Cleggett and Cleggett - [2008] FMCAfam 131

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CLEGGETT & CLEGGETT

[2008] FMCAfam 131

FAMILY LAW – Children’s issues – parenting arrangements for 4½ year old child – parental conflict – impact on child – equal time or substantial and significant time.

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

Goode & Goode (2006) FamCA 1346
Johnston JR et al, “Ongoing post divorce conflict in families contesting custody: Effects on Children of joint custody and frequent access” American Journal of Orthopsychiatry, (1989) 59, 576-92
Smyth B(ed), Parent child contact and post- separation parenting arrangements (2004) AIFS Research report No 9
Tucker A, “Children and their Suitcases”, Australian Family Lawyer (2006) Vol 18 No 4, 1-4
McIntosh J & Chisholm, R, 2008, Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research Australian Family Lawyer Vol 20, No 1, 3-16

Applicant:

MS CLEGGETT

Respondent:

MR CLEGGETT

File number:

ADC 493 of 2007

Judgment of:

Kelly FM

Hearing dates:

6 & 7 December 2007

Date of last submission:

7 December 2007

Delivered at:

Adelaide

Delivered on:

22 February 2008

REPRESENTATION

Counsel for the Applicant:

Ms M Dickson

Solicitors for the Applicant:

Ann Josephson Lawyers

Counsel for the Respondent:

Mr C Swan

Solicitors for the Respondent:

Swan Lawyers

ORDERS

The parties share equally in parental responsibility for the child [C] born in 2004.
C lives with each parent in accordance with the existing orders until

24 March 2008
(Easter Monday).
Thereafter C live with each parent as follows:
(a)during school terms:
(i)with the father:
a.each alternate week from the commencement of kindergarten or school on Wednesday until the commencement of kindergarten or school on Friday, commencing Wednesday 2 April 2008;
b.each intervening week from the conclusion of kindergarten or school on Friday until the commencement of kindergarten or school on Monday (or Tuesday in the event of a public holiday), commencing Friday 28 March 2008;
(ii)with the mother at all other times;
(b)during school holidays on a week about basis as may be agreed between the parties or in default of agreement to commence with the father in the first week of the 2008 school holidays and each alternate year thereafter and with the mother in the first week of the 2009 school holidays and each alternate year thereafter.
C spend time with each parent on special occasions as may be agreed between them and in default of agreement as follows:
(a)with the father:
(i)from 6.00pm on the Saturday prior until 6.00pm on Father’s Day each year;
(ii)if C is not in the father’s care on C’s birthday or the father’s birthday each year from 4.00pm until 7.00pm if a school day or 10.00am until 3.00pm if a non school day ;
(iii)from 3.00pm on 25 December 2008 until 6.00pm on 26 December 2008 and each alternate year thereafter between the same times;
(iv)from 6.00pm on 24 December 2009 until 3.00pm on 25 December 2009 and each alternate year thereafter between the same times;
(v)from 3.00pm on Easter Sunday until 6.00pm on Easter Monday in the event C is not already in the father’s care over the Easter weekend;
(b)with the mother:
(i)from 6.00pm on the Saturday prior until 6.00pm on Mother’s Day each year;
(ii)if C is not in the mother’s care on the child’s birthday or the mother’s birthday from 4.00pm until 7.00pm if a school day or 10.00am until 3.00pm if a non school day;
(iii)from 6.00pm on 24 December 2008 until 3.00pm on 25 December 2008 and each alternate year thereafter between the same times;
(iv)from 3.00pm on 25 December 2009 until 6.00pm on 26 December 2009 and each alternate year thereafter between the same times;
(v)from 3.00pm on Easter Sunday until 6.00pm on Easter Monday in the event C is not already in the mother’s care over the Easter weekend.
(c)with each parent on other occasions as requested from time to time including, but not limited to, extended family and birthday celebrations.
Both parents are at liberty to attend kindergarten/school events and activities to which parents are normally invited whether or not C is in that parent’s care on the day in question.
The parties use a communication book to exchange information regarding C’s routines, activities and other essential information relating to her care, education, health and welfare, such book to be placed in C’s bag for each handover.
Each party notify the other immediately in the event of:
(a)any emergency involving C;
(b)C requiring hospitalisation for any reason.
Each party is at liberty to:
(a)attend at C’s kindergarten and school for activities and events to which parents are normally invited;
(b)obtain newsletters, reports and photographs from C’s school at that parent’s expense.
Each parent is restrained from:
(a)denigrating the other party in C’s presence (or allowing anyone else to do so);
(b)denigrating any members of C’s extended family in her presence (or allowing anyone else to do so);
(c)changing C’s place of primary residence without giving the other parent at least six (6) weeks notice in writing.
Where appropriate, each parent shall collect C from school at the commencement of C’s time in that parent’s care.
All other handovers take place at [R].
The parties participate in the Anglicare KidsAreFirst parenting programme and enrol to attend the course as soon as possible.
Pursuant to s.65DAC the parties consult in relation to all major long term issues affecting C’s care, welfare and development and make a genuine effort to come to a joint decision about any issue in dispute.
The parties meet with a family dispute resolution practitioner in the event they are unable to reach agreement regarding any major long term issue regarding C.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 943 of 2007

MS CLEGGETT

Applicant

And

MR CLEGGETT

Respondent

REASONS FOR JUDGMENT

These proceedings relate to the parent arrangements for [C] born in 2004. C is 4½ years old. Her parents separated on 15 January 2006. Initially the parties were able to negotiate their parenting responsibilities for C but these negotiations broke down. The parties have been unable to reach agreement about C’s long term parenting arrangements and accordingly seek the Court’s assistance to resolve their dispute.

Background

The parties met in 1995 and married in February 1999. C was conceived with the assistance of IVF and it is clear that she is much loved and cherished by her parents and extended family.
Both parents worked across the marriage. The father worked as a sales clerk at [F] prior to the parties’ marriage and continues to work there on a full time basis. The mother worked as a clerical officer with the [S]. She took leave after C’s birth and remained at home with her until C was approximately nine months old. The mother then resumed part time work on three days each week.
The mother took on the primary parenting role for C. She is critical of the father’s commitment to his parenting responsibilities following C’s birth but I am satisfied that both parents played an active role in C’s care prior to separation. The parties received significant assistance from their extended family, particularly the maternal grandparents who provided extensive “hands on” support and cared for C three days per week once the mother returned to work.
Unfortunately interpersonal difficulties arose between the parties. They separated for approximately six weeks in mid-2005 (when C was 15 months old). The parties sought counselling assistance and resumed cohabitation but were ultimately unable to reconcile their differences.
Following on from the parties’ separation in January 2006, they negotiated a shared parenting arrangement such that C lived with the father each week from 11.00am Sunday until Wednesday morning and with the mother for the remainder of the week. Initially the father delivered C to the maternal grandparents’ home on weekday mornings while he was at work, continuing the childcare arrangement that was in place prior to separation.
The father says that the split week agreement came about at the mother’s instigation. The mother disagrees. She says she felt that she had no choice but to agree to the father’s proposal but that she was never happy with C being away from her primary care for three consecutive nights.
The parties disagree about the success of the split week shared care arrangement. The mother says that C quickly became unsettled, clingy and distressed. The father says that C adapted well to the arrangements and felt that she was settled and relaxed in his care. Indeed, he considered the only difficulties arose from delivering C to the maternal grandparents’ home each morning.
A disagreement arose between the parties in early March 2006. The father subsequently informed the mother that his parents would take over childcare for C on Mondays and Tuesdays, as he felt this would be less disruptive for C. The mother disagreed, as her parents had always cared for C on those days since she returned to work in early 2005.
In mid-March 2006 the father took C to hospital as she was suffering a serious rash. The mother was unhappy that father did not notify her until after the hospital visit was concluded. At this time the mother concluded that C’s ongoing distress, combined with the hostility between the parties, made the shared parenting regime unworkable. On 20 March 2006 she filed an application in the Family Court, seeking orders that C live with her and spend time in the father’s care one day each week and on Wednesday evenings.
The parties’ competing applications came before me on 20 April 2006 in my previous role as Senior Registrar in the Family Court. On that occasion it was ordered that C live with the father on alternate weekends from 10.00am Saturday until 6.00pm Monday and on intervening weeks from 9.00am Sunday until 6.00pm Tuesday. C was to live with the mother at all other times. Both parties were permitted to attend with C for swimming classes on Wednesday evenings and limited arrangements were made for special occasions such as C’s birthday and Mother’s Day.
A family assessment was prepared by Dr Amanda Shea Hart on 1 June 2006. Following on from that report, further interim orders were made on 8 September 2006 continuing the previous orders but with some slight variations to handover time. The orders also provided for either parent to enjoy an occasional longer period of time with C in their care.
The proceedings were transferred to the Federal Magistrates Court in June 2007 and the matter was listed for trial in December 2007. Unfortunately Dr Shea Hart was no longer available to update her assessment and, accordingly, a further family report was ordered.
The parties attended with a family consultant, Ms Rosemary Crabb in November 2007 to prepare the update assessment. In the course of the assessment, they agreed to reinstate a split week shared care regime. Ms Crabb provided a brief written summary of the parties’ agreement on 6 November 2007 (Exhibit H1). Her full report was available on 19 November 2007. Shortly thereafter, the mother reconsidered her position and withdrew her agreement as she no longer considered such an outcome was in C’s best interests. The father maintains his support for Ms Crabb’s recommendations.

The hearing

The trial proceeded before me on 6 and 7 December 2007. Both parties were represented. At the commencement of the hearing, counsel for the mother objected to the father relying upon earlier affidavits. She argued that cross examining the father on the contents of each affidavit was time consuming and he should be limited to his trial affidavit. While the Court was sympathetic to Ms Dickson’s submissions, the objection was ultimately overruled and the father’s affidavits were allowed in as evidence.
In ruling on the objection in favour of the father, the Court reminded counsel of the importance on focussing on the issues as they stand at the time of trial rather than on past allegations and accusations. Bearing these comments in mind, counsel for the husband did not rely upon various supporting affidavits filed on behalf of his client and I have not taken those affidavits into account. Both counsel were focussed in their cross examination, limiting their enquiries to those issues that relate to C’s present welfare and her future parenting arrangements.
The applicant mother relied upon the following documents:
a)Amended Application filed 13 November 2007;
b)Trial Affidavit filed 13 November 2007.
The respondent father relied upon the following documents:
a)Response filed 23 July 2007;
b)Affidavits filed 6 April 2006, 19 June 2006, 19 June 2007, 21 June 2007 and 27 November 2007.
The reports of Dr Shea Hart and Ms Crabb were received into evidence. Both parties gave evidence and were cross examined, as were Dr Shea Hart (by telephone link) and Ms Crabb.

The parties’ proposals

The applicant mother filed an amended Application in which she sought that the existing orders continue until the commencement of the 2008 school year at which time she proposed that C spend time with the father as follows:
a)each alternate week from the conclusion of kindergarten or school on Friday until the commencement of kindergarten or school on Monday;
b)in the intervening week from the conclusion of kindergarten or school on Wednesday until the commencement of kindergarten or school on Friday;
c)during school holidays on a week about basis;
d)overnight on Christmas Eve/Christmas Day in alternating years;
e)for three hours on C’s or the father’s birthday if it falls on a school day and from 10.00am until 3.00pm if on a weekend day with reciprocal arrangements for the mother if C was in the father’s care;
f)on Easter weekend at times to be agreed between the parties.
The mother also sought parenting orders of a more general nature regarding school involvement, extra curricular activities, a communication book and general communication regarding C’s welfare and health arrangements.
The mother’s amended Application did not seek an order for equal shared parental responsibility but in the course of the hearing she conceded such an order was appropriate, at least with respect to longer term issues.
The orders sought by the father are set out in his Case Outline document. He seeks an order for equal shared parental responsibility for C and proposes that C live in each parent’s care for seven nights per fortnight. The father proposes that C live with him as follows:
a)each alternate week from 4.30pm on Friday until the commencement of school on Wednesday;
b)each intervening week from 8.30am Monday until the commencement of school on Wednesday.
The father agrees that school holidays should be shared on a week about basis. He proposes that C spend time with each parent on special occasions such as Christmas, Easter, birthdays, Mother’s Day and Father’s Day and also seeks orders for other special occasions.
The father agrees with the mother’s general proposals regarding parental responsibility, communication, use of a communication book and involvement in schooling. As the parties’ proposals are slightly different I have not made these orders by consent, but note that the proposals put forward by each party regarding holidays, special occasions and parental communication were appropriate.

Legal principles

When making a parenting order the best interests of the child are the paramount consideration (s.60CA). Section 60B of the Family Law Act 1975 sets out the objects and principles which govern the Court’s decision making responsibilities. Section 60CC sets out the factors the Court must apply when determining what outcome will be in the child or children’s best interests. As discussed by the Full Court in Goode & Goode[1] the objects and principles outlined in s.60B provide the context in which the various factors set out in s.60CC are to be “examined, weighed and applied in the individual case”.
[1] (2006) FamCA 1346, para.10
Section 60CC is divided into primary considerations and additional considerations. The primary considerations which the Court must take into account are the benefit for children in having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are thirteen additional considerations in s.60CC(3) which must be taken into account and I will address those considerations further in these reasons insofar as they are relevant. In addressing those considerations I must always be guided by the overall objects and principles underlining my determination of C’s best interests.
The Court must also consider s.61DA when making a parenting order. This section imposes a presumption that it will be in C’s best interests for her parents to have equal shared parental responsibility except in circumstances where the presumption is found not to apply or is rebutted.
I am satisfied that an order for equal shared parental responsibility will be in C’s best interests. She has a strong and loving relationship with each of her parents and they are each devoted to her best interests and future welfare. While there are difficulties in the parties’ interpersonal relationship and communication, I hope they will work towards a more co-operative parenting relationship where they can consult respectfully about long term issues regarding C’s care and welfare.
An order for equal shared parental responsibility triggers the effect of s.65DAA. This section requires the Court to consider whether it will be in C’s best interests to make an order for her to live with each parent on an equal time basis, assuming such an outcome is reasonably practical. Section 65DAA(5) defines how the Court determines whether an order for equal time or substantial and significant time is “reasonably practicable” having regard to:
a)how far apart the parents live from each other;
b)the parents’ current and future capacity to implement an arrangement for equal time or substantial and significant time;
c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise;
d)the impact that an arrangement would have upon a child;
e)such other matters as the Court considers relevant.
In Goode & Goode[2], the Full Court discussed how the phrase “to consider” should be interpreted within s.65DAA(1) and concluded that it meant :
“a consideration tending to a result, or the need to consider the positively making of an order [that is, an order for equal time] if the conditions in s65DAA(1)(a), being the best interests of the child, and s65DAA(1)(b), reasonable practicability, are met.”
[2] Goode & Goode(supra) para.64
If the Court considers that equal time is not in C’s best interests, then I must still consider whether she should spend substantial and significant time with each of her parents (which is defined as including days which fall on week days, weekends and holidays).
Both parties’ proposals meet the requirements set out within s.65DAA, insofar as the father is proposing that C spend seven nights per fortnight in each party’s care and the mother is proposing parenting orders that meet the definition of substantial and significant time. Accordingly, the question is whether C’s best interests are served by her living with each parent equally or whether her best interests are served by an arrangement where she lives primarily in the mother’s care and spends substantial time in the care of her father.

Primary considerations

It is clear from the evidence before the Court that C has a strong and loving relationship with each of her parents. This is reflected in the assessments undertaken by Dr Shea Hart in 2006 and Ms Crabb in 2007. C clearly enjoys a meaningful relationship with both parties and will benefit from their ongoing involvement in her care as she grows up. I place significant weight upon this factor.
Fortunately there is no suggestion that C is at risk of harm in the care of either party. While there has been a high degree of acrimony and distrust between the parents and their extended families, neither party is alleging that family violence is a factor, nor that C is at risk of exposure to abuse or neglect in the care of either parent.

Additional considerations

a)C’s views

C is just four years old. At this young age, very little weight could be placed upon her views. Neither Dr Shea Hart nor Ms Crabb considered it appropriate to interview C separately.
b)the nature of C’s relationship with each parent and significant others
Dr Shea Hart’s report provides a glowing assessment of C’s general developmental achievements and her attachment to each parent.

Dr Shea Hart concluded (at para.28)
“The assessment showed that C is securely attached to her mother and to her father. … In each location in the presence of her mother and in the presence of her father C confidently explored familiar and unfamiliar environments where she used each of her parents as a ‘safe base’.”
Dr Shea Hart then observed further interaction between C and each of her parents and concluded that C demonstrated “a clear pattern of secure attachment to each individual parent”.
Ms Crabb also observed C with each party and with extended family members – the maternal grandfather, paternal grandparents and Mr Cleggett’s partner Ms K. Ms Crabb noted (at paras.26 & 27)
“There was no differential information from the observations of C with her mother and with her father. C demonstrated close attachments to each of her parents and to her maternal and paternal grandparents. C was also observed to engaged [sic] spontaneously and with affection with Mr Cleggett’s defacto partner, Ms K.
All participating adults in this assessment were appropriately nurturing, protective and response to C, who revelled in their attention. During each observation session C impressed as spontaneous, relaxed and inclusive with each of the attending adults.”
The observations of Dr Shea Hart and Ms Crabb are confirmed by the parties’ own evidence. It is clear that C is greatly loved by each of her parents and by her extended maternal and paternal families. I am confident that both parents will facilitate C’s ongoing relationship with her grandparents and other family members and will support her participation in family celebrations that may fall outside the usual parenting regime.
c)each party’s willingness and ability to facilitate C’s relationship with the other parent and significant others
The dispute between these parties is not whether C should maintain an ongoing relationship with each parent but how that ongoing relationship should be maintained. Despite the unresolved hostility between the parties, I am satisfied they each understand that C benefits from and enjoys her time in the other parent’s care.
The father has maintained his support for an equal parenting regime for C. While the mother unilaterally terminated the initial shared parenting arrangement in March 2006, I am satisfied that she did so based on her assessment of C’s best interests, rather than any intention to undermine C’s relationship with the father.
The mother’s initial application in March 2006 was unduly restrictive in the amount of time she proposed C spend with her father. However the mother has since acknowledged that C had coped well with the regime of two nights per week in the father’s care. When interviewed by Dr Shea Hart in July 2006 the mother reported that C’s behaviour had settled and improved following the Court orders of 20 April 2006. At para.11 Dr Shea Hart reports:
“The mother was seeking to continue the current parenting arrangements until C reaches a stage of development where she can cope with more equal overnight shared care. She stated her agreement that Mr Cleggett be involved in joint decision making for C and was receptive to discussing ways of supporting

Mr Cleggett’s role as father to C.”
At that time, Dr Shea Hart recommended that the existing parenting arrangements (two nights per week with the father) continue for the following 12 to 18 months. The mother felt vindicated by the outcome of Dr Shea Hart’s assessment insofar as it did not support C returning to the previous arrangement where C spent three nights each week in the father’s care.
More recently in the course of the update assessment in November 2007, Ms Crabb noted (at para.24):
“Ms Cleggett subsequently expressed her willingness to consider a parenting arrangement that would accommodate both parties’ proposals involving alternate weekends and C spending more time with her father. …”
Again, this reflects the mother’s willingness to support C’s relationship with the father. However, while the mother supports C spending significant time in the father’s care, she has withdrawn from her agreement that C spend equal time with each parent, notwithstanding the recommendations contained in Ms Crabb’s report.
The father is perplexed by the mother’s change of attitude. He argues that it demonstrates her unwillingness to support C’s ongoing relationship with him. That is obviously one interpretation, but it is not the interpretation I place upon the mother’s actions.
Based on the evidence I have heard in the course of the trial, I am satisfied that the mother’s opposition to C spending seven nights per fortnight in the care of the father is not based upon her opposition to the father’s role in C’s life. Rather, it is based upon her own view that C’s is not emotionally ready for such a change.
The mother acknowledges that C loves the father and accepts that she has developed an appropriate attachment to both parents. Nonetheless she is concerned that C is still too young and that it will be unsettling for C to routinely spend five nights away from her primary carer.
d) the likely effect of any changes on C
C is four years old and is now attending kindergarten one half day per week, increasing to four half days in second term. The parenting orders that I now make impose a change upon C, but I am confident that she will adjust to these changes with the support and assistance of her parents and extended family. While the pattern of C’s time in the care of each parent will be slightly different, I consider that the strength of her attachment and relationship to each of her parents is such that she will adapt to these changes without too much difficulty.
In considering what orders are in C’s best interests I have paid particular attention to the evidence of Dr Shea Hart and Ms Crabb regarding the timing of any changes to C’s parenting arrangements. Ms Crabb gave evidence that it may be preferable for any changes in C’s living arrangements to occur prior to C commencing kindergarten. Dr Shea Hart suggested it may be appropriate that any changes take place after C commences a more structured kindergarten routine.
e)practical difficulty and expense of child spending time with either parent
This factor does not weigh significantly in my determinations. The father was critical of the mother’s decision to move from the north-eastern suburbs to [T] in the western suburbs of Adelaide. He complains that the mother gave him very little notice of her plans and that her decision has lead to substantially more driving for the parties and C.
As a matter of simple courtesy the mother should have given the father more notice of her intention to change C’s home address. However I do not consider moving from [G] to [T] is a significant issue in a practical sense, nor does it impose undue difficulty and expense upon the parties, in terms of handover arrangements. Both parties still live within metropolitan Adelaide. The distance is greater, but not excessively so, in my view.
To his credit, the father has acquiesced in the mother’s choice of school for C, who is now enrolled in [O] School. The school is convenient to the mother’s home address but will involve extra travel for the father and C on those school mornings that C is in his care. Ms Crabb noted that the extra travel was not necessarily a problem, provided that C is not exposed to any resentment or frustration on the part of the father. I am satisfied that the father will bring a positive attitude to these journeys.
s.60CC(2)(f), (i) & s.60CC(4) parental capacity, each party’s attitude towards C and to the responsibilities of parenthood and the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent
It is convenient to address these considerations together. Both parties are committed, competent and loving parents. Dr Shea Hart noted at paras. 29 & 30 that both parents:
“… showed appropriate anticipatory and responsive behaviours to C’s physical, emotional and psychological needs. They each allowed C to explore and play as well as having loving physical contact and encouraging C’s age appropriate choice. Also each parent accurately anticipated her needs and appropriately addressed these in a timely way. These parenting patterns all indicate appropriate, responsive sensitive and nurturing parenting that fosters the development of secure attachment for the child.
It is clear that the mother and the father are both dedicated parents who devote their available time to caring for C. Each parent is actively involved in the practical caregiving of C … Each parent showed competence in practical caretaking.”
Ms Crabb agreed with Dr Shea Hart’s earlier assessment and confirmed that there was no sign of any “deficits in parenting or caregiving skills on the part of either parent”.
However there are ongoing concerns about the parties’ capacity to manage their co-parenting relationship and this is a relevant factor in assessing their attitude to the responsibilities of parenthood. Dr Shea Hart noted that each party was experiencing “grief and loss” over their separation and that the associated loss of trust appeared “to be fuelling the conflict between them”. Ms Crabb referred to Dr Shea Hart’s earlier assessment and said (at para.30):
“… It is now almost 2 years post separation and relations between the parties remain poor, with communication between them reportedly often conflictual and ineffective.”
Ms Crabb also commented (at para.29):
“… The separation anxiety … suggests that C’s coping abilities are being sorely tested by the disharmony that continues to exist between her parents (and grandparents). This can only be viewed as detrimental to her [C’s] long-term well being.”
In her initial letter to the parties (Exhibit H1), Ms Crabb noted that both parties realised C was “very much aware of the dislike between her parents … and was likely to suffer emotionally as a result of this adult animosity.” The ongoing distrust and poor communication between the parties was evident in the trial process. There are numerous examples of the parents’ poor communication and hostility, as set out in their affidavits. I do not intend addressing each allegation nor do I consider it beneficial to the parties’ future co-parenting relationship to make findings about their respective behaviour on each and every past incident.
There is fault on both sides. Clearly the mother should have notified the father of her plans to move away from [G] and endeavoured to negotiate handover arrangements and future schooling decisions. Equally clearly, the father’s behaviour in recording handover arrangements as recently as two months prior to trial eloquently conveys his distrust of the mother. These are but two examples. Sadly, the hostility between the parents extends to the attitudes of their extended family.
The ongoing hostility and interpersonal conflict between the parties are significant factors in assessing the impact of future parenting arrangements upon C. Aside from these concerns, I am generally satisfied that both parents have fulfilled their parental responsibilities. The parties disagree about C’s future best interest but that does not reflect a failure in parental responsibility.
g) maturity, lifestyle and background
C is still very young. She enjoys the love and support of her extended family on both sides. There is nothing evident in either party’s lifestyle or cultural heritage that impacts upon my decision today.
j) & k) family violence involving the child or family, any existing family violence orders
As already noted, this is not a matter where family violence is a factor. While there has been conflict between the parties in the period prior to and following separation, I do not characterise the behaviour of either parent as family violence within the definition set out in s.4 of the Family Law Act.
l) orders least likely to lead to further proceedings
Both parents have a firm view about C’s best interests and future parenting arrangements. Whatever orders the Court makes, one parent will feel disappointed. However, I am confident that their love and commitment to C’s welfare will override their disappointment.
Both parties expressed a desire to resolve their parenting disputes without litigation. Despite these good intentions, they were unable to do so. There is no doubt that ongoing Court proceedings are inherently stressful and can undermine rather than enhance the co-operation and parenting capacity of any party.
With these proceedings now finalised, hopefully the parties will look to the future and focus on minimising their conflict and maximising their co-operation, with C’s best interests in mind.

Conclusion

I am satisfied that it is appropriate to make an order that the parties share equally in parental responsibility for C, pursuant to s.61DA of the Family Law Act 1975.
The mother must understand that this order means she and the father are equally responsible for C’s future welfare and that decisions about C need to be made jointly between them. Where the parties disagree, then the next step is to participate in family dispute resolution.
As I am making an order for equal shared parental responsibility I must consider whether an order that C spend equal time in the care of each parent is in her best interests and is “reasonably practicable”.
There are no concerns regarding distance or about the parties’ capacity to implement the practicalities of any parenting arrangement. However, there are significant concerns about the parties’ capacity to communicate with each other and to resolve the day to day parenting disputes that will inevitably arise in an equal time parenting arrangement.
Ms Crabb suggested that much of the conflict between the parents arose because of the power imbalance between them. She cited the mother’s unilateral decision to move from [G] to [T] and then enrolling C in the local school as examples where the mother failed to properly consult with the father. Ms Crabb considered that an order for C to spend equal time with each parent could resolve the “power differential” between the parents, hopefully resulting in better communication between them.
I am concerned that this analysis places undue weight upon the parents’ needs and circumstances, rather than upon C’s best interests. In my view, any “power differential” between the parents is more appropriately addressed by an order for equal shared parental responsibility and by the parents’ own efforts to improve their communication, rather than relying upon the division of parenting time with C to achieve that balance. A co-operative parenting relationship should be a precursor to an order for equal parenting time, not a potentially beneficial outcome of such an order.
Social science research suggests that shared parenting outcomes are most successful where the parents are able to demonstrate mutual trust, effective communication and flexible co-operation.[3] This research identifies ongoing parental conflict as a significant factor that militates against a successful shared parenting outcome. In a recent article[4], McIntosh and Chisholm discuss the indicators and contra-indicators for successful shared parenting outcomes. They conclude (at page 14) that:
“When considering ‘the benefit to the child of a meaningful relationship with both parents’, considerable weight needs to be given to the need of the child for care and contact arrangements that protect them from parental dynamics otherwise likely to erode their developmental security.”
The authors conclude their article with a challenging question to professionals working in the family law arena:
“Ultimately we are asking professionals to ask themselves: Will a shared living arrangement in this parental context lead to an experience for the child of being richly shared, or deeply divided?”
It is a question that parents who find themselves before the Court should also ask themselves.
[3] Shared parenting outcomes are discussed in the following articles: Johnston JR et al, “Ongoing post divorce conflict in families contesting custody: Effects on Children of joint custody and frequent access” American Journal of Orthopsychiatry, (1989) 59, 576-92; Smyth B(ed), Parent child contact and post- separation parenting arrangements (2004) AIFS Research report No 9; A Tucker, “Children and their Suitcases”, Australian Family Lawyer (2006) Vol 18 No 4, 1-4.
[4] McIntosh J & Chisholm, R, 2008, Shared Care and Children’s Best Interests in Conflicted Separation: A Cautionary Tale from Current Research Australian Family Lawyer Vol 20, No 1, 3-16
The existing parenting arrangements have enabled C to enjoy a “meaningful relationship” with both parents. She experiences her parents as having “meaningful involvement” in her day to day life. Given the hesitation I have expressed about the parties’ co-parenting relationship, I am reluctant to impose further stress upon their parenting dynamic (and therefore potentially upon C) by introducing an equal shared care arrangement before the parties themselves have moved forward to a more harmonious interaction.
The conflict between her parents is a significant impediment to an order for C to spend equal time in the care of each of her parents. It is clear, based on the reports of Dr Shea Hart and Ms Crabb, that there has been little improvement in the parties’ co-parenting relationship over the past two years since their separation.
While I am confident that both parties are devoted to C’s welfare, sadly, they are not yet at a stage where their past hostility and distrust has allowed them to move on from earlier difficulties. I accept the parents are not now routinely abusive toward each other at handover, but those difficulties are not so far in the past that I am confident such behaviour could not arise again, particularly if the parents find they are in disagreement over an aspect of C’s future care.
I conclude that an order for C to spend equal time with each parent is not in her best interests. However, she should continue to enjoy substantial and significant time in the care of her father. I consider the mother’s proposals will facilitate C continuing a meaningful relationship with each parent and I will make orders accordingly. The orders will take effect from the Easter weekend, which is after C has commenced kindergarten, but before she moves to four half days in term two.
The orders also address special occasions and provide guidance to the parties with respect to parental communication and future decision-making. Hopefully these orders will provide a secure framework for the parties to negotiate their co-parenting responsibilities with a clear focus on C’s best interests. Both parents agreed to participate in the KidsAreFirst parenting programme. This is an appropriate avenue to address and improve the co-parenting dynamic between them and I will order the parties attend the programme as soon as is practicable.

I now make orders as published at the beginning of these reasons.

I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Kelly FM

Associate:

Date: 22 February 2008