Collins and Flynn-Collins
[2009] FMCAfam 906
•25 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLLINS & FLYNN-COLLINS | [2009] FMCAfam 906 |
| FAMILY LAW – Parenting – lives with – spends time with. |
| Family Law Act 1975, ss.60CC, 61DAA, 65DA, 65DAA, 60CA |
| Goode & Goode [2006] FLC 93-286 |
| Applicant: | MR COLLINS |
| Respondent: | MS FLYNN-COLLINS |
| File Number: | HBC827 of 2007 |
| Judgment of: | Baker FM |
| Hearing date: | 28 July 2009 |
| Date of Last Submission: | 28 July 2009 |
| Delivered at: | Hobart |
| Delivered on: | 25 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fitzgerald |
| Solicitors for the Applicant: | Fitzgerald & Browne, DX 246 Hobart |
| Counsel for the Respondent: | Mr Foster |
| Solicitors for the Respondent: | Murdoch Clarke, DX 131 Hobart |
ORDERS
That the parents, Mr Collins and Ms Flynn-Collins have equal shared parental responsibility for the children, [X] born in 2004 and [Y] born in 2006 (“the children”).
That the children live with the father as follows:
(a)each alternate weekend from Friday afternoon until Monday morning at times to be agreed, and if not agreed 5.00pm Friday until 8.30am Monday;
(b)Each Wednesday night at such time to be agreed, and if not agreed at 5.30pm. The mother will collect the children from the father on Thursday morning to enable her to take [X] to school.
That the children live with the mother at all other times.
IT IS ORDERED BY CONSENT
That the usual fortnightly regime of care shall operate both during school terms and during school holidays with the following exceptions:
(a)That in 2009 the mother shall have the care of the children from 4.00pm on Christmas Eve until 2.30pm on Christmas Day and the father shall have the care of the children from 2.30pm on Christmas Day until 2.30pm on Boxing Day and the parties shall alternate this arrangement each year thereafter.
(b)That the parents shall alternate in each year having the care of the children from 4.00pm on New Years Eve until 2.30pm on New Year’s Day with the father having this time in 2009.
(c)That the parents shall alternate in each year having the children from 4.00pm Easter Saturday until 2.30pm Easter Sunday with the father having Easter Sunday in 2010.
(d)That the children have lunch with the mother each Good Friday.
(e)That on the children’s birthdays the parent who does not have the care of the children will have the care of both children from 10.00am until 2.30pm if the children are not at school and if they are at school then from after school until 6.30pm.
(f)On the occasions of Mother’s Day and Father’s day in each year commencing at 4.00pm on the preceding day when the children will be with the mother or the father until 4.00pm on Mother’s Day or Father’s Day as appropriate.
(g)On the occasions of the parents’ birthday when the children will be with the parent who has the birthday from 10.00am until 2.30pm if the children are not at school and if they are at school then from after school until 7.00pm.
(h)The parents shall alternate having the children on Hobart Show People’s Day between 10.00am and 4.00pm and Hobart Show Saturday between 10.00am and 4.00pm with the mother having the children for Hobart Show People’s Day in 2009.
(i)Either parent may give the other parent 30 days notice of their intention to have the children for a block period of 14 days during the Christmas School holidays in each year or at such other time as the parties may agree.
IT IS NOTED that publication of this judgment under the pseudonym Collins & Flynn-Collins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC827 of 2007
| MR COLLINS |
Applicant
And
| MS FLYNN-COLLINS |
Respondent
REASONS FOR JUDGMENT
Background
This is an application by the father for parenting orders.
The father, Mr Collins, was born in 1968. He is 41 years of age and has his own business, “[A]”.
The mother, Ms Flynn-Collins was born in 1975. She is 34 years of age and is a shop owner.
The parties commenced cohabitation on 1 June 2001 and married in January 2004. They separated on 4 February 2007.
There are two children of the marriage, [X] born in 2004 and [Y] born in 2006.
Since separation the parties have shared the care of [X] and [Y] each fortnight on a three/four/four/three basis commencing on Wednesday each week.
The father has a child from a previous relationship, [Z] who is eight years of age. She lives with the father on a five/two/two/five day basis.
The father lives with Ms C. She has two sons, [C] born in 2000 and [D] born in 2002. The children live with Ms C and the father on a full-time basis.
Issues in dispute
The father seeks equal shared parental responsibility for the two children. He also seeks that the children live with him in week one from Wednesday until Saturday and in week two from Wednesday until Sunday. The father also seeks time with the children during school holidays and special days.
The mother seeks that the children live with her and spend time with the father each alternate weekend from Friday afternoon until Monday morning and each Wednesday night.
Evidence
The father relied on the following:
·Application for Final Orders filed 3 June 2008.
·Affidavit of the father filed 15 June 2009.
·Affidavit of Ms C filed 15 June 2009.
The mother relied on the following:
·
Amended Response to an Application for Final Orders filed
4 March 2008.
·Affidavit of the mother filed 14 July 2009.
·Affidavit of Ms F filed 15 July 2009.
Both the father, the mother and the maternal grandmother, Ms F were cross examined.
A Children & Parents Issues Assessment was released on 1 August 2008.
The Family Consultant, Ms Antonia Dunne made the following recommendations:
·“The parents consider, in the light of the information provided by the family consultant, whether the current arrangements are the best for their young sons.
·The parents consider whether it might be possible for the boys to spend more quality time with their father when in his care – for example by a change to the arrangements for the other children – attached is a possible schedule for the parents’ consideration.
·Given the boys young ages, attachment to their mother, and her availability, that the parents consider whether it might not be preferable for the boys to be in her care on Fridays if they continue with their current arrangements.”
The second recommendation and the possible schedule became irrelevant. During the course of the hearing the husband said that the boys, [D] and [C], no longer spend time with their father and are in their mother’s care full-time.
Ms Dunne was cross-examined by both Counsel.
Discussion
Evidence of Ms Dunne
In her Assessment Report, Ms Dunne indicated that the frequent moves of a three/four/four/three equal shared care arrangement can be stressful for very young children who thrive on routine and predictability. She was of the view that longer periods of equal shared time, such as week about, would be contraindicated, particularly for [Y], as he would feel abandoned by the parent whom he did not see for a long period such a week. She said:
“until [Y] is older it would, on the basis of the latest research information available, appear to be in the best interests of the boys to spend a greater proportion of their time in their mother’s care with substantial time in their father’s care. The mother provides a somewhat more secure base for the children due to the fact that they do not have to negotiate other complex relationships there as they do in the father’s home.”[1]
[1] Pages 2 and 3 – Children and Parents Issues Assessment
Ms Dunne described the living arrangements in the father’s home as a complex situation. [X] and [Y] are usually two of five young children in the household. They have to relate to two new stepbrothers and a new stepmother. [Z] too is adjusting to these new relationships in the home.
During cross-examination, Ms Dunne referred to the research of
Dr Jennifer McIntosh and Professor Richard Chisholm, which talks about high conflict families and the psychology of shared care for young children and the difficulty for them, because of their attachments, of frequent moves between parents. Ms Dunne said that frequent moves interrupt their experience of care with the parent which whom they were with at the time, and are difficult for young children to manage. She said the research talks about caution being needed with shared care arrangements for children under four, but she said it is a continuum.
Ms Dunne acknowledged that this is not a family situation involving high conflict, but the research is helpful in terms of talking about the psychology of shared care for young children irrespective of a conflict factor. She said that even though [Y] and [X] have been in a shared care arrangement for around two and a half years, they are still in a highly challenged phase, because [Y] is commencing kindergarten and [X] is about to commence full-time school. She said that there are lots of demands on them still psychologically, developmentally, and in terms of getting adequate rest, which are all important.
Ms Dunne said it is better for children to spend more time with one parent so as to have a home base. She believed that it would be better for these children to live in a nine/five care arrangement, which they could manage. She said that she believes that four/three/three/four arrangement is too hectic for them. She said that both parents, but especially the father, had difficulty understanding the “developmental stress” of an equal shared care arrangement on children as young as [Y] and [X]. This is because he is very attached to them and loves spending time with them. She said that as the research is contrary to his desires, it is a struggle for him to accept it.
When cross-examined by the father’s Counsel, Ms Dunne said her observations of the children not coping with the other parent leaving the room during the assessment was evidence of their stress. Ms Dunne said the mother had expressed concerns about [X] and that he worried about her a bit more than [Y]. Ms Dunne thought that [X] would be having that worry frequently if moving between the two households.
Ms Dunne was of the view that it was not appropriate for Mr Collins to take two very young children to his workplace. She said her concern was that a parent’s attention is diverted if at work. She believes that there are dangers in the workplace for young children, especially if they are both present. She said that she found it a struggle to believe that the father could supervise the children all the time. Ms Dunne said that she knows what active boys are like. Even if the father is with them all the time, because of the nature of power tools and building sites, it is not appropriate to take them to work. She said that there is a large difference, between children being with the father at home in a workshop, from being at a workplace where he has to complete a job. There are different pressures at workplaces.
The mother’s evidence
The mother has a concern about the father’s accommodation, as the children share a bedroom with their two cousins, [D] and [C]. She complained about the children being very tired after their return to her. She is concerned that because there are four children in the one bedroom with different sleep patterns that her children do not get sufficient rest.
She said that most of the time when the children return from time with the father, they are very tired. She therefore puts them to bed earlier than usual and sometimes they fall asleep on the couch on Sunday afternoons. She believes that the children should not have the one bedroom with the two other children. She believes that their bedroom should not just be a place to sleep in, but should be a special place for them.
The mother raised other concerns including the father taking the children to work on most Fridays, lack of communication between the parents, inappropriate discipline and leaving the children in the care of others. She indicated that she wants the children to spend quality time with their father.
Evidence of the maternal Grandmother – Ms F
Ms F said that she frequently sees [X] and [Y] after the mother has collected them from their father. She has observed that they often appear to be extremely tired and on some occasions she has observed unusual behaviour. She recalled [Y] bashing his head and body on the wall in her shop on two occasions.
During cross-examination, Ms F said that she has observed the children to be tired nearly every weekend, sometimes more often than others. When asked when she saw [Y] bash his head, she said a couple of months ago on two occasions, with a few weeks in between the incidents.
Ms F said that the mother is not happy about the children spending so much time in a crowded environment with four children in one small bedroom. She said that she is concerned that they are not getting sufficient rest. She also indicated that the mother is not impressed about the father taking the children to his work place.
The father’s evidence
The father said that [X] and [Y] share a bedroom with [C] and [D], and once the court case is over in relation to property settlement, he would like to build a bigger house with separate bedrooms for each boy. However, in the meantime he said that the boys are managing satisfactorily with that arrangement.
When asked during cross-examination whether he had previously said it was tough on [Y] and [X] to be sharing a bedroom with the other two children, he answered:
“it is tough growing up, things happen, we have a combined family, it is not easy, it is tough but everybody has adapted…it is just tough for two young boys to commute into a blended family. Things have changed it is a lot easier now.”
The father said that on Fridays the boys usually go to work with him. He says he builds decks which are less than one metre high and the worksites are completely safe. He does not take the boys if it is raining and muddy or if the work is a high-rise development. During cross-examination the father indicated that he works from 8am until between 2 and 4pm. He works with one other labourer and works with power tools, a nail gun and other equipment. He says that if there are other children on the worksite, his children play with them and their parent helps supervise them. He takes toys and they play around in the dirt. He said he believed that it was safe to take them to work because he looks after them.
The father said that the children are usually in bed before 8.30pm on Saturday nights, but occasionally when they visit friends they either will go to bed about that time or sometimes stay up later. They are sometimes tired on Sunday mornings.
The father believes that parents should have a fifty-fifty share arrangement “as kids have got to learn”.
The evidence of Ms C
Ms C was not cross-examined. Her affidavit indicated that she agrees with all those parts of the father’s affidavit which referred to her or are within her knowledge.
Relevant Law
Section 60CA of the Family Law Act 1975 provides:
“In deciding whether or not to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration”.
A court, in determining what is in a child’s best interests, must consider the primary considerations and the additional considerations set out in s.60CC, informed by s.60B, which set out the objects of Part VII of the Family Law Act 1975. Section 60B provides:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are set out in s.60B(2).
The court is also required to consider s.61DA which provides the presumption, that if a court makes a parenting order, it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of child abuse or family violence and may be rebutted if not in the best interests of the child. If the presumption of equal shared parental responsibility applies, the court is required by s.65DAA(1) and s.65DAA(2) to consider whether the child spending equal time with each of the parties is in the child’s best interests, and is reasonably practicable or failing such an order being made, whether it is in the child’s best interests and is reasonably practicable to spend substantial and significant time with each of the parties.
In accordance with the direction by the Full Court in Goode & Goode[2], the court must follow the structure of the Act.
[2] [2006] FLC 93-286
Section 60CC
To determine what is in the children’s best interests, the court must consider the matters in s.60CC.
Section 60CC provides that: -
Determining child's best interests:
Section 60CC (1) 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).
Section 60CC(2) The primary considerations are:
“(a) the benefit of the child having a meaningful relationship with both of the child’s parents;
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.”
Discussion
Section 60CC(2)
There is no dispute that there is benefit to both children having a meaningful relationship with both parents. Both parties have strong and loving relationships with the children.
The second primary consideration is not relevant.
Section 60CC(3)
The relevant additional considerations pursuant to s.60CC(3) are as follows: -
Section 60CC(3)(a)
There is no evidence as to the views of the children. They were not interviewed due to their young ages, however both were observed with each parent.
Section 60CC(3)(b)
Both parents have a good relationship with the children. Ms Dunne indicated the children “… are lovely active well-cared for little boys. Both boys appeared to have a close connection with each parent”.[3]
[3] Children & Parents Issues Assessment of Ms Dunne released 1 August 2008.
The maternal grandmother has regular and extensive contact with [X] and [Y].
The father’s new partner, Ms C, is actively involved in looking after the children.
There is no evidence which gives me any concern about the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
Section 60CC(3)(d)
Ms Dunne observed that the children showed some heightened concerns when leaving their mother’s care for the report process and then later when their mother replaced their father, in relation to their father. This concern was expressed in questions such as “where’s mum?” Ms Dunne was of the view that this concern seemed to be stronger than one would expect in children of their ages in intact families and may be accounted for by the fact that they spend blocks of three or four days with each parent at ages where children have little concept of time or when they will be seeing their other parent again.
Section 60CC(3)(f)
Both parents are capable of providing for the needs of the children. I have some concerns however, that the father lacks insight into the needs of the children. He could not accept that it was not appropriate to take two young children to his workplace on Fridays. He does not accept that it is difficult to supervise two young children whilst working with tools such as a nail gun and a drop saw at worksites.
Ms Dunne indicated that the father particularly, had difficulty understanding the feedback provided about the “developmental stress” of an equal shared care arrangement on children as young as [Y] and [X]. His attitude was that whilst it is tough on the children they can cope.
Section 60CC(3)(i)
In my view, the father’s attitude to taking the children to his workplace indicates a lack of understanding of the responsibilities of parenthood. Whilst he is sure he can keep the children safe, he cannot understand that it is not be appropriate to take young children all day to worksites whilst he is working.
Section 60CC(3)(l)
Whilst parenting orders are never final, the order which I intend to make should minimise the prospect of future litigation.
Section 60CC(4) and (4A)
I have already considered the extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent.
Section 61DA - Parental responsibility
The father is seeking an order for equal shared parental responsibility. The mother’s Counsel indicated that she does not oppose the order. In my view, having regard to all the evidence, it is appropriate and in the children’s best interests for an order to be made.
The time the children are to spend with the parent
As I will make an order for equal shared parental responsibility I am required by section 65DAA(1) and 65DAA(2) to consider whether [X] and [Y] spending equal time with each of the parents is in their best interests or failing such an order being made, whether it is in [X] and [Y]’s best interests to spend substantial and significant time with each parent. Significant and substantial time includes weekends, holidays and periods during the week, so that parents can be involved in events of particular significance to the child and the parents.
When the children live with the mother, they each have their own bedrooms and they go to bed between 7 and 7.30pm. When they live with the father they share a bedroom with [D] and [C] who are aged 9 and 7 years. On occasions in the morning [Y] has had to be taken out of the bedroom so he does not wake the other three children.
Both the mother and the grandmother gave evidence of the children being tired upon their return from their father. The father acknowledged that the children are tired on Sundays.
Ms Dunne has described the living arrangements in the father’s home as a complex situation. She said that the frequent moves of three/four/four/three equal shared care arrangement can be stressful for very young children who thrive on routine and predictability. She said that there was some evidence of stress exhibited by these children, when they did not cope with the other parent leaving the room during the assessment process. She also thought that [X] would be worrying about his mother frequently if moving between the two households. The children are in a highly challenged phase of their lives and I accept Ms Dunne’s view that it is better for them to have a home base.
Having regard to all the evidence, I am of the view that it is not in the best interests of the children to spend equal time with both parents. I accept and place weight upon Ms Dunne’s evidence that it is the best interests of the children to spend a greater proportion of the time in their mother’s care, with substantial time in their father’s care. I am of the view that the mother has a better understanding than the father of their needs and has a more responsible attitude to parenting.
In my view, the proposal of the mother that the children spend each alternate weekend from Friday until Monday and each Wednesday overnight, will promote the children’s best interests. They will spend time with their father during the weekend and during the week to enable him to be involved in their daily routines. They will spend five nights out of fourteen nights per fortnight with their father, such time which is reasonably practicable. This will provide them with a stable base at their mother’s home and will enable the children to continue to have a meaningful relationship with their father.
The parties have agreed the arrangements for the children on special days and holidays and they will each spend time with them at Christmas, Easter, Mother’s and Father’s Days and birthdays.
The fortnightly regime of the children’s care will continue during school holidays and each parent has the option of spending fourteen days with the children during the Christmas school holidays each year.
In my view, these arrangements will promote a meaningful relationship between [X], [Y] and both parents and maximise the benefit to the children of such relationships.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Baker FM
Associate: Sita Buick
Date: 24 August 2009
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