Cartner and Ross-Cartner

[2007] FamCA 312

FAMILY COURT OF AUSTRALIA

CARTNER & ROSS-CARTNER [2007] FamCA 312

FAMILY LAW - CHILDREN - Substantial and significant time - Interim parenting orders for children 6 and 4 – Parents and Independent Children’s Lawyer agreed that further increases to time with husband should be trialled before equal time (sought by husband) was considered further - Wife’s proposals did not provide substantial and significant time which was appropriate in this case.

Goode v Goode (2006) FLC 93-286

APPLICANT: MR CARTNER

RESPONDENT: MS ROSS-CARTNER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 1389 of 2001

DATE DELIVERED: 12 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: WATT J

HEARING DATE: 31 July, 1 August, 10 August 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Brennan

SOLICITOR FOR THE APPLICANT: Victoria Legal Aid

COUNSEL FOR THE RESPONDENT: Wife appeared in person

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Mr Ambrose

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Nickolls Windisch & Associates

Orders

1. All previous parenting orders be and are hereby discharged.

By consent

1. The husband and the wife have equal shared parental responsibility for making decisions about the long term care welfare and development of the children of the marriage, namely a son born in September 2000 and a daughter born in July 2002 such decisions to include all matters relating to the children’s education and health.

2. The husband and the wife have sole responsibility for making decisions about the day to day care welfare and development of the children while the children are in their respective care.

3. Until further order the children live with the husband:

   From 19 April 2007 until further order:

   (a)from the close of school and kindergarten or 3.30pm (whichever occurs first) on Thursday to the commencement of school and kindergarten or 9.00am on Monday (whichever occurs first) commencing Thursday 19 April 2007 and each alternate week thereafter but if the Monday is a public holiday then the time is extended to 9.00am on the Tuesday or the commencement of school or kindergarten (whichever occurs first);

   From 26 April 2007 to 18 July 2007:

   (b)from the close of school and kindergarten or 3.30pm (whichever occurs first) on Thursday to 7.00pm that evening commencing Thursday 26 April 2007 and each alternate week thereafter but if there is no school or kindergarten then from 3.00pm to 7.00pm on Thursday;

   From 19 July 2007 until further order:

   (c)from the close of school and kindergarten or 3.30pm (whichever occurs first) on Thursday to the commencement of school and kindergarten or 9.00am (whichever occurs first) on Friday and each alternate week thereafter but if there is no school or kindergarten then from 10.0am on Thursday to 10.00am Friday;

Until further order:

(d)from 10.00am until 6.00pm on Father’s Day in the event that Father’s Day falls during a period in which the children are not otherwise living with the husband;

(e)For three hours on the children’s birthday and the husband’s birthday at times agreed between the parties and failing agreement from 3.00pm to 6.00pm in the event that such days fall during a period in which the children are not otherwise living with the husband;

(f)At such other times and such for periods as may be agreed between the husband and the wife;

1. Until further order the children live with the wife at all other times and as follows:

   (a)from 10.00am until 6.00pm on Mother’s Day in the event that Mother’s day falls during a period in which the children are living with the husband;

   (b)for three hours on the children’s birthday and the wife’s birthday at times agreed between the parties and failing agreement from 3.00pm to 6.00pm in the event that such days fall during a period in which the children are living with the husband;

   (c)at such other times and for periods as may be agreed between the husband and the wife.

2. Unless otherwise agreed between the paries, changeover take place:

   (a)At the daughter’s  kindergarten (for the daughter), and

   (b)at M Primary School (for the son)

   when changeover is scheduled to take place at the commencement or conclusion of kindergarten or school; and

   (c)at McDonalds’ restaurant, R at all other times.

3. The husband and the wife communicate with the children by telephone between 6.00pm and 7.00pm each Wednesday and Sunday and at any other reasonable time during periods that the children are not living with them.

4. The husband and the wife keep each other informed of all matters relating to the children’s day to day schooling and both parents are permitted to attend the children’s kindergarten and schools, and obtain information regarding the children’s progress.

5. The husband and the wife inform each other of any medical appointments made for either child and authorise any medical practitioners who attend upon that child to provide the other party with any information relevant to the care of the child and any medical reports produced in relation to the child.

6. The husband and the wife contact each other immediately should either child suffer serious injury or illness or require urgent medical attention by a doctor or hospitalisation while in their respective care.

7. The husband and the wife keep each other informed of their current address and telephone numbers and telephone communication between the parties be restricted to urgent matters regarding the children’s welfare.

8. The husband and the wife communicate in writing any matters regarding the care, welfare and development of the children via a confidential communication book to be obtained by the husband and exchanged between the husband and the wife at each contact changeover.

9. The husband ensure that when the children are in his care they observe the tenets of the wife’s faith.

10. The husband be and is hereby restrained from communicating in any manner to the children or to any person in the presence or hearing of the children his beliefs or views about the personal life of the wife at any time.

11. The parties shall as soon as practicable do all such acts and things necessary to enrol in, attend and complete the next available ‘Stand by Me’ Program conducted by G Centre AND THE COURT REQUESTS that the Independent Children’s Lawyer provide the parents with the appropriate forms and any other document or information reasonably necessary to enable the parties to enrol and attend such course.

12. Pursuant to s 62G(2) of the Family Law Act 1975 a Family Report be prepared in these proceedings, with interviews to be conducted bys August 2007 and the Report to be released by end September 2007 and address the following issues:

    (a)the children’s experiences under the time shared regime ordered this day and how they are coping;

    (b)the extent to which the parents have been able to parent the children co-operatively in the 12 months preceding the report;

    (c)how the children are progressing at school/kindergarten and whether any aspect of the behaviour of either of them is a cause for concern to their respective teachers;

    (d)any issue arising out of the written statement from the daughter’s kindergarten teacher obtained by the wife in 2006 (see paragraph 29 of the judgment this day);

    (e)any other matter touching on the children’s best interests as identified in accordance with Part VII of the Family Law Act 1975;

    (f)any recommendations for change to the pattern of the time sharing established by the orders made this day;

    (g)any other matter that the family consultant deems appropriate.

13. The matter is adjourned for a case management mention before me on a date to be fixed before the adjourned date and following the release of the report.

14. The matter is adjourned to a date to be fixed in October/November 2007 before me.

15. 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.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 1389  of 2001

MR CARTNER

Applicant

And

MS ROSS-CARTNER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before me are for parenting orders in relation to two children.

1. The husband was born in October 1962 and is 44 years of age. The wife was born in September 1970 and is 36 years old. The parties were married in December 1999 and separated in November 2003, a marriage of just under four years which had been interrupted by an earlier separation of about six months in 2001.

1. There are two children of the marriage – a son born in September 2000 now 6 and a daughter born in July 2002, now 4 years old. The children have lived with the wife since the parties separated. The son starts school at the beginning of 2007 and as the case proceeded, the parties reached agreement that he will attend at the M Primary School, where some of his friends will be attending also. The daughter will continue to attend kindergarten. 

1. The dispute over parenting orders goes back to March 2004 when contested proceedings for parenting orders were first commenced. In the period until the hearing before me, a number of orders have been made for the children to spend time with the husband. The earlier orders provided for the husband’s time with the children to be supervised by the wife. Over time the orders have provided for the children to spend increasing amounts of time with the husband without supervision.

The most recent parenting order

1. The most recent order for the husband to spend time with the children is the order of Judicial Registrar Ramsden made 24 May 2005.  It provides that the husband have contact with the children from 3.00pm to 7.00pm each Thursday, from 10.00am Sunday until 9.00am Monday each weekend until the week commencing 3 September 2005 and then from 10.00am Saturday until 9.00am Monday on two consecutive weekends out of three commencing 10 September 2005.

1. The husband now seeks more time with the children, and the wife has reservations about moving to a more substantially shared regime until the children are both attending and have settled into school. The daughter should start school at the beginning of 2008. 

1. Both parties observe a form of protestant Christianity, and whilst there are no denominational issues between them, there are areas of conflict that arise from their religious differences. In particular the wife seeks to have the children with her for each ‘Sabbath’, that is, from sunset Friday to sunset Saturday. The wife seeks that she have the children for every Sabbath, largely because of her view that the husband does not adequately control what activities the children undertake and are exposed to during that period of time.

1. The husband considers that he should share the children’s care on Sabbath days and has, in the past, consented to an order that he will comply with the wife’s religious observances. These are set out in a letter from her solicitors to the husband that I will refer to further in due course. The husband was prepared to consent to an ongoing order of the same kind. The parents have agreed to raise the children as vegetarians.

1. The husband believes that the children can live with the differences in their parents’ religious observances but the wife sees these differences as so significant that the children will be confused by inconsistencies of approach to this issue to the extent that their development will be impeded.

1. The hearing commenced before me on 31 July and 1 August, and continued on 10 August 2006.

1. Ms Brennan of counsel appeared for the applicant husband.  The wife appeared in person.  Mr Ambrose of counsel appeared for the independent children’s lawyer.

1. Before the trial, orders had been made for the filing of affidavits by the parties. The wife had not filed any material for an extended period of time – her last affidavit was filed on 24 June 2004 and an affidavit by her mother was filed on 3 August 2004. On 13 April 2006 an order was made that on or before 2 June 2006 the wife file and serve a trial affidavit containing all her evidence upon which she intended to rely, a form 13 financial statement, affidavits of such witnesses as she intended to rely upon at the hearing and a form 1A response stating with precision the orders sought at the hearing. 

1. By the time of the hearing the wife had filed no further material.  At the hearing before me she sought to rely on the 2004 affidavits of herself and her mother.  The husband objected.  I refused leave to the wife to rely on those affidavits but granted her leave to give oral evidence about the issues that were before me.

Wife’s position

1. At beginning of trial the wife sought that the husband spend time with the children every second weekend from Sunday 9.00am to Tuesday 9.00am plus public holidays; half the school holidays when the children are at school in 2008; each Wednesday 3.00pm – 7.00pm until 2007 when the son goes to school when it should change to 4.00pm – 8.00pm.  The wife’s position was that the children should have every weekend with her, from Friday sunset to Saturday sunset so she can ensure observance of the tenets of her religious beliefs.

1. The wife’s position was that two weekends in a row (as at present) was too much for the children and that the daughter was getting upset when the husband returned her to the wife on Monday morning and the wife took her to the kindergarten – the child wanted to be with her. 

1. The wife did not see it as a problem if the husband took the children to school and kindergarten on the Monday morning.

1. The daughter (3 years old) attends kindergarten each Monday.  The wife said that the kindergarten had advised her that the child should attend 3 year kindergarten again in 2007 as she was regressing in her toilet training.

1. The wife was concerned that the husband’s proposal would affect her financial position by reducing the parenting payment she would receive. Whilst the assertion is probably correct, the wife did not provide proof of its impact in dollar terms.

1. The wife did not want the husband attending at her home for the purpose of changeover. The wife lives with her parents and there is a history of conflict between the husband and members of the wife’s family. The wife proposed that the changeovers should take place at the McDonalds restaurant at R.

1. The husband’s position on changeover is set out at paragraph 8 of his amended summary of argument – he seeks that he collect the children from the wife’s residence at the commencement of periods when the children are to be with him and the wife collect the children from his residence at the conclusion of each such period. In the alternative, the husband suggested McDonalds at E, but by the end of the hearing, the husband agreed that changeovers would occur at McDonalds, R, unless they occurred at school or kindergarten.

Husband’s position

1. The husband was granted leave to rely on:

   ·    his amended application filed 7 July 2006 as further amended by his counsel at the start of the hearing;

   ·    his affidavit filed 24 July 2006 with annexure SC1 only relied on;

   ·    his amended Summary of Argument filed 24 July 2006.

1. Counsel for the husband said at the beginning of the trial that the husband proposed a three week cycle. In week one the husband have the children from Friday 10.00am to Tuesday 10.00am; week two the husband have the children from Sunday 10.00am to Wednesday  10.00am; and in week three the husband have the children from Thursday 2.00pm overnight to Friday morning at 9.00am.  He wanted to see an equal shared care arrangement in place from when the son starts school in 2007.  He would prefer that Christmas is shared on a block basis; and school holidays to be shared also.

Independent children’s lawyer (ICL)

1. The ICL relied on:

   ·    Dr A’s affidavit sworn 10 February 2006 annexing his report dated 28 February 2005;

   ·    The affidavit of Ms S sworn 23 November 2004 and filed 23 November 2004;

   ·    The affidavit of Ms S sworn 4 October 2005 and filed 24 October 2005;

   ·    The affidavit of Ms S (addendum - sworn 30 May 2006;

   ·    Independent Children’s Lawyer’s Summary of Argument filed 14 July 2006.

1. Neither parent sought to cross-examine Dr A.  His report was admitted into evidence.

1. I will mention before proceeding further that Dr A’s report contains an extensive record of the history given by each of the husband and the wife about their lives before marriage, the history of their relationship, the difficulties that arose from a very early stage of their relationship, and their separation. Dr A’s report also explores the extended family relationships of each party (as reported by each of them) and the involvement of the wife’s parents in the lives of the children from a very early stage.

1. Dr A’s report is dated 28 February 2005 and was written after the completion of Mrs S’s first report, which he had seen. Towards the conclusion of his report, Dr A states, with reference to what were then subpars (e) and (h) of section 68F(2)

(e)The capacity of each parent or any other person to provide for the meeds of the child including promotional and intellectual needs.  

On the basis of this assessment there was no reason to believe that either parent could not adequately provide for the needs of the children as both appear to have the intellectual and personal qualities to meet their children’s needs. I am not in a position to comment about the role played by the maternal grandparents apart from the comments of the parties as I did not interview or assess them.

…

(h)The attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

Both parents appear committed to the children and to having an ongoing relationship with them. If the parents can agree on dietary arrangements and arrangements regarding the Sabbath, Christmas and Easter, this is likely to address a major source of conflict between them. On the basis of this assessment I could find no contra-indication to the graduated contact regime, including overnight contact, proposed by the father in his amended application of 16/11/2004. Clearly such a contact regime is more likely to be successful and to be less traumatic for the children if it has the support of their mother.

1. Dr A did not see the children.

Interim determination to be made

1. By the end of the hearing, both parents and the ICL were in agreement that the order that I made at this stage should be an interim order, and that the matter should return on a part-heard basis after the interim orders had been trialled and a further report as to how the children were progressing had been obtained. There were a number of factors that led to the parties adopting this position.

1. Just before final addresses began the wife said that she had a note from the daughter’s kindergarten teacher, which set out what the teacher had said to her three to four weeks before, which the wife wanted to put before the Court.  I pointed out to her that evidence in the case had closed. Counsel for the husband objected to any re-opening of the evidence, especially where the maker of the statement was not available, but the ICL requested an opportunity to read the note.  That request was granted and after counsel for the ICL and counsel for the husband had read the note, the ICL objected to the tender of the document but said it was a relevant and interesting document and it should have been produced earlier so that the teacher and the wife could have been cross-examined about it.

1. The ICL said she would be seeking an interim determination so that this evidence could be made available to the parties.  She continued that this would not put the children at risk and did not change her submissions.  Counsel for the husband, who had also read the note, said that the material needs to be before the Court and agreed that an interim determination was appropriate.   The wife said that before there were any further increases in the time the children spend with the husband (after any that I might order now) she would also like the matter to return to Court.

1. The question arose of how another report could be obtained if Ms S was being asked to prepare one because of the funding issue. I raised the prospect of an in house family consultant preparing the next report. Counsel for the husband said that she would prefer that Ms S be engaged again because of her involvement with the family but in light of the funding difficulties agreed to the course proposed by me as did the wife and the ICL.

1. Whilst the husband initially sought that I should put in place a staged increase in the time that the children spend with him, that moved to a week-about arrangement quite quickly (in a few months) the wife opposed this, the ICL did not support it and, by the end of the case, the husband did not press this option, agreeing, as noted already, that there should be a further hearing after the next increases in the time that the children spend with him.

1. By the end of the hearing, the parties and the ICL were in agreement about (or did not oppose) the making of the following orders:

1.That all previous parenting orders be discharged. (this was not opposed)

2.BY CONSENT – That the husband and wife have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children of the marriage, such decisions to include all matters relating to the children’s education and health.

BY CONSENT UNTIL FURTHER ORDER

3.That the husband and wife have sole responsibility for making decisions about the day to day care welfare and development of the children while the children are in their respective care.

1. Towards the end of the trial, the husband handed up a document entitled ‘Minute of proposed orders’.

1. The orders that he sought proposed two increases in the time that the children spend with him, each to operate for four months before moving to an equal shared time regime.

1. Both proposals adopted the existing 3-week cycle. The first staged increase sought that the children live with the husband:

   (i)Week 1: From 10.00am on Friday until 9.00am on Monday;

   (ii)Week 2: From 10.00am on Sunday until 10.00am on Wednesday;

   (iii)Week 3: From 2.00pm on Thursday until 10.30am on Friday.

1. This provides for the children to spend 14 nights with the husband in a six-week period.

1. The second staged increase would be:

   (i)Week 1:         From 9.00am on Friday until 9.00am on Tuesday;

   (ii)Week  2:        From 9.00am on Sunday until 9.00am on Wednesday;

   (iii)Week 3:         From 3.30pm or the conclusion of school on Thursday until 9.00am on Friday.

1. This increases the number of nights to 16 per six-week cycle.  I refer to a six-week cycle so that comparison may be made with the wife’s proposal based on a fortnightly cycle of two nights per fortnight, or six nights per six-week cycle. The present orders, which operate on a three-week cycle, provide for the children to spend eight nights on a six-week cycle with the husband.

The law to be applied – parenting orders

1. This case was heard soon after the commencement, on 1 July 2006, of significant amendments to the Family Law Act 1975 (“the Act”) which effected many changes to Part VII – Children - of the Act. Counsel for the husband and the ICL made reference to these new provisions in their submissions.

1. In the period during which this judgment has been reserved, the Full Court of this Court has published its judgment in the case of Goode v Goode (2006) FLC 93-286.

1. The appeal in Goode arose out of a judgment in which interim parenting orders were made by the trial judge. I consider that it will be helpful to set out pars 5 to 13 of that judgment, in which much of the relevant legislation is set out, and the Full Court provides guidance as to how the legislation is to be applied.

THE APPLICABLE LAW

5.The Family Law Amendment (Shared Parental Responsibility) Act 2006 ("the amending Act") came into effect on 1 July 2006 and was the law that governed his Honour's decision. The amending Act builds upon the framework of the legislation as it was prior to 1 July 2006. Part VII of the Act applies to children. There are 16 Divisions to Part VII. The significant sections for present purposes follow.

6.Orders concerning parental responsibility, who the child is to live with and spend time with, and the communication a child is to have with another person or other persons are all parenting orders. Section 64B(2) provides that a parenting order may deal with one or more of the following:

(a)      the person or persons with whom a child is to live;

(b) the time a child is to spend with another person or other persons;

(c)      the allocation of parental responsibility for a child;

(d) if 2 or more persons are to share parental responsibility for a child - the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

(e)the communication a child is to have with another person or other persons;

(f)       maintenance of a child;

(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

(i)       a child to whom the order relates; or

(ii)the parties to the proceedings in which the order is made;

(h)the process to be used for resolving disputes about the terms or operation of the order;

(i)any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Section 64B(3) provides:

Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.

7.The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:

(1)The objects of this Part 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.

(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):

(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).

(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)      to maintain a connection with that culture; and

(b)to have the support, opportunity and encouragement necessary:

(i)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(ii)to develop a positive appreciation of that culture.

8.Section 60CA deals with the best interests of the child and provides that:

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.
This provision of the legislation was formerly s 65E and the wording of the section has not changed.

9.In determining what is in a child's best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child's best interests:

Primary considerations

(2)      The primary considerations are:

(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b)the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.

Note:

Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

(3)      Additional considerations are:

(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)      the nature of the relationship of the child with:

(i)       each of the child's parents; and

(ii)other persons (including any grandparent or other relative of the child);

(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)       either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)       the capacity of:

(i)       each of the child's parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)any family violence involving the child or a member of the child's family;

(k)any family violence order that applies to the child or a member of the child's family, if:

(i)       the order is a final order; or

(ii)the making of the order was contested by a person;

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)any other fact or circumstance that the court thinks is relevant.

Section 60CC(4) provides:

Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a)      has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)      to spend time with the child; and

(iii)     to communicate with the child; and

(b)      has facilitated, or failed to facilitate, the other parent:

(i)       participating in making decisions about major long-term issues in relation to the child; and

(ii)      spending time with the child; and

(iii)     communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

Section 60CC(4A) provides:

If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

10.      Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child's best interests remain the paramount consideration (as they did prior to the amending Act - see
B v B: Family Law Reform Act 1995 (1997) FLC ¶ 92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.

THE FRAMEWORK FOR DETERMINING PARENTING ORDERS

11.      Section 61DA (which is a new section) provides:            

Presumption of equal shared parental responsibility when making parenting orders

(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.

Note:

The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b)      family violence.

(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)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 the child.

12.      Section 61DB provides that:

Application of presumption of equal shared parental responsibility after interim parenting order made
If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.

13.The relevance of the presumption of shared parental responsibility, where it applies, is that it triggers the application of s 65DAA, which provides:

Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, 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.

Note 1:

The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:

See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

Substantial and significant time

(2)      If:

(a)a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and

(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

Note 1:

The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2:

See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

(3)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.

(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:

(a)how far apart the parents live from each other; and

(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

Note 1:

Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

(a)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));

(b)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents (paragraph 60CC(3)(i)).

Note 2:

Paragraph (c) reference to future capacity - the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

Evidence of Ms S

1. Ms S prepared two reports and an addendum report in this matter (dated 22 November 2004, 4 October 2005 and 30 May 2006 respectively).

1. The first of those reports was compiled at a very early stage in the parties’ disputes about parenting arrangements. The second was produced very soon after the commencement of periods of overnight stays by the children with the husband. The third was produced in response to an order made by another judge that required clarification of the recommendations at the conclusion of the second report.

1. In short, after observing the children move freely between the parents in her presence, and having heard the parents’ accounts of the progress that had been made, Ms S expressed the opinion in her second report that the children were ready to adjust to much  longer periods with the husband. Her addendum report was as follows:

1.I have been asked by his Honour Justice Young in his judgment of 13 April 2006 to provide an addendum to the update report I completed on 30 September 2005. This update report followed the family report completed on 28 October 2004 in this matter.

2.In particular, I have been asked to explain my recommendations as to why they are not mutually inconsistent within any immediate time frame, and the reasons why I came to those recommendations.

3.In my update report of 30 September 2005, I provided the Court with two options for shared residence. In one option, I suggested that the children could live with [the father] from Thursday pm to Monday am for two out of three weekends and in the alternate week, for overnight on Tuesday and reside with [the mother] at all other times. The other option suggested in the update report was for the children to live week about with each parent.

4.The options were provided as alternatives. I had recommended in my conclusion that, “… It seems that all of the reports completed including my report dated 28 October 2004, the [G Centre] Children’s Service Report dated 22 March 2005 and the report of [Dr A] completed in February 2005, show there are no concerns about [the father] as a parent. It does appear that the issue of contact has progressed appropriately and given [the father’s] patience and commitment, contact has now increased to two out of three weekends as well as each Thursday from 3pm to 7pm.

5.The options suggested were not intended to be exclusive but to suggest two different ways of providing a shared care arrangement.

6.Not withstanding the unresolved issues between the parents, I concluded that the warm and close relationships that both children had with their parents and given that the parents were working hard to minimise their conflict, a shared care arrangement seemed appropriate and manageable within an immediate timeframe. I also recommended they attend the “Stand By me” program to assist them further to resolve their issues.

7.My reasons for the recommendations in the update report can be summarised as follows:

·    The children have developed secure attachments with both [their parents].

·    Neither child would suffer from separation anxiety on separation from either parent.

·    There were not practical difficulties associated with the children moving between both parents.

·    [The father] has provided his reassurance that he will continue to respect the Sabbath with both children.

·    [The mother] has managed to deal well with the children’s contact increases and moving into unsupervised contact.

8.The options were provided for shared care arrangements for [the parents] to consider.

9.In this case, I recommended a shared care arrangement even though there exists some conflict between the parents, however I believe both parents are working hard to minimise their conflict to ensure the children are able to maintain their relationships with each of them. On balance, in this family, I believe that a shared care arrangement could be workable and beneficial to the children. In addition, the current arrangements appear to be working well for the children regardless of the conflict between the parents.

10.His Honour had also asked whether my recommendations had a time frame or whether they are in the alternative and could be put in place in the short term.

11.The recommendations were intended to be a continuing arrangement.

Ms S’s oral evidence

1. Counsel for the ICL asked Ms S what the issues were at the time of each report. Ms S said that the principal issue at the time of the first report was whether contact by the husband with the children was to be supervised or not. The husband was having limited day time contact with them. By the time of the second report the husband was having overnight contact with the children and was seeking residence. The question of a shared arrangement was the main issue, the principal residence of the children to remain with the wife. The addendum report was to clarify her recommendations which had been put as alternatives.

1. The ICL put to Ms S that her recommendation had not provided for any gradual increase – that following the orders of 24 May 2005 the children had one overnight stay each weekend with the husband until September and then two overnight stays on two weekends out of three – and that by the time of the interviews for the second report, the introduction of the second consecutive overnight had only just occurred. Ms S explained that she had given two options – two out of three weekends provided more having regard to the ages of the children and she understood that both parents managed it well and she thought that the children would cope.

Cross-examination by the wife

1. The wife was critical of Ms S for holding up her first report until she had the affidavits of the husband and his mother following the interviews which meant that she [the wife] had not been able to discuss these affidavits with Ms S. Ms S said she liked to have documents from both sides and she would have telephoned the wife if anything had arisen out of those documents.

1. The wife put to Ms S that she was surprised that the wife had said she would supervise any contact when she had alleged violence but that she had put other family member’s names forward – Ms S was questioning whether violence had occurred but couldn’t her suggestion be appropriate protective behaviour? Ms S said she had great concerns about a person alleging violence and still being able to supervise [contact]. That person is putting themselves at risk of further violence and therefore this is not a protective environment.

1. The wife asked Ms S what information or material she relied on to conclude that the wife’s parents had problems separating from their children when she did not speak to her parents. Ms S said she relied on all of the information including the facts that the wife was living with her parents, her parent’s involvement with the husband and wife during the marriage and what the children called various members of the family. The wife asked why she was not rung about this by Ms S if it was in the husband’s affidavit. Ms S said she received this information from the husband.

1. The wife took Ms S to par 14 of her report of 4 October 2005 concerning the son’s schooling and asked why concerns that she had raised were not in the report. Ms S said she reported the wife’s vagueness about her plans for the son to go to kindergarten. The wife put that she had answered Ms S at the time and said that her intention was, with the husband’s consent, to send the son to school at 6 years of age and she wanted to send him to school with friends from kindergarten who would be going to the same school. Ms S said that she had no mention of that in her notes.

1. The wife put that Ms S said there would be no practical difficulties for the husband to have the children for Sabbath when the husband believes the wife is too strict with Sabbath. Ms S said she believed she was referring to the letter from the wife setting out her requirements for observance of the Sabbath.

1. Ms S said she did not recall that the wife had expressed concern that the husband had told the son that she had a boyfriend. The wife said she had raised her concern about the husband having residence of the children because if he was working who would look after them given the mental instability of the husband’s immediate family. Ms S read out her notes that the wife was concerned that the husband’s brother was schizophrenic and violent to the husband’s mother “but that was all”. The wife put to Ms S that she told her, her concerns about the husband’s mother and her behaviour to her children and that it was predictable that the children could be exposed to other views and her concern about the Sabbath but although Ms S said it could be predictable, it was not a practical issue.

1. Ms S agreed that the wife had said that the husband was making derogatory remarks about her – she agreed that the wife had said that the husband had been calling her an adulteress to various friends in front of the children.

1. The wife asked Ms S how she could recommend shared week about care of the children when the husband had only had two nights for two weekends in a row before she saw them. Ms S said that she had the report from Dr A and he had no concerns about the husband’s parenting and she had her own observations.

1. The wife asked Ms S how she could say there was no separation anxiety until there has been a longer period. Ms S said that her observation showed that the children do not suffer separation anxiety. She believed the husband and wife were doing well and she was giving some creative options for them both but she is not sure it worked. The wife put to her that the children were aware in her interviews that it was only going to be a short break from the other parent, and the children were told that the other parent would only be away for a short period of time. Ms S responded that if the children were anxious they would have shown that no matter what they were told. Ms S said she would expect to see it in children who had not bonded well with one parent or have an insecure attachment with a parent. Children suffer an adjustment moving from one parent to another but that this is not separation anxiety.

1. Asked by me to comment on the wife’s approach, in that she wants the son to settle into school first before any major change, Ms S said that she stood by her recommendations, but did not disagree with a graduation of the changes, and a more gradual change may be preferable.

1. At this point I will interpose that the statement produced by the wife from her daughter’s kindergarten teacher (see par 29 above) was not put to Ms S, and indeed may not have existed at the time that Ms S gave evidence. Given the importance that was attached by all parties to that statement when it was produced, I would certainly want the author of the further report to be given in this matter to have regard to that aspect of the matter when assessing how the children, particularly the daughter, are progressing under the orders.

Oral evidence of wife

1. The wife gave evidence that when the arrangement for the husband to see the children was first put in place (May 2005) the children were excited but since then the children have become unsettled.

1. The wife explained that she and the husband have different routines and different ways of living and she did not want the children to have to be somebody different for each parent with different personalities, traits and ways of looking at things.  She went on to say that ‘truth’ and ‘lies’ needed to be the same in each household.

1. The wife’s case was that the Christian principles that she tries to instil in the children are not supported in the husband’s household.  She is of the view that the husband mixes with people of low morals.

1. The wife said that it was important that that where the children will be is predictable - meaning that the time with the father is consistent, eg Sunday to Wednesday or Sunday to Thursday.

1. The wife said that it would be too much for the children especially the daughter to live week about with each parent at this stage. She stated that the daughter’s kindergarten teacher said that the child’s toilet training is regressing, she was not socialising as much and that the child was fretting. This evidence was not supported by any written statement or affidavit from the kindergarten teacher at this stage of the evidence but see par 29 above. The wife wanted the child to feel confident when she started school. It was too much for the children to be starting at school and going week about between the parents, too much for them to settle into.

1. The wife said her preference would be for the daughter to go to four year old kindergarten in 2007 and that any week about arrangement should come into effect after the children were settled at school. She thought this would be easier for the children.

1. The wife gave evidence about her concerns for the son.  When she saw Ms S in 2005 the wife had mentioned to her that the son was having problems with playgroup. The son was currently attending four year old kindergarten on Tuesday, Wednesday and Friday (11 hours per week).  The wife’s present plan, with which the husband agrees, is for the son to start school in 2007 as he turns 6 in 2006.

1. The wife raised concerns about the son having observed violence and verbal abuse by the husband towards her. She said that the son was showing signs of disturbed behaviour after he has been on contact with the husband.  The wife’s evidence was that when she tried to talk to the husband at changeover he has pushed her away from him. She also said that he has used the communication book to degrade her, for example, he says that she has not provided the right size clothing when the children came for contact and that he is not concerned for their welfare.  The Communications Book was later produced to the Court by the husband and became Exhibit W1.  The only entry is from the husband to the wife dated 18 June 2006 where the husband states that the singlets given to him for the son were too small, a singlet and top for the son were stained and the summer singlets for the daughter were too thin and not suitable for bedtime wear.

1. The wife gave evidence about an incident at a McDonalds restaurant where the husband claims that she was pushing her religion onto others.  A young boy was saying that Father Christmas was real and the son was saying that he was not.  The wife said that the husband did not support the son and tell him that he may be right but there was no need to tell the other child that.  An associate of the husband’s came over to the wife and yelled abuse at her and almost hit her and the husband just stood by told both the wife and the man to shut up. 

1. The wife said that any movement to the children spending equal time with each parent should be gradual and that the present arrangement should continue until the end of the year and then increase gradually.

1. At this point in the wife’s oral evidence the husband put forward a proposal that involved a 3 week cycle:

To end of the 2006 school year:
  Week 1 -  Friday 10am to Monday 10am;
  Week 2 – Sunday 10am to Wednesday 9am;
  Week 3 – Thursday 2pm to Friday 9am.

To end of 1^st term 2007:
  Week 1 – 4 nights (Friday to Tuesday)
  Weeks 2 and 3 the same

From end of 1^st term 2007 – share care.

1. Counsel for the husband put this on the basis that Ms S had concluded that a shared care arrangement could start now and the husband was prepared to compromise (by delaying the commencement of shared care).

1. Whilst the wife was prepared to countenance a three weekly cycle, with staged increases in the time that the children spend with the husband, she made it clear that her primary position was that a fortnightly cycle was best for the children.

1. The wife said her proposal offered predictability – the children will know where they are each week. An issue that remained would be where the drop off point would be for kindergarten.

1. The wife said that in her opinion Ms S was biased. The wife expanded and said that she had spoken to Ms S about the husband questioning the child the son about the wife’s alleged boyfriends yet Ms S does not mention this in her report. The wife said she had never had a boyfriend or committed adultery.  Also the husband had applied for residence of the children and the wife raised the issue with Ms S of who would be looking after the children when the husband was working. Ms S spoke to the husband’s mother and did not speak to her parents yet Ms S commented on her relationship with her parents. The wife said that Ms S commented on the wife’s emotional stance yet did not comment on the husband’s mannerisms – how he got to stalking the wife, being violent to the wife, taping telephone calls.  The wife had also discussed (with Ms S) the husband’s denigration of her in front of the children.  The wife said she felt as if she had been portrayed in Ms S’s report as a religious nut yet it is the husband’s behaviour that is outside the mainstream.  The children need to feel safe and secure.  The wife said she had her concerns but she had done her best and she believed that it can be shown that she has tried hard to make the arrangements work because of how well the children now move between houses.

1. At the end of the wife’s evidence in chief, the wife agreed that there should be a review of any increase of time to the husband and have two phasing in periods to allow things to settle in.

Cross-examination of wife by husband

1. Ms Brennan for the husband cross examined the wife.

1. The wife agreed that she is more strict with her religious observance than the husband. She agreed that that there was a spectrum along which some observe the Sabbath strictly and some less so. The example was put to her of the occasion when the husband went to a celebration for his uncle on the Sabbath and returned the children to her. The wife said the children were returned to her because of the court order and that the husband was not observing the Sabbath as one should.     

1. The wife said she was not a member of the Seventh Day Adventist Church and that there were a number of religious groups which has as its religious tenets the observation of the Sabbath and the ten commandments.

1. The wife agreed that there was quite a bit of cooperation between herself and the husband regarding the children but not on religious grounds. She said that Ms S accepted the husband’s word for things. In fact they had not had to make a lot of decisions about the children. They had discussed schooling but the wife believed there was agreement because the son talked to the husband about the school and about his friends who would be going there. The wife said that on secular grounds they can get closer. On religious grounds the wife believed that it was better for the children to have one set of religious/spiritual beliefs and that mixed ideas could be detrimental to the children later.

1. It was put to the wife that the husband seeks some Sabbath time with the children and will accept a court order that he will ensure the children keep the Sabbath. 

1. The wife responded that the husband had expressed to her that it was out of respect for her wishes (and not the children’s beliefs) that led him to return the children to her rather than take the children to the celebration for his uncle (the occasion mentioned above).

1. The wife agreed that the children have a secure attachment with both parents.

1. A criticism she had of Ms S was that she only observed them for a very short time.

1. The wife would be prepared to attend the ‘Stand By Me’ Program.

Cross-examination of wife by ICL

1. The opening questions by the ICL to the wife concerned the parties’ ability to communicate. The wife said there were still problems in their ability to communicate about the children. The wife said the husband states in front of the children that she does not look after their welfare. The wife said that if they are talking by telephone and she says something the husband does not want to hear, then he hangs up. When she spoke to him about the daughter’s regressed behaviour at kindergarten and her preference for the daughter to go the 4 year old kindergarten in 2007 the husband just said “she’ll have to grow up” and did not ask anything further.  The wife said the husband sometimes asked her about the children and she agreed that they had discussed the son’s school for 2007.  

1. The issue of changeovers was raised and although it might be better if the changeover could be at the home of the parents there are strong feelings between the husband and members of the wife’s family that make it unsuitable. The wife said that it was not an issue for the children to go to McDonalds. The wife said that because of certain matters involving her brother, the husband kept involving himself in her brother’s affairs and the husband’s accusations of her having an affair.  She said it upset her that the husband still believes he has the right to come into her home.  The wife was not sure that the husband had shown he could comply with court orders in that he had broken court orders and been placed on a good behaviour bond and there was an order that he not denigrate her and yet he called her an adulteress.

1. The wife was asked about the time in April 2006 the children spent an extra night with the husband. The wife said she thought of it as make up time because the children had been ill and one time when the husband could not get to the place on time due to a business meeting and she thought she would see how they went.  She told the children that they were going to daddy’s for the night as he could not see them on the Thursday. She took them on Friday at 5pm instead of Saturday at 10am. The children asked her why they had to go. The son said that if he didn’t have to go when why did they have to go.

1. The ICL referred the wife to the observations of the children at G Centre. The wife said that she helped it along as best she could - “if both parents are wanting to help their children they are going to have a better result.”

1. The wife was asked if she believed the husband had the children’s best interests at heart. She replied that she was happy to think that he was coming around with his proposal because at first he sought residence of the children and that was not in their best interests.

1. The ICL put that the husband was currently seeking 7 out of 21 nights to the end of 2006. The wife said that her position was that the current position should remain until the end of the year and then there should be an increase.

Re-examination

1. On being invited to clarify any issue arising out of cross-examination, the wife said that the court should err on the side of caution. She also stated that she had no objection to doing a (parenting) course.

Husband’s evidence

1. The husband opened his case by handing up a minute of proposed orders. This document was replaced by a later version that is extracted in part in pars 35, 36 and 38. This document remains on the court file and I have marked it as ‘AMH1’. Apart from the regime of shared time that he proposed, the orders that dealt with special occasions were largely noncontroversial.

Evidence in chief of the husband

1. The husband is unemployed. He relied on his affidavit sworn 21 June 2006 and his form 13 sworn 27 June 2006.

1. The husband was asked about the wife’s concern that he did not have religious beliefs. The husband said he did have religious beliefs. He believed in the bible and the tenets of the Christian faith. He believed in Jesus Christ as the saviour of people and the tenets based on doing good to one’s fellow man and one’s duty to God. He observes the Sabbath and when the children are with him he takes them to a church activity where there are other children. He wants the children to observe the Sabbath.  When they are at home the children draw, watch Christian videos, play on the trampoline, have stories read to them or go to the park and play with other children.

1. The husband was referred to the letter from the wife’s solicitors which sets out how the wife believes the Sabbath should be observed. Parts of the letter are set out below. The husband was asked to indicate which parts he does not agree to or he does not do and this is set out below the extract from the letter.

… We are instructed that the tenents [sic] of our client’s faith as it relates to Sabbath, being from sunset Friday to sunset Sunday, is [sic] as follows:

(a)   During the period from approximately 10.00am to lunch time on Saturday, the children are read child appropriate bible stories and sign hymns;

(b)  Grace is to be said at each meal;

(c)  Meals are pre-prepared to ensure minimal preparation is required during the Sabbath period;

(d)  After lunch, the children are taken on quiet walks away from the general activities of other children;

(e)  Following the walk, the children enjoy a quiet play time by themselves and are encouraged to draw pictures relating to issues raised in the bible story read earlier that day or nature pictures, or alternatively they may watch Christian children’s videos which deal with moral issues;

(f)   On occasion, [the daughter] will have a sleep during the play time period;

(g)  Generally, the Sabbath is a time of reflection and quiet. There is no boisterous or competitive play or a lot of activity undertaken by either children or adults;

(h)  There is no unnecessary travel undertaken;

(i)    There is no shopping undertaken or buying of sweets, ice creams or treats;

(j)    On a hot day, the children either use a wading pool or cool off on the bath. The beach is avoided due to the excess of activity there.

(k)  There is no television, computer or radios. The children are however allowed to watch Christian children’s videos in relation to moral issues or listen to Gospel music tapes;

(l)    Prayers are said at sunset on both the Friday and the Saturday;

(m)      Interaction is permitted with others who observe the Sabbath, otherwise it is a period of reflection and quiet with minimal activity.

Please ensure your client is made fully aware of these observances.

1. The husband said referring to the above paragraphs:

   (a)The children do not know any hymns so they do not sing any.

   (b)He does say grace at each meal;

   (c)He makes a simple meal on the day but does not wrap it. The Church provides lunch, mostly vegetarian and he is trying to introduce more vegetarian meals. He does eat meat but believes the wife’s father and brother eat meat.

   (d)The children interact naturally on the Sabbath;

   (i)He does not take them shopping but he has seen the wife shop on the Sabbath.

Event for husband’s uncle

1. The husband explained that the event was the 80^th birthday of his uncle who he had not seen for a long time – his cousins and other interstate guests were coming. The event was being held on the Sabbath, it was a quiet affair and he was keen to go. The husband said that there was a strict and liberal view of the Sabbath and although some people would say he breached the Sabbath, it was a one-off.  The Sabbath means to do no work with one’s hands but he knows people who attend weddings or still care for others.

Changeover

1. The husband said that changeovers are not at the wife’s home because of his dispute with the wife’s brother and the difficulties between the husband and members of her family. He said that when the parties separated he went to the wife’s home on 13 December 2003 the wife’s brother walked in. The husband greeted him and said “G’day mate”. The brother said “don’t call me mate” and head butted the husband. This was in the presence of the wife, her parents and the children. The wife’s father reprimanded the brother and he left.

Accusation of affair

1. The husband said that from separation he had asked the wife if she was having an affair. She left and went to her parents, he had cordial visits to the wife’s home to see the children, he was not allowed to take the children away from the home and he was suspicious. The son had made references to “a friend of mummy’s”. The wife would not let him take the children and the son said to the wife “when’s that man coming” and the wife blushed.

1. The wife has denied ever having a boyfriend but the husband said he could not say if he believed her, he believed it could have been the case (that she did have an affair). The husband said that in recent times he had not said anything to the wife about having a boyfriend in front of the children. It was put to the husband that the wife says he is critical of her seeing other men. The husband’s reply was that during telephone calls when they talked about the children the wife nearly always says that he ended the marriage by accusing her of an affair and he says no, that she walked out on him. 

1. The husband said that in 2006 the wife has accused him of not being a Christian in front of the children and had accused him of having an affair. When this happened the husband said that he had to go, he had to get out of his car, and wait until she left. But the husband said that usually their meetings at the McDonald’s changeover are cordial.

1. There was evidence of an altercation between a friend of husband’s and the wife at a car park in respect of which the wife was critical of the husband for not intervening to protect her. The husband said he told them both to stop arguing. The children were watching from the playground. The husband said he went straight to the kids and took them inside. This was about three months before the trial.

Re The son at McDonalds and Santa

1. The husband said he arrived at the McDonalds play area to pick up the children – it was around Christmas 2005/early January 2006. The wife’s mother was sitting with the children.  The husband heard the son say to a child “There is no Santa, he is only make believe”. The little boy said it was true. The son got upset and ran back to the wife’s mother who said it was make believe, parents give the gifts and Christmas is not Jesus Christ’s birthday. The son went back to the child and started again with him. The husband said to the wife’s mother that she should not enforce her religious beliefs on the small child. The husband said to the son not to worry about it and just play. The son was getting worked up and the husband said he would have taken the son aside and said people have different beliefs. He does not want the child to be argumentative and have contentious arguments.

Changeover

1. The husband was not concerned about the changeover on Sunday being at McDonald’s R – with other changeovers to take place at school or kindergarten.

The daughter wanting to sleep in husband’s bed

1. It was put to the husband that the daughter has not settled into staying a second night with the husband and the son has said that his sister cries a lot and he can not sleep.  The husband said that when the children came to his E home in February 2006 – the wife and the children having come over to see the house and the rooms – and when the time came for the children to go to bed, both children wanted to sleep with him. He asked them what they did at home and the daughter said she sleeps with her mother in single beds. The husband said that he had never experienced the daughter crying at night. He stays with her until she goes to sleep. If she wakes up she sometimes comes into his bed. The husband gives her a bottle. The husband said that the last two times the children had not come into his bedroom until 7.30am so he believes the children are sleeping better.

1. The husband said that the house he is renting is up for sale. It is possible that an investor will buy the place and he could continue renting it. If he had to move the husband said that he would stay in the area, perhaps move closer to their school. He has a boarder in the house, Mr C who is staying to February 2007 and may then move on. The children like Mr C.

1. The husband said on 11 June 2006 he got a Communications Book as Ms S recommended it and he gave it to the wife with one entry. The husband said that the wife gave it back to him saying she was not going to use it. The communication book became Exhibit W1.

Cross-examination by the wife

1. The wife put to the husband that he had said in front of the children that she was not taking care of them and she also referred the husband to the Communication Book which refers to stains on singlets and that the son has only 2 singlets both too small.  The husband agreed he probably did say that. The wife said that the son wanted to take 2 favourite T-shirts and she had packed 3 for him and 4 for the daughter – 2 summer, 2 winter ones.  The husband said he was not meaning to be contentious, it was just a comment – all the t-shirts for the daughter were summer ones. The husband said he had washed one or two of the clothes for the children and ones that had stains. He agreed that sometimes he had not returned all the clothes and that sometimes he had washed the clothes but not dried them and had returned them squeezed out in a plastic bag but had not advised her that there were wet clothes being returned. The husband agreed that it was possible, even probable, that clothes had been stained at his place and that the children do get stains on their clothes when they play. The husband agreed that sometimes the children are returned to the wife with stained clothes from his place. He said the children play with textas and get marks. The husband said the purpose of the Communication Book was primarily for things the children may need, what has occurred, general knowledge.

Sabbath and religious beliefs

1. The wife put to the husband that she did not say that he had no beliefs. She said that he did not put Jesus Christ and the 10 Commandments in his beliefs. The husband said he did. The husband agreed that no one commandment should be observed more strictly than another and that he strictly observed false witness. The husband said he did not always say grace at every meal and the wife did not when at McDonalds. The wife disagreed.

Husband’s lateness and change in collection time arrangements

1. The wife put to the husband that he has not availed himself of all the time he could have with the children – that he has given up times with the children for family, work meetings. The wife estimated that since September 2006 once every 6 weeks there has been a non event and that if he is late he expects the time to be made up to him then. The husband disagreed and said there had been only 2 occasions since September 2005 that there has been no contact. He said he had been late a handful of times and he always tells the wife that he is running late and she waits. He estimated he has been late about 7 or 8 times on a Thursday. He said that sometimes he has asked if he could have more time.  The husband acknowledged that he had telephoned the wife and asked her to bring the children early on Thursdays so the husband can get his money’s worth from P as he pays $16. When the wife put to him that she has to hand in her drivers licence at P until he arrives, the husband replied that she had not told him that that was a problem.

1. The wife put to the husband that he often telephones her at 3.00pm and says he is running late and then turns up at 4.30pm to 5.00pm. The husband said he had only turned up once half an hour before closing. The husband conceded that sometimes he does get there a bit late and sometimes he arranges for the wife to get there early. The husband said that the wife was on many occasions late and turned up at 4.00pm instead of 3.00pm and she has rung. The wife said that those times when she is late is because the husband has rung in the morning and said he will be running late and he will ring if he is earlier and the wife would wait for his telephone call.  The wife said that the one time when she was late was on June 15, it was a lunch for her father and she gave the husband notice. The wife put to the husband that he had abused her for being later although she had told him she would be there at 4.15pm. The husband said that it did not happen as much now that he had moved from F.

1. The wife put to the husband that he did not work, had no dependants and yet he has problems being on time to collect the children. The husband said he had things to do and that if he was running 15 or 20 minutes late then he rings her at 3.00pm to say so. The wife said that by 3.00pm she has already left with the children and he knows that.

1. The wife appears to have been quite flexible with these arrangements and there is an element of the husband taking advantage of this –ringing to say he will be late and expecting the wife to fall in with his arrangements.

Husband questioning the son about whether wife had a boyfriend

1. The wife asked the husband questions about his asking the son about other men. The husband said he relied on what he said in his affidavit. The wife put to the husband that he was in the car alone with the son. She came out of the house and asked him to take the son out of the car and she heard the son say “What man is coming over for dinner tonight’.  The husband agreed that he said this and he said the wife then blushed. The wife she went red because she was getting upset. The wife put to the husband that he said to her ‘who’s this boyfriend’. The husband said that he said ‘Who is this man [G]’. The wife then put that in his second affidavit filed 28 October 2004 the husband accused her of adultery. The husband said that the word he used was “asked” – he asked and believed she was having an affair. The husband said there has been no other occasion since his affidavit that he has spoken to the son about the wife having a boyfriend. The husband said there was an occasion in February 2004 when the son had come up to him and said “[G] hit mummy’ and another occasion when the husband asked [the son] ‘Is [G], [Mr B]?’. The wife put to the husband that in February 2005 the son told her that the husband had walked him around to W and had asked him on the walk whether the wife had a boyfriend. The husband denied this. The wife then put that on a walk near the caravan Park he told the wife in front of the children ‘You’ve been f---- [G] and adultery’. The husband agreed he used the word “f…” but not together with the word ‘adultery’. 

1. The wife referred to pars 6.99, 6.100 and 6.101 of the husband’s affidavit filed 28 October 2004 and said that since this time he has done this again – called this man ‘[G]’ – Mr B. The wife said that pars 6.99, 6.100 and 6.101 were different events and noted that the husband used the word ‘accused’ in his affidavit, not ‘asked’.

1. The wife referred the husband to par 6.103 of his affidavit filed 28 October 2004 and asked what proof he had that it was Mr B’s car that he alleges he saw the wife leave in. The husband said he did not have proof, he was emotional and maybe it was someone else’s car.

1. I asked the husband if it was his belief that the wife had an adulterous relationship with a Mr B. The husband’s answer was that he was not 100% sure – for three months it was a possibility.

Altercation with Mr H

1. The husband agreed that he and the wife met Mr H at about the same time. The wife put to the husband that he told her he had had a phone call from this person saying that she was accosting his wife. The husband said no, she and Mr H were both yelling when he arrived and saw them. The wife put to the husband that she walked over to the husband and asked him to tell the person to stop abusing her. The husband said he thought he did. The wife disagreed and put it to the husband that instead he told the person that the wife was argumentative. The husband disagreed and said he told them both to stop arguing. The wife disagreed and said a woman told him to stop and he did and left.

Santa Claus incident

1. The husband said there was a verbal fight between the son and another little boy not a physical fight. The son became upset. The wife put to the husband that he did not believe that their child had a right to express his views but that the other boy could.

Husband’s boarder and sleeping arrangements for children

1. The wife put to the husband that he did not tell her or the child representative on 24 May 2005 when orders were made by Judicial Registrar Ramsden that he had a boarder in the spare bedroom. The husband said he could not remember when the boarder moved in.

1. The wife put to the husband that by the first time he had the children overnight he had not taken the children to his home for the six weeks. The husband agreed that was probably right because of the travel time between R and F but that they had one bedroom with bunk beds that they shared which was set up after two weeks, the wife thought it was more than two weeks. The husband slept on a sofa and the children slept in his room. The wife put it to the husband that he had not considered what was best for the children. It was the children’s first time overnight with him and he had a boarder, a stranger there and the bed he had promised the children went to the boarder.

The boarder

1. The wife asked the husband some questions about the boarder, Mr C. She put to him that his (the husband’s) brother (now deceased) and his family had taken out an intervention order against him because of abuse and violence. The husband said it involved the throwing of an object. The husband said the children’s safety was not at risk and he had spoken to Mr C about it at length and he had expressed great regret.  The husband agreed that when the wife told him in a phone call that the daughter had told her that she did not like Mr C tickling her, his response had been that he had not seen it. The husband said that Mr C was always out and the children had only seen him seven or eight times.

Finances

1. The wife put to the husband that having the children more or less does not impact on the husband financially apart from more food, electricity. The husband said that when he has the children he is constantly meeting up with the wife to put clothes on lay-by. The wife said that the items on lay-by for the children are still with the husband. The husband did not deny this but said he did not know if the items would stay with him.  He said he had waived the family allowance. The wife put that the husband’s form 13 says that he paid the car registration and $1500 for the children. The husband said that he may be paying less under the new child support assessment in February 2007. He was told that he should not be paying $189 per month as he is unemployed and he is seeking to have this made retrospective.

The daughter’s anxiety and sleeping

1. The wife asked the husband about any separation anxiety the daughter may be feeling and the evidence of the husband that it has only occurred once at E. The husband said that the daughter has never cried at night and only once has she said that she was missing her mother. The husband agreed that he told the wife that he had once slept on a trundle bed to settle them down but that was early on.

1. The husband said that the daughter does not cry, she just wants attention from her mother but once the mother leaves, she is happy. The wife says to the children as they are leaving ‘I love you, missing you’ and this eggs the children on.

1. The husband has only visited the daughter’s kindergarten once. The wife thought it would be better of the husband takes the daughter to kindergarten at 9.15am and then she pick up the child after kindergarten. The husband agreed.

1. At this point, the wife made reference to the husband’s proposals for the children’s birthdays.  The wife said that there needed to be some division of the time because if the child’s birthday falls on a school day when with the wife then she would get little to no time with the child as the husband seeks 3 hours from 4.00pn to 7.00pm (in the minutes of orders that he had handed up).

1. Counsel for the ICL did not cross-examine the husband – stating that all relevant ground had been covered by the wife.

The appropriate orders

1. In this case it was not argued that the presumption of equal shared parental responsibility (section 61DA) should not apply, and the order that I will make for the parties to have equal shared parental responsibility will be made by consent, and I consider that it is an appropriate order to make in all the circumstances.

1. Although I am required to consider equal time with the children under sub-section 65DAA(1), at this interim stage of the proceedings the husband has agreed that there should be a staging of increased time and that consideration of equal time with each parent should be adjourned to a resumed hearing, and the wife and ICL agree to this course. In light of this common approach, it seems appropriate to defer further consideration of equal time to the resumed hearing.

1. I am now required to consider the substantial and significant time requirements of sub-section 65DAA(2), as explained in subparagraph 65DAA(3) and always subject to the overarching consideration of the children’s best interests – s 60CA.

1. Having regard to the terms of subsection 65DAA(3), I am not satisfied that the wife’s proposals meet the substantial and significant time requirements. Her position is that from the beginning of 2007 the children should spend time with the husband each second week from 9.00am Sunday to 9.00am Tuesday (plus public holidays), each Wednesday from 4.00pm to 8.00pm and then for half of all school holidays when both children are at school in 2008. This is essentially two periods of 48 hours (2 days and 2 nights) per fortnight, plus the four hour visits each Wednesday.

1. If there was to be an increase in the time that the children spend with the husband, the wife put as an alternative position that during 2007 the time to be spent with the husband should increase to Sunday to Wednesday (at the same hours) in each alternate week. Whilst this may well come closer to satisfying the criteria for substantial and significant time, it does not satisfy the requirement of subsection 65DAA(3)(c) which refers to occasions and events that are of significance to the husband. I am satisfied that the period referred to by the parties as “the Sabbath” is of significance to his religious observance also and that all the wife’s proposals are lacking in any opportunity for the husband to have the children during this period.

1. The question then is whether I can be satisfied that the evidence establishes that it would not be in the children’s best interests to spend substantial and significant time with the husband, and if I am satisfied that it is in their best interests to spend such time, what time sharing arrangement will best meet the children’s needs. I am mindful of the wife’s submission, supported by the ICL that there should be as high as possible a level of certainty about the children’s arrangements. It may well be that the three week cycle under the existing orders, has worked well to introduce the children to two-night overnight stays with the husband, but will cause problems as school attendance, and eventually, school holidays for both children operate to disrupt a three week cycle more than a two week cycle, which is the wife’s preferred model.

1. As set out earlier, in making a parenting order, the paramount consideration is the children’s best interests – s 60CA – and s 60CC provides guidance as to how those are to be determined. Of the two primary considerations set out in sub-section 60CC(2)(a)and (b), there does not appear to be any disagreement that the children already have a meaningful relationship with both parents in terms of subpar 2(a), and I find that this situation should be continued and fostered by the orders that I make. As to subpar 2(b), it is clear that the wife alleges that the children were, in the past, exposed to family violence. What the evidence does not establish, however, is that this has caused or will cause the children to suffer psychological harm. Certainly the wife alluded to behaviours on the part of the children that could have their origins in this exposure but there simply is not the evidence before me to enable me to find that this is the case, or that if it is the case, the cause and effect relationship continues or is exacerbated by the children’s ongoing time spent with their father. Nor is there evidence of ongoing conduct on the part of the husband that can be seen as sufficiently troubling to negate the positive aspects of the children having a meaningful relationship with him. In short, the evidence does not establish that subpara(2)(b) should operate to outweigh the positive benefits of an ongoing, meaningful relationship with the husband.

1. I will turn now to the final addresses made by each party, commencing with the ICL’s submissions on the subparagraphs of subsection 60CC(3) (a).

1. The ICL submitted that there was no evidence of any views expressed by either child, and there was no submission to the contrary.

1. As to (b) – nature of relationship with parties – the ICL submitted that the children have a strong and secure relationship with each parent, referring to par 32 of Ms S’s report (of 4 October 2005). The wife acknowledged as much in cross-examination, therefore there is no dispute about it.  The ICL continued that the child would benefit from what each parent can bring to the relationship.

1. As to (c) – The ICL submitted that the evidence showed that both parents were willing to facilitate the relationship.  The parents can make arrangements outside the terms of the orders and there were no real complaints about breaches of orders. 

1. As to (d) – effect of any change - The ICL submitted that there was no compelling evidence that any increase in time with the husband would adversely affect the children.

1. As to (e) – practical difficulty and expense – not really an issue.

1. As to (f) – the capacity of each parent – not really an issue.       

1. As to (g) – the significant factors in this case are the religion and the religious practices of each parent.  This issue is particularly important to the wife the question of the observance of the Sabbath has loomed large in the proceedings. The ICL summed up the evidence as this:

   ·    Spending time with the children on the Sabbath is important to both parents;

   ·    The wife takes a stricter view of what is entailed by observance of the Sabbath, the interaction of the ten commandments on the Sabbath, and the wife’s view that the husband did not keep the Sabbath.

   ·    The husband has said that he will ensure that the children subscribe to the ten commandments and the Sabbath.  The ICL submitted that the husband did not involve the children in his own non-observance and on one occasion he had returned the children [rather than involve them in an activity on the Sabbath].  The wife’s view is that this shows the husband does not observe the Sabbath.  In any event, the ICL submitted, on the husband’s proposal the children would be with the wife on the majority of the Sabbath’s and the ICL supported this.

1. As to (h) – not relevant.

1. As to (i) – Neither parent can be criticised for their attitude to parenthood.

1. (j) – “any family violence involving the child or a member of the child’s family” -  this history forms part of the reports of Ms S and Dr A but at this stage it does not impinge on the children’s attitudes to the parents and to the wife’s credit she has shielded the children. 

1. (l) – least likely to lead to further proceedings – no particular course recommended.

1. (m) – other fact or circumstance – nothing.

1. The ICL concluded by submitting that the starting point under the new legislation on the question of shared parenting is s 60B.  The orders sought by the husband and supported by the ICL are consistent with the objects and principles and there is no reason to depart from the husband’s proposal.

Husband’s final submissions

1. On behalf of the husband, Ms Brennan adopted the analysis put forward by the ICL. In terms of s 65DAA(5)- determining reasonable practicality – for substantial and significant time  - the husband submitted that the evidence married well with the section. 

1. Communication - subpar (c) - The husband submitted that the parties had demonstrated a very good capacity to resolve past and future issues.  Although Judicial Registrar Ramsden’s orders were not by consent, since then there had been compliance with the orders and although there was evidence of irritation by the parties, decisions have been able to be made regarding schooling, variations of time from those specified in the order, and additional time.  The husband maintained there had been an ongoing concept of pleasant family relationships in the presence of the children.  He pointed to the wife’s evidence that she could minimise the conflict, she could foster relationships between the husband and the children and that she did so deliberately and she should be given credit for that.

1. Impact on children – subpar  (d) – The husband submitted that he had taken on board the concerns expressed regarding the daughter and had amended his application to reflect this.  He would like to see matters move more quickly but he is child focussed and so is the wife, to some extent.

1. With respect to the ICL’s suggestion that the husband be restrained from making or repeating allegations of misconduct by the wife to the children, the husband submitted that he has not done this since 2004 and an order was therefore not necessary but that he would agree to such an order. 

1. The husband did not agree with the wife’s proposal as it would reduce his time with the children.  The wife sought that the children be with her for all Sabbaths which is different to the current situation where they are shared.  The husband submitted that the wife’s proposal did not promote a meaningful relationship as required by the legislation.

1. It was also submitted that the wife failed to produce evidence of any financial consequences to her if the arrangements for the husband’s time with the children changed and she had the opportunity to produce such evidence. Similarly she could have produced evidence from the daughter’s kindergarten teacher but had not, at the appropriate time, and she ought to be criticised for these failings.

1. Counsel for the husband pointed to Ms S’s report that said that the children did not suffer separation anxiety when they moved from the husband to the wife.

1. Counsel for the husband also submitted that the parts of the wife’s evidence were vague. For example, her reference about the son’s behaviour, in that he was reported to have said that the daughter cried at the husband’s home.  The husband agreed that one or two times the daughter had become unsettled early in the morning and came to his bed.

1. Religious issues – it was submitted on behalf of the husband that there are religious differences between the parents, principally over observance of the Sabbath and adherence to the 10 commandments.  However the husband submitted that both parties minimise the differences and if the stated aim is to minimise the differences then the children will and can accept the differences between the parents even if the wife can not.  It is important having regard to the recent changes to the legislation that the times for the husband to spend with the children cover the range of times and activities set out in the legislation and this includes the Sabbath.

Wife’s submissions

1. The wife submitted there were several issues:

·    The husband’s allegations of adultery or some other relationship – contrary to the statements by counsel for the husband, this was still an issue with Ms S in September 2005 and had not ceased in 2004 (as asserted by the husband).

·    As the children grow older the issue of the Sabbath will/could become an issue. The wife said that it was part of her life and as the children grow they will see that it is an issue.

·    She had not pursued the issue of violence but she has been exposed to some verbal abuse and what could amount to physical abuse at changeovers.

1. The wife submitted that the current regime should continue to the end of 2006.  Her primary position was that then the husband spend time with the children each alternate weekend from Sunday to Tuesday and then IF any increase must occur, from Sunday to Wednesday starting at the end of first term 2007 and then from 2008 half the school holidays. She was prepared to contemplate equal shared time when both children had settled into school.

1. The wife said she would prefer to have every Sabbath as she queries whether the husband keeps to the Sabbath at all and he does not hold each Commandment in equal regard.  The wife said she was trying to give the husband quality time and time with involvement in schooling but submitted that longer time with the husband would be detrimental to the children. “I do not know how the husband will go in the future.”  She thought it would be most advantageous for the children to wait and see how they went at school.  She was keen to have a routine and predictability for the children.

1. Financial impact on wife of more time with husband. The wife said that she had asked Centrelink to put it in writing. Only one parent can receive the parenting payment.  If the children spend more than 112 nights with the husband then the wife’s payment under the parenting payment plan is reduced by $130-$150 per week. The wife said she worried about whether she whether she could maintain the children. 

1. The wife raised two main concerns regarding the children:

   ·The different standards in the two households;

   ·The adjustments/difficulties the children may have in moving between the 2 households;

1. The wife also expressed a concern about whether the husband takes his medication, whether he should drink alcohol with his medication and she says she raised these concerns with Ms S for her first report of 4 October.2005.

1. The wife said she was concerned about the social contacts that the children have with the husband’s family and others that they visit in his company.  

1. The medication/alcohol issue was not the subject of any clear evidence. The husband’s head injury at age 15, a recent seizure, and the fact that medication had been prescribed for the husband to control seizures were certainly canvassed in Dr A’s report but there was no evidence at all to suggest that the husband did not take his medication, or that he consumed alcohol when taking his medication, or that if he did, it would put the children at risk.  

Conclusion

1. In my view, the evidence establishes that the children have benefited from the increased time with the husband that followed from the making of the orders of Judicial Registrar Ramsden. They provide however for only four nights in 21 with the husband and the 10.00am Saturday to 9.00am Monday time frame falls far short of providing substantial and significant time. The wife’s primary position is also deficient in this regard, as I have already stated and would reduce the time currently spent by the children with the husband.

1. For the purposes of considering whether substantial and significant time is in the children’s best interests, I accept the broad thrust of the submissions of both the ICL and the husband, set out above, as to the matters that are relevant to this consideration under the various subsections of s 60CC(3). I do not, however, accept that the evidence is as uncomplicated as those submissions suggest. The passages of the evidence that I have set out in relation to a number of the issues that were raised at the hearing show, in my view, that there have been ongoing conflicts and disagreements between the parents at quite a significant level. I do not consider it necessary to make findings of fact about the areas of conflict between the evidence of the parties: their respective versions have sufficient in common to show that the potential for strong disagreement is ever present when they are together, and that that disagreement may well take a form that is likely to impact on the children adversely. As stated by Dr A at page 15 of his report:

It is agreed that there were some considerable verbal disagreements between them including some verbal threats. There is no doubt that it would be in the children’s best interests if their parents can minimise their conflict and disagreements particularly as these relate to contact arrangements. It was not suggested that the children have been themselves abused or ill treated.

1. As to the capacity of the parents to provide for the children’s needs, and their attitudes to the responsibilities of parenthood, (subsections 60CC(3)(c) and (i)) there are a number of causes for concern. These include the husband’s lingering doubt that the wife was having an affair at the time that the marriage broke down. He has raised this with the children – just how recently is not clear, but it was clear from the first family report and his evidence to me that he still entertains a level of doubt about this matter. Raising his beliefs with the children, or either of them, and expressing his condemnation of the wife’s alleged conduct at any time was and would be totally inappropriate. The wife’s denial of any such conduct given in the course of her evidence was, I consider, frankly given and truthful.

1. Given the strength of the husband’s religious beliefs, and the immoral light in which he has cast the wife in the past, based on his beliefs about her conduct, which I consider were not well-founded, I would be very concerned if this issue remerged in the future. The husband has agreed, without admission, to the making of an order prohibiting him from doing so, and that should be an end to the matter. The husband must put that issue aside for the children’s benefit, whatever he may believe.

1. Under the same subparagraphs, I have concerns about the wife’s view that differences between her and the husband concerning observance of the Sabbath and the ten commandments could produce difficulties for the children in future. This will only occur if she makes her criticisms of activities that the children see or undertake in the husband’s company known to the children. In my view, the differences between the parents’ levels of adherence should not be allowed to deprive the children of the opportunity to benefit from what both parents have to offer them, and if a parent must bite his or her tongue for the sake of the children’s relationship with the other parent, then so be it.

1. As to the effects of longer periods of separation from the wife on the children, I do not consider that the evidence is as clear that this will cause no difficulty as the husband and the ICL were submitting, or indeed, as Ms S suggested. I consider that all parties were sensible to adopt an interim approach. There are clearly some issues with the children’s behaviour that may or may not relate to the frequency or duration of time spent with the husband (or being away from the wife), or may have other causes. It appears to be common ground that further evidence should be given at the resumed hearing and that a further report is needed.

1. I turn now to subsection 60CC(4). I consider that it warrants specific consideration at this point. The subsection provides:

Without limiting pars (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

(a)      has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)      to spend time with the child; and

(iii)     to communicate with the child; and

(b)      has facilitated, or failed to facilitate, the other parent:

(i)       participating in making decisions about major long-term issues in relation to the child; and

(ii)      spending time with the child; and

1. Ms Brennan submitted that both parties emerge with some credit from an analysis of their conduct in light of these criteria. In particular, the husband was prepared to consider, discuss and agree to a school for the son to attend that was not his first choice. He may, as the wife submits, have been influenced by what the son himself said to him about his wishes as to which school he would attend, but this does not take away from the fact that the husband had one view, and moved to another view in a way that included taking the child’s, and the wife’s, points of view into account. In terms of making major long term decisions about the children’s future, the choice of their first school is one of the most important that parents must make at this stage in the children’s lives, and both parties participated in making this decision.

2. The husband was prepared to move from his first and second choice(s) for changeover venues, and accepted the venue proposed by the wife. For her part, the wife was very willing to concede that the husband should deliver the daughter to kindergarten after her overnight visits with him in circumstances where the daughter had become upset when the husband returned her to the wife before kindergarten and the wife then delivered her to kindergarten, rather than the daughter being able to spend time with her mother.

1. The husband has shown a strong desire to spend time with the children, and the wife has supported his relationship with them, and given effect to orders that were not made with her consent, namely the current orders made in May 2005. Whatever her reservations about the husband, his conduct at earlier times in their relationship, his less strict religious observance and his lateness in picking up the children on a significant number of occasions, any or all of which might have been used by the wife as grounds for denying time with the husband under the current order, the wife has ensured that the children have had the benefit of his involvement in their lives, as envisaged by that order.

1. The same considerations and findings satisfy me that it is reasonably practicable to order that the children spend substantial and significant time with the husband and I further find that at this stage it would be in the children’s best interests to have significant and substantial time with the husband: s 60DAA(2)(c). Putting it another way, none of the issues that I have identified, or any of the other matters raised in evidence, satisfy me that it would not be in the children’s best interests to spend significant and substantial time with the husband.

The appropriate regime for time to be spent with the husband

1. In putting in place a regime for the balance of 2007, I am mindful of the wife’s submission, supported by the ICL, that there should be a high level of certainty about the children’s arrangements from week to week. In that regard, I consider that the wife’s approach of adopting a two week cycle (rather than a three week cycle, as at present, and as put forward by the husband) is to be preferred. At present, the maximum period of overnight separation from the mother is two nights. As a first, but substantial step towards increasing the time, I consider that for the first three months following this order, the children should spend four nights with the husband, from Thursday at the conclusion of school and kindergarten, to Monday at 9.00am (or the commencement of school/kindergarten at whatever times these occur). This period includes the Sabbath, includes a weekend, and also includes a full weekday (Friday). 

1. In the second week, the children will spend from the end of school/preschool on Thursday to 7.00pm that evening, approximately the time that the children spend with the husband on a Thursday at present.

1. This is a total of 4 nights per fortnight. (or 12 nights in six weeks), as opposed to the 14 nights in six weeks that the husband’s first 3 weekly cycle would have produced.

1. For the second period of three months, the time will increase so that the period in the second week commences at the end of school/kindergarten on Thursday and continues to the commencement of school/kindergarten on Friday, a total of 5 nights per fortnight, or 15 nights in six weeks as opposed to the 16 nights in the same period that the husband’s proposal would produce. The addition of the Thursday night in the second week adds a ‘normal’ weeknight to the mix already provided by the period to be spent with the husband in the first week. It also leaves the wife with a significant period of time with the children, which includes the Sabbath in the second week of the cycle, a weekend, and weekdays.

1. These graduated changes will, I consider, meet the children’s needs for significant and substantial time. Sabbaths will be shared equally. The predictability of the children’s lives and where they will be from week to week is increased (by the adoption of a two week cycle). The second increment of change is relatively small, and should not destabilise what will by then be a regular pattern in the children’s lives, in that they will simply go from spending Thursday evening with their father in the second week to spending Thursday night with him.

1. Another benefit that I see in this pattern is that when the matter is brought back to court at the end of the six month period, there will have been the best part of a year of adaptation to school for the son, and the effects on the daughter of the increased times away from her mother will be able to be properly assessed. Proper evidence of her behaviour at kindergarten will also be available.

1. By then, the husband will have been able to assess for himself how the children are managing under the increases that I have put in place. He showed, during the hearing that has taken place thus far, a capacity and willingness to modify his approach to the amount of time that he was seeking upon becoming more aware of matters affecting the children. He was, as Miss Brennan submitted, child focused in this approach. The wife also showed a degree of child focus in that she acknowledged that more time with the husband would eventually be in the children’s best interests – even equal shared time was not out of her range of options to be considered for the future.

1. This can be considered at the next hearing: then, as now, the children’s best interests will be the determining consideration and I will certainly be concerned to ensure that I have appropriate evidence about the effects on the children of the orders that I am making today.

1. In my view the objects and underlying principles of Part Vll of the Act set out in s 60B and the relevant considerations for ascertaining the children’s best interests point to the interim determination that I have foreshadowed. For completeness, I repeat that the wife’s proposals which gave her every Sabbath, and would produce six nights with the husband per six weeks initially, and nine nights per six weeks if increased in accordance with her submissions, do not amount to substantial and significant time and I am satisfied that it is in the children’s best interests for them to have such time with the husband.

1. The orders are set out at the commencement of the judgment.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Watt delivered this day will for all publication and reporting purposes be referred to as CARTNER and ROSS-CARTNER.

I certify that the preceding one hundred and eighty six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt.

Associate: 

Date:  12 April 2007