Carmel-Fevia & Fevia (No. 2)

FAMILY COURT OF AUSTRALIA

CARMEL-FEVIA & FEVIA (NO. 2)

[2008] FamCA 1142

FAMILY LAW – CHILDREN – Parenting – shared care – holidays – problem of young children being away from either parent – Expert evidence as to needs of young children

Family Law Act 1975 (Cth)

APPLICANT:

Ms Carmel-Fevia

RESPONDENT:

Mr Fevia

FILE NUMBER:

MLC

4389

2008

DATE DELIVERED:

21 November 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

3, 5, 6, 7, 13 & 14 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR BARTFELD QC WITH MS VOHRA

SOLICITOR FOR THE APPLICANT:

TAUSSIG CHERRIE & ASSOCIATES

COUNSEL FOR THE RESPONDENT:

MR BROWN SC WITH MR THOMPSON

SOLICITOR FOR THE RESPONDENT:

SAXBYS LAWYERS

Orders

FOR THE PURPOSES OF THESE ORDERS AND INCORPORATED AS PART OF THEM:

A.the children referred to are E born … December 2002 and N born … January 2006;
B.the school holiday periods referred to are the holidays designated by the school attended by E regardless of whether N is at school or is attending the same school as E.

IT IS ORDERED:

That all existing parenting orders are discharged.
That the husband and the wife have equal shared parental responsibility for the children.
That except for the periods set out in paragraph 6, the children live with the husband as follows:
(a)during each alternate weekend from the conclusion of school (or 4 pm if it is not a school day) on Friday until the commencement of school (or 9 am if is not a school day) on the following Monday;
(b)from the conclusion of school (or 4 pm if it is not a school day) on every Tuesday until the commencement of school (or 9 am if it is not a school day) on the following Wednesday morning except in the case of N who will remain with the husband until the conclusion of E’s school day on that Wednesday until the end of the 2008 school year;
(c)for one half of all holidays at the end of each school term at times to be agreed and in default of agreement, the first half in each even-numbered year and the second half in each odd-numbered year;
(d)notwithstanding (c) hereof, provided the husband gives the wife 6 weeks notice in writing, he shall have the whole of the school holidays at the end of the second school term;
(e)if the husband gives the requisite notice referred to in (d) of this paragraph, the children will spend the whole of the holidays at the end of the third term of the school year with the wife notwithstanding (c) hereof;
(f)for alternating periods of up to 14 consecutive days in the long summer holidays in 2008/2009 and 2009/2010 specifically including the period between 22 December 2008 to 5 January 2009;
(g)for the summer periods 2010/2011 onwards, one half of the long summer holidays by agreement and in default of agreement, the first half during holidays that begin in odd numbered years and the second half during holidays that begin in even-numbered years;
(h)from 9 am to 6 pm on Fathers’ Day;
(i)for one half of the Jewish holidays by agreement and failing agreement, the holidays occurring in the second half of 2009 and for similar days in each alternate year thereafter and in the holidays occurring in the first half of 2010 and for similar days in each alternate year thereafter. FOR THE AVOIDANCE OF DOUBT, Jewish holidays means significant Jewish Holy Days and festivals and for which purpose, the Sabbath is observed every Friday evening and Saturday is not included as a Jewish holiday.
During all school holidays and the long summer holidays, paragraphs 3 (a) and (b) are suspended.
On Mothers’ Day, paragraph 3 is suspended from 9 am to 6 pm.
That except for the periods set out in paragraph 3, the children live with the wife at all other times.
That the parties continue to attend upon and at the direction of Dr L at the expense of the husband for the purposes of:
(a)the implementation of these orders;
(b)the negotiation of agreements provided for under these orders; and
(c)the general improvement of the parties’ communication with each other.
That the parties have liberty to apply to present minutes of orders in relation to:
(a)the discharge of the intervention order in Magistrates Court case …;
(b)the wife’s maintaining Kosher meat for the children at her home;
(c)the husband facilitating and encouraging time and communication between the wife and the three siblings of the children currently living with the husband; and
(d)restrictions as to conduct relating to Jewish Holy Days and festivals.
That should any party desire to make any application for costs arising out of these orders, he or she do so by filing electronically with my Associate and serving upon the other party written submissions by no later than 4 pm on 3 December 2008.
That in the event that any party serves a submission relating to costs, the other party shall, by filing electronically with my Associate and serving upon the other party written submissions in reply by no later than 4 pm on 17 December 2008.
That any such application for costs be determined on the written submissions and in chambers.
That all applications relating to parenting issues be otherwise dismissed and removed from the list of cases awaiting a hearing.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4389 of 2008

MS CARMEL-FEVIA

Applicant

And

MR FEVIA

Respondent

REASONS FOR JUDGMENT

This is a dispute about what time each parent spends with their two children E aged 5 and N aged 2.
E will be six in December and N will be three next January.
Each parent says that their proposal is in the best interests of these children. There is no argument of significance here about parental capacity. Each has a strong relationship with the children albeit in different ways.

Issues

There are three issues in dispute between the parties:
(a)what time each school term during the fortnights should each parent spend with the children;
(b)what holiday time over the Summer should be spent by each parent with the children; and
(c)what holiday time during school terms should be spent by each parent with the children.

Husband’s position

The husband’s position is best described as “fluid”. His case was conducted on the basis that he would compromise on each of the three issues. In respect of:
(a)the fortnightly time with the children, the husband would accept 6 days out of 14 but in his evidence and his senior counsel’s final address, it was clearly put that he wanted 7 out 14 days and I should contemplate that as a possibility;
(b)the summer should be 3 weeks in a block with both children but if not, then at least E for 3 weeks with N returning after 2 weeks and a number of other combinations to which I shall later refer; and
(c)the term holidays, that he have all of the June period and the wife have all of the September period.

Wife’s position

The wife’s position was not “fluid” in the same sense as that of the husband. She moved but only in the sense of a compromise as evidence unfolded. She sought:
(a)that the children spend 5 out of 14 days with the husband;
(b)that the husband return both children after the 2 week summer holiday; and
(c)that she and the husband share the holidays equally (although that was not something to which she was necessarily wedded in evidence and in final submission).

The evidence generally

I shall comment on parts of each party’s evidence separately. It is important to point out that I thought both were trying to be honest and forthright. I would not be prepared to make the general statement that I preferred one over the other.

The approach of the parties

In fairness to the parties, although each knew or should have known the other party’s factual evidence, it was clear that the communication levels are at best strained so that things upon which they base their decisions are thought but not spoken. Two examples will suffice. The first is that the wife knew that the husband wanted all of the June holidays but not why. She heard his evidence that it worked in with the school terms of the husband’s older children. Her attitude softened after hearing that. The wife has a very strong attachment to the husband’s older children.
A second example was that the husband was asked about what activities he had in mind for the children during the summer vacation. He was not only clear but effusive about what he had planned. It included a mock pirate kidnapping of the children and trips to Japanese museums. The wife heard this for the first time when the husband gave evidence.
To some extent, that lack of information could be blamed on the system of not permitting parties to file affidavits until the issues were clarified and confined. On the other hand, it is also indicative that the parties still communicate at a superficial level. Ironically, they have not only an agreement to an order for equal shared parental responsibility but I find they have a strong commitment to the general philosophical principle. It is just their current inability to communicate the finer details that causes difficulty. No-one expects parents who have fallen out badly in a relationship to necessarily be strongly co-operative but discussion about what is happening in each party’s household including plans for holidays means that the other parent has not only an opportunity to prepare the children appropriately but also the capacity to engage in supportive discussion with the children after the concluded period. That trust that has been lost must be something that the parties in this case need to re-engender.
When the case began, there were a number of other parenting disputes predominantly focussing on how Jewish Holy days and festival days should be spent by the children and what religious observances the parties would have the children follow in their respective houses. Each of the husband and the wife is an adherent to the Jewish faith. Whilst there are some differences between them as to the level of observances, it is fair to say that each wanted to be involved with the children at those important times.
Those issues were resolved between the parties.

The Jewish faith and culture

Lest there be any doubt, although each sees the faith, culture and observances to Judaism through very different eyes, I find on the evidence that each is very committed. I also find that although the husband seems to have a view that the wife may not be so committed, that is not the case. On the contrary, she is respectful of his desires for the children to be inculcated in that Faith in the same way that she wishes to be a very significant part of it with the children. I am hopeful that the conclusion of these proceedings will end his reticence about accepting that.

Parenting capacity

One marked feature of their parenting styles is that the wife is very much a “hands-on” organiser who was able to describe in detail the minutiae of her daily activities with the children. In contrast, the husband is a person who has a strength in a “one-to-one” relationship with the children but he has a coterie of staff who drive, manage and care for the children when they are with him. That is not to say he is not involved nor dedicated, it is just his style to have all of this assistance. The significance of that marked feature is that the husband and wife have predominantly always parented that way.

Separation

There are two other unusual but important features of the parenting of these children. The first is that they were members of a household with three older siblings who are the children of the husband’s second marriage. Until the separation of the husband and wife in the proceedings before me, E and N were part of a sibling group of five. The separation ended that. One of the matters that I am taking into account therefore, is the continuation of that sibling relationship.
The second unusual feature is that the separation of the husband and wife ended tumultuously with the husband obtaining an intervention order against the wife. The result of that order was that police action was taken to remove not only the wife but as a consequence, the removal of the children with her, away from their traditional home and siblings.
Since separation and the commencement of this litigation, the parties have worked diligently with psychologist Dr L and to their credit, have managed to resolve many, if not most, issues. Dr L gave evidence and indicated a willingness to continue working with the parties notwithstanding he was also a reporter to the court in his capacity as a single expert witness.

Lifestyle

One of the notable features of the parties’ lifestyle has been their style of holiday. This was the disputed issue before me on an interim hearing and became an unresolved matter in this final hearing. The husband wanted to take both children away for three weeks over the summer holidays. The trip would involve air travel and then sailing on a private yacht for a total absence of three weeks from Australia.

The less adversarial approach

It is important to note the way in which these proceedings were conducted. The parties and their lawyers approached the determination with Division 12A of Part VII very much in mind. I determined that I wanted to hear from Dr L and he was the first witness. The parties confined the issues to a small number of matters and to their credit, directed their evidence and senior counsel’s cross-examination accordingly. Each counsel focussed on the importance of the evidence relating to the issues in dispute but very much conscious of the five principles set out in s 69ZN of the Family Law Act 1974 (Cth) (“the Act”) and in particular Principle No 4.
To assist in the hearing, the parties did not rely on voluminous affidavits filed in the interim hearings but rather, a small number of paragraphs in earlier affidavits and otherwise, evidence viva voce.
The determination therefore is what is in the best interests of E and N in terms of not only the number of nights and days spent with each parent but also the structure of those times. A very important issue is the gap between visits or the periods of absence from each parent.

Historical background

By way of background, the husband is aged 57 years and the wife is aged 49 years. The husband describes himself as retired and the wife as a writer engaged in home duties.
The parties began living together in or about July 2001 and married in September 2001. There is a contentious issue about the execution and validity of a financial agreement between them.
They separated in or about early February 2008.
During a significant portion of the relationship, the husband was embroiled in litigation in this court in relation to the children of his previous marriage. Those three children live with him. During the period of the relationship, the wife was significantly involved in the care of those three children.
The husband conducted a business that was recently sold.

The parties reach agreement May 2008

The parents have spent an enormous amount of time and emotional energy with Dr L.
The wife asked me to make findings about what occurred in relation to an agreement in May 2008. Her view was that the husband has always changed things to suit himself. She would have me accept that what the husband’s senior counsel said to me about the husband only being interested in what was the best for the children and thus being child-focussed, was not the reality. She said that the issue of the parenting agreement between the parties was a good example of that. Even were that so, in this case, the dispute between them is narrow. Dr L said that once all of this is over, the parties will both get on with appropriate parenting. The husband through his senior counsel made clear that he would just get on with life whatever decision I made.
In terms of determining the narrow dispute here, I do not think that much turns on the May agreement struck between the parties with the assistance of Dr L. I accept that it was made at a time when the tensions still existed and the unhappiness of the breakdown of the relationship pervaded their personal dealings.
Having said that, the wife raised the issue in evidence and the husband responded to it. As such, for their respective sakes, I shall set out my findings.
The wife’s evidence was that she and the husband reached an agreement on a final basis about the children spending time with him on 5 nights per fortnight. She denied that there was anything tentative or transitory about the agreement. Notwithstanding that, she said that the agreement was for the “foreseeable future”. She pointed to the part of the agreement[1] bearing the date of 5 May 2008 about school holidays. The relevant paragraphs read:
[1] Exhibit W2
2.[the father] will pay for transportation and reasonable accommodation for [the mother] and the girls in Sydney between 27/6 and 4/7;
3.[The mother] will deposit [E] with a nanny at the Sydney Airport at 7.30 AM on 4/7; she will be returned by [the father] on 14/7, at approximately 7:30 PM;
4.The five day per fortnight arrangement per fortnight (sic) (as on the 27 June row in the table) is agreed to on an indefinite basis;
The agreement of May refers back to an earlier agreement made only a month earlier on 8 April 2008. At that time, the parties recorded:
All arrangements are transitional to an unfinalised as yet contact agreement, and “without prejudice”.
In the same agreement in April about future holidays, it was written:
Long-term principle of shared holidays.
The May agreement provided for holidays in the third term of the 2008 school year and the forthcoming summer. Those provisions have a strong ring of finality about them having regard to the April agreement which was clearly “transitory”.
What militates against the May agreement being final is two things. The first is that paragraphs 5 and 6 read, with my emphasis, as follows:
5.For the third term of school holidays in 2008, “the children will spend the majority of time with [the mother], dates to be agreed”, and presuming a 10/7 split in which both parents will assess [N’s] capacity to tolerate blocks of holiday time with him. In the event of [N] becoming distressed, it is agreed that she may be returned to the mother’s care for one day during that period;
6.In the context of agreement on the principle of shared holiday time, [the father] proposes a block between 21/12/08 and 11/1/09. [The mother] proposes to review, with [the father], [N’s] capacity to tolerate such an extended period.
Thus notwithstanding the apparent finality of the fortnightly arrangements by 5 May 2008, the parties in April had agreed to a shared holiday arrangement which, by May, had been transformed to a trial run of holidays that had to be reviewed. This cautious approach of the parents about the duration of the holidays also has some bearing on the other 2 issues that I am being asked to decide. Importantly, there was no reference in the May agreement to trialling the 5 out of 14 concept.
In her evidence, the wife’s explanation of the review process she had contemplated was that she was open to review the arrangements when N commenced school in 2011.

The wife’s argument was that when the agreement was reached, she then issued proceedings seeking certain financial relief. That in turn, she said, caused the husband to resile from the May agreement. She pointed to the fact that in response to her application for financial relief, he sought orders:
That the wife make the children available to travel to Tahiti with the husband for a holiday between 26 June and 14 July 2008.
At first blush, one would wonder why that application was sought on 2 June 2008 when less than a month before, there was an agreement distinguishing between the children and their time with their father. The agreement did not seem to provide for any doubt about that.
Against that background, the wife points to the husband resiling from the agreement because having agreed to 5 out of 14 nights even on a transitory basis, he then applied for an order in these terms:
That the children live with the husband during school terms as follows:
(a)Every alternate weekend from after school on Friday until before school on the following Monday;
(b)Every alternate week from after school on Wednesday until before school on Friday; and
(c)On the intervening weeks from after school on Monday until before school on Wednesday.
It will be seen that that application sought 7 nights out of 14.
The husband’s position was that he always saw the arrangement brokered on 5 May 2008 as transitional. When asked why he would then alter that position less than a month later even if the agreement was transitional, he said that after the events between the parties in March, he saw the wife as upset and disturbed. The manifestation of that was in her denigration of him to friends and others including an employee. He described her behaviour as unstable. He said it was impossible to continue in “that way” and they were not having the relationship he wanted.
The apparent inconsistency is his position was explained on the basis that at the time he reached agreement in May, he did so because of the wife being upset. By that I understood him to say he agreed to placate the wife.
There can be little doubt that his position was always that he wanted a 7 day in 14 day period of time with his children. He said that he decided to pursue what he had always wanted.
The husband was challenged in cross-examination that he had not advised through his solicitors that the “deal was off” and he agreed but said that he had spoken personally to the wife about what he had been told occurred with his cleaner who had heard a “diatribe” from the wife in the presence of N.
As for the normal channel of lawyers, his counsel did not take the objection of privilege when asked about whether he had told his lawyers that the deal was off. He produced his lawyer’s file note showing that on 5 May 2008, he confirmed that he had had a session with Dr L and agreed on 5 days per fortnight. His lawyers’ note showed that it was suggested that as a “fallback”, orders to that effect should be obtained.
On 8 May 2008, the husband emailed to his solicitor the agreement of 5 May referring to the fact that it was to be formalised with some changes and importantly he said:
I would like the agreement to be reviewed early 2009 when [N] is 3 years old when I may want a 50/50 split and longer blocks e.g. 1 week alternating with each parent.
When I compare that with what the wife said:
I indicated that I was open to review the arrangements when the children were older but not as early as 2009…
it indicates that the agreement was to last for some time and there was disagreement about its review.
The husband’s lawyer, again without objection, produced a file note of 12 May 2008 in which it was recorded that the husband said that he wanted to look at formalising something and to “make sure there is a review mechanism in it…in view of [N’s] young age”.
On 12 May 2008, the solicitor for the husband sent by fax to the solicitor for the wife a long letter in which it is clearly said that “progress is being made” between the parties and Dr L about “time to be spent with the children”.
The wife did not file her application relating to financial matters until 15 May 2008.
It is interesting how each party in the throes of litigation saw the position. Senior Counsel for the husband said that it was the centrepiece of the wife’s case that the husband was angry with her because of the property claim. He pointed to the fact that when the husband maintained that his position on the agreement was that it was transitional, he was laughed at and it was suggested that he had made it up. Mr Brown said that the husband’s position had not and never had changed in that he wanted 7 out of 14 and had only conducted his case on the compromised basis.
Senior Counsel for the wife said there was no explanation as to why he reneged other than the husband failed to appreciate the significance of agreements he made. He pointed to the husband’s final position of wanting 7 out of 14 days as an indication of the fluidity of the husband’s way of doing things. He made the observation that the objects in s 60B of the Family Law Act 1975 placed an obligation on courts to have parties make decisions for their children and that could not occur where there were positions such as that adopted by the husband.
Each party’s position indicates that notwithstanding all of the polite and complimentary things they say about each other, there is still much unhappiness and lack of trust. That in itself creates an impediment to the important object in s 60B.
I certainly find that the wife has difficulty in concluding any negotiation with the husband even with the benefit of an experienced mediator such as Dr L. I find that the husband does move his position around making it difficult particularly in relation to giving the children certainty. That indicates not only a communication problem but also that there is still a long way to go. The lesson for the parties is that they ought not conclude anything until it is comprehensively and formally completed in writing in either a parenting agreement or court orders. Hopefully, my orders will quell the controversy.
Importantly for the parties, I do not find that the husband lied about his position. I accept he did not see the review period as the same as the wife. Equally importantly for the wife, I accept that she genuinely believed that there was a concluded and final agreement for a period beyond that intended by the husband.
Even though I find that the parties were not of one mind, I do not accept that it was in the best interests of either the children or the parties, for the husband to have issued the application in the format that he did without at least having endeavoured to resolve the conflict with Dr L and indicating to the wife through her solicitors that he was unhappy about the position. I do not accept that the husband’s assertions about the wife’s behaviour or the discussions between husband and wife justified the heightening of the litigious conflict over the children. Altering his temporary and compromised position destabilised what was otherwise a very sensible working arrangement between the parties. The best evidence of that is that subsequent mediation with Dr L resolved a number of issues.

The wife’s evidence as to the issues in dispute here

In relation to the issue of the dispute between the parties about the May agreement, the wife’s evidence was that in June, N had only recently graduated to spending two consecutive nights overnight with the husband. She said that in her affidavit sworn in June. However in her oral evidence, she made no mention of the fact that the situation was not otherwise suitable for N to stay away for longer periods. For instance, the wife was content for N to stay away for a holiday period of one week and in respect of the summer holidays, up to two weeks.
Since June, E has not only spent time with the husband but also weekend time at the parties’ holiday home.
It is an issue for the wife that the husband is not personally involved in their day to day care-giving, household duties and activities. As I have already pointed out, the husband relies on staff including nannies. There is nothing wrong with that having regard to the number of children for whom he is responsible and it is common ground that there is a good relationship between the specific nanny and N and E. I am not confident that I could say the same yet about the relationship between the nanny and the wife.
In her evidence in June, the wife said that N often showed signs of distress or separation anxiety upon her return from the husband’s home or during visits. She said she was often unsettled and clingy for a day or two following visits and became distressed if the wife was out of her sight for any length of time.
The wife expressed the view that having regard to the fact that she had just settled into a new home environment as a result of the tumultuous separation, it was not appropriate to make the changes contemplated by the husband.
In respect of E, the wife’s concern was that the husband, even with assistance from nannies, could not dedicate his time and attention to responsibilities such as E’s homework. That was evident when the wife produced the child’s reader. There is no question looking at that book that the wife does a substantial amount of reading with E and on a less often basis, the nanny fulfils that task. The husband does not seem to have had quite the same role in respect of E’s reading. That is not a criticism because as I shall mention below, each of the parents deals with parenting in a different way. When the two children are with the husband, I am conscious that he has three other children as well for whom he has parenting obligations. Conversely the wife can dedicate her time and attention as she always has done to two children.
An example given by the wife was that the husband sent a sick N home from the holiday house with a nanny. She said the child was quite ill. The clear inference I was asked to draw was that the husband had passed the responsibility for the child over to the nanny and that enabled him to continue on having a good time at the holiday house. I shall turn below to the husband’s version. What is strikingly obvious is that the lack of communication by the parties gives rise to these sorts of problems. I am satisfied the husband did not ignore the problem nor put N at risk. I have concerns however about him simply using the nanny as the conduit between he and the wife.
The current regime is such that the husband collects the children at the end of the school day, returning E to school on the following morning and then retaining N during the day. On the weekends, a similar situation arises except that he returns N to the wife on the Monday morning. On the Monday morning, the wife takes N to a music program. N goes to crèche on Tuesday and Friday for most of the day. Thus, when the husband is collecting N on the Friday, he collects her from the crèche.
The wife said that she had experimented with the variable routine but found it problematic. She said the children do not understand the days nor does the school. That creates problems for extra-curricular activities such as music and speech therapy as well as attending social functions for the children. In addition to the question of the security of a routine, which provides predictability and security, the wife’s concern was that she was unable to be confident about what obligations she could make on behalf of the children without referring to a diary. She said she was not comfortable about the goodwill situation at this stage.
The wife was tested at some length in cross-examination about whether this was all about her and her convenience rather than what was good for the children. She maintained that her concern primarily was the children.
Whilst the wife conceded that she saw the problem as having to fall in with issues determined and decided by the husband, what she was really after was consistency for the children.
In cross-examination she said that the husband met the physical needs of the children and that he loved them. She said however that he was not as conscious of their emotional needs as she was. She put it rather neutrally that “some of the kids are always lost in the shuffle” by which she meant that he had to deal with the five children sequentially.
She was asked whether she thought that the father was a good parent and her response was that he was an “uneven parent”. She said that he was a better parent than when she first met him. She was asked whether she had anything “nice” to say about her husband and she said that he was a man of tremendous ability and of great drive. She went into some elaborate detail to describe his way of doing things including describing him as a “larger than life character”. She talked about his love of his children. It was put to me in final submission that the wife could not say anything positive about his parenting. Senior counsel for the husband described the wife as having “lost the plot”. I reject that.
As a witness, I found the wife intelligent, responsive and articulate. She has a very strong concern about the stability and security of the lives of the children. Although it was suggested by the husband that she has a cynical view about the motivation of the husband in these proceedings I find that her focus on the children was appropriate and her evidence believable. I have no hesitation in saying that her approach to these proceedings was child-focussed.
In respect of the summer holiday question, the wife’s attitude was simple. She said that it was not just a case of N being away for too long having regard to N’s age but rather both children being away from either parent for too long a period of time. She described the symptoms of unsettled behaviour subsequent to the Tahiti holiday earlier in the year. I accept that she takes the view genuinely that the children should not be away from either parent for any length of time and particularly not for three weeks.
In relation to the summer holidays, one of the proposals of the husband was that he would fly the wife business class to Tokyo where she could spend some time with the children. During his evidence, he added further to say that he was happy for the wife to then go on to Kyoto which is where the children will be spending some days. The wife was reluctant about all of that. Initially, she said that she would be jet lagged and in a strange place trying in a very short space of time to have a meaningful relationship with the two children. The husband’s evidence however went further and invited her to move on then to Kyoto. I can understand the wife’s reticence about participating in that activity even if it was at the expense of the husband and could be seen by her as a holiday.
It was initially proposed by the husband that if N became distressed, the nanny could decide that it was appropriate to return the child to Australia and she would then accompany the child. The husband moved away from that position as the hearing proceeded. In my view he was sensible to do so.
The fundamental issue in relation to the holidays is the gap of time not just from the parents but also from the security of the environment in which the children should normally be. There seems to me to be much sense in saying that these children need a routine as well as the excitement of a holiday. That will be particularly so in 2009 when N begins a kindergarten type environment.
The crucial evidence in relation to the duration of the holiday however comes from Dr L and I shall return to that below.
In relation to the term holidays, as I have already pointed out, it was the wife’s understanding when the case started that the husband wanted all of the June holidays on the basis that she could have the September holidays. What she was not told and had apparently become aware only in the time that the husband was giving evidence in the witness box, he was endeavouring to coordinate a holiday for all of the five children. His oldest child attends a different school to the next two. It is only in the June period that the holidays coincide enabling him to have all of the children together. It was obvious in hearing that evidence, the wife saw some sense in what the husband was endeavouring to do.
When the wife was cross-examined, it was put to her that if she was given appropriate notice such as half a term, she could overcome any concerns she had about planning. When that question was put to her, senior counsel for the husband was obviously unaware that the husband had in mind the schooling arrangements to which I have just referred. Perhaps it was unfortunate that that issue was not put to the wife because I suspect, the outcome of her response may have been different.
There is still some considerable suspicion between the parties particularly on this issue. Overnight prior to the final addresses, counsel for the wife apparently examined a Jewish holy day calendar to ascertain whether there was some advantage to the husband in offering the wife the September holidays because he would otherwise be sharing in the Jewish holy days by virtue of the agreement between the parties thus, thwarting the wife’s understanding of what he was actually offering in relation to the school term holidays. I was informed by senior counsel for the wife that that was not the case in 2009 but it may be a problem in the future.
The evidence therefore of the wife in relation to the school term holidays is really indicating a desire to share them but at the same time, permitting N and E to share with their siblings.
Dr L viewed the wife as being on guard in his dealings with her at times. I found her anxious to ensure that every view she held was explained and justified. She had difficulty responding to simple questions. I found her honest and her evidence plausible. Like the husband, she wanted me to understand her view of how she would like the children parented. I would not criticize her for that. I generally accept her as a witness of truth.

The evidence of the husband

The husband’s evidence was set out principally in his affidavit filed 2 June 2008. Only parts of that affidavit were read into evidence. He referred to his concerns about his wife’s behaviour and in particular made reference to incidents of intoxication in February, March and April 2008. I am satisfied that much water has passed under the bridge since then and there is no longer a concern which would affect any of the three issues which I am addressing.
The husband described the distance between his house and that of the wife as walking distance. His house is a six bedroom house. He employs nannies and a full-time housekeeper. Importantly, he said that all five children have a very close relationship.
The husband is the non-executive director and owner of T Company but has retired from the day-to-day running of the business. He still works but has flexible hours and works from home. He therefore has an active involvement in the care of all five children.
The husband also has a holiday home to which I have already referred and regularly attends there with the children on weekends. That property is large and has access to horseriding, swimming and children’s play equipment.
The husband described himself as being of the Jewish faith and that it was important for him that the children were brought up in the Jewish tradition and that they attended orthodox Jewish schools. He said that the family had practised traditional restrictions during the Jewish Sabbath and festivals.
The husband also pointed to the importance of holiday periods away from Melbourne for all of his children.
In relation to his various proposals, the husband said that his proposal had the benefit of smaller gaps between visits, provided a continuing and strong relationship between E and N and the other three siblings and it reduced what was described as one night visits. The one night visits according to the husband did not give quality time.

The husband said in evidence that the time he proposed enabled a more balanced sharing of parental responsibilities which in his view, was conducive to long term cooperation between he and the wife. There is much to be said for that except that at this point in time, the parties have a long way to go.
The husband commented upon the wife’s proposal saying that the gap between visits was too long and that created a problem for both children. He said that N was too young to have that sort of routine gap at this stage. He said that it was obvious when he had N that she had missed him because after as little as four days, she greeted him with open arms. He said that there was potential to distress N by longer gaps and he felt that it was not good for E either. He therefore contemplated the proposal about six nights and made again clear his preference for seven saying that when broken up into small blocks, these overcame all of the problems to which I have just referred.
He said that the other dilemma with the wife’s proposal was that it created difficulties with the other children to whom N and E were very close and that was a compromise that was not appropriate.
He said that he had made a number of compromises but the wife was rejecting anything other than her position, out of hand. This had been a significant issue of discussion with Dr L.
The husband said that if there was a more even balance of time, it would reflect an equal influence of religious practices. As I have already pointed out, each party is dedicated to their religion and each has subtle differences of approach. This was a matter of some comment by Dr L and I shall refer to his evidence below.
On the issue of the forthcoming summer holidays, the husband was able to detail in quite clear terms what he had planned for the children. The children are accustomed to boat travel and to use his expression, they think this is “heaven on a stick”. He said that there were huge advantages for family interaction because everyone was together.
In contrast to the wife’s view about the negative impacts upon E of the long duration of the holiday, the husband said that over 19 days in Tahiti, E was “fantastic”. He said she did not miss the wife and there was frequent telephone interaction between them. That particularly occurred when they were in range. He said that all of the children had a great time.
In relation to his proposals to solve the dilemma by breaking up the three week holiday allowing the wife to attend after two weeks, his view was that any of his options would solve the problem.
In relation to the June holidays, as I have already said, he set out the details about the interaction of the other children and their clashes of school holidays. In respect of what was organised for the children, the husband said that he had chartered a boat much like what was anticipated for the summer holidays and that he needed to book that eight or nine months in advance.
The wife was critical of his lack of hands-on approach with the children but the husband said that he was always there, understood what problems there were for the children and in the case where the wife gave evidence about N’s illness, he said that there had been a houseguest at the holiday house who was a trained nurse and she had satisfied him that there was no problem. He said that he was concerned and had been watching what had happened. He gave an example of the fact that he kept N out of the spa and had even used a steam room to try and assist with what apparently was some form of infection. In his view, N did not have severe symptoms.
Importantly, the husband was asked by his counsel about the level of cooperation between he and the wife and he said: “It’s improving all the time”.
As examples of the improved cooperation, the husband said that the parties were able to work out treatment of lice for the children, the organisation of clothing that had been left behind and delayed changeovers where N had overslept. He was complimentary of the wife in relation to the previous weekend where the child H had a commitment and the wife had “graciously” agreed to extend his time. As for the future, he said he was optimistic.
The husband was asked by senior counsel for the wife about whether there were still confrontations at changeover. He said there were but he conceded that he only sometimes attended. He was asked when the last confrontation was that he did attend and he made reference to a recent Friday. He said a comment was made by the wife about the fact that he was five minutes late notwithstanding he arrived at the appointed time. It appears that she had telephoned his personal assistant and requested a five minute earlier arrival time. He did however concede that it was not serious. He also pointed to the fact that there had been an occasion where he attended upon the wife’s property and she told him that he was not come within 200 metres of the house. Apart from that, he was not able to tell me of any other confrontations. Importantly, he conceded that from time to time, both he and his wife “sparked” each other off.
Focussing on the proposed days involved, the husband wanted Tuesday night in each alternate week because he has been having a dinner involving his brother’s family and there is a closeness of the relationship between cousins if nothing else. The wife indicated to Dr L her interest in that activity. I was not left with the impression that it would occur every week. The husband’s other part of the proposal would however have meant an inconsistency in the days of the weeks.
The husband gave evidence in a very measured way. He was responsive to questions and gave a very strong impression of being child-focussed. When given an opportunity to be critical of the wife, I accept that he was more concerned about leaving the past behind rather than endeavouring to highlight what he had said in June 2008 were his concerns and the wife’s weaknesses as a parent. He must be given credit for that. I have no reason to doubt what he told me was an honest and truthful account of things as he saw them.

The evidence of Dr L

Dr L is a psychologist. He was the parties’ preferred expert. He conducts his practice from P Consulting. As I have already indicated, over a number of months, he saw the parties on a variety of occasions. He also saw them at court in the presence of their legal advisers as part of the process of mediation and endeavouring to confine the issues. No party objected to his qualifications or his evidence in relation to matters that might otherwise have been confidential.
Dr L’s report annexed to his affidavit was long and comprehensive. It set out the details of the various discussions with the parties and addressed a number of issues. He set out each party’s position and whether there was ultimately an agreement.
To a very large degree however, Dr L’s evidence in relation to the three issues about which I am concerned was much more focussed when cross-examination occurred by counsel for each party.
Dr L said that he was concerned about N’s capacity to be separated from each parent for lengthy periods. He conceded that his initial recommendation meant that N would not see her father for seven days and that that was not in N’s best interests.
Dr L had the proposals of each party and he was asked whether the husband’s proposal was “superior” to the one that he had set out and he agreed.
The various proposals of the parties are diagrammatically set out in Exhibits W1 and H2.
There was no doubt in Dr L’s mind that seven days absence for N from either parent was too long. Importantly, notwithstanding Dr L had the various proposals of the parties, he said he was not wedded to either proposal in terms of the particular days. His concern was the absence of the child from a parent. Having said that, Dr L was asked by senior counsel for the wife whether in fact his recommendation really amounted to a division of the 14 day period as to 9 days and 5 days and he agreed that there were very sound psychological and emotional reasons for it to be done that way. Ultimately, Dr L said that the lives of the parents and the children were complex. He said:
I presented what I considered to be based more on quantum and the desire for the regular contact and involvement with both parents, and I concede that I didn’t realise, in looking at it, the way week 2 falls back into week 1. That was my error of omission. What I’m saying at the same time is I was not wedded to the particular day in any case, and I made that perfectly clear.[2]
[2] Page 29 transcript
The parties were negotiating a suggestion that the husband have one child on one Sunday night and that that be alternated on a fortnightly basis. The parties ultimately seemed to agree in evidence that was not appropriate particularly as the husband did not predominantly support it. That created something of a difficulty in relation to the quantum of time and more importantly, the gap between visits if that did not occur.
Dr L said that both parents have substantial relationships with both children. He said he had observed that the wife was significantly more psychologically sophisticated in relation to the children and their needs and that that was something that the husband had confirmed to him. Similarly, he had observed that the husband responded much better to any of the children on a one-to-one basis and that that was also something that the husband conceded. He said that those factors led him to recommend that the wife have a greater time with the children than with the husband notwithstanding the very strong bond between N and E and their father as well as their strong bond with the husband’s other three children. He said for the sake of discussion, 5½ nights per fortnight was one that he was contemplating and 6 nights was not a great leap forward and something that he could certainly live with but when he balanced all of the factors up, he came to the conclusion that both should have substantial time with N and E but that there should be an imbalance. As for what was best for the children, he said they were matters of judgment. He said he had no particular view about the days “per se” other than there should not be a lengthy separation between the parents and the children.
Having regard to the fact that Dr L was not wedded to any particular days, I suggested one solution might be to keep each parent spending the whole of a weekend with the children and then vary the days during the week on a sharing basis. Dr L thought that he did not have an easy answer but he would support such a proposal which provided for two consecutive weekdays in each week with the husband. It is clear on the evidence that particular days did not trouble Dr L.
Fundamentally, the evidence in this case which is most helpful comes from Dr L. His professional opinion about the separation of the children from either parent on a fortnightly basis was insightful and helpful. When I match his evidence about the different parenting skills as he observed them with the evidence about the respective activities of the parents, there is little difference between the number of days involved. The critical determination therefore is how any week day time would be implemented and best promote the interests of the children. The wife sought consistency of routine to give rise to certainty for the children. Dr L said that that was an appropriate thing for a parent to desire and at the ages of these children, it made sense for there to be such a routine. I think it is fair to say that it would be helpful for the parents in this case to have that routine to avoid the prospect of confrontation. The routine is also more important in the wife’s household as she does not have the benefit of the staff as has the husband. I find that the routine is probably more important than the gap between visits. That must be so having regard to the fact that during non-holiday times, Dr L says the children should not have a gap of 7 days yet that can be doubled during holiday time. The routine and certainty in the lives of these children is therefore the important issue.
Accordingly, based upon the evidence of Dr L, I find that there is a difference between the parties’ proposals such that it is in the best interests of the children that there be a distinction. I find that based upon Dr L:
(a)not being wedded to any particular days; and
(b)acknowledging the importance of certainty and routine,
5 out of 14 is best for these children calculated by alternate weekends and each Tuesday night.
In relation to the long summer holiday, Dr L was asked whether he had any difficulty with the husband’s proposal for three weeks. He said:
I have some concerns about the developmental capacity, particularly of [N] to withstand three uninterrupted weeks away from either parent, given all of the issues we have been speaking about this morning and afternoon.
Dr L then told me that it was his suggestion for the wife to join the children during that period of time with the husband.
In my view, the reticence of the wife to travel to Japan is understandable even if it is in a holiday environment and at the husband’s expense. The only concern in this case is the one raised by Dr L which is the developmental capacity of a child to be away for three weeks from any one parent. Whilst Dr L referred to particularly N, I have the contrasting evidence of the impact upon E of the 19 days away during the Tahiti holiday. The husband’s version was that there was no problem but that was clearly on the basis that E was enjoying herself and speaking frequently to her mother. The wife’s version was that there were signs of post-separation anxiety with clinginess. It is conceivable that both versions are right. What is of concern however in relation to both children is Dr L’s view about their developmental capacity. By that I understood him to say that he did not think it was in the best interests of either child from a developmental point of view to be away for more than two weeks.
Dr L did not say at what point he would have no developmental concerns.
A significant issue raised by the husband in relation to the holiday being broken up was that N and/or N and E would be unhappy about being separated from their other three siblings at a period of time when they were about to embark upon the exciting part of the trip in Japan. That is clearly a consideration but one that can be overcome in years ahead. At a time when the parents are still finding their own way in terms of their respective parenting relationships, the developmental issue must take priority. That is particularly important when Dr L’s evidence is clear that it is the wife who is more psychologically attuned to the children than the husband.
Dr L was certainly looking for a circuit breaker by suggesting that the wife travel to Japan. In the not too distant future, when the relationship between the parties is less volatile, that option might be realistic. On the other hand, as the developmental issues are overcome by age, it should not be necessary to truncate the three week separation particularly when it can be ameliorated by regular telephone contact.
I have listened intently to what Dr L said and am very conscious that what he was endeavouring to do was to find a solution with which the parents could work cooperatively without prejudice to the developmental interests of the children. Hence, on a number of occasions, he qualified his answers by saying that he would support a proposal if the parents reached agreement.
This is not a case in which I could say that one parent’s proposal is “superior” to the other. It is not a case in which I could simply say that Dr L’s evidence is unequivocal about a particular position. Each parent through their counsel acknowledged that I was at large as to what I should do.
I find Dr L’s evidence makes sense. It is not so much the structure of the holiday time but the number of days apart from each parent. I find therefore that the maximum time these children should be away from either parent at the moment is 2 weeks.

The Law

The law relating to a parenting determination requires me to consider a number of things. I shall set those out now.
Section 60B of Part VII of the Act sets out the objects of the legislation. It says that the objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The provision referred to means that in every case, the Court should contemplate the objects of the Act when determining what parenting orders should be made. In addition, as I have not only mentioned but also discussed with the parties, s69ZN(1) says:
The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings (my emphasis)
The principles include emphasis upon the way in which the hearing is conducted but also in relation to its outcome. For example, Principle 4 reads:
The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
The test I am required to contemplate is set out below. The test is not about finding a way to make parents co-operate but rather to make a decision which is in the best interests of the children. In considering a number of factors in s 60CC, it is important to recognise that the parents are exhorted to make the orders work for their children in a co-operative way. That is emphasised in the principles underlying the objects of the Act which are as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In this case, I am satisfied that the orders I am about to make do encourage the parents to participate in their own specific ways for the benefit of the children.
Section 60CA reads:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) reads:
Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
It is important to note that these are the matters to be considered. There is a distinction in the section between primary and additional considerations but they must all be considered based on the findings that I referred to above.
I turn then to those provisions for consideration.

SECTION 60CC

There is no argument in this case that E and N have a very close and loving relationship with both parents and that both parents have not only much to offer the children but that they already have a significant role in their respective lives. I have no doubt that the children are already enjoying the benefit of a meaningful relationship with both parents regardless of the amount of time that each spends with those children.
I am satisfied therefore that the orders that I have in mind will enable the children to continue to have that meaningful relationship.
Section 60CC(2)(b) requires me to consider the need to protect the children from the physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The children have been exposed to the trauma of their parents’ separation and its aftermath. I have the evidence of the fact that the children went with their mother accompanied by the police as a result of the intervention order removing the wife from the matrimonial home. I have the evidence of the husband albeit not put to the wife, that she denigrated the husband in the presence of N to a cleaner. All of that is psychologically damaging for children. That is particularly important when I consider the evidence of Dr L and his concern about developmental issues and absence from each parent. In this case however, I am satisfied that the orders I will make will give some impetus to the parties settling down to focus on the needs of their children. I have an unequivocal statement from the husband that whatever the order is he will get on with parenting the children and a very clear statement from senior counsel for the wife indicating that the husband and wife could not sort out the answer, leaving it to me. I am therefore comfortable in saying that the orders I propose will protect the children from psychological harm in the future. There is no suggestion in this case of the children being at risk of any physical harm from either parent.
Section 60CC(3) provides some additional considerations. The first is the views expressed by children. In this case, neither child is of sufficient maturity to understand the adult concepts involved in a parenting dispute such as this notwithstanding each shows excitement about being with the both parents. Both children are very much attached to each parent and the important issue for them is that there is certainty and security so that confusion does not arise from various changes in their lives.
I have taken into account the nature of the relationship of each child with each of the parents. The evidence is very strong. Each parent has a very close and loving relationship albeit in very different ways. Each has much to offer the children again, in very different ways. The children however also have a very strong bond with their three older siblings who live with the husband. It is important that that relationship not only be protected but that it is fostered. I have considered that in two different ways, that relationship has potential problems under the orders that I propose. The first is that the fortnightly periods of time mean that E and N effectively wander in and out of their siblings’ lives. They were all part of the one household up until separation. However, the husband has a whole array of activities for the three siblings who live in his house on a full-time basis. He made comment about the fact that he often took one of the three siblings to activities and took E or N along and there were other times when nannies undertook those tasks and presumably, took E and/or N as well. With the number of children in his household, there will be constant fluctuations. Much of the evidence has been confined to the fact that it is important not to separate the children from the two parents but I suspect that must also be said of the siblings as well. Having regard to the fact that the children will have every second weekend with those siblings who are older than them and have other distractions and obligations, I am satisfied that the relationship between all five children will not be damaged in any way by the orders that I propose. Importantly, I consider that the relationship with their mother at this age is more significant than that of time with their siblings.
I am obliged to consider the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent. There is a claim in the husband’s case that he believed that the wife was not strongly concentrating on the children but rather on herself. If that was his intention and his desire that I draw that inference, I do not. I have been impressed with the evidence of both parents in relation to their focus on the children again, as I have already said, in different ways. I am satisfied that both parents see the other parent as having a significant part of the lives of the children. In his final address, Mr Brown SC for the husband said that the wife had “lost the plot”. I reject that but it does suggest that the husband takes the view that the wife is not focussed on encouraging and facilitating a very significant role for him in the lives of the children. I do not accept that that is the wife’s position. I am quite satisfied that both parents, regardless of the quantum of time that they spend with these children, will ensure that the other parent remains the significant part of the lives of the children.
In relation to the effects of any changes in the child’s circumstances including the separation from the parents and siblings, I am satisfied on the evidence that the maximum period of time that either child should be away from either parent is two weeks for holiday periods but that those circumstances are different from the normal day-to-day routines that children need at all ages but particularly these very young children. I am comforted by the fact that the wife has indicated a willingness to be flexible in relation to time outside of the core periods under the proposed orders and importantly, that the husband acknowledged that that had in fact occurred in a recent extension of time for the purposes of an activity of his daughter H. The husband also gave evidence about the fact that the parties can cooperate outside of the ordered core periods for such changes as N altering her sleeping pattern.
It is important in this case that the children have an unequivocal core period of time that I propose under the order and that otherwise outside of that, once the trust returns between the parties, they can alter it as varying occasions arise. That will be particularly important in relation to the Jewish holy days and festivals where the parties have agreed to share. Whilst leaving that provision in the order somewhat vague, it behoves the parents to work out what parts of the particular festivals should be undertaken by each of them in their different roles as Jewish parents.
There are no difficulties in the children continuing the relationships that I propose under the orders having regard to the geographical distance between the parents. There are certainly no problems from an expense point of view which would affect the children’s right to maintain a close and loving relationship with both parents.
I have considered the capacity of each parent. I can do no better than the description given to me by Dr L. The parties gave him information and therefore seem to have agreement about the fact that the wife is more “hands-on” and psychologically attuned to the children on a day by day basis whereas the husband is more of a generalist. That must be the case having regard to the obligations he has in relation to his other children as he has very strong desire not to distinguish between any of the children. I have no concerns about the capacity of the parents to care for the children pursuant to the orders that I propose. As I indicated at the outset of this less adversarial trial, I would not be particularly helped by evidence of the perceived misbehaving and wrong doing in the past in circumstances where they were each acknowledging the other had strong parenting skills and were prepared to share the children albeit not equally. In this case therefore I have no concerns about the capacity of the parents notwithstanding I accept what Dr L says about the disparity of their skills.
I have taken into account very much the question of the traditions and culture under which these two children will be raised. I have found that the parents are both dedicated to their religion and culture and on that basis, the children can only benefit in both households.
Each parent has demonstrated a responsible attitude to parenting. I acknowledge that the husband has a desire to share the children on an equal basis. I am not at all convinced in this case that his determination to do that is child-focussed but rather he draws that from some desire to ensure that there is equality between he and the wife. He said that if there was equality of time, it would enhance co-operative approaches. I am not convinced that is the case here having regard to the disparate personalities. On the evidence of Dr L, it would not be appropriate for the children to spend equal time with the parents having regard to the disparity of their capacities to which I have already referred.
I am very conscious in this case that there is a family violence order and that the families are currently negotiating its removal. It is against the wife. It arose out of the tumultuous separation. Notwithstanding the family violence order, the parties have mostly acted in a civil fashion much as a result of the hard work of Dr L. One of the proposed orders that I was handed by senior counsel for the wife stated that the parties do everything necessary to discharge the order. I do not propose to make that order but rather to rely on the good graces of the parties to accept that the problem that gave rise to the order has been overcome and they should now be focussing on the children rather than on the dilemma that gave rise to the order.
Section 60CC(3)(l) requires me to consider whether it will be preferable to make an order that would be least likely to lead to further proceedings in relation to the children. It is often difficult to make final orders in relation to children who are young having regard to the constant fluctuations and changes in their lives. In this case, the parties need to get on with their lives for a variety of reasons. The wife has the responsibility for the care of two children and the husband has the responsibility for the care of five. I suspect that if the parties continue their work with Dr L, they will be able to be flexible about the future changes. What is clear however is that the children currently need and will need for the foreseeable future, a base from which to work in the event that there is a dispute between the parties. In my view, the orders that I propose to make should be seen as covering the future for a number of years.
Section 60CC(4) requires me to consider the extent to which each parent has fulfilled or failed to fulfil the responsibilities of a parent. I am satisfied in this case that each party has acted appropriately in respect of not only taking up the various opportunities to spend time with the children but also facilitating the other parent in so doing. I am satisfied that all of the events that have occurred in this case subsequent to the separation have now begun to settle down and that the parents will begin to focus on the lives of the children.
In my view, the orders that I propose to make are in the best interests of the children.

Equal shared parental responsibility

Section 61C says:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
Section 61C(3) says:
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
In this case, the parties agree that each should have equal shared parental responsibility. Notwithstanding the agreement, I am still obliged to consider the matters set out in s 61DA which says as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Section 61DA(2) provides that that presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or another child who at the time was a member of the parent’s family or family violence generally. In this case, I would not rebut the presumption based upon that notwithstanding the existence of the family violence order.
Section 61DA(4) says that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for that child.
This is a case where I think the parties should have that shared parental responsibility.
Even if the presumption was not rebutted by virtue of s 61DA(4), s 65DAA requires that if a parenting order provides that the parents are to have equal shared parental responsibility, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
I am satisfied in this case that it would not be in the best interests of the children for the parents to spend equal time with them for the reasons I have already set out above.
Section 65DAA(2) provides that if the children are not to spend equal time, the court must consider whether the children spending substantial and significant time would be in their best interests.
Section 65DAA(3) says:
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In this case, the orders that I propose enables the children to spend time both on weekends and holidays and also enable the husband to be involved in the children’s daily routine which means getting both of them to crèche, school and extra curricular activities. Importantly, much of the early part of the case was spent on the question of the desire of both parties for the children to spend with them involved in Jewish traditional and holy day activities. That is a consideration required by s 65DAA(3)(c). I am quite satisfied that the orders that I propose in relation to the children spending that time as agreed by the parties, is an indication that the children are spending significant and substantial time with the husband.
I am satisfied in the circumstances that the orders I propose therefore are appropriate.

I certify that the preceding One Hundred and Sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 21 November 2008

[2008] FamCA 1142

21 November 2008

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