CHOLAS & TOTOLOS - [2010] FMCAfam 1161

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHOLAS & TOTOLOS

[2010] FMCAfam 1161

FAMILY LAW – Parenting – whether in best interests of five year old girl to spend five or six nights a fortnight with her father – whether in best interests of girl to attend a local primary school or a Greek Orthodox school that is some distance from her principal residence with her mother.

Family Law Act 1975, ss.60B; 60CA; 60CC

Applicant:

MS CHOLAS

Respondent:

MR TOTOLOS

File Number:

MLC 8192 of 2009

Judgment of:

Riley FM

Hearing dates:

11 & 12 October 2010

Date of Last Submission:

12 October 2010

Delivered at:

Melbourne

Delivered on:

11 November 2010

REPRESENTATION

Counsel for the Applicant:

Ms M L Smallwood

Solicitors for the Applicant:

Pearsons Barristers and Solicitors

Counsel for the Respondent:

Mr C Arnold

Solicitors for the Respondent:

Harwood Andrews Lawyers

THE COURT ORDERS BY CONSENT THAT:

The parents of [X] born [in] 2005 (“[X]”) have equal shared parental responsibility for her.
[X] live with her mother.
Each party and his and her agents be restrained from criticising the other to or in the presence or earshot of [X] or discussing these proceedings with her.
Each party attend upon a dietician as agreed to receive direction as to the appropriate dietary requirements for [X] and follow any directions and advice given by that person.
In addition to any other orders, [X] spend time with her father as follows:
(a)on St Thomas’s Day from 1:00pm until commencement of school the next day;
(b)on 15 August (Assumption Day) and 30 November (St Andrew’s Day) each year, if a school day, then from after school until commencement of school or 9:00am the next day, and, if not a school day, then from 10am until 7pm;
(c)on Father’s Day from 10am to commencement of school the next day;
(d)from 3.00pm on 31 December to 3.00pm on 2 January each year;
(e)for one half of all school term holidays to commence after first term 2011, to be calculated after taking into account any time otherwise spent pursuant to these orders;
(f)for two hours on [X]’s birthday by agreement; and
(g)Greek Easter from Thursday 5pm to Monday 5pm, and, in the event [X] would but for these orders otherwise be in the care of the mother during that time, then make up time be provided.
In the event that [X] would otherwise be with her father on Mother’s Day, [X]’s time with her father be suspended from 10am that day.
In the event that [X] is otherwise not in the mother’s care on [X]’s birthday, or on the mother’s, [X]’s sisters’ or [X]’s brother’s birthdays or from 6pm Christmas Eve until 4pm Christmas Day, then she be returned to the mother for two hours on each of those birthdays, and from 6pm Christmas Eve until 4pm Christmas day as applicable.
Whichever parent receives a copy of [X]’s school report/s shall forthwith provide a copy/copies to the other parent, or if the school is agreeable, direct the school to provide copies of such reports directly to the other parent.
Each parent shall upon receiving notification of any school or extra curricular special event (including but not limited to concerts, parent teacher interviews, excursions and camps) forthwith provide the other parent with details or a copy of the notification of such event.
If either parent receives notice of a party or other special event for [X] which will take place while [X] is with the other parent, he/she shall forthwith give the other parent notice of such event.
Each parent shall forthwith notify the other of any illness effecting [X] of whatsoever nature and advise the other parent of any medication given to or prescribed for [X].

AND THE COURT ORDERS THAT:

[X] spend time with her father:
(a)prior to the commencement of school in 2011, from 5pm Wednesday to 6pm Saturday in one alternate week, and from 5pm Wednesday to 6.30pm Friday in the other alternate week; and
(b)after the commencement of school in 2011, from after school Thursday to before school Monday in one alternate week, and from after school Thursday to before school Friday in the other alternate week.
[X] attend [G] School.

AND THE COURT NOTES THAT:

The order that [X] attend [G] School is made on the basis that [X] will continue to be enrolled in Greek school on Saturdays, and will continue to attend Greek school each Saturday, subject to any other more important commitments.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
Melbourne

MLC 8192 of 2009

MS CHOLAS

Applicant

And

MR TOTOLOS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for parenting orders in respect of [X] who was born [in] 2005 (“[X]”) and who is now 5 years old. [X]’s parents agree that she should live with her mother and spend time with her father.
There is a dispute as to whether [X] should spend five nights a fortnight with her father, as the mother proposes, or six, as the father proposes. There is also a dispute about whether [X] should attend [G] School next year, as the mother proposes, or [O] School, as the father proposes.
The mother is 46 years old and the father is 45. The mother has four children from a previous relationship, [A], who is 22, [B], who is 19, [C], who is 17, and [D], who is 16. [C] and [D] still live with the mother but her sons do not. The father does not have any other children.
[X]’s parents began living together in December 2004. They separated from February 2007 until June 2008, and then separated under the one roof from 16 April 2009 until 11 September 2009, when final separation occurred. The mother left the family home on that date with [X].
Final orders were made by consent in the Family Court on

18 September 2009. They provided for [X] to live with her mother and, until the settlement of the sale of the family home, spend time with her father from the end of kindergarten each Wednesday until 3pm each Saturday. The sale of the family home, at the time of trial, had not settled. Consequently, the existing orders provided for [X] to spend Wednesday, Thursday and Friday nights with her father each week, which amounts to six nights a fortnight. There were other orders dealing with special days, particularly, significant days in the Greek Orthodox religion, and various other matters.
The mother filed an initiating application in this court on 3 February 2010 for property orders. The mother filed an amended application on 30 July 2010 in which she sought orders that [X] spend time with her father from the end of kindergarten each Thursday until 5.30 pm each Saturday, that [X] attend [G] School and various other orders. The father in his amended response sought orders in the alternative, namely, that [X] live with each of her parents week about, or that she live with her father from after school each Monday to before school each Friday. Additionally, the father sought an order that [X] attend [O] School.
Neither party in the present proceeding relied on Rice v Asplund (1979) FLC 90-725. The property aspect of the proceeding was resolved by consent on 5 August 2010.
As indicated above, by the conclusion of the hearing, the father accepted that [X] should live with her mother. The mother presently lives in a rented house near the [G] School. The mother expects to continue living in that area. The father is presently living with his parents in [suburb omitted]. When [X] is with her father, she is also usually with her extended paternal family. In fact, the father said that [X] is sometimes with her paternal relatives for eight hours on the Thursday and Friday when he is busy with work. However, the father is building his own house very close to the [O] School. He expects to move into the house in December.
A subsidiary issue was that the paternal grandmother allegedly feeds [X] too much rich and fatty food. The father denied that. The matter was largely resolved with a proposed consent order whereby the parties will attend upon a dietician and follow his or her advice for [X].
Once [X] starts school, the particular proposal of the mother was that [X] spend time with her father from Thursday after school to Monday before school in alternate weeks and from Thursday after school to Friday before school in the other week. The father proposed that, in addition, [X] spend time with him from after school on the Wednesday in the other week to after school on the Thursday.
The father evidently accepted that the mother would find it virtually impossible to transport [X] from [G] to [O] on each school day that [X] was living with the mother, given that the mother works full time in [suburb omitted]. Consequently, the father proposed that he would be at the mother’s house at 7.45am every Monday, Tuesday, Wednesday and Thursday in one week, and every Tuesday and Wednesday and, if the court so ordered, Thursday, in the other week to collect [X] and take her to school. The father also proposed that he would collect [X] from school and return her to the mother’s house at 6pm or thereabouts every Monday, Tuesday and Wednesday in one week, and every Monday and Tuesday, and, if the court so ordered, Wednesday, in the other week. The father’s working hours are flexible, as he is a self-employed [occupation omitted].
The mother was strongly opposed to the father taking [X] to and from school on each morning and afternoon when she was with the mother. Firstly, the mother said that the father was not punctual, and she could not rely on him to collect [X] each day before she had to leave for work. Secondly, she said that she did not want the father to be at her house once or twice a day on numerous days a fortnight for the next 13 years.
Additionally, the mother opposed [X] attending [O] School because she said it is monocultural. The parties seemed to agree that 95% of the students at [O] School are of entirely Greek heritage and the remainder either have one parent of Greek heritage or no parents of Greek heritage. In the latter group, the father said that there were some of Indian, Serbian and Russian heritage. There was no evidenced to the contrary and I accept that claim.
The mother said that the NAPLAN test results showed that the [O] School was not very good academically. The father apparently accepted that, but said it offered many other advantages, of the sort offered by other private schools. The father exhibited to his affidavit sworn on 7 October 2010 materials from the website of the [O] School. It says, among other things:
Through Faith and Wisdom and the values of the Orthodox Faith, which form the centre around which all else flows, our students participate in learning experiences, that integrate the spiritual, moral, social, physical and academic areas, while being immersed in the values and traditions of both our Australian and Greek heritage, in pursuit of excellence and a self-awareness of their own unique identity. …
The College is a community school with a Greek Orthodox perspective. It aims to integrate and promote the best in Australian education and culture with the finest that Hellenism and Orthodoxy have given the world. …
The mother said that [X] had many opportunities to enjoy her Greek culture and traditions because [X] can continue:
a)to attend Saturday afternoon Greek school, as the mother has always facilitated;
b)to attend Greek Orthodox Church on the Sundays that she is with her father;
c)to speak Greek with her paternal family; and
d)to participate generally in the Greek culture that is available in Melbourne.
I would also observe that [X]’s surname is Greek, her first name, [X], is Greek[1], and the diminutive of her first name, [X], is a common Greek diminutive for [X].
[1] [details of first name omitted]
The father said that the mother could not give [X] “any culture whatsoever because she is an atheist.”[2] The mother agreed that she was an atheist, but submitted that culture is not confined to religious people or those of certain ethnic origins.
[2] Transcript 11.10.10, page 63, lines 25 to 26.
The mother’s older girls, [C] and [D], attend a Catholic school which they reach by tram. The mother said that the school was suitable for her older daughters because, in one case, it provided academic excellence and, in the other case, it provided support and alternatives to a highly academic path. Although she is an atheist, the mother is not opposed to religious schools as such. She said, and I accept, that the school her daughters attend has students from a variety of ethnic and religious backgrounds.
The father said that he would pay the school fees for [X] to attend the [O] School. With incidentals, he estimated the annual cost to be about $10,000. The father does not pay child support.
The mother said that, if [X] attends [G] School, she will get out of bed at about 7.30am and be at before school care at about 7.45am. She will have breakfast at before school care. At the end of the day, [X] will go to after school care and be collected at about 5.40pm. The father said that it was better for [X] to be cared for by him before and after school than by strangers. The mother suggested that the before and after school carers would not be strangers for long.
The mother said that [X] has two friends from child care who she sees on weekends and who will be attending [G] School. The father said that there are two other children from [X]’s Saturday afternoon Greek school who will be attending [O] School. On the evidence, I infer that [X]’s relationship with the children from her crèche is stronger than her relationship with the children from the Saturday afternoon Greek school.
Before [X] starts school next year, the mother proposed that [X] spend time with her father from 5pm on Wednesday to 6.30pm on Friday each alternate week and from 5pm Wednesday to 6pm on Saturday in the other week. That amounts to five nights a fortnight. It is one less night a fortnight than the arrangement under the existing orders, which is Wednesday to Saturday each week.
The impetus for the mother proposing the change before [X] starts school next year was apparently that the parents had been advised by Mr P to each have one clear weekend with [X] each fortnight. The father agreed that it would be good for [X] to spend a whole weekend with each of her parents each fortnight. However, he proposed that his proposal be instituted immediately, rather than after [X] starts school.

Credibility

In most respects, both the mother and the father were open and frank with the court and the family report writer. However, I have formed the view that the father was not an entirely honest witness. He initially claimed that he was providing support for [X] in the form of paying half her child care fees. However, when pressed, he conceded that he stopped paying half of the fees in March this year. I consider this to be a significant misstatement in the context of this case.
The mother’s credibility was questioned particularly in relation to an email dated 22 August 2010. There was much dispute about whether the email contained the mother’s proposals, as the father maintained, or whether it contained examples of some possible configurations of time, as the mother maintained. The mother said, and the father apparently accepted, that the email followed a conversation with the father in which he doubted that an eight-six arrangement could be appropriately configured. Having read the email, I consider that it contained some possible configurations of time, rather than the mother’s proposals. I do not consider that the evidence surrounding the email detracts from the mother’s credibility.
The mother’s credibility was also attacked on the first day of the trial on the question of whether [X] had actually been offered a place at [G] School. The mother was adamant that she had been. The last mention of this matter in court was an indication that the father would make direct enquiries of the school. The issue was not revisited. I assume that the father made enquiries and the mother’s evidence was substantiated.

Violence

The father admitted that he had hit the mother in February 2007 when he was drunk. This led to the father being placed on an intensive correction order. The father has attended an anger management course and counselling.

Alcohol and drugs

Both parents admitted to having been heavy drinkers in the past. The father attends Alcoholics Anonymous from time to time and takes anti-depressants. The mother also admitted that she and her first husband had been heroin addicts for two years before her oldest child was born. The mother admitted that she used cocaine two years ago.
The father maintained that the mother was still a heavy drinker, on the basis that it was unlikely that she would have changed. The mother denied that. In view of the mother’s credibility generally, in view of the fact that the mother manages to hold down a full time job, and in view of the fact that the father’s evidence was not based on direct knowledge but on speculation, I accept that the mother is no longer drinking heavily.

Family Report

A family report was prepared by Ms D. It is dated 27 August 2010. Ms D made the following observations of [X]:
[X] is 5 years of age and attends childcare in [suburb omitted] on Monday, Tuesday and Wednesday; the days she presently lives with Ms Cholas. [X] commenced childcare at the age of 19 months. On meeting her [X] presented as a happy, well-cared for, socially well-adjusted little girl who readily engaged in conversation with the psychologist, with great enthusiasm.
Ms Cholas had mentioned that [X] is of average height, but on the top of the weight range at 24 kg. She is indeed a child of solid build. Ms Cholas told the psychologist, ‘All her ([X]’s) weight is in her trunk’, so she dresses [X] to hide some of the child’s chubbiness.
[X] understands that her ‘family’ consists of her two parents, including, she said, ‘[A], [B], [C] and [D]’, her half-siblings,

Ms Cholas’ four older children. [X] also said that she ‘loves’ these same people. [X] understood that she has two houses. When asked with whom she lives, [X] replied, ‘Mummy’.
[X] is a bright, responsive and confident little girl; very aware and very observant. When talking separately with the psychologist, [X] asked, ‘Where’s mummy?’
It is apparent from what [X] said that she spends a deal of time with her paternal grandparents, who she is fond of. For example, [X] reported that when she sees her father, it is her paternal grandmother who dresses her, who cooks for her, and takes her to see her cousins.
It is evident from [X]’s responses that she is a well-loved little girl. She is too young to understand her living routine. She did understand that ‘today’ her father was going to collect her from kindergarten. She said she would have ‘3 sleeps with daddy’ at her paternal grandparents house.
Ms D made the following observations of [X] with her parents:
[X] was brought to the interviews by Ms Cholas. She had some difficulty settling on her own in the playroom while Ms Cholas was separately interviewed. Indeed, [X] interrupted her mother’s interview on many occasions. When this happened Ms Cholas was quiet, gentle and focused with the child, and redirected her into the playroom.
When Mr Totolos arrived [X] and he spent approximately an hour together in quiet, enjoyable play. Mr Totolos lay on the floor with [X] and was attentive to his daughter. Ms Cholas gave [X] her kindergarten photographs to give to her father. At one point both parents were in the playroom together and were polite and cordial in [X]’s presence.
[X] was happy to spend time with each parent separately, and with both parents together. She was relaxed, confident, and, clearly, has a healthy attachment to both her parents.

In her conclusions, Ms D said:
It must be said that Ms Cholas has offered, what present as generous proposals, in terms of living arrangements for [X], around an 8/6 fortnightly routine. It was Mr Totolos who showed the psychologist a copy of Ms Cholas’ proposals, of 15 August 2010, to him, 3 days prior to the family’s interviews.
It must be said these proposals have some merit; as they afford the child a primary residence, a block period of time with the other parent, plus time during the fortnight with the other parent.
Mr Totolos has proposed a rotating 7 days with each parent. His reasons for this routine, in the psychologist’s opinion, do not reflect a routine that would best meet [X]’s needs; but rather are designed firstly to meet his own needs. Among the reasons he gives in support of this routine, is that, ‘It’s more flexible for [Ms Cholas] and I to plan our lives; to plan things for us, and for [X]’.
Further, one must ask how serious Mr Totolos is about this routine, for he has told the psychologist that, if Ms Cholas agreed to his choice of school, he would then consider her proposed living routines.
With regard to the parenting capacity of each parent: it is considered that [X] is at an age when she still requires the nurturing and daily care provided by her mother. There has been no indication that Ms Cholas does not provide well for [X], or, attend to her emotional needs, despite Mr Totolos’ criticisms.
Indeed, Ms Cholas speaks of her parenting with the knowledge, experience, understanding and wisdom of a parent who has clearly provided daily, hands-on care; not just of [X], but for her other four older children. She also presents with a degree of goodwill towards Mr Totolos; goodwill that does not appear reciprocated by him. She said, ‘[X] has to have a relationship with her father. She has every right to be with him. He has every right to be with her’.
[X]’s own comments and observations of her with her parents indicate she feels well-loved. She is a socially well-adjusted child, bright, confident, and happy, who enjoyed having her parents in the playroom together, if only briefly.
Significantly, part of [X]’s ‘family’ life includes her 4 half-siblings, whom, [X] herself told the psychologist, make up her ‘family’. While there is a significant age-gap between the youngest child, at 15 years, and [X] at 5 years, even Mr Totolos acknowledged that the sibling relationship is, ‘…close, caring and warm’.
If the residence question and the number of days each fortnight is settled, this will possibly flow on to settling the school issue.
In any case, [X] currently attends Greek school on a Saturday; she speaks Greek; she has a Greek father and paternal family; she attends Greek church; she is aware of the culture. In the psychologist’s opinion [X] does not need to attend a Greek primary school to maintain a Greek sense of identity, which is clearly available through a range of other experiences.
In the particular circumstances of this case it is recommended that Ms Cholas’ proposed living routine for [X] has merit. It is suggested that the child remain in her mother’s primary care, and spend time with her father each alternate weekend; possibly alternate Thursdays to Monday morning (4 nights), alternate Thursday overnight to Friday (1 night), followed by time on the alternate Monday for a meal and/or an activity.
This translates to a 9/5 living routine for [X]. It will (sic) may well be that the parents are able to negotiate a little further on this.

Ms D’s oral evidence

Ms D confirmed in oral evidence that the father had said to her:
The school is very important. The hours and days of [X]’s routine are less so.
Ms D also confirmed that the father appeared to her to be prepared to bargain over [X]’s living arrangements in return for the school of his choice. The father said in his oral evidence that Ms D had forced him to choose between the school and time. Ms D denied that she had insisted that the father rank the importance of the school and the living arrangements. She said that the father’s comments about the relative importance of the school and the living arrangements were unsolicited.
I accept Ms D’s evidence on these matters. As indicated above, the father was not an entirely honest witness. In the case of this inconsistency, I prefer Ms D’s evidence.
Ms D said in her oral evidence that she had not done other family reports in relation to the question of a child attending a Greek school but volunteered that she had done cases where there was a question of a child attending an Islamic school or a Jewish school. The father, through his counsel, took offence at a Greek school being regarded as similar in any way to an Islamic or Jewish school.
In relation to the question of whether it was in [X]’s best interests to be cared for by her father or carers who were not members of her family, Ms D said that [X] was a very sociable little girl who seemed to mange her existing care routine without issues.
Ms D seemed to say in cross examination that, while she supports a nine-five arrangement at present, an eight-six arrangement may be suitable when [X] turns six next year. The exchange was as follows[3]:
Now the second last paragraph of your report on page 17 says:
This translates to a nine-five living routine for [X]. It will –
And I think you mean “well may” –
well may be that the parents are able to negotiate a little further on this.
[3] Transcript 12.10.2010, page 106, lines 9 to 47.
?‑‑‑Yes.
Now, do you mean that they can negotiate around the fringes or do you think they will negotiate on the eight six?‑‑‑Well, that means eight six. I mean, these reports are written at a time – they’re either a tool for parents to settle and both use the report as a blueprint to try and get some settlement or, as in this case, now used as evidence in court. My view is, my professional view is that a nine five routine was a suitable routine for the child at this point in time and as she goes into her first year of school. That sentence is a hope that maybe they could go one extra night to eight six.
When would that be?‑‑‑Well, again, I can’t really foresee into the future but I think the child needs to be settled into her primary school, notwithstanding which school she will be in. The other parent may not – one parent may not be happy with that choice. Again notwithstanding what school she’s in, I would imagine the other parent may have to make themselves familiar with that school and the teachers and parents and the whole school community. I would say she’s six in June 2005. I mean, to pick a date out of the air, on 14 June 2005 – sorry, 2011.
After all your cross-examination you’re still sticking with your nine five?‑‑‑Yes.
But you say it should go to eight six on 14 June ‑ ‑ ‑?‑‑‑I think the parties would – it would be beneficial if they entered into some discussion about it and, again, I don’t know if that’s possible. But as it stands at this point in time, I would be supporting nine five.
But at the same time recommending an increase to eight six next year?‑‑‑Well, recommending a structure whereby the child’s life can become or can be made as normal as possible so that she has a sense of having mum and dad in her life and all the family on that side, it may well be that, if it was a nine five routine and the father was spending more time with the child, for example, after school, that eight six, as a mathematical formula, would not be as important as it appears to be at the moment.
It seems that Ms D was suggesting that [X]’s parents might see fit to negotiate an eight-six arrangement next year, after [X] turns six, and depending on how things go, but Ms D’s recommendation at the time of the trial, and as far as court orders were concerned, was nine-five. She said her suggestion that an eight-six arrangement might be suitable on [X]’s sixth birthday was “to pick a date out of the air”. It seems that Ms D’s thoughts about an eight-six arrangement in the future were aspirational, rather than a considered view about [X]’s best interests.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
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).
Section 60CA of the Act 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.
However, the best interests of the child are not the only consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations. Additionally, the court must consider the matters set out in subsections (4) and (4A). I will address those considerations in order.

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

[X]’s parents apparently accept that she would benefit significantly from having a meaningful relationship with both of them. That view is supported by the family report and I accept it.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Neither of [X]’s parents suggests that she is at risk of being subjected to abuse, neglect or family violence. That position is supported by the family report. The only issue that possibly arises in this context is [X]’s diet. However, it seems that the parents have adequately dealt with this issue by their consent to a proposed order to attend a dietician and comply with his or her directions in relation to [X].

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

[X] is too young for her views to carry any great weight with the court. Perhaps for that reason, Ms D does not report that she asked [X] about her views. Neither parent claimed that [X] had any particular views about the issues in dispute, except that the mother reported that [X] did say to her words to the effect that:
Dad’s lonely all by himself. It’s not fair. Dad’s on his own. You’ve got [C] and [D].
If this statement can be interpreted as [X] wanting more time with her father, it is patently based the father’s needs rather than her own. Accordingly, it must be discounted.

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)

Ms D reported that [X] has a healthy attachment to both of her parents. The father acknowledged that [X] has a “fantastic”, “close, caring and warm” relationship with [C] and [D]. The mother acknowledged that [X] has a good relationship with the paternal family.

Section 60CC(3)(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

Both of [X]’s parents have demonstrated a willingness and ability to facilitate a close and continuing relationship between [X] and her other parent.

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 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

The proposals put forward by [X]’s parents do not amount to a major change in her circumstances. The question is whether there is a change from an eight-six arrangement to a nine-five arrangement. I do not consider that such a change would have a significant effect on [X]’s relationships with her paternal family. However, it may be easier for [X], at her young age, if she can spend more of her time in her principal home.

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

It was not submitted that there is any particular practical difficulty or expense that might impact on [X]’s ability to maintain personal relations with both of her parents on a regular basis.

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

Both parents seem to be well able to provide for [X]’s needs, although the father has received a good deal of assistance from his mother in caring for [X]’s physical needs. For example, the father said that his mother had always bathed [X], but he was now gaining more confidence and assisting [X] with her hygiene.

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

This issue is a very significant factor in this case. [X] is in the enviable position of having ready access to two different cultures.
Although the father considers that the mother has no culture, the mother does in fact have the culture of mainstream Australia. The mother apparently values pluralism, as do many Australians. The mother is an atheist. Atheism is, of course, a legitimate belief. The mother apparently values evidence and logic over faith. Although they were not explored at the trial, the mother no doubt has a set of values and a world view. I gather that the mother wants [X] to enjoy the benefits of mainstream Australian culture rather than be largely confined to a single culture.
The father’s background is of Greek ethnicity and the Greek Orthodox religion. Clearly, there is much to admire in Greek culture. The ancient Greeks produced an unrivalled concentration of magnificent art, architecture, literature and philosophy. Democracy was invented by the ancient Greeks, as were the Olympic Games. Plays written by ancient Greeks are still read and performed. Many of the more sophisticated words in the English language, and other European languages, are derived from ancient Greek. It has been said by people who know about such things that all of Western philosophy is a footnote to Aristotle. The ancient Romans borrowed much from ancient Greek architecture, and adopted their religion (which, incidentally, was not Greek Orthodox). Many of the public buildings in Europe and North America are inspired by the architecture of ancient Greece. More recently, Greece has been plagued by political and economic difficulties. However, Greece remains a nation with a proud and distinctive history and culture.
I daresay that some members of the Greek community in Melbourne are atheists who have no wish to send their children to Greek Orthodox schools. However, the father and his family are practising members of the Greek Orthodox Church. The father says that [X] is also Greek Orthodox. [X] may have been baptised in the Greek Orthodox religion shortly after her birth. However, [X] will no doubt make up her own mind at some point in the future about whether she wishes to remain in the Greek Orthodox Church. For now, however, there are many traditions and cultural practices that are observed by members of the Greek Orthodox Church, including special rituals at Easter and Christmas time. [X] will presumably gain a good deal from participating in them with her extended paternal family.

Section 60CC(3)(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;

This factor does not apply in this case.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Generally, both of [X]’s parents have demonstrated a good attitude to the responsibilities of parenthood. However, the father has somehow been assessed as not having to pay child support, although he says that he can pay about $10,000 per year to send [X] to the [O] School. Since separation, [X] has been financially supported almost entirely by her mother.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

This has been discussed previously.

Section 60CC(3)(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

This has been discussed previously.

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

It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. Litigation is stressful for all concerned, and expensive.

Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant

There are no other facts or circumstances that I consider to be relevant.

Section 60CC(4): 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.

Both parents have been fully engaged with [X]. The question of maintenance has been addressed previously.

Section 60CC(4A): 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.

The circumstances since separation have been addressed previously.

Equal shared parental responsibility

Section 61DA of the Act provides as follows:
1.When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
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.
[X]’s parents agree that they should have equal shared parental responsibility for her. I also consider that to be in [X]’s best interests.

Equal or substantial and significant time with each parent

Where the parents have equal joint parental responsibility for a child, s.65DAA of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. That section provides as follows:
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.
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;
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.
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.
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.
I do not consider that equal time with each parent is in [X]’s best interests. The family report writer did not recommend equal time in this case. Ultimately, neither parent sought equal time. That showed good insight on their parts into [X]’s needs.
Both parents support [X] living with her mother and spending substantial and significant time with her father. I consider that to be in [X]’s best interests. She clearly has a good and beneficial relationship with both of her parents.
The only questions in relation to time are whether [X] should spend five nights a fortnight with her father or six, and whether there should be a change to the configuration of [X]’s time with her father before she starts school.
It seems to me that it is in [X]’s best interests that she spends five nights a fortnight with her father rather than six. This will enable [X] to have a more solid base with her mother, and will not significantly detract from the relationship that she has with him. It will enable the father to consolidate his skills in providing for [X]’s basic physical care, in the absence of his mother, without substantially jeopardising [X]’s needs. It is also in accordance with Ms D’s expert recommendations. As indicated above, it seems that Ms D’s thoughts about [X] having an eight-six arrangement in mid 2011 was not a considered view.
I also consider that it is in [X]’s best interests for a change in the arrangements to nine-five to start now. This will enable [X] to have a weekend with each parent, as recommended by Mr P.
In relation to schooling, it is not disputed that it is just not viable for the mother to transport [X] to and from the [O] School, given that the mother has to go to work every day to support [X]. Similarly, I do not consider that it is reasonably practicable for the father to collect [X] from and deliver her to the mother’s home a number of times each week for the purposes of taking her to and from school. It would be oppressive for the mother to have the father at her home so many times a week, even if [X] made her own way to and from the front door to the car. The mother would no doubt feel that her privacy and space were being invaded. That is not in [X]’s best interests. The father’s offer to transport [X] between the mother’s home and the [O] School was probably well meant but it was misguided.
[X] clearly is too young to make her own way to and from the [O] School from [G]. Consequently, it is simply not physically practicable for her to attend that school.
In any event, taking into account all of the evidence in this case, on balance, I consider that it is in [X]’s best interests to attend a local primary school. Such schools enable children to make many connections with people in their local community. That is a benefit to a child for obvious reasons. Attending such a school will enable [X] to participate fully in the mainstream of the society in which she is living. It will enable her to forge strong bonds with people who live near her, to interact with a variety of people and to explore a range of ideas.
Having said that, I consider that the father will be able to ensure that [X] is able to enjoy her Greek heritage and traditions by speaking Greek to her, taking her to a Greek Orthodox Church and other activities with the Greek community in Melbourne, involving her with her extended paternal family and taking her to Saturday Greek school.
An additional matter which weighs against [X] attending [O] School is the difficulty that the mother could be expected to have fitting in with that school community. It is obviously very important for [X] that her mother, as her primary carer, is able to be welcome and happily involved in [X]’s school community. While the school may welcome Indians, Russians and Serbians, the [O] School has a Greek focus and a religious focus. The mother is an atheist of Anglo heritage who has separated from a Greek father. It seems unlikely that the mother would find many welcoming and like-minded people at the [O] School.
The father’s argument that [X] would be better cared for by him than strangers is otiose, given that it is simply not reasonably practicable for [X] to attend the [O] School. In any event, the carers at before and after school care will not be strangers for long. Moreover, many children gain a good deal from before and after school care in terms of, for example, social development, physical activity, artistic pursuits and cooking skills.
There will be orders accordingly.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Riley FM

Date: 11 November 2010