CAVANAGH & CAVANAGH
[2020] FCCA 3323
•8 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAVANAGH & CAVANAGH | [2020]FCCA 3323 |
| Catchwords: FAMILY LAW – Children – shared parental responsibility – where there are no issues of risk – increase in father’s time. |
| Legislation: Family Law Act1975, s.60CC |
| Cases cited: Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR CAVANAGH |
| Respondent: | MS CAVANAGH |
| File Number: | SYC 3109 of 2018 |
| Judgment of: | Judge Boyle |
| Hearing dates: | 25, 26 and 27 November 2020 |
| Date of Last Submission: | 27 November 2020 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kennedy |
| Solicitors for the Applicant: | Pigdon Norgate Family Lawyers |
| Counsel for the Respondent: | Mr Lethbridge SC |
| Solicitors for the Respondent: | Santo Family Lawyers |
ORDERS
The parties have equal shared parental responsibility for X, born in 2015, and Y, born in 2013 (hereinafter “the children”).
The children live with the Father during school Terms as follows:
(a)From the date of these Orders until the conclusion of Term 1, 2021:
Week 1:
(i)From 8:30am Wednesday until 5.00pm Thursday.
(ii)From 8:30am Saturday until the commencement of school on Monday.
Week 2:
(iii)From 8:30am Wednesday until 5:00pm Thursday.
(b)From the commencement of Term 2, 2021 until the commencement of Term 2, 2022:
Week 1:
(i)From after school Wednesday until before school on Thursday.
(ii)From after school Friday until the commencement of school on Monday.
Week 2:
(iii)From after school Wednesday until before school on Thursday.
(c)From the commencement of Term 2, 2022:
Week 1:
(i)From after school Thursday until before school on Monday.
Week 2:
(ii)From after school Wednesday until before school on Friday.
The children otherwise shall live with the Mother.
That from the holidays at the conclusion of Term 1, 2021 the children live with the parents equally during term school holidays as agreed, and failing agreement as follows:
(a)With the Father, for the second half of each school holiday period in each year ending in an even number, such period to commence at 12.30pm on the middle day of the school holiday period and to conclude at the commencement of the school term, and with the Mother for the balance of the school holiday period.
(b)With the Father, for the first half of each school holiday period in each year ending in an odd number, such period to commence at the conclusion of the school term and to conclude at 12.30pm on the middle day of the school holiday period, and with the Mother for the balance of the school holiday period.
For the 2021/2022 Christmas school holidays the children shall spend time with the parents as agreed and failing agreement as follows:
(a)With the Mother:
(i)from the conclusion of the school term until 5pm on 26 December 2021.
(ii)from 5pm on 2 January 2022 until 5pm on 9 January 2022.
(iii)from 5pm on 16 January 2022 until 5pm on 23 January 2022.
(b)With the Father:
(i)from 5pm on 26 December 2021 until 5pm on 2 January 2022.
(ii)from 5pm on 9 January 2022 until 5pm 16 January 2022.
(iii)from 5pm on 23 January 2022 to the commencement of school on 28 January 2022.
From the 2022/2023 Christmas school holidays the children spend time with the parents as agreed and failing agreement as follows:
(a)with the Father for the first half of the school holiday period in even numbered years and for the second half in odd numbered years and with the Mother for the balance of the school holiday period
(b)For the purpose of Order 6(a), the first half of the school holiday period shall commence at the conclusion of the school term and the second half of the school holiday period shall commence at 12:30pm on the middle day of the school holiday period.
Notwithstanding any order to the contrary:
(a)on each of the children’s birthday, the children shall spend time with the parent that does not otherwise have the care of the children, for at least two hours as agreed and, failing agreement:
(i)from 2.00pm to 4.00pm if the day is not a school day; and
(ii)from after school to 6.00pm if the day is a school day.
(b)on the Mother’s birthday, if the children are not otherwise in the Mother’s care, the children shall spend at least three hours with the mother as agreed and, failing agreement:
(i)from 9:00am to 12 midday if the day is not a school day; and
(ii)from after school to 7:00pm if the day is a school day.
(c)on the Father’s birthday, if the children are not otherwise in the Father’s care, the children shall spend at least three hours with the Father as agreed and, failing agreement:
(i)from 9:00am to 12 midday if the day is not a school day; and
(ii)from after school to 7:00pm if the day is a school day.
(d)On Mother’s Day, if the children are not otherwise in the Mother’s care, the children shall spend from 8.30am until 6.00pm with the Mother.
(e)On Father’s Day, if the children are not otherwise in the Father’s care, the children shall spend from 8.30am until 6.00pm with the Father.
For the purposes of facilitating changeovers:
(a)when changeovers fall on a school day, changeover shall occur at school;
(b)when the children are moving to live with the Father on a day which is not a school day, the Mother shall deliver the children to the Father’s residence; and
(c)when the children are moving to live with the Mother on a day which is not a school day, the Father shall deliver the children to the Mother’s residence.
Each parent be permitted to take the children out of the Commonwealth of Australia and travel with them for a period up to 10 days provided that the parent wishing to travel with the children:
(a)gives the other parent three calendar months’ notice of the intention to travel overseas with children, including the primary destination, and written confirmation that any travel overseas shall be limited to countries which are parties to the Hague Convention, and to countries where there is no current travel warning advising against non-essential travel to that country issued by the Department of Foreign Affairs and Trading;
(b)at least 14 days prior to departure, provides to the other parent:
(i)copies of return tickets for each child;
(ii)a detailed itinerary including addresses and phone numbers for the accommodation in which the children will be staying;
(iii)a list of all of the countries in which the children will be visiting (whether in transit or otherwise).
The Mother shall hold the children’s passports and will not unreasonably withhold the passports from the Father upon the Father giving the Mother notice of any proposed travel in accordance with Order 9, and the Father shall return the passports to the Mother within 7 days of return to Australia.
That each parent shall facilitate the children communicating with the other parent at all reasonable times as the children request, by telephone or other electronic communication as agreed between the parents.
If there is any medical emergency involving the children, including but not limited to serious illness, accident or hospitalisation, the parent with the care of the children must:
(a)immediately contact the other parent; and
(b)as soon as practicable, provide the other parent all documentation and information in their possession regarding the incident and where the child is being treated.
Each parent is restrained from:
(a)doing criticising or denigrating the other parent, or the other parent’s family, or causing or permitting any other person to do so, in the presence or hearing of either of the children; and
(b)showing any documents relating to these proceedings, or discussing these proceedings within the hearing or presence of the children.
Each parent shall notify the other of the name of any general practitioner, paediatrician or other specialist who treats the children when the children is in that parent’s care, and provide to that person any authority necessary so that the other parent can contact the person to obtain all information regarding the treatment and care of the children.
The parents are permitted to provide the Single Expert Reports to any treating medical professionals of the children or themselves, including counsellors or psychologists.
Both parties shall within 7 days purchase and install the Our Family Wizard, or similar application as agreed, and use that application to communicate information about the children.
The children shall attend sport as agreed between the parties, and should the parties be unable to agree the Mother and Father shall select the sport for the children in alternating seasons commencing with the Mother for the summer in 2021, and the father for winter in 2021, and alternating thereafter, and each parent shall ensure the children’s attendance at their games and training as may be required.
The children shall attend extra-curricular activities other than sport as agreed in writing between the parents, and should they not agree the parents may make arrangements for activities that fall on their time with the children, and each parent shall ensure that the children attend any concert or performance as part of that activity.
IT IS NOTED that publication of this judgment under the pseudonym Cavanagh & Cavanagh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3109 of 2018
| MR CAVANAGH |
Applicant
And
| MS CAVANAGH |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to applications for final parenting orders. The parties have two children: Y born in 2013 and X born in 2015.
The parties resolved the property aspect of the dispute by consent during the course of the hearing. They were also able to agree on arrangements for the Summer School Holidays for 2020.
Applications
The parties have both provided detailed case outline documents which include their minute of orders sought. In essence the father seeks to have an equal time arrangement for the children, where the time increases gradually from the current arrangement, and one half of school holidays on a week about basis. He seeks an order for equal shared parental responsibility.
The mother seeks orders for sole parental responsibility for the children, and that the children continue to spend four nights each fortnight with their father, and that holiday time increase to half-time at week blocks. She seeks that the configuration of the time change to Friday to Monday on alternate weekends, and alternate Wednesdays.
The parties were able to resolve arrangements for the forthcoming Christmas school holidays by entering into consent orders. The father will be spending time with the children in three blocks, on one of those occasions for 7 days over Christmas in Melbourne.
Background
The parties commenced cohabitation in 2010, and were married in 2012. They separated under the one roof on 22 September 2017. The wife left the home with the children on 10 March 2018, moving to a rental property nearby.
In late 2019 the mother brought an application to change Y’s school. She had difficulties with her rental accommodation, and needed to move. She proposed living in Suburb B, which significantly decreases her time commuting to work in the city. The mother’s application was successful. The father moved to Suburb C to be closer to the children.
Issues
The following issues are relevant:
a)whether the parties have the capacity to communicate and cooperate to sustain equal shared parental responsibility of the children
b)whether it is in the children’s best interests for an equal time arrangement, or the same time arrangement as at the time of the hearing, or a different configuration of time
Single Expert Reports
Two reports have been prepared by the report writer, Ms D. The first report was completed on 16 October 2018, and second on 20 August 2020. The writer was cross-examined.
The report writer observed that both children enjoy close relationships with each of their parents, were attached to them, and sought comfort from each of them. There are no issues of risk for either of these children.
The parents are both intelligent, child focused, want the best for their children, and have buffered them from conflict. The reporter agreed with the observation of the parties’ counsellor, Mr E, that they are both inflexible people. Notwithstanding the parent’s difficulties, the report writer was of the view that there should be an increase in the children’s time with their father. As she commented, whilst an order for equal shared parental responsibility is important for children to see their parents make joint decisions, whether time was equal or five or six nights was less significant. Any of those time arrangements give each parent significant input into the lives of their children.
The reporter suggested that if the parties were unable to improve their communication, it may be that they engage in parallel parenting. That is an arrangement where the children live in two separate households, each with their own rules and rituals. There is minimum communication to avoid conflict between the parents. Changeovers are managed through school, and clear orders are required to keep disputes to a minimum.
The reporter considered the advantages to this would be to give the children the benefit of strong relationships with each of their parents, whilst keeping conflict to a minimum. The disadvantage is that the children do not have the benefit of co-operative parenting, where there is more flexibility. Different rules in each household requires the children to adjust, rather than the parents collaboratively sorting out matters like screen time, when homework is done, bed times and the like. Clearly a collaborative approach to parenting is preferable for the children, and particularly if they live equal time in each household.
Y and X are used to a situation where they spend time in two households where there is minimal communication between their parents. Neither child appeared to be aware of the conflict between their parents as yet. Problems of school books, and sports uniforms, for example, can become more difficult if there is more time in each household, and the children are both at school.
Some consistent week days in each household should assist the children if the parents’ communication remains poor. That means that they can undertake the same activity in the care of one parent if there is not an agreement about activities. Equally participation in sport can be determined by each parent in alternate seasons. I canvassed this option with the parties’ legal representatives who did not oppose such a regime.
The mother has been concerned about anxiety in Y. The reporter observed that he was confident at her rooms, was able to recall the first visit when he attended for the second, and separated easily from his mother. He manages well at school, and coped with the change of school in 2020. Mr E is a counsellor who has provided family therapy to the parties. He met with Y at the beginning of that process. He reported that Y was “split down the middle in terms of how he felt loved and cared for by each parent”.[1] The evidence does not support Y having difficulties in managing increased time with his father.
[1] Single Expert Report dated 26 August 2020, paragraph 61.
Credit
The mother and father were both cross examined, as was the father’s partner. All the parties made efforts to give honest, straightforward evidence.
The father gave evidence that the mother did not respond to his request for additional time when his mother was in Sydney in 2018. In fact the mother did suggest an additional time arrangement for the children. The father’s position was that the mother did not generally accommodate his requests to vary arrangements. It appears that there were instances where she did so. A submission was made that the father lied about this matter. In the circumstances of this matter, I regard it as indicative of the father’s broad view of being on the back foot in negotiating with the mother. Clearly his view is not accurate.
A fair analysis would suggest that the mother made efforts to accommodate the father seeking changes to arrangements for time with the children. I do not regard this as a significant credit issue, rather an example of the parents each operating from their entrenched perspective.
Ms F was an impressive witness. She was thoughtful about any arrangement for the Cavanagh children to reside in her home, and matters that would need to be resolved in arrangements for her children before that could occur. She was the person caring for the children, by agreement, after school and pre-school during the hearing. When it was suggested that there was poor communication by the father over the children’s return to their mother after court, she had the children fed and ready for collection by the mother. It would be helpful for the children if at least some communication took place between the mother and her, as it is likely the two women would be able to co-operate.
The Law
The best interests of the children are paramount in parenting proceedings. The Family Law Act 1975 (Cth)(“The Act”) at section 60CC provides the legislative pathway to determine children’s best interests.[2]
Primary considerations
Section 60CC(2) The primary considerations are:
[2] Goode & Goode [2006] FamCA 1346.
(a) Benefit to the children of having a meaningful relationship with both of their parents
There is no issue that it is in these children’s best interests to have the benefit of a meaningful relationship with each of their parents. Both have such relationships already. Orders are needed to sustain those important relationships.
(b) The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no issue of risk for these children. In either household they are with loving parents who provide excellent care for the children.
Additional considerations
Section 60CC(3)(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.
Neither of the children are of an age or stage of maturity where their views would carry a great deal of weight, had they expressed a view about time arrangements.
Section 60CC(3)(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);
The children enjoy excellent relationships with each of their parents. As observed by the report writer, they are able to seek comfort from each of them, which is indicative of their close relationship.
The children have paternal family in Melbourne, including their grandparents and cousins. There have been difficulties in developing those relationships, as the children have not spent longer than three consecutive nights with their father. This makes interstate travel difficult. Additionally the pandemic has inhibited interstate travel in 2020, and the Victorian border has been closed.
The parties were able to agree to the father spending a week at Christmas with the children in Melbourne. I accept that it is in the children’s interests to develop these relationships, so that they are able to see themselves as part of a larger paternal family. The parties by agreeing to those orders support that proposition.
The father’s partner Ms F and her children did not participate in the report interviews. Ms F was spoken to over the telephone in October 2018 for the first report.
There is no evidence that suggests other than that the children enjoy their time with Ms F and her children. They are developing relationships with them.
The maternal family are originally from Country G. The mother has one sister who lives in City H and a cousin in Country J. The children have been able to spend time with their maternal family overseas, and will do so in the future no doubt once the issues around the pandemic are resolved.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) To participate in making decisions about long-term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child.
Unfortunately poor communication between the parents has inhibited their ability to engage with each other in decision making. The failure of the father to get X to the first orientation for school is an example of this.
Notwithstanding those matters the parties have each taken up the time they are able to spend with the children, and communicate with them.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
The father has paid child support in accordance with assessments by the Child Support Agency (CSA). The mother has sought his assistance at times with the costs of other expenses for the children, which has not always been forthcoming.
The CSA has recently taken into account the capital gain from the sale of the Suburb K property, with the effect of reducing the father’s child support liability. He has agreed to join in approaching the agency to correct this, so that the mother will continue to receive child support in accordance with the previous assessment.
Section 60CC(3)(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 parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he has been living;
There are a number of matters that may change for the children in the future. Both parents are currently renting. The mother is intending to continue in her current accommodation for the present, although it is her intention to look at purchasing a home in the future. The father intends to continue living in his current accommodation for the present. He does not propose residing with his partner Ms F and her two children in the immediate future.
Ms F was clear in her evidence that there are a number of matters she wants resolved for her family, before living with the father. Her ex-partner is intending to return to live in Sydney, and will stay with her whilst sorting out accommodation. They enjoy a good relationship. Prior to the coronavirus pandemic he stayed with her every three months to spend time with the children. She anticipated these matters would likely take in excess of 12 months to resolve. After that she would consider the option of living with the father.
The parents have both assisted the children to manage the changes brought about by separation, and changing school and pre-school. I have no doubt they will assist the children to manage other changes such as a variation to the time arrangements.
Section 60CC(3)(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.
This is not a factor which is of relevance in this matter.
Section 60CC(3)(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.
And
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The mother has been the children’s primary care giver prior to separation. She has continued in this role, and demonstrated her capacity to meet their needs. The father has spent regular overnight time with the children. He also has demonstrated the capacity to provide for the children’s needs.
The report writer described the mother as having “a litany of minor complaints”[3] about matters occurring in the father’s household. Some involved things that are commonplace for separated parents, such as complaints about screen time, particularly for Y. The mother raised whether the father attended appropriately to the children’s hygiene. Most of these complaints derived from things said by the children, such as not brushing their teeth, or having a shower over the weekend with their father. These are the sorts of things young children often say passing between households. One would expect the mother would treat these sorts of comments with the scepticism they deserve. If X has on occasion returned with her hair still in a plait, that is not a matter of significance for her welfare.
[3] Single Expert Report dated 26 August 2020, paragraph 136.
The father failed to remove a tick from X’s head. He said he was not sure what the lump was, but he did not properly check. Clearly he should have done.
The father has given the mother notice of two occasions when he was on holidays, and unable to care for the children. The mother is critical of that. Given that there has been no agreement for additional time over school holidays, it is not surprising that has occurred.
It was unfortunate that a proposal by the mother for the parents to effect a changeover at the snow fields was not agreed by the father. He did not provide any explanation to her of why he thought that would not work. It would have been an opportunity for him to spend time away with the children, and an opportunity for the parents to both demonstrate a degree of flexibility to the other.
The father has regarded the mother as dictating time arrangements, and raising concerns to control his time with the children. He has unfortunately determined that the Court will provide answers to their parenting dispute, not the mother.
X had a fall on a trampoline and injured her foot. The father advised the mother by text that he was taking her to the doctor. The mother suggested it may be better to take her to the hospital. Ultimately the father took X to the hospital, where it was found that she had a slight fracture to her ankle.
There is no suggestion that this was anything other than an ordinary childhood accident. What was unfortunate was that it was a failed opportunity, where the father could have communicated effectively with the mother. That may have assisted the parties in developing cooperative arrangements. Unfortunately the father did not answer calls from the mother, did not advise her they were at the hospital over the three hours they were there, and only called her as they were leaving. It is hardly surprising the mother was worried about how X was managing. The father knew that. In his view X was coping very well, and he was worried that there would be more upset if the mother attended. It is possible that that would have happened. It is possible that the mother would have requested that X go home with her. Neither of those things would have caused X any problem. The father involving the mother would have given the parties an opportunity to build their parenting relationship to support their children.
When Y won the man of the match trophy at sports, the mother sent a photo to the father. Her evidence is that Y requested this, as he was really excited for his father to see his success. The father did not respond to the text. His evidence was that he does not have a relationship with Y over text messaging, and that he preferred to discuss matters with him in person. He conceded there was no reason he could not do both - congratulate him via text, and discuss it with him later. The father did not appreciate that sending the message may have been an olive branch from the mother. His responding may have assisted future cooperation between the parties.
The failure of the parties to manage X’s attendance at the first school orientation was unfortunate. She attended the second one, and I do not imagine it will have any major consequence for X. It is significant for what it says about the parties’ communication.
The mother checked that the father received emails from the school the day before the orientation. He agreed he did. On the morning of the orientation, after delivering her to pre-school, the mother confirmed with the father that he would take her to the orientation. The orders have X in the father’s care from 8.30am. Subsequent to the orders she increased her time at pre-school to prepare for school. As it is a day the father does not work, he would have preferred the increase to fall on another day. The parties have agreed that the mother delivers X to pre-school, and the father collects her.
This situation left it open for the father to be confused about who would be taking her to the orientation. He did not seek to clarify that with the mother. The mother did not make it explicit to him. The upshot was that X did not attend as she should have.
The mother did not seek the father’s agreement in having the children christened in the orthodox faith when they were spending time with her family in Country L. Clearly these are matters in which both parents should have input, and it does not assist in building a trusting relationship for that to occur.
Parents may approach things differently, which is something children can benefit from. It does not mean that one parent’s day to day care of the children is superior. As the reporter suggested, these parties need to “learn to trust and respect the other’s motivation to act in the best interests of the children”.[4]
[4] Single Expert Report dated 26 August 2020, paragraph 145.
The mother does not want to be in the same room, or even in the same zoom parent teacher meeting, as the father. That is her choice. If some trust is built her view about this may shift, which would be advantageous for the children.
Section 60CC(3)(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.
The children are able to be supported in their respective families’ lifestyle and traditions through regular time with each of their parents.
Section 60CC(3)(j) any family violence involving the children or a member of the child’s family.
This is not a relevant factor.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
This is not a relevant factor.
Section 60CC(3)(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.
These children have been reasonably buffered by their parents from the litigation. Nonetheless, it has been in place for three years of their young lives. It would be preferable for this decision to conclude litigation between the parties.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant.
This is not a relevant factor.
Parental Responsibility
The mother seeks an order for sole parental responsibility. She does this on the basis that during the course of the litigation the parents’ ability to manage a co-operative relationship has deteriorated, as acknowledged by both of them. The parents have had assistance from two counsellors: Ms M and Mr E. Unfortunately, this assistance has not improved the parties’ communication. Both parties regard each other with suspicion, and a lack of trust.
Despite their differences, they are both well educated people who are interested in their children’s education and development, and have similar aspirations for the children. Mr E commented to the report writer that both parents have the tendency to be inflexible in their thinking, but if each parent were to shift a little in the other’s direction, they have the potential to develop a better and more helpful rhythm of communication and cooperation. The report writer endorsed this view, and having had the opportunity to see both parents in the witness box I share in this view.
The wife did not acknowledge that the current litigation may have added to the parties’ communication difficulties. It is clear that it has from her communication with the father. For example, her response to the father’s advice about involving the children more in arrangements with his girlfriend: “I appreciate you trying to tick the box for whoever is going to read this in the future. None the less thank you for thinking about [our] kids for once”.[5] The husband agreed that litigation has not assisted their ability to communicate.
[5] Exhibit R1, page 95.
The parents have failed to organise things like the first day of kindergarten orientation for X. For parents as capable as these parents, the communication around this does not speak well of either of them. Both parents have a lot to contribute with respect to the children’s health, education and other long-term matters affecting their interests.
I do not propose making an order for sole parental responsibility. There is no issue of family violence, or any other matter that would rebut the presumption of equal shared parental responsibility. The parties may not communicate well at the moment, but their communication is civil and they have a basis from which to work.
The issue most likely to cause contention is which schools the children attend. The father persistently referred to the mother’s move from Suburb N to Suburb B as a “relocation”. It was undoubtedly more convenient when the mother was living nearby, as she was before. That does not make a move between suburbs in a similar area of Sydney a relocation.
The father is concerned that the move required a change of school for Y, and that Y should not have to experience more moves. It would be preferable if he does not, unless there is an agreement to change school. Orders for equal shared parental responsibility require both parties to agree on a change of school. Any move by the parties to alternate accommodation will need to take into account getting the children to school, subject to any agreement between them.
What extracurricular activity or sport the children participate in, is not a long term parental responsibility decision. This is particularly so for young children of the age of Y and X, when it is likely they will try different activities. The children have missed going to sports training at times in their father’s care, for no reason other than it was not convenient on the day. I propose making orders to assist the parties if they cannot reach an agreement about sport or extracurricular activities. Given the common aspirations of the parents for the children, I do not anticipate this will be a major area of dispute into the future. Both parents would wish their children to have a range of experiences, and to pursue activities important to them.
Whether these children spend five nights, six nights or seven nights with their parents will have less impact on them in the future, than whether their parents are able to work together for them. An equal time arrangement as is sought by the father in my view requires a higher level of cooperation for the children than six nights each fortnight. Should the father and Ms F cohabit, as they intend to in the future, it would mean that for half the time the children are in a blended family. The father and Ms F have observed all four children to share a good relationship. I have no doubt that is true. The limited time they have been together is very different to living together at all times the children spend with their father. None of these children have had any experience of that.
The orders I propose making will see the children spending increasing periods with their father firstly from four to five nights a fortnight, and then to six nights. The report writer commented that there may be benefits if the parties are not able to agree on activities in having the children the same days each week with each parent. A split week arrangement also minimises the time the children are away from either parent. An arrangement for the children to ultimately live with their father from Thursday to Monday in week one, and from Wednesday to Friday in week two will meet that need. It has the advantage of school to school changeovers, and retains some of the familiarity of the current arrangement for the children.
X is starting school next year. I propose changes occurring during school terms after she has had an opportunity to settle into school. The time will increase from the commencements of Term 2, 2021 to five nights, and from Term 2, 2022 to six nights. The orders contemplate the parents coming to focus on their common goals for their children, rather than the conflict perpetuated by litigation.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Boyle
Associate:
Date: 8 December 2020
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