Carr and Vincent - [2008] FMCAfam 888

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARR & VINCENT

[2008] FMCAfam 888

FAMILY LAW – Children aged 6½ and 5½ – appropriate arrangements for children to spend time with father pending final hearing – father based in Japan but able to return to Australia regularly – presumption of equal shared parental responsibility – best interests – reasonable practicality – substantial and significant time – whether children should be provided with mobile phones for communication with father.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 61DB, 65DAA

Goode & Goode (2006) FLC 92-286
Cowling v Cowling (1998) FLC 92-801

Applicant:

MR CARR

Respondent:

MS VINCENT

File Number:

ADC 2680 of 2008

Judgment of:

Brown FM

Hearing date:

4 August 2008

Date of Last Submission:

4 August 2008

Delivered at:

Adelaide

Delivered on:

20 August 2008

REPRESENTATION

Counsel for the Applicant:

Mr Noble

Solicitors for the Applicant:

Andersons Solicitors

Counsel for the Respondent:

Ms Leeson

Solicitors for the Respondent:

David Burrell & Co

UNTIL FURTHER OR OTHER ORDER

The parties have equal shared parental responsibility for the children of their relationship [X] born in 2002 and [Y] born in 2003 (hereinafter referred to as “the children”).
The children live with the mother.
The father spend time with the children as follows:
(a)From 9:00am on 27 September 2008 until 6:00pm on 7 October 2008;
(b)From after school on 8 December 2008 until 6:00pm on 18 December 2008;
(c)From 9:00am on 15 January 2009 until 6:00pm on 26 January 2009; and
(d)At any other times as agreed between the parties on the father giving twenty-one (21) days written notice of the fact that he will be present in Australia to spend time with the children after 1 February 2009.
The father be at liberty to travel interstate with the children during the periods of time set out in order 3(a)-(d) provided he gives the mother a full itinerary of his proposed travel with the children which shall include details of any flights to be taken during the proposed travel and details of where and how the children can be contacted including applicable telephone numbers provided however the periods do not coincide with the children’s attendance at school.
The parties each be restrained and an injunction issue restraining each of them from denigrating the other in the presence or hearing of the children or permitting any other person to do so.
The father be at liberty to attend all functions at the children’s school which are routinely attended by parents.
The father be at liberty to attend all sporting and extra curricular activities which are routinely attended by parents.
The father have the right to obtain copies of each of the children’s school reports, school magazines and newsletters, school photographs (at his own cost) and any other information relating to the children’s attendance at school.
Should a medical emergency arise in relation to either of the children, whilst the children are in the care of one of their parents, then that parent shall notify the other parent as soon as practicable of the time and nature of the medical emergency involved, the name and address of any treating medical practitioner or hospital attended by the child in respect of it and the location of the child.
The mother and father shall have the right to communicate with and obtain any information concerning either child’s health from any medical or allied health practitioner attended by either of the children from time to time.
The father communicate with the children by telephone each Sunday and Wednesday between the hours of 6:00pm and 8:00pm Australian Central time (or Australian Central Summer Time as applicable) with the mother to ensure that the children are able to receive such a call or in the event that any such time clashes with one of the children’s regular extra curricular activities she advises the father of such clash 24 hours beforehand and proposes an alternate time at which the father may communicate with the children.
The parties’ final application be fixed for final hearing on 21 & 22 May 2009.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 23April 2009.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 7 May 2009.
The applicant pay the hearing fee or obtain a Remission Certificate in respect thereof within 28 days of the date hereof.
The parties do all such things as may be reasonably required to enable a family assessment to be carried out with respect to the competing applications for parenting orders before the Court to be undertaken by a psychologist or counsellor to be agreed between the parties within fourteen (14) days or, in default of agreement, as may be fixed by the Court upon application after the expiration of that time.
The costs of such assessment and the report arising from such assessment to be borne equally by the parties.
The parties have liberty to re-list the matter after 31 January 2009 and prior to the date scheduled for final hearing in the event that any further dispute arises between the parties regarding the father spending time with the children prior to the final hearing.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 2680 of 2008

MR CARR

Applicant

And

MS VINCENT

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Carr “the father” and Ms Vincent “the mother” are the parents of [X] born in 2002 and [Y] born in 2003.
The case concerns interim arrangements for the children to spend time with their father. He is an [occupation omitted], based in Japan. The mother and children live in suburban Adelaide and have done so since 2004. The children attend [omitted] College.
The parties finally separated, in acrimonious and emotional circumstances, in November of 2007. The father has re-partnered. His new partner is Japanese. She and the father have recently had a child.
It is the father’s position that the mother has been emotionally unstable for some years and has not been accepting of his new relationship. As such, he believes she is intent on making it as difficult as possible for him to maintain his relationship with the two children concerned, so that she can satisfy her own emotional needs.
The father has worked, as a [occupation omitted], out of Japan, since 2001. This coincided with the period of time the parties began their relationship. In the past, the parties and children have lived offshore together, particularly in the Netherlands. At other times, they have travelled together.
Currently, the father works twenty days on and ten days off. It is his position that the children are accustomed to his work schedule and international lifestyle, particularly that his employment necessitates him living in another country and returning to Australia for regular and extended periods of time, during which periods he is closely involved in their care.
The father wishes to regularise the time he can spend with the children, during the periods of time he is in Australia. He contends that the mother’s current animosity towards him acts as a block to the parties reaching an accommodation with one another in this regard based on the children’s best interests.
In the long term, he wishes the children to be able to live with him for one week blocks, regardless of whether the blocks coincide with school terms or holidays, provided he gives the mother twenty-one days notice of the fact that he will be in Australia and so available to spend time with the children.
Essentially, it is the father’s position that he has been an active co-parent of the children in the past and has provided a significant component of their care, in the period since each of them was born. As such, he asserts it is likely to be in [X] and [Y]’s best interests for them to be able to spend extended periods of time with him, so that he can be their “primary care giver” during these periods.
He has also raised other issues to do with the children travelling interstate and overseas, with him, for periods of up to several weeks each year and arrangements to do with them spending special occasions with him. He is also concerned that the mother may denigrate him, his current partner and other members of his family to the children and accordingly seeks that injunctions should be granted to prevent such an occurrence.
He also wishes that other orders be made to allow him to be involved in the children’s school activities and routines. In addition, he wishes the court to make orders that will ensure that both parties keep the other informed regarding any medical emergency or health issue which arises in respect of either [X] or [Y].
Given that it is the father’s position that both he and the mother have been closely involved in providing care for the children, up to the date of their separation, he argues that the presumption of equal shared parental responsibility [Family Law Act section 61DA] should be applied to the children.
As his work schedule will not currently accommodate an equal time arrangement, it is his position that the court should construct orders that will enable him to spend substantial and significant time with the children [section 65DAA(3)] notwithstanding he lives overseas for extended periods each year and has significant familial responsibilities in Japan.
The mother does not dispute that the presumption of equal shared parental responsibility should be applied in this case. However, it is her position that it would be neither in the children’s best interests nor reasonably practicable for [X] and [Y] to spend what she sees as random or ad hoc periods of time in their father’s care. Rather, she believes that the time the father spends with the children should be confined to weekends or evenings during school terms and other defined periods, during school holidays.
It is also the mother’s position that she requires a greater degree of notice of the father’s intention to spend time with the children than he currently proposes. She suggests that the father provide her with at least sixty days written notice of any intention he has to come to Australia to spend time with the children.
The mother also raised concerns about the father’s accommodation for the children, particularly the beds he has provided them in the past.

She wants the father to rent accommodation near to where she and the children live in Adelaide.
She also wishes any clothing the children take with them, when they spend time with their father, to be returned to her washed, ironed and folded. By implication, she is resentful at having to perform laundry to enable the children to spend time with their father.
The proceedings between the parties have been vigorously and acrimoniously contested. Even at the interim stage, they have resulted in the production of lengthy affidavit material. The parties are well resourced financially but I am concerned at the potential cost of these proceedings to each of them and the harm they may do to their capacity to parent [X] and [Y] consensually.
The father commenced the proceedings on 7 July 2008. At his request, they were given an urgent hearing date on 9 July 2008. The father was in Australia at the time and wished orders to be made for the children to spend time with him during that period, notwithstanding he was due to leave Australia on 10 July 2008. It was his case that the mother had been unreasonably obstructive up to that point.
Due to the shortness of time between the issue of the proceedings and their court return date, the mother did not have an opportunity to file answering documents. However, it was her position that she opposed the children spending any time with their father, given the shortness of the notice involved and the fact that it would potentially disrupt their routine.
Notwithstanding this objection, on 9 July 2008, I made the following order:
“The father spend time with the children [X] born [in] 2002 and [Y] born [in] 2003 from 2:30pm today until 10:00am on 10 July 2008 with the mother to deliver and collect the children from apartment [omitted].
The father is to telephone the children each Monday, Wednesday and Friday at 6:30pm Australian Eastern Standard time.”
The proceedings were then adjourned for further hearing to 4 August 2008, when it was anticipated that the father would again be in Australia.
Since 9 July 2008, I have been provided with some of the correspondence, which has passed between the parties’ respective solicitors. It appears to be voluminous.
From the father’s point of view, the arrangements for the children to communicate with him by telephone have not been without incident. From the mother’s perspective, she is concerned that the apartment rented by the father in [omitted] is not appropriate accommodation for the children. At least from the tone of the correspondence passing between the solicitors concerned, relations between the parties continue to be poor.
From the mother’s perspective, it would be better if the father purchased mobile phones for each of the children so that he could ring them directly. It is her position that the children have numerous extra curricular activities, including ballet; ice-skating; horse riding; and football. As such, it is difficult for them to be available to take a telephone call from their father at a specified time.
From the father’s point of view, he is mistrustful of the mother’s proposal and is fearful that the children’s mobile phones will not be turned on. He would prefer to have specific times, at which the mother will have to ensure that the children are available to speak with him. By implication, he does not wish the children to become potential actors in the dispute between their parents by reason of any potential disagreement arising as to whether any phones they are given are or are not turned on at relevant times.
The mother asserts that the children very often have little to say to their father, whom they regard as being largely extraneous to their lives. She would also like the father to rent larger accommodation for himself and the children, which is closer to her home, when he is in Australia. She does not think the apartment in [omitted] is suitable.
It is the father’s position that, given his responsibility to provide for his partner and child in Japan and his responsibilities to provide for [Y] and [X] in Australia, he is not in a position to rent accommodation of the sort submitted by the wife as being appropriate for the children.
He refutes any suggestion that the apartment, which he has previously rented in [omitted] and which he proposes renting in future, provides anything other than appropriate accommodation for the children. In particular, he refutes any suggestion that the children do not have appropriate beds.
It seems to be the position that the parties acknowledge that it will be necessary for their competing applications to be fixed for a final hearing, which will occur at some time in the New Year. In the meantime, they also accept that it will be appropriate that a family assessment report be prepared for this final hearing. Such a report will assess the nature of the relationships, which the children enjoy with each of their parents and any other relevant matters.
Until that final hearing, it will be necessary for the court to make orders regulating the time the children spend with their father. On 4 August 2008, the father indicated that he wished to spend the following periods of time with the children:
i)From 27 September until 12 October 2008;
ii)From 8 December until 18 December 2008;
iii)From 14 January until l4 February 2009.
In addition, the father seeks orders that will enable him to be able to take the children interstate with him during these periods. In particular, he would like to be able to take the children to Perth in January next year and also possibly to spend time with members of his family, particularly his mother in Melbourne, on other occasions.
The mother is concerned at these proposals and believes the periods of time proposed by the father are too long for children of the ages of [X] and [Y] to be away from their mother, who is to be regarded as their primary carer. It is also her position that she herself wishes to have some “quality” time with the children, particularly in school holidays.
Overall, the mother’s ostensible position can be summarised by the following quotation from her affidavit material:
“I again say and reiterate that I do not wish to deny the father spending time with the children but say that it must fit into the current regime that the children and I have developed since the father relocated to Japan. It is not acceptable for the father to simply expect me to attend to all of the children’s needs with respect to clothing and extra curricular equipment for an entire week and at the end of that week, I will simply have all of the items returned to me which I will then need to wash, clean and iron in order for them to be ready for the following week. If the father is to spend time with the children, it will be necessary for him to assume all of the responsibilities that I would otherwise have to assume when the children are with me.”[1]
[1] See mother’s affidavit filed 30 July 2008 at paragraph 14
The father’s position can be summarised from the following portions of his affidavit material:
“I generally characterise the mother’s proposals as onerous and restrictive. It appears she wants me to go to the expense of flying from Japan to Australia and to only have a weekend with the children. I do not believe that this is in the children’s best interests as we share a close and loving relationship and they are used to me caring for them regularly and for substantial periods of time as set out in my earlier affidavit.
Further, giving 60 days written notice will be difficult given my work and I note it would preclude the children from seeing me for the next school holidays due at the end of Term 3 2008.
The mother’s proposals effectively prevent me from taking the children interstate to visit my extended family and I say this is not in their best interests as they are missing out on building upon their relationship with the paternal grandmother and not seeing cousins, aunts and uncles.”[2]
[2] See father’s affidavit filed 8 August 2008 at paragraph 9.3.8
It is clear, I think, from this introduction, that the positions of the parties are polarised in the extreme. Sadly, they are unable to resolve these issues between them consensually. Neither has anything to say of a particularly positive nature about the other parent concerned.
The hearing, at the interim stage, does not allow for the hearing of oral evidence from the parties concerned nor any cross examination. Necessarily the hearing has to be brief. As a result, I cannot make findings of fact, where there is a dispute between the parties concerned as to what previously happened between them. There are many such disputes in this particular case.

Legal principles to be applied

The service of [X] and [Y]’s best interests is the most important consideration in this case. [Family Law Act s.60CA] The same principles apply at both the interim and the final stage. The distinction being that interim hearings do not determine long term arrangements for the care of a child, whereas final proceedings do.
It is frequently the case that the court is called upon to make interim determinations against a background of urgency in circumstances where the parties concerned have diametrically opposing views as to what arrangements will serve their child’s best interests.

The aims and principles of the part of the Family Law Act [section 60B] which deals with children, emphasise the desirability of a child’s parents being as closely involved as possible in their child’s life, both in terms of the exercise of parental responsibility and the time they each spend with their child, commensurate with the need to protect the child concerned from physical or psychological harm from being subjected to abuse, neglect or family violence.
Accordingly, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child. [section 61DA]
The presumption of equal shared parental responsibility is rebutted, if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence. [section 61DA(2)]
The court has a discretion not to apply the presumption, at the interim stage, if circumstances exist which make it inappropriate for it to be applied. [Section 61DA (3)] The sub-section is likely to be pivotal, in interim proceedings, particularly in cases where untested or unverifiable allegations of child abuse or family violence arise.
However, the court must not utilise this discretion in an arbitrary fashion. Rather it is to be applied, at the interim stage, in cases where the limited evidence available to the court necessarily makes it problematic to either apply or rebut the presumption. [see Goode & Goode (2006) FLC 93-286 at 80,903]
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned. [section 61DA(4)]
It should also be noted that, if the presumption is applied at the interim stage, it must be specifically disregarded, by the court, at the final stage, when a more exhaustive hearing is possible. [section 61DB]
The presumption itself does not determine the extent of time the child concerned spends with each of his or her parents. This is determined by section 65DAA.
If the presumption applies, the court is required to consider firstly whether the child should live with his or her parents for equal periods of time and if this is considered to be neither to be in the child’s best interest nor reasonably practical, the court is then required to consider the child living with each of his or her parents “substantial and significant” periods of time.
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm.
The concept of children spending either equal periods of time or substantial and significant periods of time with their parents is predicated on the satisfaction of two criteria. Firstly the court must be satisfied that such arrangements are likely to be in the best interests of the children concerned and secondly the arrangements are likely to be reasonably practicable to put into operation.
In considering the children’s best interests, I must look to a long list of matters in section 60CC of the Family Law Act. There are two categories of matter I must consider – primary considerations and additional considerations.
There are two primary considerations – firstly the need to ensure that the children have a meaningful relationship with both their parents – secondly the need to ensure they are protected from harm, both physical and psychological harm, which may arise if they are exposed to any kind of abuse or neglect, including family violence.
The additional considerations are more numerous. [section 60CC(3)] Again, their application must depend on the particular circumstances of the case concerned. Although the primary considerations are generally to be given more emphasis, arising as they do from the aims and principles of the Family Law legislation, in determining the outcome of a particular case, one or more of the additional considerations may come to the fore.
The Full Court has directed that it is necessary for the court to consider all of the section 60CC factors applicable and, if possible, make findings about them. [see Goode & Goode (supra) at 80,903]
Issues of practicality are dealt with by section 65DAA(5). The Court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the children concerned.
If, for whatever reason, the court reaches the conclusion that the presumption of equal shared parental responsibility does not apply and so there is no need for it to actively consider either an equal time or substantial and significant time arrangement, the court is still required to put into place the outcome which it considers will best serve the best interests of the children concerned, according to the various criteria set out in section 60CC and subject to the objects and principles contained in section 60B. Pursuant to section 65D, the court is empowered to make whatever parenting order it thinks proper.[3]
[3] See Goode & Goode (2006) FLC 92-286 at 80,899 [paragraph 65]
In Goode & Goode the Full Court directed that in determining interim hearings, after identifying the competing proposals of the parties; the issues in dispute; and any agreed issues; the court should:
·Consider the section 60CC matters relevant and, if possible make any relevant findings of fact;
·Decide whether the presumption in section 61DA should be applied or if it is rebutted because:
ØThere are reasonable grounds to believe child abuse or family violence has occurred;
ØOr, in interim proceedings only, it would not be appropriate to apply the presumption;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child’s best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent, unless it is contrary to the children’s best interests as result of the consideration of any relevant section 60CC matter or is impracticable in the terms of section 65DAA(5);
·If neither equal time or substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child, when considering applicable matters in section 60CC;
·If the presumption is rebutted or found not to apply then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

Primary considerations

The applicable legislation places two considerations in a position of pre-eminence – the benefits of the children having a meaningful relationship with both their parents; and the need to protect the children concerned from harm, as a result of exposure to abuse and family violence.
Thankfully this is not a case where there are allegations of neglect, abuse or family violence. Accordingly, it seems to me that the court is required to give particular emphasis to the benefits the children are likely to derive from having a meaningful relationship with both their parents, particularly their father, in the challenging circumstances which currently arise.
The father’s working conditions are unusual. For many years, he has pursued his profession outside Australia. He is well remunerated for his services. He has also formed commitments in Japan, which he cannot easily sever. His income is the main source of financial support for [X] and [Y].
The main focus, in this case, is the service of [Y] and [X]’s best interests. I have no authority to compel Mr Carr to give up his employment in Japan or direct that he return to live predominantly in Adelaide, even if he did not have such substantial ties in Japan.
We live in an age where the workforce is becoming increasingly deregulated and internationalised. Skilled workers are now often compelled to look for work far a field from where their families normally live. They go to locations where they can be best remunerated. This is the phenomenon of the “fly in fly out” workforce. The father’s work schedule is an extreme example of this. Undoubtedly such trends place pressures on familial relationships. It is the mantra of the age that work and family commitments are becoming more and more out of kilter.
At the same time as the workforce is becoming more and more globalised, relationship breakdown continues to be common. Courts, in shaping meaningful parental relationships for children, must endeavour to fit child/parent time into the context of a parent’s work responsibilities. Often, as in this case, a parent’s work roster will be novel. It is no longer the automatic paradigm that parents work a conventional working week from Monday to Friday and have weekends free.
Children, in the formation of their parental relationships, should not be penalised because of the work schedules their parents chose to follow, very often as a result of a desire for the financial betterment of their children. In this case, it seems difficult to see how the father could easily change his work schedule, certainly not without financial jeopardy or causing problems to his family in Japan. Necessarily, he will be able to come to Australia every few weeks or so and will remain in this country for extended periods of time before returning to his schedule and other family commitments in Japan.

Additional considerations

There is no evidence to indicate that either [X] or [Y] have concrete views about future arrangements for their father to spend time with them. However, given the ages of the children concerned, it is difficult to see that their views should be given significant weight at this stage. [section 60CC(3)(a)]
Clearly, the children have a close and significant relationship with their mother, who has provided the vast majority of their care, particularly in the period since the parties separated. It also seems to me that, on balance, the children are likely to have a close and loving relationship with their father.
I accept that the father’s working arrangements are unusual. However, I do not think that it necessarily follows that this will have had significantly detrimental consequences for the quality of the relationships which each of the children have with their father. Undoubtedly he has been a constant presence in each of the children’s lives. I accept that both [Y] and [X] love their father and know him well.
It also seems likely that the children have a significant level of relationship with other members of their paternal family, particularly their grandmother. It is likely to be in their best interests that these aspects of their paternal family be developed and extended. [section 60CC(3)(b) & section 60B(2)(b)]
The father is highly critical of the mother for putting her own feelings before the need of the children to maintain a close and loving relationship with him. At this juncture, there appears to be some indication that there is some substance to the father’s criticisms in this regard. [section 60CC(3)(c)]
It is a strong element of the mother’s case that the father’s proposals to spend time with the children, on an ad hoc basis to be determined by his work schedule, is likely to be unsettling to the children concerned, particularly in terms of the maintenance of their day to day routine.

I accept that routine is important to children of the ages of [X] and [Y].
However, it remains the case that the children are habituated to the fact that their father is frequently out of Australia but returns to this country to spend intense periods of time with them. This has been the reality of their lives since 2004.
The children seem to lead busy lives. They have a full schedule of school and other extra curricular activities. They go to ballet, horse riding and ice-skating and many other activities. They are used themselves to leading busy and full lives.
In such circumstances, I do not think that the proposals put forward by the father constitute such a dramatic change that the children would not be able to accommodate them. This is particularly so given the close relationship the children are likely to have with their father. Certainly, during the periods he is in Australia, the father will be able to direct his full attention towards the children and assist them through any necessary process of adjustment. [section 60CC(3)(d)]
Even if I accept the mother’s position that she has been [X] and [Y]’s predominant carer, up to this stage, the applicable legislation no longer enshrines any principal that the court should perpetuate any status quo, in respect of care arrangements, for children, at the interim stage.[4]
[4] See Goode & Goode (supra) at paragraph 80
The father is well resourced financially. In my view, he is able to rent appropriate accommodation for himself and the children, whilst in Australia. As previously indicated, he will have sufficient time to devote himself fully, towards the children, whilst he is in Australia. Accordingly, I do not think that there are any insurmountable difficulties, standing in the way of the children spending time with their father, when he is in Australia. [section 60CC(3)(e)]
I have no reason to think anything other than that both parties are able to meet the needs of the children and have a proper level of insight into the responsibilities of being a parent. [section 60CC(3)(f) & (i)]
The parties are critical of one another but not apparently in the areas of “nuts and bolts” parenting. Both are impliedly critical of the other for alleged deficits in providing for the emotional needs of the children. These are issues I cannot resolve at this stage.
[X] is six and a half years of age and [Y] is a little under five and a half years of age. In my view, the children are old enough to be able to sustain being away from their mother for periods of around about a week to ten days.
The mother is critical of the father’s proposals for holiday time on the basis that the children will be away from her for a period approaching three weeks. In her submission, this is too long a period, given the ages of the children concerned.
I think the mother’s concerns must be given some credence, particularly given the mistrustful relationship between the parties concerned. [section 60CC(3)(g)] However, this must be balanced against the desirability of the children having a meaningful relationship with their father and the fact that his time in Australia is limited.

Conclusions

The parties agree that the presumption of equal shared parental responsibility should be applied in this case. Clearly, given the father’s work circumstances, it is impossible for the children to live with their parents on an equal time basis, which is the first consideration which follows from the application of the presumption. [section 65DAA(1)]
Accordingly, the next step for the court is to consider whether [X] and [Y] should spend substantial and significant periods of time with both their parents. Substantial and significant time is defined as time that enables a child to spend time with his or her parents on weekends and holidays; week days; special occasions; and above all time that allows a parent to be involved in the child concerned’s daily routine. [section 65DAA(3)]
In addition, pursuant to section 65DAA(4), the court is directed not to limit itself in terms of the matters to which it can have regard in determining whether the time a child spends with a parent amounts to substantial and significant time.
Accordingly, it seems clear to me that what is intended from the applicable legislation is that, in determining what is substantial and significant time, the court must look at the overall context of the parental relationship involved and the time which is available to allow that relationship to evolve and develop. One template of how time is to be allocated does not necessarily fit every family. The court is directed to individualise its approach in order to bring about a result which amounts to a substantial and significant time arrangement.
In addition, it also seems to me to be clear that it is intended, from the legislation concerned, that meaning, in parental relations, comes not only from the extent of time a parent spends with a child but also from its context.
Having considered all of the applicable section 60CC factors, particularly the benefit the children are likely to derive from having a meaningful relationship with their father, it seems to me that it would be in [X] and [Y]’s best interests for them to be able to spend as much time as possible with their father, when he is at home in Adelaide or otherwise visiting Australia.
Such an arrangement will enable the children to have a sense that their father is engaged in all aspects of their life. Potentially they will feel that he is involved with them both at school; at weekends; and during school holidays. From this level of engagement will come meaning for the two children concerned in respect of their relationship with their father.
Essentially, too a large degree, the outcome of the children spending substantial and significant time with their father must be tailored according to the time the father has available to him in Australia. From the mother’s perspective, this is selfish of the father, whom she perceives wants the best of both worlds, to her detriment. However, the paramount consideration is [Y] and [X]’s best interests, particularly the benefits to them of having a meaningful relationship with their father.
The next consideration is whether such an arrangement is reasonable practicable in all of the circumstances of the case. For reasons already provided, I do not think geographical considerations stand in the way. The father is well resourced financially and can fund accommodation for himself and the children both in Adelaide and for holiday periods interstate. He is willing and able to return to Australia regularly.
However, at the present time, the parties’ capacity to communicate with one another and resolve difficulties, which may arise from whatever arrangements the court puts in place, is extremely compromised. My impression is that the mother is resentful at any proposal for the father to holiday interstate with the children concerned or for him to spend extended periods of time with them.
At present, the parties do not trust one another and there is an unacceptably high level of tension between them. Whether this state of affairs is transitory or entrenched between them, is difficult, if not impossible, to ascertain at present. Certainly, such a level of animosity may induce a parent to be either actively or passively resistant to a regime whereby the children concerned spend substantial periods of time with both their parents.
It is clear from the legislation that such an approach to parenting is contrary to its intention. The optimal outcome for a child, in the making of any parenting order concerning that child, is for his or her parents to have the maximum degree of involvement possible in that child’s life.
In determining issues to do with the parties’ current and future capacity to communicate with one another and resolve difficulties which may arise from a shared parenting regime, the court is required to consider the matters which arise under s.60CC(3)(c) & (i).[5] Accordingly it is the duty of the parents concerned to facilitate close and continuing relationships between the child concerned and each of his or her parents.
[5] See note 1 to section 65DAA(5)

It is clear from what was said by the Full Court in Goode that the court, at the interim stage, is required to take a different approach to the making of parenting orders to that previously propounded in cases such as Cowling.[6] In Cowling the emphasis was on the desirability of the court making orders which resulted in the maintenance of pre-existing care arrangements.
[6] see Cowling v Cowling (1998) FLC 92-801
Since Goode, it has become clear that the court must be more pro-active, at the interim stage, in bringing about a care situation for the children concerned, as much in accord with the optimal one prescribed by the relevant legislation as possible, provided it is in the children’s best interests.
The mother’s attitude towards the father is not a helpful indicator regarding the successful implementation of the proposal put forward by the father. A high level of parental conflict has the potential to have a detrimental impact on children. However, notwithstanding these difficulties, I believe that the children’s overall best interests dictate that they should spend as much time as possible with their father, commensurate with their developmental needs.
One of the mother’s major complaints against the father is that he wishes to descend abruptly into the children’s lives, for brief periods of time, before withdrawing again with equal abruptness, causing great disruption to the children and displaying no consideration for her.
In particular, she complains that the father’s proposals will not see her spending much “quality” time with the children in the forthcoming September/October school holiday and over the long end of year school holiday. As such, she complains that the children’s stability and her entitlement to spend meaningful time with them will be held hostage to the father’s uncompromising work schedule.
As the father’s proposals currently stand, there is some substance to the mother’s criticisms. The parties do not have a sufficiently empathetic relationship, which will enable the mother to easily “drop everything”, as she sees it, so that the children can spend every conceivable moment with their father.
Although there must be some recognition of the unusual circumstances pertaining to the father’s extra territorial work regime, it would be unreasonable for the court to reject the mother’s concerns in this regard out of hand. A balance must be struck. Regrettably the parties’ currently poor and mistrustful relationship prevents them independently finding this balance, whilst focussing on the children’s best interests.
For all these reasons, I propose to make orders essentially along the lines proposed by the father but the periods of time will not be as extensive as he seeks. In my view, it is likely to be in the children’s best interests that [X] and [Y] spend some holiday time with their mother.
We live in an age where the vast majority of adults have access to mobile telephones. As a result, we have become habituated to instantaneous telephone communication, including communication overseas. In the past, international telephone communication was very often cumbersome and prohibitively expensive. This is no longer the case.
The question of the provision of mobile telephones to children, particularly young children, is a matter of some controversy. I accept that some children commonly have their own mobile phones, given to them by their parents. Other parents are more cautious about providing such phones to their children, being concerned about the potential expense of such phones and the use to which they may be put.
Given the antipathy between the parties in this case, in part exemplified by the difference of opinion between them regarding the provision of mobile phones to [X] and [Y], I do not propose making an order that the father provide mobile phones to the children.
In all the circumstances of this case, I think it would be preferable that the father continue to be able to telephone the children at fixed times each week. I also think that such an outcome is the best means of preventing undue pressure being placed on the children. It is important that the parties themselves take responsibility for ensuring that the children communicate with their father and not place that responsibility on the children.
I will make orders to this effect and provide a mechanism to change the appointed time, if it coincides with some extra curricular activity of the children. I do not accept that it is impracticable for the father to be able to regularly telephone the children, from overseas, on up to two occasions each week. The mother has a responsibility to facilitate such a level of communication, which I do not regard as being either unreasonable or oppressive.
In my view, it is appropriate that the father be at liberty to travel with the children interstate, during both the forthcoming September/October school holiday period and the end of year holiday, provided he gives the mother details of his proposed travel.
On balance, I am satisfied that it is appropriate for the children to be able to travel with their father for periods of around ten days. I also think it likely to be in their best interests to be able to spend some time with members of their more extended paternal family. Such an outcome will also allow the children to spend some time with their mother during school holidays. A balance will thus be struck between the parties’ competing claims.
I will not make orders restricting the father’s choice of accommodation for the children. I trust his judgment in this regard. Nor will I make orders about the laundering of the children’s clothes. Perhaps naively, I rely on the parties to behave respectfully and courteously towards each other. In any event, there is a limit to the extent to which the court can become involved in the minutiae of the parties’ and the children’s lives.
I will allocate a final hearing date for the parties’ respective applications and give leave to re-list the matter, in the New Year, if any issues arise pertaining to the father spending more periods of time with the children.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: P Smith

Date: 20 August 2008