Conway & Short - [2022] FedCFamC2F 72

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Conway & Short [2022] FedCFamC2F 72

File number(s): ADC 5333 of 2019

Judgment of: JUDGE DICKSON

Date of judgment: 1 February 2022

Catchwords: FAMILY LAW – Parenting – two children aged 8 and 10 years – where parties have been separated since 2012 – where father has worked on a fly-in/fly-out roster on a 28 day on/off roster since 2013 – where father’s time spending with the children has occurred in Adelaide during his 28 days off – where father seeks to increase his time with the children – where mother alleges father has a history of issues with alcohol consumption – where mother alleges that father’s behaviour towards her has been abusive – where there have been communication issues between the parties – where the mother has a lack of confidence in the father’s ability to be emotionally attuned to the children - where issues to be determined at Trial were relatively narrow – where Family Consultant’s recommendations at Trial varied from those given in the Family Report – where the children want to spend more time with their father – where the father’s proposal for school holiday time involves a ‘complex calculation’ – where any orders made should be simplified – where the children’s time with their father should be maximised whilst he is present in Adelaide whilst balancing the children’s relationship with the mother and their half siblings.

Legislation: Family Law Act 1975 (Cth), Pt VII, ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
Goode & Goode (2006) FLC 93-286

Jurchenko & Foster [2014] FamCAFC 127
Mazorski & Albright [2007] FamCA 520

Division: Division 2 Family Law

Number of paragraphs: 146

Date of hearing: 16 – 18 November 2021

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Andersons Solicitors

Counsel for the Respondent: Mr Childs

Solicitor for the Respondent: VP Lawyers
ORDERS

ADC 5333 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CONWAY

Applicant

AND:
MS SHORT

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

1 FEBRUARY 2022

BY CONSENT THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The parties have equal shared parental responsibility for the children X born in 2011 and Y born in 2013 (‘the children’).
3.The children live with the mother at all times that the father is rostered on at work.
4.In the event that Mother’s Day falls during a period when the children are in the care of the father, the children spend time with the mother from 10.00am until 6.00pm on Mother’s Day.
5.In the event that Father’s Day falls during a period that the father is rostered off work and the children are in the care of the mother the children spend time with the father from 10.00am until 6.00pm on Father’s Day.
6.In the event that the children’s siblings (B and C) birthday(s) fall during a period that the children are in the care of the father, that the children spend time with the mother and their siblings on their sibling’s birthdays at times to be agreed between the parties, and failing agreement, the children shall spend time with the mother and their siblings from 10.00am until 1.00pm on those days.
7.The children spend time with the parent with whom they are not otherwise living on each of the children’s birthdays as agreed and failing agreement:
(a)If a school day, then for a period of not less than two (2) hours and in default of agreement, from 4.00pm until 6.00pm; and
(b)If a non-school day, (weekend day, public holiday, pupil free day, or school holiday) then for no less than 4 hours, and in default of agreement, from 2.00pm to 6.00pm.

8.In the event that either parent’s birthday falls during a period the children are spending time with the other parent, the children spend time with the parent celebrating the birthday as agreed, and failing agreement:
(a)If a school day, then for a period of not less than two (2) hours, and in default of agreement, from 4.00pm until 6.00pm;
(b)If a non-school day (weekend day, public holiday, pupil free day, or school holiday), then for no less than 4 hours, and in default of agreement, from 2.00pm until 6.00pm.

9.The children spend time with the parties over the Easter period:
(a)With the father from 3.00pm on Maundy/Easter Thursday until 3.00pm on Easter Monday in even years; and
(b)With the mother from 3.00pm on Maundy/Easter Thursday until 3.00pm on Easter Monday in odd years.

10.Handovers that do not occur at the children’s school(s) will occur by each party (or their nominee) collecting the children from the place of residence of the other party at the commencement of their time.
11.The parties communicate about matters concerning the care of the children by email and SMS only except in emergency when they will communicate via telephone.
12.If a party proposes to take the children away on holidays, they must provide the other party with the address and telephone number for the proposed holiday location, not less than 21 days prior to departure.
13.Each party must:
(a)Advise the other party at all times of the children’s medical or other health practitioner’s appointments;
(b)Keep the other party informed at all times of the names and addresses of any treating medical or other health practitioner who treats the children and authorise that practitioner to provide the other party with information that they are lawfully able to provide about the children;
(c)Inform the other party as soon as reasonably practicable of any medical condition, significant health issue, or illness suffered by the children and this order authorises any treating medical practitioner or health practitioner to release the children’s medical and health information to either of the parties.

14.Each party inform the other:
(a)No less than 24 hours prior to changing their residential address; and
(b)Within 24 hours of changing their mobile and landline telephone numbers or email address.

15.Each party may liaise directly with the children’s school(s) and sporting bodies, to receive any notices, information, newsletters, school reports, order forms for the children’s school photographs, information about the children’s progress at school, as well as parent/teacher appointments, and information about extracurricular activities involving the children.
16.Each party may attend for the children’s school(s) for the purposes of any function to which parents are normally invited to attend.
17.Each party keep the other informed of changes to the children’s health while the children are in their care and as soon as practicable, notify the other parent of any medical emergency involving the children.
18.The parties not criticise or denigrate the other party, or the other parties’ family in the presence of, or within the hearing of the children, or allowing anyone else to do so.

AND IT IS FURTHER ORDERED:
19.During the period when the father is resident in Adelaide, the father spends time with the children as follows:
(a)During school terms:
(i)From the date of these orders until the commencement of Term 4, 2022:
A.Weeks one and three of a four week rotating cycle: From the conclusion of school (or 3:00pm if a pupil free day) Thursday to the commencement of school (or 9:00am if a pupil free day) on the following Thursday; and
B.Weeks two and four of a four week rotating cycle: From the conclusion of school (or 3:00pm if a pupil free day) Monday until 7.00pm.

(ii)As and from the commencement of Term 4, 2022:
A.Weeks one and three of a four week rotating cycle: From the conclusion of school (or 3:00pm if a pupil free day) Thursday to the commencement of school (or 9:00am if a pupil free day) Thursday; and
B.Weeks two and four of a four week rotating cycle: From the conclusion of school (or 3:00pm if a pupil free day) Monday to the commencement of school (or 9:00am if a pupil free day) Tuesday.

(iii)As and from the commencement of Term 4, 2023:
A.Weeks one and three of a four week rotating cycle: From the conclusion of school (or 3:00pm if a pupil free day) Thursday to the commencement of school (or 9:00am if a pupil free day) Thursday;
B.Weeks two and four of four week rotating cycle: From the conclusion of school (or 3:00pm if a pupil free day) Monday to the commencement of school (or 9:00am if a pupil free day) Wednesday.

20.During school holidays, the father spend time with the children as follows:
(a)For one half of the April, July and September/October school holidays on dates and times to be agreed between the parties NOTING THAT:
(i)One half is to be confined to the number of days that the father is present in Adelaide and available to take such holiday time with the children; and
(ii)The school holidays are defined as commencing at 3:00pm on the last day of school term and concluding at 5:00pm on the last day of the said holiday period before the commencement of the new school term.

(b)During the Christmas school holidays on a week about basis (or such longer period that the parties may agree) commencing on the day of the father’s return to Adelaide on dates and times as agreed between the parties.
(c)In the year 2022, and each alternate year thereafter:
(i)With the father from 3.00pm Christmas Eve until 3.00pm Christmas Day; and
(ii)With the mother from 3.00pm Christmas Day until 3.00pm Boxing Day.

(d)In the year 2023, and each alternate year thereafter:
(i)With the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day; and
(ii)With the father from 3.00pm Christmas Day until 3.00pm Boxing Day.

21.The children communicate with the father via video call, Skype or Facetime during periods when the children are unable to spend time with the father for a continuous period of one week on two (2) occasions each week at times and days as agreed between the parties.
22.During the father’s rostered time off from work (28 days) each party is at liberty to communicate with the children when they are not in their care by videocall, telephone, Skype or Facetime at times agreed by the parties or following reasonable requests by the children and with each party to encourage and facilitate reasonable requests by the children to speak to the other party.
23.All extant applications are otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Conway & Short has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON
INTRODUCTION

The proceedings between Mr Conway (‘the father’) and Ms Short (‘the mother’) involve parenting applications in relation to future arrangements for their children, X (‘X’) born in 2011 and Y (‘Y’) born in 2013 (collectively ‘the children’). The children are now aged 10 years and 8 years respectively.
The father relies upon the following documents:
(a)Amended Initiating Application, filed 5 November 2021;
(b)Trial Affidavit of the father, filed 10 November 2021;
(c)Trial Affidavit in reply of the father, filed 9 November 2021; and
(d)Trial Affidavit of Ms D, filed 13 October 2021.
The mother relies upon the following documents:
(a)Amended Response, filed 29 October 2021; and
(b)Trial Affidavit of the mother, filed 29 October 2021.
The Court also heard evidence from Ms E, Family Consultant (‘the Family Consultant’). The Family Consultant’s oral evidence supplemented her Family Report dated 10 September 2020. Counsel for each of the parties relied upon a case outline document.
The father’s counsel tendered two documents during the course of the Trial to supplement the orders sought by the father. The father’s additional or alternate orders are contained in Exhibits F1 and F16 respectively.
By the conclusion of the Trial, and to their great credit, the parties had also reached significant consensus in relation to a number of orders to be made in relation to the children which are now set out at the commencement of these reasons. The proposed consent orders are set out in Exhibit F2.
As a consequence of the proposed consent minute, the issues for determination at trial were significantly narrowed by the conclusion of the hearing. Those issues can be summarised as follows:
(a)The father’s time with the children during his rostered 28 day period off in Adelaide.
(b)The father’s time with the children during school holidays, if the mother’s proposal of week about is not implemented.
(c)Christmas Day, with the parties agreeing to alternate Christmas but are not able to agree the time for handover.
(d)In relation to Easter, the father seeks an additional order, being ‘provided that in the event that the father does not spend time in one year, he will have the Easter block in the following year and the mother’s time shall be suspended’. This order is opposed by the mother.
(e)In relation to authorising of medical or health practitioners and subsequent appointments, the father seeks the words ‘noting that an invitation shall be made to the other parent’ be included at the end of the order. This order is opposed by the mother.
(f)Telephone communication: The father seeks specific orders for telephone communication. The mother seeks broad orders for telephone communication which are flexible.
BACKGROUND
The father was born in 1987 and is currently 34 years of age. The father is employed as a tradesman for ‘Employer F on a fly-in/fly-out (‘FIFO’) basis between Australia and Country G.
The mother was born in 1988 and is 32 years of age. The mother is now employed as a customer service officer at Employer H.
Both parties have re-partnered. The father is now in a domestic relationship with Ms D (‘Ms D’) born in 1988 and now aged 33 years. Ms D works on a permanent part-time basis as an administration officer for the Employer J and also studies health care at K University on a full time basis. The father and Ms D have no children of their own.
The mother has re-partnered with Mr L (‘Mr L’). The mother and Mr L have two children, namely B (‘B’) born in 2017 and now aged 4 years and C (‘C’) born in 2019 and now aged 2 years.
The parties met in or about 2001. They subsequently commenced a relationship which the father describes as being ‘on and off’ for a number of years. By 2008, the parties had commenced cohabiting together in Western Australia. The parties separated for the final time in October 2012. The parties were never married.
The parties both worked during cohabitation. Upon the births of X and Y respectively, the mother remained at home. There is no dispute that the mother has always been the children’s primary caregiver.
At the date of separation, the father vacated the parties shared residence to reside with friends.
Following separation in October 2012, the parties were able to agree the father’s time spending with the children on an informal basis. Whilst the parties were unable to agree at trial the exact arrangements for time spending between the father and the children following separation, I do not consider that much turns on this in circumstances where the mother conceded under cross-examination that:
(g)Immediately upon separation in 2012, the father had commenced unsupervised time with X including overnight visits; and
(h)By 2015, Y was spending two overnight visits with his father each week and that X was also spending overnight times with his father from that point forward.
In 2013, the father commenced working as a FIFO worker for Employer M. The father worked 28 days on and 28 days off pursuant to his work roster. The father would depart from and return to Adelaide on Wednesdays every 28 days.
In addition to spending face to face time with the children when in Australia, the father would also communicate with the children by Facetime at times agreed with the mother.
In 2015, the father commenced employment with his current employer, namely Employer F in Country G. This job involved the same FIFO terms and conditions as his previous role. The father has remained with this employer since that time. The father’s 28 day roster was disrupted across the COVID period when the father went for significant periods of time without being able to return to Australia to see the children. The father’s evidence both orally and via the calendars tendered by his counsel, being Exhibit F3, is that the 28 day on/28 day off roster will recommence as and from February 2022. The Court will proceed in making final orders for the best interests of the children, based on the father’s roster in Exhibit F3.
In 2017, the parties reached an agreement whereby the children would spend time with the father during the 28 days that he was off work and in Adelaide as follows:
(i)In week one:
(i)From after school Thursday following the father’s return to Adelaide until 4.00pm Sunday (3 nights); and
(ii)From after school until 7.30pm on approximately one evening for dinner by agreement.
(j)In week two:
(i)From after school on Thursday until 9.30am Saturday (2 nights);
(ii)From after school until 7.30pm on approximately one or two evenings for dinner, by agreement.
(k)In week three:
(i)From after school on Thursday until 4.00pm on Sunday (3 nights).
(l)In week four:
(i)From after school on Monday until 4.30pm on Tuesday (1 night); and
(ii)From after school until 7.30pm on approximately one evening for dinner by agreement.
The father contends that since April or May 2019, he has sought to increase the time that the children spend with him during the periods when he was in Adelaide. The father alleges that in part, the desire to spend more time with the children was supported by the children’s wishes.
In 2019, the father engaged solicitors to assist him in negotiating an increase in time between he and the children with the mother. In September 2019, the parties attended mediation but were unable to reach agreement as to future parenting arrangements for the children.
On 5 December 2019, the father issued proceedings for parenting orders.
On 3 March 2020, orders were made by consent during the period of the adjournment to provide inter alia that:
(1)The parties have equal shared parental responsibility.
(2)The children live with the mother.
(3)The children spend time with the father in accordance with the previous agreement reached, as provided for in paragraph 19 herein.
(4)A Family Report was ordered pursuant to section 62G of the Family Law Act 1975 (Cth) (‘the Act’) and the matter was adjourned to 9 October 2020.

On 2 October 2020, the parties attended a Family Dispute Resolution Conference at the Legal Services Commission. No agreement was reached.
On 2 February 2021, following interim argument, orders were made increasing the father’s time with the children as follows:
(1)Week one:
(a)From the conclusion of school Thursday to the commencement of school Monday (4 nights).
(2)Week two:
(a)From the conclusion of school Thursday until 4.30pm Saturday (2 nights); and
(b)From the conclusion of school Tuesday until 7.00pm.
(3)For half of school holidays.
(4)At other times as agreed.
The existing orders, as at the date of trial, are those enshrined in the orders made on 2 February 2021.
The father’s position
At trial, the father relied upon Exhibits F1 and F16 as setting out the orders that the father sought at trial. Exhibits F1 and F16 set out the father’s term time proposed orders, being:
The children live with the father when the father is resident in Adelaide during school terms as follows:
(1)Until the children turn 12 and 10 years of age respectively, as follows:
(a)     In week one of a four week rotating cycle, from the conclusion of school Wednesday until 9.30am Saturday (3 nights);
(b)     In week two of a four week rotating cycle, from the conclusion of school Monday until the commencement of school Monday following (7 nights);
(c)     In week three of a four week rotating cycle, from the conclusion of school Tuesday until the commencement of school Friday (3 nights);
(d)     In week four of a four week rotating cycle, from the conclusion of school Wednesday until the commencement of school Wednesday following (7 nights).
2.As and from the year 2023, when the children turn 12 and 10 years of age respectively, during school terms as follows:
(a)     In week one of a four week rotating basis, from the conclusion of school Wednesday until the commencement of school the second Friday following (9 nights);
(b)     In week three of a four week rotating basis, from the conclusion of school Monday until the commencement of school the second Friday following (12 nights);
(c)     In week four of a four week rotating basis, from the conclusion of school Monday until the commencement of school Wednesday (2 nights).
3.During school holidays, subject to the special occasion time as provided for in the consent order:
(a)     For one half of the Christmas School holidays to commence at 9.00am on the first Thursday the father is resident in Adelaide, and conclude at 7.00pm on such day as represents one half, or on the day prior to the father’s departure from Adelaide, whichever is the longest.
(b)     During the short school holidays for one half of the total of the holiday periods in combination being the total of the days as is calculated to fall in the April/May, June/July, or September/October holidays (calculated being from the last day of the school term until the first day of the new school term) noting that the father is at liberty to spend such time as a block period of up to 12 days in any holiday period depending on when he is resident in Adelaide.
In the alternative to the proposed orders in paragraphs 1 and 2 set out above, the father seeks the following orders:
(1)Until the children turn 12 years of age and 10 years of age respectively, as follows:
(a)     In week one of a four week rotating cycle, from the conclusion of school Wednesday until the commencement of school Friday (2 nights);
(b)     In week two of a four week rotating cycle, from the conclusion of school Monday until the commencement of school the following Monday (7 nights);
(c)     In week three of a four week rotating cycle, from the conclusion of school Wednesday until the commencement of school Friday (2 nights);
(d)     In week four of a four week rotating cycle, from the conclusion of school Wednesday until the commencement of school Wednesday (7 nights).
(2)As and from the year 2023, when the children turn 12 years and 10 years of age respectively, the father then seeks the orders as set out above in paragraph 27, as set out in Exhibit F1.
In addition to the abovementioned orders, if the father is resident in Adelaide, the father seeks time with the children for Christmas as follows:
(1)In the year 2022, and each alternate year thereafter:
(a)     With the father from 3.00pm Christmas Eve until 3.00pm Christmas Day; and
(b)     With the mother from 3.00pm Christmas Day until 3.00pm Boxing Day.
(2)In the year 2023, and each alternate year thereafter:
(a)     With the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day; and
(b)     With the father from 3.00pm Christmas Day until 3.00pm Boxing Day.
The father seeks specific orders for telephone communication or video calls such that if the children are unable to spend time with the other parent for a continuous period of one week, then there be electronic communication as follows:
(1)Each Saturday at 8.00am; and
(2)Each Tuesday or Thursday at 4.00pm.
The parties are in agreement with respect to the specific dates and times for the Easter long weekend. The father seeks an additional order as follows:
(1)In the event that the father does not spend time in one year, he will have the Easter block in the following year and the mother’s time shall be suspended.
The parties are in agreement that they keep the other advised at all times of the children’s medical or other health practitioner appointments. The father seeks an additional order that upon such advice being provided, an invitation shall be made to the other parent to attend the appointment.
The mother’s position
In her Amended Response filed 29 October 2021, the mother seeks orders as follows:
(1)That the children spend time with the father at all times as may be agreed between the parties but failing agreement:
(1.1) In the alternate months (28 day blocks) when the father is purported to be rostered off work:
(a)On a week about basis with the father’s time to begin on the first Friday he is back in Adelaide from the conclusion of school (or 3pm if a pupil free day) until the following Friday at the conclusion of school (or 3pm if a pupil free day). Noting that as soon as the father is due to fly out for work he is to return the children to the mother the day before he flies out by either advising the mother to pick the children up from their school or delivering the children to the mother by 6.00pm the day before he flies out; and
(b)At any other times as may be agreed between the parties in writing.
The mother agrees with the father’s rotation for the Christmas Day arrangements. The mother proposes that in lieu of 3.00pm, all handovers on Christmas Eve, Christmas Day and Boxing Day take place at 12.00pm.
The mother opposes the orders sought by the father that her time with the children be suspended on the Easter long weekend in the event that the father does not spend time with the children in one year.
The mother opposes an order as sought by the father that an invitation be sent to the other parent to attend appointments with the children’s medical or health practitioner.
The mother seeks an order that the father and the children communicate with each other by telephone and or Skype at any time as agreed by the parties and following any reasonable requests by the children during his rostered time at work (28 days). Furthermore, the mother seeks the following order:
(1)During the father’s rostered time off from work (28 days) that the father and the mother communicate with the children when they are not in their care by telephone and or Skype at any times as agreed by the parties or following reasonable requests by the children and each party is to encourage and facilitate reasonable requests by the children to speak to the other party.
The mother does not seek a specific order for school holiday time. If the mother’s position of week about is implemented by the Court, then the mother proposes that this simply continue through holiday periods, regardless of whether or not the father is in Adelaide.
THE EVIDENCE
The father
The father’s Trial Affidavits were supplemented by examination in chief.
The father was cross-examined at some length by the mother’s counsel, Mr Childs, regarding historical matters of alcohol consumption. The father denied having problems with alcohol, both historically or at Trial. The father denied drinking to excess during his relationship with the mother. The father denied that his mother, Ms N (‘Ms N’), also drank to excess. In relation to an incident which was alleged to have occurred in Western Australia at New Year’s Eve 2008/2009, the father denied that he and his mother had been drinking to the point of intoxication. The father denied that his mother had been abusing and yelling at the mother. The father denied having pushed a granite island bench into his mother. When the father was asked as to whether or not the mother had simply made up that evidence as set out in paragraph 36 of her trial affidavit, the father answered in the affirmative.
The father denied that there had been arguments with the mother regarding his alcohol consumption during their relationship, or that their separation was caused by his excessive alcohol use. It was the father’s evidence that separation had occurred because the parties had ‘grown apart’. During this passage of the cross-examination, the father presented as being somewhat arrogant and overly confident. He was combative when giving his answers to Mr Childs, counsel for the mother. I accept the mother’s evidence that the issue of the father’s alcohol consumption was a source of arguments between them during their relationship. However, as I pointed out to counsel, in circumstances where the parties are now consenting to a final order for equal shared parental responsibility, and given the relative narrow ambit of the dispute, I did not consider that cross-examination regarding these historical events would be of much assistance to the Court in determining what is in the best interests of the children at Trial.
The father was cross-examined at some length regarding his conduct which was alleged to be not respectful of the mother. One such occasion was said to have occurred in or about 2018. The father had requested that he take the child X to a football game on a school night, to which the mother had opposed. The father also asked the mother if he could to remove the children from school the following day, to which the mother had also opposed. The mother’s evidence is that the following day she received a message advising that the children were not at school. The mother telephoned and texted the father to enquire as to the children’s whereabouts, with no reply being received. The mother’s evidence was that she did not know where the children were. The mother was subsequently contacted by her own sister and shown a ‘Snapchat’ of the father on a boat at the river. The mother called the police to attend at the father’s residence to see if anyone was at home. Eventually, later that night, the mother received confirmation from the father’s sister-in-law that the father and the children were with them at Location O on the P River.
Under cross-examination from the mother’s counsel, the father conceded that he had not communicated with the mother about removing the children from school and taking them ‘up the river’. The father conceded that he had not been respectful of the mother in his conduct on that occasion and that he did not ‘mean to cause distress’. The father’s evidence in this regard was disingenuous and I find that his answers on this topic were an attempt to make an appropriate concession whilst in the witness box, rather than a genuine concession about his conduct.
A similar incident occurred on a date not specified thereafter when the mother alleges that the father removed the children from school without her consent to take them on a trip to Suburb Q Zoo. The father agrees that he removed the children from school under the pretence of a ‘family day’ and against his prior knowledge of the mother’s ongoing opposition to the children being removed from school without good reason. The father conceded that he was aware of the mother’s opposition to the removal of the children from school, as this had been conveyed to him via his partner, Ms D.
Another incident occurred over the Easter long weekend in 2019. The parties had agreed that the father would spend time with the children on Good Friday and Easter Saturday with the children to be returned at 4.00pm on Easter Saturday to the mother. The father then travelled with the children to Location O. The mother’s evidence, as set out in paragraph 160 of her Trial Affidavit, is that by Good Friday evening, the father began contacting her asking for her to collect the children from Location O on Easter Saturday. The mother objected to this proposal and insisted that the children be returned to her home. The mother alleges that the father then said to her that if she did not pick the children up ‘then they just wouldn’t be home for Easter’. The mother deposes that on the Saturday morning, the father again inquired as to whether or not she would be collecting the children and the mother declined. The mother deposes that the father then forwarded her ‘a pin drop’ and insisted that she meet him to collect the children. The mother asserts that the father said to her words to the effect of ‘last chance, then oh well see you Sunday then’.
In his evidence the father agreed that there was an understanding regarding his time with the children over the Easter 2019 long weekend and describes negotiations about the handovers for the return of the children as ‘ongoing’. The father denied that there was an agreement for the children to be returned to the mother at 4.00pm on Easter Saturday. The father admits that he asked the mother to collect the children from him at Location O, but denied when it was put to him under cross-examination, that unless she collected the children, they would not be returned to her for the balance of the Easter long weekend. The father denied this allegation but agreed under cross-examination that the parties had ultimately come to an agreement to meet at a mid-point. The father conceded that he has used the words ‘last chance’ in his discussion with the mother and went on to describe that upon using these words an agreement was reached.
I find that the father had deliberately threatened to withhold the children over this weekend in order to have the mother attend at a half way point to collect the children and had she failed to do so, then in all likelihood, the children would have been retained by him for the balance of the long weekend.
The father was candid in response to questions put to him by the mother’s counsel, Mr Childs, regarding his use of profane language directed towards his partner following an incident in mid-2019. The father conceded that he arrived home late and used the words ‘fuck off’ towards his partner when awoken in the morning. The father conceded that he has sworn on occasion. He agreed that the children have ‘called him out’ on his behaviour. The father gave evidence that he had implemented the use of a ‘swear jar’ at his home and had received assistance from Dr R in controlling the use of profane language at home.
The father conceded that the mother is a ‘good mother’ and gave the mother credit for her parenting. The father conceded that the mother has always been the children’s primary carer and that the children were likely to have a close relationship with their step-father, Mr L, and their half siblings, B and C. The father stated clearly in his evidence that he had no concerns in relation to the mother’s capacity to care for the children.
It is the father’s case that notwithstanding the mother’s past role as primary carer, that he seeks to have a more meaningful role to play in the lives of the children. The father conceded that his original proposal of 28 days on/28 days off in caring for the children during periods when he was present in Australia, was likely to have had an adverse impact on the children. On that basis, the father had altered his position. In my view, this was an appropriate and sensible concession.
The father’s attitude towards the mother is further demonstrated in Exhibit F4. The “i-message” dated 19 August 2021 and timed at 11.10am, was sent not only to the mother, but also to the father’s partner Ms D and the mother’s partner Mr L. My observation is that the “i-message” is more in the tone of a self-serving statement than any form of meaningful communication between two parents about their children.
The father was also cross-examined about a passage in the message chain as set out in Exhibit F4 which refers to a hearing which took place before this Court on 21 September 2021, wherein the mother had sought an order be made pursuant to section 102NA of the Act. The oral application of the mother was properly made and ultimately acceded to by the Court. The mother’s application for a declaration to be made pursuant to section 102NA of the Act was opposed by the father. The order being made resulted in the mother being represented at Trial. It is trite to observe that the representation of parties at Trial serves the administration of justice and the smooth running of the Trial process. Notwithstanding the validity of the mother’s application, the father raises this in the group i-message to the mother enquiring as to ‘How did your impromptu directions hearing in regards to your solicitor ceasing to act on your behalf and your application for a family violence/intervention go this morning?’
It was put to the father by the mother’s counsel that the father was ‘stirring the mother up’ by making this enquiry. The father denied this. It was put to the father that in not receiving a reply, he again raised the issue to the mother. The father described this as being ‘just an informal question’. I find that the father’s answer in this regard was disingenuous. I find that the father’s message to the mother was unhelpful and was sent because of the father’s frustration in the mother potentially receiving legal representation based on allegations of “family violence”, which he denied.
Further communication difficulties arise in relation to the mother seeking to have clarity regarding the father’s return to Australia and time spending over the 2021/2022 Christmas school holidays. It is evident from the SMS trail that the mother had sought information from the father as to his return to Australia and an agreement with respect to school holidays.
The mother’s first SMS to the father on this topic was sent on 15 August 2021, tendered as Exhibit M9. Further enquiries were sent by the mother on 29 August 2021, tendered as Exhibit M10 and 7 November 2021, tendered as Exhibit M11. The father admitted not responding to the mother’s SMS requests for information but attempted to deflect criticism by giving evidence that ‘I didn’t choose not to respond … I was waiting for information …’. The father stated that the children had been given the information regarding his travel dates. This answer presupposes that the father expected that the children would provide that information to their mother. The father’s evidence was insincere in this regard. It was not until 15 November 2021 at 4.00pm, being the day before the commencement of the Trial that the father forwarded an SMS to the mother setting out his travel dates for the Christmas period. When it was put to the father that he could have provided that information to the mother earlier, the father gave evidence that the itinerary was ‘ever changing’. When the father was asked as to the precise date upon which he had been provided with firm dates from his employer, the father answered with ‘he would need to check this out’. I find that the father was being evasive and disingenuous in his evidence on this topic.

It was put to the father by the mother’s counsel that the orders proposed by him in relation to school holidays were complicated. The father denies this and gave evidence that his proposal ‘provides a framework’ to give a basis to negotiate as required. When asked about how the communication in future would look like given the controversy over the recent Christmas school holidays, the father responded that ‘we could improve on it’. It was put to the father by the mother’s counsel that the orders being promoted by him would increase conflict and miscommunication, which he denied. It was put to the father that it would be preferable in the circumstances to have a simple order which would be easy to follow. The father’s evidence was that he considered that the parties could manage the orders that he proposed, stating ‘we are both adults’ and ‘we have parented all our lives’.
When asked under cross-examination by Mr Childs on whether or not he could approach his employer to be able to arrive back in Australia earlier in the holidays, the father conceded that there was potential for flexibility to help facilitate this, but confirmed nothing further. The father conceded that there should be a sharing of school holidays.
The father confirmed that he will return to the 28 day on/28 day off roster as and from February 2022 and that there was no short term plan for any change in his employment. The father gave evidence that there was a possible purchase of his employer by Company S in December 2021. The father denied that he was required to work during periods when the children were with him, other than on the rarest of occasions. The father gave evidence that he sought for his time with the children to commence as soon as possible on the day that he arrives back in Adelaide, either on the Wednesday or the Thursday, seeking to maximise his time with the children. It is the father’s position that if he has not returned physically to Adelaide, then Ms D could collect the children from school on his behalf. The father gave evidence that he has continued to meet obligations for the financial support of the children and has done so since separation. Currently, the father pays Child Support to the mother in the sum of approximately $2,300 per month.
Ms D
Ms D is the father’s domestic partner. Their relationship commenced in 2018 and Ms D moved into the father’s residence at Suburb T in November 2019.
To date, the mother and Ms D have had a good working relationship. The mother places a great deal of confidence in the presence of Ms D in the father’s household, believing her to be more attuned to the children’s emotional needs. Evidence of the mother’s attitude towards Ms D is confirmed by the agreed fact that the mother has facilitated the children spending periods of overnight time with Ms D in the period from March to August 2020 when the father was working in Country G. Ms D contacted the mother asking to see the children. The mother and Ms D agreed for the children to stay with Ms D on three occasions on an overnight basis.
In addition, in May 2020, when Mother’s Day fell on Ms D’s birthday, the mother invited her to visit the children, which she did at the mother’s residence. The mother and the children had made Ms D a birthday cake and purchased her a birthday gift.
During the July 2021 lockdown, the mother and Ms D communicated via text message and exchanged updates and photographs of the children. It was Ms D’s evidence that in the period leading up to the Trial, the communication between herself and the mother had waned. Ms D was hopeful that once proceedings had concluded, that the previous good working relationship between the two women would be restored.
Under cross-examination, Ms D confirmed that the father continued to swear on occasion and that a ‘swear jar’ had been implemented for the father’s use in their household. Ms D did not strike me as particularly concerned about the father’s use of bad language. Ms D was aware that proceedings had been on foot since 2019, but appeared to be unclear as to the precise orders being sought by the father at Trial. Predictably, Ms D was supportive of whatever position the father took at Trial and indicated that she would be available to assist in the care of the children if required.
The evidence of Ms D was otherwise unremarkable.
The mother
The mother’s evidence was supplemented by evidence in chief.
The mother evidence in chief was that she had received a Mental Healthcare Plan on 20 April 2021 from Dr U at the V Family Clinic. The mother’s evidence was that she had struggled communicating with the father and that when she receives an SMS from him ‘I struggle to open it’. The mother deposed that she was becoming emotional in front of the children and needed different strategies to deal with communication with the father and hence had sought some assistance. This is to her credit.
The mother’s evidence is that she has been referred to Ms W, Psychologist at Suburb Z. The mother has consulted with Ms W for seven sessions between the period from 11 May to 4 November 2021. No report was made available from Ms W and she was not called at Trial. The mother gave evidence that she had only disclosed her attendance upon Ms W to her legal representatives on the Monday before the trial commencing. Her explanation for withholding this information was that she did not want the father to know that she was receiving psychological treatment. The mother stated that the psychological treatment has been helpful.
The mother was vigorously cross-examined by Ms Lewis on behalf of the father. The mother confirmed that her position at Trial was that when the father was in Australia, it should be a week on/week off arrangement across the 28 days in accordance with the father’s current roster, commencing on the Friday after he returns to Adelaide. The mother contended that she had conceded a week about arrangement during this 28 day period after consulting with her family and attempting to keep the arrangements for the children as simple as possible.
Whilst the mother had not formally sought an order, her evidence made it clear that she gained comfort from the presence of Ms D in the father’s household in promoting the week about arrangement. The mother stated that she had ‘some confidence’ in the father being able to care for the children for the week about period. When asked why Ms D was required to be present, the mother replied, ‘She has a lot more patience. She cares for the children and has voiced that’. The mother conceded that her opinion regarding Ms D’s care of the children came from her communications directly with Ms D and attending sporting activities together. Presumably, also the mother has been able to form a view following the children’s overnight visits in 2020 and the occasions they have met together (in the absence of the father) with the children present.
The mother conceded that she had a strong view about the father’s conduct emanating from their personal relationship and how this might now be impacting on his parenting. Whilst acknowledging that the parties would likely have grown up since they were in a relationship with one another, the mother maintained residual concerns about the father’s alcohol consumption, including a recent attendance by the father with the child X at a hotel in the morning under the pretence, he says, of attending for lunch.
Under cross-examination, the mother conceded that the father had spent unsupervised overnight time with the children since separation in 2012. The mother conceded that at the time when this commenced when the children were aged 5 and 3 years respectively, the children managed those arrangements ‘most of the time’. When pressed by Ms Lewis as to the children’s understanding of the 28 day on/28 day off roster, the mother’s evidence was that the children do not understand the concept of the roster and that it was ‘just confusing’.
The mother conceded that the children enjoyed spending time with their father. The mother denied that the children were expressing a wish to spend more time with their father. The mother’s evidence was that neither child had made such a statement to her. If the children had made such comments, it was the mother’s evidence that this would have been at the prompting of the father. The mother’s evidence was that she had overheard the father prompting the children to say that they would like to spend more time or live with him. The mother agreed that the children missed their father when he was working away overseas, but denied that they were distressed in his absence.
It was obvious from the mother’s evidence that she does not have complete confidence in the father’s parenting, especially in the absence of Ms D, or other family members. For example, the mother conceded that the children could be returned to her on the day prior to the resumption of the school term if the father was to ensure that the children rested on the final day of the school holidays. Whilst the mother acknowledged that this would be an ideal concept, the mother rallied against the notion that the father would ensure that the children were rested prior to being returned to her. The mother also denied that the father facilitated the children completing their homework or their reading journals. The mother’s evidence suggested that she viewed the father as saying one thing but doing another.
It is the mother’s position that the father has very limited emotional connection with the children and that she provides the greater nurturing role. When asked why her view was different to that of the Family Consultant, the mother explained that her evidence was given based on her experiences of the father, which were different to that of the Family Consultant. The mother contended that she had seen the effect of the father’s lack of emotional response on the children and how they had responded to this. Specifically, the mother gave evidence that:
(a)The father had teased X when he had been given a Barbie Doll in 2014; and
(b)A couple of years ago, the father had taken the children to a park. The child Y had wanted to use a toilet. The father told Y to toilet behind a tree. The children were returned to the mother with Y having ‘poo running down his pants’. The father and X were reported to find this amusing. The mother considered that this was inappropriate and that it was not in Y’s emotional best interests to be ridiculed in this way. The father denied the extent of the mother’s allegations.
The mother conceded that these examples were historical but remembered Y as being very distressed and embarrassed. The mother’s evidence is that these two incidents were examples that came to her during her evidence of the father’s lack of emotional attunement with the children. The mother would not be swayed from her views about the father’s behaviour, despite the observations and statements made by the Family Consultant in her Report.
The mother agreed that the father cooked for the children and provided basic care needs but qualified this by stating in her evidence ‘most but not all of the children’s needs’. The mother went on to explain that she was not confident that the father provided the children with emotional comfort.
The mother acknowledged, under cross-examination, that for the children to receive their optimal results, they needed the involvement of both parents and that the parents provided complementary but differing roles.
When challenged as to why the mother promoted 7 days in a block during the 28 day period, the mother gave evidence that her proposal was appropriate for the children because:
(a)It provided the least amount of inconsistency for the children without too much change;
(b)The proposal was simple; and
(c)The mother considered that in her opinion, the week about arrangement was best ‘for everyone’.
The mother was cross-examined at some length on the parties’ competing proposals for school holidays. Whilst conceding that there would be many occasions when the father would be unable to spend time with the children during school holidays, which would then have a corresponding benefit to her, the mother did not agree that there should be an adjustment in the remaining school holidays in favour of the father for time lost whilst he was away. It was clear from the mother’s evidence that she considered that such a proposal would impact on her family as a whole.
It was obvious to the Court from the tenor of the mother’s evidence that she is deeply aggrieved by the imposition of the father’s roster upon her, her partner, and younger children. The mother’s frustration is evidenced by an SMS sent to the father on 20 March 2021, tendered as Exhibit M13, wherein the mother says ‘so can you please tell me if you’re picking them up Friday so I can work our lives around you’. The mother’s clear evidence was that she made decisions ‘for all of my children as a family’ and thus her proposals for X and Y brought to account her entire family unit.
When asked by Ms Lewis as to why she opposes the children spending nine nights with the father in the April and October school holidays the mother answered that the proposal was ‘not consistent’ and that ‘a week is much easier’.
In response to a question put by Ms Lewis regarding the mother providing the father with an email regarding the children’s activities over the preceding month when the father was away, the mother answered that she did not have the time to facilitate such communication. The mother deposed that the parties communicated regarding sport and doctor’s appointments and the father had contact with the sports teams and the school. The mother did not concede that such an order was necessary. The mother also agreed that the father now had access to the ‘Seesaw App’ which provided him with information from the children’s school.
The mother was opposed to the order which provided for her to invite the father attend medical or health appointments for her with the children. The mother advised the Court that she did not want to attend appointments with the father. The mother gave evidence that she ‘could not go with the father together’. If there was to be a medical appointment, the mother’s evidence is that she would not attend, but simply contact the clinic herself and make the appropriate enquiry.
The mother was not confident that the parties would be able to communicate to a level required to implement the orders proposed by the father. When it was put to the mother that the SMS text messages as set out in Exhibit F6 during the period from 14 December 2020 to 8 February 2021, were an example of the parties’ good communication, the mother replied that the communication between the parties was ‘on and off’.
The mother was cross-examined about the children’s school reports. The mother’s evidence was that she did not tell the children their actual grades but rather read to them only their teacher’s comments. The father objected to the mother’s failure to tell the children their actual grades. The mother conceded that she had adopted this approach without discussing it with the children’s teachers directly. The mother was challenged by the proposition that she sees herself as the decision maker and if the father disagrees, then the mother considers his disagreement to be inappropriate. The mother’s evidence was that the father questioned everything that she does and that he does not do what she asks him to do. When asked about a ‘wink faced emoji’ used by the father, the mother responded by stating that the use of this emoji was to ‘show his position of power’ and that she did not see this as an example of being ‘light hearted’. Whilst to an independent bystander the use of such an emoji might be considered somewhat banal, to the mother it took on a more sinister meaning.
The mother was cross-examined about a holiday booking and was criticised for not telling the father. The mother replied that it was not important for the father to be told and that the father gained a sense of control in knowing where she was at all times. This answer did not appear to consider the mother’s distress when the father had done a very similar thing to her by taking the children to Location O without the courtesy of an advice. At least on this topic, neither party had considered what might be viewed as a common courtesy to the other.
The mother was clear in her view that she considered the father ‘has control over me in my life’. This control extends to the provision of financial support. The mother described this as being ‘the one thing that he has always had over me since we separated’. At one point during her evidence, the mother announced, ‘I don’t want your money’ to the father. The mother’s evidence clearly showed that she views the payment of generous Child Support by the father as a reason used by him to seek increased time with the children when he is in Adelaide.
In response to Exhibit F4, it was put to the mother that this text message was appropriate and an endeavour by the father to try to settle the proceedings. The mother described the SMS as not being appropriate as one between parents, but rather one between business people. The mother described her SMS messages as being child focused. The mother complained that the father used ‘big words’ and ‘percentages and numbers’ which made her feel ‘uncomfortable’. The mother gave evidence that she had discussed the father’s text message with her partner Mr L but notwithstanding this, could not bring herself to respond to the father. The mother gave evidence that the father would have sent the SMS regarding her application pursuant to section 102NA knowing that it would upset her.
In response to the father’s orders regarding telephone contact, the mother observed that her family was very busy with many commitments. She expressed a reluctance to be committed to set times each week, as she may not be able to guarantee what day the calls took place. The mother did say that she could facilitate two calls per week but could not lock in the day and time. The mother replied to a question from Ms Lewis stating that she gave an assurance to the Court that she would take great care in facilitating those telephone calls if a non-specific order for telephone communication was made.
Under cross examination, Ms Lewis put to the mother that the children may see the mother’s opposition to any substantial increase in time with the father as an impediment to their relationship with their father and which could have a detrimental flow on effect with her. The mother denied this. The mother stated that she had a positive connection with the children and would protect them above all else. The mother denied that she and the father had protected the children from being exposed to the conflict between them referring to past problems at handovers.
Family Consultant
The Family Consultant, Ms E, was cross-examined by both counsel for the father and the mother in relation to her Family Report dated 10 September 2020. Prior to giving evidence, the Family Consultant had been afforded an opportunity to consider the parties’ trial documents and outlines of case.
Whilst by the time of Trial the Family Report was over 12 months old, no application had been made by either party for an updated Family Report. Under the heading ‘Risk Factors’ the Family Consultant correctly observes that the issues for trial are:
(1)Allegations made by the mother about the father’s abusive behaviour towards her.
(2)Concerns raised by the mother in relation to the father’s alcohol use.
(3)Concerns raised by the mother regarding the possibility of the children being exposed to the father’s alleged abuse towards his partner and his poor anger management.
The following issues in dispute were identified by the Family Consultant during the assessment, and in my view were still relevant as at the date of Trial, namely:
(1)Parental conflict and communication on matters related to the children.
(2)The children’s wishes, needs and well-being.
(3)The father’s parenting capacity and relationship with the children.
(4)The mother’s parenting capacity and relationship with the children.

The issues raised with the Family Consultant, for the purposes of their interviews, were consistent with the matters raised in their Trial affidavits.
Formal observations of interactions between the children and each parent were conducted by the Family Consultant. When in the care of their father, the children were observed to easily transition to the father’s care and were observed as ‘very relaxed and comfortable’ with him.[1] The children were observed appearing to enjoy the father’s attention which was described as being ‘caring and emotionally responsive’. The father was observed as communicating with the children in an age appropriate manner and the Family Consultant opined that there was ‘congruence in tone of voice and effect between the parent and the children’. This was described as often being ‘an indicator of parental attunement’. Both children presented as ‘sufficiently secure in relation to their father’.
[1] See Family Assessment Report of Ms E dated 10 September 2020 at [50].
The formal observations of the children together with the mother, Mr L and their half siblings, was similarly unremarkable. The mother was described as being attentive and emotionally responsive towards the children and ‘demonstrated ability to equally divide her attention amongst all four children’. Her demeanour was described as ‘gentle and caring’ and she also communicated with the children in a manner that was ‘congruent with their age and stage of development’. Both children were observed to have attachments to their extended family members.
When interviewed for the purposes of a Family Report, X, then aged 8 years and 11 months, and Y then aged 7 years and 3 months, conveyed that they understood that the purpose of the interview was to discuss their family and care arrangements. Both children reported that they wanted to increase their time spending periods with the father when their father was in Australia.[2] Both children reported as enjoying time with their father but noted that their father ‘swears quite a lot’.[3] In terms of living with their mother, the children spoke in positive terms and were observed to be either ‘unwilling or unable’ to identify anything negative about their mother.
[2] Ibid [53].
[3] Ibid [55].
The Family Consultant reported that the children’s ‘unanimous expressed wish to increase their time with Mr Conway, when Mr Conway is rostered off work, may also suggest that their positive experiences outweigh their negative experiences in relation to Mr Conway.’[4] Whilst observing that the father’s working schedule was not ideal, ‘in terms of providing the children with a sense of routine and structure’[5] for all of the children’s conscious memory, they have known the father to work within the fly in/fly out rotation.[6] The Family Consultant goes on to opine that ‘one of the factors for children and imperative to their development is to have a meaningful and significant attachment with both parents’.
[4] Ibid [57].
[5] Ibid [65].
[6] Ibid [65].
Given the observations and interviews conducted as part of the assessment and after reading the court documents, it was the Family Consultant’s view that the children spend time with their father during the 28 days when he was rostered off work and in Australia for 14 overnight periods during the 28 days that he was in Australia over a 4 week period. The Family Consultant opined in paragraph 68 that the recommendation was made ‘in an effort to provide the children with a sense of stability and structure they require, whilst spending significant time with both parties.’[7] It was, according to the Family Report Writer:
Important to capitalise on the children’s opportunity to spend time with Mr Conway, and to have Mr Conway to be an active part of their lives, when Mr Conway is in Australia. However, it is imperative that the children’s sense of a primary home base with Ms Short, hence their primary source of security and stability, is maintained, so as to minimise any possible sense of disruption to them, it is for this reason that an equal shared care arrangement has been recommended, when Mr Conway is rostered off work.
[7] Ibid [68].
In her oral evidence, the Family Consultant altered her recommendations. Under cross-examination from Ms Lewis, the Family Consultant opined that she had been reflecting on the recommendations, given that the boys were now another year older. Whilst continuing to provide the children with a sense of stability in the home of the mother who is their primary carer, Ms E opined that further overnight periods with the father in a fortnight would not be detrimental to the children. Ms E therefore recommended the following arrangement during the 28 day rostered off period in Australia, namely:
(1)In week one, from Wednesday to Wednesday; and
(2)In week two, for two to three nights mid-week.
Under cross-examination from Mr Childs, the Family Consultant conceded that she had altered her position from that contained in her Family Report. However, this was not as a consequence of resiling from the weight placed on the mother’s previous views, but rather on the benefit which would be received by the children in having greater time with their father. When it was put to the Family Consultant that if an order was made as she recommended that it could have an adverse impact on the mother, the Family Consultant agreed but stated that it was up to the mother to seek assistance.
The Family Consultant did not support the father’s proposed orders at Trial.
It was the evidence of the Family Consultant given the children’s ages there could be an increase in their time with the father to maximise this relationship.
LEGAL PRINCIPLES APPLICABLE
Part VII of the Act deals with orders relating to children. The overarching consideration is that the Court must consider the best interests of any child concerned as the paramount consideration.[8]
[8] Family Law Act 1975 (Cth) s 60CA.
Part VII of the Act is subject to a number of principles and objects set out in section 60B. The Court is required to ensure that a child’s best interests are served by ensuring that it considers various fundamental principles. They are:
(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.[9]
[9] Ibid s 60B(1).
The principles which underpin these objects are set out in section 60B(2) of the Act. They are describe as follows:
(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;
(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);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)parents should agree about the future parenting of their children; and
(e)children have the right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).[10]
[10] Ibid s 60B(2).
Section 60CC of the Act sets out two classes of considerations which apply to the Court’s determination as to how a child’s interests will best be served. They are described as ‘primary considerations’ and ‘additional considerations’.
The two primary considerations in s 60CC(2) are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse and neglect or family violence.[11]
[11] Ibid 60CC(2).
In Mazorski & Albright[12] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child”[13] concerned. In Jurchenko & Foster,[14] the Full Court also noted in “having a meaningful relationship with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.”[15]
[12] Mazorski & Albright [2007] FamCA 520.
[13] Ibid [26].
[14] Jurchenko & Foster [2014] FamCAFC 127.
[15] Ibid [123].
Both parties acknowledge that it is in the children’s best interests to have a meaningful relationship with the other. The mother contends however that her proposal strikes a balance between the father’s desire for optimal involvement and the negative impact on her entire family unit, including B and C, if the father’s proposal was adopted.
Section 60CC(2A) of the Act directs the Court that in applying the primary considerations, to give greater weight to section 60CC(2)(b) which is the primary consideration directing the Court to protect children from physical or psychological harm, or from being subjected to or exposed to neglect, abuse or family violence.
In this case, the parties are agreed that there should be an order for equal shared parental responsibility. Given the parties’ consent, I am not required to turn my mind to whether or not the presumption is to be rebutted pursuant to section 61DA(2) of the Act.
The Full Court in the decision of Goode & Goode[16] summarises what has become known as “the legislative pathway” to determine a child’s best interests. The “legislative pathway” applies both at an interim and final hearing. If the presumption applies (as it does here with the consent of the parties) the Court is to consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children’s bests interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified in section 65DAA(5).
[16] Goode & Goode (2006) FLC 93-286.
On the facts of this case, a strict order for equal time with each parent is not even possible, as the father resides outside of the Commonwealth of Australia for 28 days out of every 56 days. The mother’s proposal would see an almost equal time arrangement occur during the 28 days when the father is in Australia. The father seeks more than “equal time” in his rostered days off to counter balance his absence for the following month. Accordingly, the Court must look to the question of time in a substantial and significant way between the father and the children.
Section 65DAA(5) of the Act sets out that in determining the purposes of subsections (1) and (2), whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, which 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.[17]
[17] Family Law Act 1975 (Cth) s 65DAA(5).
I address each of those criteria as follows:
(a) how far apart the parents live from each other
The parties reside in close proximity to one another and there is agreement that the children will continue at the AA School. The father resides at Suburb T and the mother resides at Suburb BB.
(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
The father’s final proposal would see him spending 23 out of 28 days with the children during his rostered days off, upon the children turning 12 and 10 years in 2023 respectively. His position would see the children spending either 20 days (option 1) or 18 days (option 2) pending the children turning 12 and 10 years respectively. The mother’s proposal would see the children residing with him for 14 days out of 28 in the requisite period. Mr Childs submits that the mother’s proposal strikes “an appropriate balance”. The recommendation of Ms E would see the children spending 16-17 days out of 28 in their father’s care. Seen in this way, the dispute between the parties is significantly narrowed, albeit each party firmly holds out that their respective proposals are in the children’s respective best interests.
On any objective assessment, both parties’ proposals would see the children spending what can be described as ‘substantial and significant time’ with each of their parents within the parameters of the father’s work roster and in accordance with section 65DAA(3) of the Act. In a practical sense, I find that the parties do have the capacity to implement orders for substantial and significant time. However, the issues in this case is not practical ‘capacity’ but issues which are more nuanced, as set out in these reasons.
(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
The capacity for the parties to communicate with each other and to resolve difficulties that might arise in implementing an arrangement such as those proposed has historically been positive. The Exhibits F5, F6 and F7 respectively demonstrate to the Court that the parties have had the ability previously to communicate with each other in relation to the children. I accept the mother’s evidence that communication has, at least for her part, become fraught in 2021. However, the mother has acknowledged this by taking active steps to seek professional assistance. Her evidence is that she has found the psychological support helpful. The ongoing litigation has no doubt also been a source of stress. I find however that the parties will struggle to implement the father’s proposal for school holiday time and therefore any order the Court makes needs to be as simple as possible to avoid conflict and misunderstanding.
(d) the impact that an arrangement of that kind would have on the child; and
In circumstances where the mother promotes 7 nights in a block out of 14, it is hard to see on the evidence how the children would be detrimentally impacted by spending extra time with their father on the intervening week, as he seeks. The children have a long history of regular overnight time with their father. I find that the extra time in Week 2 is unlikely to have a detrimental impact on the children in this case should such an arrangement as opined by Ms E be implemented. I do not consider that the father’s ultimate proposal which would see blocks of 12 nights and 9 nights in his 28 day roster as being in the children’s best interests, as it will have an adverse impact on the children in terms the mother and their half siblings.
(e) such other matters as the court considers relevant.
This is a case where on the one hand, the father seeks to maximise his time with the children during his 28 day off period in Adelaide. His desire to do so is understandable. On the other hand, the mother sees herself also subject to the father’s 28 day roster, which is foisted upon her despite their separation in 2012. Every second month her family unit is greatly disrupted on account of the father’s employment. Seen in this way, the mother’s position is equally compelling. A move to 7 nights per fortnight will already be a significant variation for the children during school terms. To date, the children have spent a maximum of 6 nights but in 2 tranches in the care of their father whilst attending at school. In the past, the father’s removal of the children from school on school days has been a “flashpoint” between the parties. The mother has little trust in the father’s day to day parenting. Additional time in the alternate week needs, in my view, to be handled sensitively to ensure a smooth transition to new routines, not only for the subject children, but also for the mother and her family unit.
In considering the additional considerations, pursuant to section 60CC(3) of the Act, I bring to account the following:
(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
Both children expressed to the Family Consultant a desire to spend more time with their father during his periods in Australia. The children clearly did not express a desire to live with him and they were positive that their source of primary comfort and attachment was with their mother. The mother conceded that the children enjoyed their time with their father and wanted that to continue. I place no weight on the father’s evidence that the children have expressed a wish to live with him as a reason why there should now be orders made as he seeks at Trial.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons
There was no dispute in these proceedings that the child has a close and loving relationship with each of their parents and extended family members. The qualitative nature of the children’s relationship with each parent, however, is different. The mother presented as having a more nurturing and gentle personality and parenting style. The father presented as having a more robust and blunt personality. It was the father’s lack of emotional attunement which drew the most criticism from the mother during her evidence. However, there is merit with the proposition put by Ms Lewis on behalf of the father that the parents each had things to offer the children albeit of a different nature and quality. The parties’ personalities no doubt reflect the positions that they each take at Trial.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
Not relevant
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Not relevant.
(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
This consideration is unlikely to have any significant impact in the longer term given the graduated orders that I propose making. The mother already proposes a week about arrangement during the 28 days in which the father is in Adelaide. I am not persuaded that any orders for modest additional time, over and above the mother’s own proposal, would have any detrimental effect on the children given the long established pattern of overnight time and the children’s ages.
(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

Not relevant.
(f) the capacity (i) each of the child’s parents; and (ii) any other person; to provide for the needs of the child, including emotional and intellectual needs
The mother complains that the father is not an emotionally attuned parent. This is denied by the father. Despite the mother’s allegation she promotes a week about shared care arrangement in the father’s 28 day time off. Given the orders that I propose making, and noting that the children are now 10 and 8 years respectively, I do not consider that this subsection prevents the making of the within orders as being in their best interests.
(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
Not relevant.
(h) if the child is an Aboriginal child or a Torres Strait Islander child
Not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father concedes that the mother is a good parent. The mother alleges that the father is not emotionally attuned to the children and has engaged in family violence of an abusive nature to herself and Ms D and abuses alcohol. However, I am not persuaded on balance that those matters (which are largely historical in nature) will impact on the children detrimentally. The mother is consenting to a final order for equal shared parental responsibility. The mother alleges that the father has made poor parenting choices, such as removing the children from school in order to spend time with them. The father should understand that similar conduct in the future will not be condoned by the Court.
(j) any family violence involving the child or a member of the child’s family
There are no allegations of family violence directed to either of the children. The mother alleges that the father has been emotionally abusive to her and that there has been unpleasantness at handovers and that the father has sworn at Ms D in the presence of the children. There is no evidence that the children have been impacted by any such behaviour if true. Indeed, the children appear to deal with their father’s swearing outbursts in a rather “matter of fact way”, as evidenced on page 14 and 15 of the Family Report.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family
Not relevant.
(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
The orders that I propose making will regulate the care arrangements for the children under the parameters of the father’s current work roster. Should the father’s working conditions change, or he returns to work in Australia, then undoubtedly there may need to be a revisitation of the children’s time spending arrangements with their father. The father’s evidence is that this is unlikely in the short term and accordingly I propose to make orders based on the roster which has been provided to the Court. The father’s evidence is that he flies into Australia on a Wednesday. The children’s time with the father should commence on the Thursday allowing the father time to transit back to Adelaide, settle and collect the children the following day. I do not consider it appropriate that Ms D collect the children on the Wednesday in the father’s absence. Nor do I consider that the children should wait until the Friday to first see their father after a hiatus in time spending of 28 days, as the mother seeks.
(m) any other fact or circumstance that the court thinks is relevant
Not relevant.
CONCLUSIONS
Despite the fact that this matter proceeded to a final hearing, the issues which remained in contention were relatively narrow. The father took a more robust approach to the increase of his time with the children. The mother’s attitude was underpinned by her concerns of emotional support and the impact of these orders on her family unit as a whole.
As stated herein, those views are shaped by the parties’ very different personalities and parenting styles.
I am satisfied that the proposed school term time orders are in the children’s best interests because:
(a)The initial orders are the mother’s own proposal together with a “touch base” dinner in the intervening week. The move to week about care is a significant one. This proposal should be given an opportunity to settle in before any further increase and to allow the parties and the children to settle into a routine. The father is absent from Adelaide every second month, so this has been factored into the staggered increases in time.
(b)The gradual increases in Term time are thereafter reflective of the recommendations made by the Family Consultant and support the Court’s findings that it is important to maximise time with their father when he is in Australia, whilst balancing the children’s relationship with their primary carer and half siblings. I consider that an end point of two nights in the intervening weeks is sufficient in order to maintain a meaningful relationship.
In relation to the school holidays, I accept the submission of Mr Childs that the father’s proposed order involves a “complex calculation” which the mother considers “complicated” and likely to “engender further conflict”. Having observed each of the parties in the witness box and noting that school holidays have been something of a “flashpoint” historically between the parties, I propose to adopt a simpler order. In the past, the mother has sought to constrain holiday time. I do not consider that such constraint is required given the father’s positive relationship with the children and the enjoyment they will have doing activities together. The children should spend half of the school holidays with the father during the periods when he is in Adelaide and available to take it. I do not consider it in the children’s best interests for the mother’s time with the children to be truncated because the father’s roster does not fit squarely within school holiday periods. The father shall have half of the school holiday period that he is present in Adelaide to enjoy. There will be no “extra” time in holidays to compensate the father is he is not here to take it. Regrettably, the Court can be no more precise than the orders as set out herein, as the father’s roster does not fit squarely into the holiday periods. The Christmas holidays should be week about, unless the parties agree longer periods.
On the issue of Christmas Day handover, I propose to make orders as sought by the father. Neither party was cross-examined on this topic. Handover at 3:00pm will allow lunch to be concluded before the children are exchanged, noting that the parties live close to one another.
I decline to make the additional order for Easter as sought by the father. To do otherwise would be to reinforce the mother’s view that the father’s roster takes precedence over all other factors, including arrangements for her family as a whole.
I decline to make the additional order sought by the father to attend medical or health appointments with the mother, or vice versa. Whilst the practical impact of the father’s proposed order is likely to be minimal, there is no need in my view for this to happen. The father can make his own appointment or enquiry at the relevant health professional. Paragraph 13(b) of the current order allows the father to obtain his own information on request in any event.
I propose to make alternative telephone orders than that proposed by the parties to compensate for the father’s desire to remain in contact with the children while he is away and the mother’s compelling evidence that she runs a busy house with two working parents and four children to care for, thus making set days and times for telephone calls difficult.
For these reasons, the orders of the Court will be set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson.
Associate:
Dated: 1 February 2022

File number(s):	ADC 5333 of 2019
Judgment of:	JUDGE DICKSON
Date of judgment:	1 February 2022
Catchwords:	FAMILY LAW – Parenting – two children aged 8 and 10 years – where parties have been separated since 2012 – where father has worked on a fly-in/fly-out roster on a 28 day on/off roster since 2013 – where father’s time spending with the children has occurred in Adelaide during his 28 days off – where father seeks to increase his time with the children – where mother alleges father has a history of issues with alcohol consumption – where mother alleges that father’s behaviour towards her has been abusive – where there have been communication issues between the parties – where the mother has a lack of confidence in the father’s ability to be emotionally attuned to the children - where issues to be determined at Trial were relatively narrow – where Family Consultant’s recommendations at Trial varied from those given in the Family Report – where the children want to spend more time with their father – where the father’s proposal for school holiday time involves a ‘complex calculation’ – where any orders made should be simplified – where the children’s time with their father should be maximised whilst he is present in Adelaide whilst balancing the children’s relationship with the mother and their half siblings.
Legislation:	Family Law Act 1975 (Cth), Pt VII, ss.60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:	Goode & Goode (2006) FLC 93-286 Jurchenko & Foster [2014] FamCAFC 127 Mazorski & Albright [2007] FamCA 520
Division:	Division 2 Family Law
Number of paragraphs:	146
Date of hearing:	16 – 18 November 2021
Place:	Adelaide
Counsel for the Applicant:	Ms Lewis
Solicitor for the Applicant:	Andersons Solicitors
Counsel for the Respondent:	Mr Childs
Solicitor for the Respondent:	VP Lawyers

ADC 5333 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CONWAY Applicant
AND:	MS SHORT Respondent

ORDER MADE BY:	JUDGE DICKSON
DATE OF ORDER:	1 FEBRUARY 2022