]
[27] At page 48 of the 24 October 2011 transcript of proceedings
[28] Ibid
Dr G is reasonably confident the children will benefit from a 5/9 night arrangement into the future given their positive relationship with the Father. Dr G says it is imperative the children have a significant relationship with the Father given the uncertainties in relation to the Mother’s health.
I have given consideration as to whether there should be an increase to 6 nights a fortnight in the future, as sought by the Father or 5 nights a fortnight as recommended by Dr G, or whether 4 nights a fortnight is likely to better promote the children’s welfare, as sought by the Mother. I have decided in the circumstances of this case an almost equal time arrangement of 6 nights a fortnight is not in the children’s best interests. However, on the basis of Dr G’s recommendation, I have decided that the children will ultimately benefit from a 5 night a fortnight arrangement although I have decided that the increase should not occur as soon as recommended by Dr G. In reaching my decision to delay the increase in time, I have regard in particular to [Y]’s anxieties and her need for therapy, the Mother’s observation that [Y] does not embrace change easily, the Father’s level of insight into the children’s emotional needs, the state of the parties’ relationship which I am satisfied is more likely to improve if there is a significant period of stability and the Mother’s health condition and the likelihood of her needing further surgery from which she will need time to recover. I have decided the present regime will continue until the beginning of Term 4 in 2014 when [Y] will be 7 and a half years of age, and in her last term of Year 1. Changeover will occur at 4.00p.m. at the commencement of time as it does presently, and as sought by the Father, to give the children an opportunity to relax in the Father’s household before homework and dinner time.
In relation to Tuesday or Thursday evening in the alternate week. When the children are living with the Father on a weekday, the children must undertake the trip from [H] to [A] when the school week has just started. They must get up earlier than usual to travel the estimated 40 minutes to school from [A], and they arrive at school at approximately 8.40 a.m, earlier than when they are living with the Mother. The Mother says overnights on a Tuesday have made the children very tired. Dr G recommends that the children spend Thursday evening in the alternate week with the Father, because they will not be as tired with a changeover towards the end of the week rather than early in the week. The Father says it suits him better for the children to spend Tuesday nights with him, because of his work arrangements, but as I understand his evidence, it would be possible to change in time. The Father did agree to the change to a Thursday night in each alternate week on an interim basis, so I conclude that a change in his work routine is possible. I am satisfied it is in the children’s best interests for the night in the alternate week to remain a Thursday.
In relation to school holidays, for the same reasons as outlined in paragraph 79, I have also increased the children’s block times with the Father at a more gradual rate than recommended by Dr G. Unless otherwise agreed between the parties, they will have block periods of 5 nights in 2012, with 2 block periods of 5 nights in the Christmas school holidays, 7 nights in 2013/2014 with 2 blocks of 7 nights in the 2013/14 Christmas school holidays, and 2 blocks of 10 nights in the 2014/15 Christmas school holidays, before commencing half school holiday periods for the whole of the year. It will be open to the parties to increase or decrease those blocks of time, according to their holiday plans and how [Y], in particular, is managing the block periods.
In relation to overseas travel, the Father seeks an order that the children be permitted to travel to [Europe] with him and his wife when [Y] is 9 years of age for up to 3 weeks. Dr G saw no difficulty with his proposal. The Mother would like the opportunity to consider any specific proposal by the Father at the relevant time. I raised with each party’s counsel the option of the Court making a general order about what each party should do in the event he or she wished to take the children on a holiday overseas and gave each party the opportunity to make submissions on such a proposal. While neither party provided the Court with a Minute of Order to that effect, neither objected to such a course. I accept that the Father’s concern is that the Mother will unreasonably refuse to permit the children to undertake a trip to [Europe] with him and he does not want to be forced to return to Court to seek an order to that effect. I understand his position and anticipate that a holiday for the children to [Europe] in 5 years time is likely to be appropriate and manageable for them. However, I am not satisfied it is in the children’s best interests to speculate as to their likely circumstances in 5 years time and as to whether the trip envisaged by the Father now, is the trip he will want to take in 5 years time. I have decided to make a general order about the steps each party must take if an overseas holiday is contemplated, so the parties can discuss the detail of the proposal at the relevant time. I will order that neither party take an unreasonable position if such a request is made by either party.
In relation to each party having the option to care for the children if the other party is unavailable to care for them overnight. As already noted, the Mother was diagnosed with breast cancer in May 2010 and underwent chemotherapy treatment. At that time, the Father raised concerns about the Mother’s capacity to care for the children during the treatment period and offered to assist in caring for the children if she were hospitalised or too ill to care for them. The Mother preferred to make her own arrangements which upset the Father. In September 2010, the Family Court ordered that the children stay with the Father if the Mother were hospitalised. The Father now seeks an order that each party give the other party first option to care for the children overnight if the other party is unavailable, which includes the Mother being hospitalised. The Mother opposes such an order. She says she expects it would be less disruptive for the children to be left with the maternal grandmother in such circumstances. She says that if the maternal grandmother were not available, she would certainly ask the Father to step in. Dr G says that the children’s relationship with the Father should be prioritised over their relationship with the maternal grandmother and it would be best for them to live with the Father if the Mother had a pre-planned trip to hospital. I agree with her that this is likely to be the best option. My concern is whether there should be an order to compel such an arrangement. As already noted, I accept Dr G’s opinion that the Court should be careful to heed [Y]’s vulnerabilities and give her the opportunity to settle into a stable, settled routine. The parties have poor communication. The maternal grandmother has a poor relationship with the Father and the children are aware of this. In these circumstances I find, on balance, that if an order were made as sought by the Father, the children may be subjected to increased conflict between the parties or between the maternal grandmother and the Father, at a time when they are likely to be vulnerable. I have therefore determined that each party will be responsible to make his/her own arrangements if unavailable to care for the children overnight.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out at the beginning of these Reasons are in the best interests of [X] and [Y].
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 24 January 2012
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