Cornish and Cornish
[2013] FMCAfam 23
•21 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CORNISH & CORNISH | [2013] FMCAfam 23 |
| FAMILY LAW – Parenting – Children aged 7 and 5 – two good parents – where the children have lived in an equal time arrangement since the parents separated four years ago – where a continuation of equal time would be in the children’s best interests – whether equal time will be reasonably practicable if each parent lives in their preferred location in the future. |
| Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| MRR & GR (2010) 42 FamLR 531 |
| Applicant: | MS CORNISH |
| Respondent: | MR CORNISH |
| File Number: | NCC 2621 of 2011 |
| Judgment of: | Terry FM |
| Hearing dates: | 5, 6 & 7 September 2012 |
| Date of Last Submission: | 7 September 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 21 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Sundstrom |
| Solicitors for the Applicant: | Craney Family Solicitors |
| Counsel for the Respondent: | Mr Alexander |
| Solicitors for the Respondent: | Clinch Long Letherbarrow |
ORDERS
Order amended pursuant to sub-rule 16.05(2)(e) of the Federal Magistrates Court Rules (2001)
The mother and father shall have equal shared parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2007.
Unless otherwise agreed between the parents the children shall live with the parents each alternate week during school terms with changeover to occur at 3.00pm or the conclusion of school on Monday (or Tuesday in the event that Monday is a public holiday or pupil free day) and with the children to live with the mother in the first and each alternate week of each school term in odd numbered years and the second and each alternate week of each school term in even numbered years.
If the father is absent from Australia on any Monday (or Tuesday as the case may be) on which he is due to collect the children then the children shall remain with the mother for the following week.
If the father misses one or more weeks with the children during any school term pursuant to Order (3) the father may have one make-up week with the children each school term provided that:
(i)he has complied with order (5);
(ii)he will be in Australia for the whole of the proposed make-up week.
The father shall provide to the mother at the conclusion of each school term written details of his proposed absences from Australia during the next ensuing school term and if his absences will justify him having a make-up week with the children pursuant to Order (3) the week he proposes as the make-up week.
Unless otherwise agreed between the parties the children shall spend half of each school holiday period with each parent, with the children to spend the second half of all holidays commencing in even numbered years with the mother and the first half with the father and the first half of all holidays commencing in
evenodd numbered years with the mother and the second half with the father.School holiday time shall be defined as commencing on the day immediately following the last day of the school term and concluding on the day immediately prior to the commencement of the new school term.
Notwithstanding any other orders and unless otherwise agreed between the parties the children shall spend time with the mother and the father as follows:
(a)with the mother from 2.00pm on Christmas Eve to 2.00pm on Christmas Day in even numbered years and from 2.00pm on Christmas Day to 2.00pm on Boxing Day in odd numbered years;
(b)with the father from 2.00pm on Christmas Day to 2.00pm on Boxing Day in even numbered years and from 2.00pm on Christmas Eve to 2.00pm on Christmas Day in odd numbered years;
(c)from 9.00am on Mother’s Day until the commencement of school on Monday with the mother in the event that the children are not already in the mother’s care on that day;
(d)from 9.00am on Father’s Day until the commencement of school on Monday with the father in the event that the children are not already in the father’s care on that day;
(e)On the mother’s birthday each year from 9.00am to 7.00pm should the mother’s birthday fall on a non-school day and from the cessation of school until the commencement of school or 9.00am the following day should the mother’s birthday fall on a school day in the event that the children are not already in the mother’s care on that day;
(f)on the father’s birthday each year from 9.00am to 7.00pm should the father’s birthday fall on a non-school day and from the cessation of school until the commencement of school or 9.00am the following day should the father’s birthday fall on a school day in the event that the children are not already in the father’s care on that day;
(g)unless it is a day of changeover on each of the children’s birthdays with each party at times agreed between the parties but failing agreement the children shall spend time with the parent with whom they are not living on that day from after school until the commencement of school the following day in the event the birthday falls on a school day and from 3.00pm to 7.00pm in the event the birthday falls on a weekend; and
(h)at such alternate or additional times as agreed between the parties in writing.
Each parent shall ensure that the children while in their care are permitted liberal telephone or Skype communication with the other parent.
The mother is permitted to enrol the children at (omitted) Primary School or some other school agreed between the parties.
In the event that either parent intends to travel with the children during their time with the children pursuant to these orders or pursuant to agreement between the parties they shall provide written notice of the travel plans to the other parent at least 28 days prior to the intended travel and such written notice must include the flight itinerary, contact telephone numbers and accommodation details.
Each parent shall ensure that while the children are living with them the children attend all school, sport and social commitments that have been previously agreed in consultation with the other parent.
Each parent shall as soon as reasonably practicable inform the other parent if either child is referred to a doctor, hospital or other medical professional for treatment, therapy or counselling and such advice shall include the identity and contact details of the treating professionals.
Each parent shall keep the other informed of their address and telephone contact number(s) and will notify the other parent of any change to such details within 72 hours of the change occurring.
Each parent is restrained and an injunction is granted restraining them from denigrating the other parent, the other parent’s partner or any members of the other parent’s family in the presence or hearing of either child and will do their best to ensure that no other person does so.
A copy of these orders will be sufficient authority for either parent to contact any school, preschool or medical practitioner attended by the children to request relevant information or copies of school reports, medical reports, photos, memoranda, correspondence, newsletters and other information normally provided to parents.
Each parent is permitted to attend any school events that parents would normally be invited to attend, subject only to the school’s policy.
IT IS NOTED that publication of this judgment under the pseudonym Cornish & Cornish is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 2621 of 2011
| MS CORNISH |
Applicant
And
| MR CORNISH |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Cornish and Mr Cornish are highly educated productively employed adults who do not use illicit drugs or abuse alcohol and are not violent. The mother has a mental illness, but I have never come across one so well managed.
The parents have shared the care of their children X and Y more or less equally since they separated four years ago and the children are happy, healthy and well adjusted. Unfortunately developments in the parents’ lives have made the current arrangements for the care of the children a problem, and the parents have not been able to agree on a solution to the problem.
The children currently attend (omitted) School at (omitted), a school which was within reasonable commuting distance of the former matrimonial home and of the mother’s accommodation prior to January 2012. However the mother now lives and works in (omitted) and the school is 45 minutes away from her current place of residence and employment. The mother said that it was simply too difficult for her to get the children to and from school at (omitted) within the constraints imposed by her employment.
The mother said that the solution to the problem was for the children to change schools. She proposed that she be permitted to enrol the children at (omitted) Primary School or some other school in (omitted) agreed between the parents and that the children continue to live week about with each parent.
The mother’s preference would be for the father to move closer to inner (omitted) than his intended future residence at (omitted) so that the children did not have to travel a long distance to school in his week, but she did not make it a condition of the orders she sought that he do so.
During the hearing the mother said that she was open to other solutions to the problem, such as the parents each agreeing to live in the western part of (omitted) and the children attending a school such as (omitted) College. The father’s counsel criticised the mother during final submissions for putting forward these alternative possibilities but I do not consider that the mother demonstrating that she was willing to be flexible was a deficit in her case.
The father is an (occupation omitted) who regularly travels overseas for work and who (when not attending meetings in Sydney, Melbourne or Canberra) works from home when he is in Australia. He has very recently purchased a block of land at (omitted), about 6 minutes from (omitted) School and intends to build a home on it.
The father said that what should change was not the children’s school but the children’s time with the mother, unless of course the mother chose to move back closer to the school.
The father proposed that the children continue to attend (omitted) School and that provided that the mother lived within 20 kilometres of the school the children should live with her five nights per fortnight in two blocks and otherwise live with him.
He proposed that if the mother lived more than 20 kilometres from the school then the children should live with him and spend each alternate weekend and one afternoon in the off week in the (omitted) area with the mother.
The father did not adequately explain why equal time should not occur if it was reasonably practicable for it to do so and his counsel conceded during final submissions that such an order was well open to the court.
The evidence
The mother relied on her further amended initiating application filed on 24 August 2012, her affidavit filed on 24 August 2012 and the affidavit of her partner Mr K filed on 24 August 2012.
The father relied on his response filed on 11 October 2011, his affidavit filed on 14 August 2012 and the affidavits of his partner Ms T and the paternal grandmother Ms E filed on 17 August 2012.
The father filed a Minute of Orders Sought on 30 August 2012.
A Family Report was prepared by Ms D, a Clinical and Forensic Psychologist and Regulation 7 Family Consultant.
Ms E was not required for cross-examination and her affidavit went in unchallenged. All of the other witnesses were cross-examined.
The mother was a good witness. Her answers during cross-examination were measured and thoughtful. She was not unreasonably defensive and she made appropriate concessions when challenged about the accuracy of some of her dates.
The father was also a good witness. I gained a very strong impression that he was devoted to his children and was very distressed at the idea of his role in their life being diminished.
Some of Mr K’s behaviour toward the father in 2011 and 2012 and some of his statements to Ms D during the family report interviews give rise to concern (and I will refer to this again later) but Mr K was calm and non-confrontational in the witness box.
Ms T was a calm and thoughtful witness.
Background
The mother and father met in 1994, commenced cohabitation in 1996, married in 1998 and separated in September 2008. They have two children, X born on (omitted) 2005 and Y born on (omitted) 2007.
When the parties commenced their relationship the mother was undertaking a degree in (omitted) and the father was studying for an (qualification omitted). They both obtained their qualifications and in 1998 and 1999 travelled extensively and lived overseas. They both worked in the field of (omitted).
The parties separated in 1999 but reconciled in 2000 and purchased a property at (omitted) where they lived for the remainder of the marriage. Their employment thereafter involved the father working for (omitted) organisations and travelling overseas extensively and the mother working in (omitted) in Australia.
(omitted) is close to Sunshine, where the maternal grandmother then lived and continues to live.
In (omitted) 2004 the mother had a breakdown and was admitted to (omitted) Hospital. Subsequently she was diagnosed with Bipolar Affective Disorder and was prescribed medication. She recovered and returned to work and also undertook further study.
X was born in (omitted) 2005 and the mother took time off work after his birth and was his primary carer.
In (omitted) 2006 the mother commenced working part time as a (occupation omitted) at (omitted) at (omitted) which was a very reasonable commuting distance from the parties’ home.
Y was born in (omitted) 2007. The mother had about three months off work after her birth and then returned to part time work at (omitted).
In (omitted) 2008 the mother recognised that she was in the early stages of a relapse and she admitted herself to a private hospital where she stayed for a week. She was prescribed new medication and she recovered and returned to work.
A theme running through the mother’s case was that after the birth of the children she often felt let down by the father due to his extensive absences overseas. The mother gave specific examples of occasions when she felt bereft as a result of the father departing on overseas trips at critical moments such as soon after X’s birth.
I accept unreservedly that this was how the mother felt at the time. I do not consider for one moment that she manufactured this evidence for the purpose of these proceedings or that her evidence should be treated with caution in case her recollections of the past are coloured by the current state of relations between the parties.
At the same time I also accept that the father did not set out to cause the mother distress, that he considered himself supportive and that his perception of the past is quite different to the mother’s.
The parents separated on 21 September 2008 at the instigation of the mother. After separation the father remained in the former matrimonial home and the mother commenced residing in rented accommodation in (omitted).
During final submissions the father’s counsel drew attention to the fact that the mother had lived at four different addresses since separation. I am not quite sure what the point of that was. Given that the father had the comfort of remaining in the former matrimonial home after separation and that the mother had the more difficult task of obtaining accommodation elsewhere this is hardly a reason to be critical of the mother.
The children were 3 ½ and 16 months old at separation and the parties commenced to share the care of the children equally. The father continued to travel extensively and the children’s time with him was fitted around the times when he was in Australia.
The mother’s evidence was that this meant that changeovers occurred on differing days of the week, the length of time the children spent with each parent varied and the arrangements were sometimes changed at the last minute.
The mother maintained that this arrangement was forced upon her and that she always considered it unsatisfactory. This was partly because she considered that the children (at least at first) were too young to be separated from her for lengthy periods, partly because it did not allow her to establish a predictable routine for herself and the children and partly because she resented the fact the lives of herself and the children had to revolve around the father’s travel over which she had no control.
I accept unreservedly the mother’s evidence that she found the situation of being required to run her life around the father’s presence in or absence from Australia galling and unsatisfactory. The mother’s feelings about this issue are easy to understand and I do not consider that she has manufactured this evidence to gain an advantage in the current proceedings.
At the same time there was no evidence that the mother made the depths of her dissatisfaction clear to the father and that he rode roughshod over her strongly voiced objections.
The mother did try to sort out both property and parenting matters with the father through mediation, and she was particularly keen to resolve property matters as the father continued to live in the former matrimonial home, but the mediations were unsuccessful.
In January 2010 the mother commenced living with the children in a small granny flat attached to her mother’s home in (omitted) which provided cramped and unsatisfactory accommodation. X had been enrolled at (omitted) Early Learning Centre since he was three years of age and he commenced kindergarten at (omitted) School at the beginning of the 2010 school year.
In September 2010 the mother recognised the signs of another mental health event and she admitted herself to hospital where she remained for 7 days. Her medication was again reassessed and she commenced taking Lithium twice a day.
In January 2011 the mother met Mr K and in May 2011 formed a relationship with him. In May 2011 also the mother ceased working at (omitted) and commenced working for (omitted) in (omitted).
The mother continued to live in the granny flat and commute to (omitted) until September 2011 when with Mr K’s assistance she moved back into the former matrimonial home while the father was overseas.
On 6 October 2011 she filed an application for parenting and property orders.
The mother’s decision to move back into the former matrimonial home three years after the parties’ separation was a poor one. She conceded during cross-examination that the children were unsettled by this development, and her actions and Mr K’s confrontational behaviour toward the father on the father’s arrival home did nothing for the relationship between the parties.
However the mother’s actions did have the desired result of hastening a property settlement. In November 2011 the father ceded occupation of the home to the mother and commenced residing in rented accommodation in (omitted), about 20 minutes from (omitted) School. The home was placed on the market and sold in January 2012, and on 13 July 2012 final property orders were made by consent.
After the home was sold the mother commenced living with Mr K in the unit he owned in (omitted). It suited her to do so because (omitted) is minutes from her work, but she could see that it was going to be very difficult for her to get X to school at (omitted), and in January 2012 while the father was away overseas, and in the face of his known opposition, she enrolled both children at (omitted) Primary School. Y was not due to turn 5 until (omitted) 2012 but the mother insisted on enrolling her in kindergarten.
The children commenced at (omitted) on 30/31 January 2012 but the father was understandably furious about the mother’s actions and after he collected them on 8 February 2012 for the commencement of his time with them he re-enrolled X at (omitted) School and enrolled Y in (omitted) Early Learning Centre.
The matter came back before the court urgently on 15 February 2012 and in the face of the intransigence of the parties I made interim orders that the children attend (omitted) School and that they live with the father from 5.00pm on Sunday until the conclusion of school on Friday each school week and with the mother from the conclusion of school on Friday until 5.00pm on Sunday each week.
These orders were made upon the father’s undertaking that between 15 February 2012 and 19 April 2012, when the matter was due to be mentioned after the release of the Family Report, he would be personally available to care for the children and would not travel overseas or be away overnight on interstate trips.
The orders I made were contrary to the proposals of both parties, and the father showed some empathy for the mother after they were made. To his credit he sent her an email in which he said as follows:
Dr Ms Cornish
I feel that if the tables were turned, I would have found Wednesday’s orders distressing. If you would like contact with the children mid-week – for example on days that you travel through from (omitted) – I will do my best to facilitate.
…………
Mr Cornish[1]
[1] Annexure K to the father’s affidavit filed 14 August 2012
The orders posed difficulties for the father in terms of his work and on 19 April 2012 they were varied by consent to provide that the children would live with the parents on a week about basis with changeover at the conclusion of school each Monday.
The father said that he consented to these orders only because the mother agreed that she would reside at her mother’s home in (omitted) during the school weeks the children were with her, an agreement she made clear to the court through her counsel. He complained that she had not abided by it and in her weeks had either remained living in (omitted) and transported the children to school from (omitted) or had left the children at her mother’s home overnight.
The father attached a copy of the transcript of the proceedings of 19 April 2012 to his affidavit and it records the mother’s counsel as saying, in response to a query I made about whether the parties had considered the logistics of the new interim arrangement:
The mother proposes that she will be living at her mother’s residence each alternate week in order to facilitate time pending a hearing.
During cross-examination the mother said that she had never represented to anyone that she would stay at her mother’s home every single night during her week, only that she would do so as required. She said that she had spent between one and three nights per week at her mother’s house after the orders were made. On the other nights she had stayed in (omitted) and made other arrangements to get the children to school.
No undertaking was required of the mother on 19 April 2012 and while the mother did not correct her counsel I do not consider that it is open to me to find that the mother said one thing to the court and immediately did something different.
The week about arrangement and the children’s attendance at (omitted) School was continuing when the hearing commenced, and the parties were agreed that the children should remain at (omitted) School until the conclusion of the 2012 school year.
The mother’s circumstances and proposals for the future
The mother is 38. She is employed by (omitted) in (omitted) as a (omitted) and works from 9.00am until 4.00pm Monday to Friday save that she had two Fridays off per month. She is working the equivalent of about 32 hours per week.
The mother’s relationship with Mr K continues and they both described it as a long term committed relationship. Mr K is a (occupation omitted). He has two children, A aged 12 and B aged 10, who live with his former wife in Sydney and spend time with him on alternate weekends and during school holidays.
At the time of the hearing the mother and Mr K were still living in Mr K’s unit in (omitted). They said however that the unit was on the market and that when it was sold they intended to buy a house “in the vicinity” ie in inner (omitted).
The mother proposed that the children commence attending (omitted) Primary School or some other school in (omitted) agreed between the parties from the beginning of the 2013 school year. She said that (omitted) was a good school and was within walking distance of the unit and would be within easy distance of any new residence the parties purchased in inner (omitted). The mother said that she was looking forward to being able to have an involvement with the children’s school in the future, something which was denied to her because of distance at present and indeed had been since she commenced working in (omitted) in May 2011.
Although these were the mother’s plans she said that a better option for the children would be for both she and the father to move to a suburb further west in (omitted) and for the children to be enrolled at a school such as (omitted) College, which had a good reputation. If this occurred the children’s school would be close to both the parents homes and the mother would be within reasonable commuting distance of her work.
Mr K said that he and the mother were prepared to look at residences as far out as (omitted), which would put them in the area the mother had in mind but not put them within the 20 kilometres from the children’s school the father proposed as a condition of the mother spending substantial and significant time with the children.
The father’s circumstances and proposals for the future
The father is 43. He is an (occupation omitted) and has historically travelled overseas extensively in the course of his work.
In 2009 the father made 10 international trips and 14 trips away from home altogether and was absent from home for 100 days. Five of the father’s overseas trips resulted in an absence of more than one week, although he said that he was never away for more than two weeks.
In 2010 the father made 8 international trips and 12 trips away from home altogether and was absent from home for 104 days. Six of the international trips required an absence from home of more than one week.
In 2011 the father made 10 international trips and 14 trips altogether and was away from home for 124 days. Six of the international trips required an absence from home of more than one week.
The father also undertakes additional travel for personal reasons from time to time. He was overseas for personal reasons for 13 days in 2011 and 4 or 5 days in 2009.
In 2012 the pattern was interrupted between February and April 2012 by the orders made in February 2012, but the father spent 14 days in (country omitted) in January 2012, 1 night overnight domestically in May and July 2012, 4 days in (country omitted) in June 2012, 15 days in (country omitted) in August 2012 and 5 days in (country omitted) in September 2012.
In January 2012 the father took the children and his partner with him to (country omitted) and his partner cared for the children while he was at work and he was able to do some holiday activities with them when he was not. I accept that the father and the children greatly enjoyed this occasion.
In his affidavit the father said that he was on a period contract with (employer omitted) which required him to travel overseas on up to 6 or 7 occasions each year and also to attend meetings in Canberra, Melbourne or Sydney which sometimes required an overnight stay.
The father said in his affidavit however that he had made a decision to permanently reduce the amount of overseas assignments he accepted in the future to one or two a year. He said that he intended to schedule his travel around times the children were with the mother for holidays if possible, and that his partner and his parents would both be available to care for the children if he was not in Australia. He also said that he was happy for the children to spend extra time with the mother while he was away.
During oral evidence when asked about his intentions the father said as follows:
The situation I am currently in is that the contract I am currently involved with the (employer omitted) expires on the 30th of June. I have one current contract – which is for predominantly (omitted) based work in support of the (employer omitted) program in (country omitted), so I’m anticipating – well that contract will only involve limited travel to (country omitted) – so my intention is to travel as it has always been within the parameters of my child care responsibilities and so that will be less if I assume that I am successful in this application.
The father was asked by his counsel if he would be “prepared to give an undertaking” and he said that he would, but at no time during the hearing was any suggestion made about what that undertaking should contain, and in the Minute of Orders he sought the father did not propose an order or notation concerning the amount of time he would be away from home.
I further note that the father did not suggest that he would limit his overseas travel to one or two trips per year, rather he said that he would limit his overseas assignments to one or two a year, and his work in (country omitted) involved three trips overseas in 2012.
It was suggested to the father by the mother’s counsel during cross-examination that if he could not achieve a primarily home based role during the relationship and there was no reason to be optimistic that he would be able to do so in the future. In my view there is some merit in this concern, because his evidence about his intentions was less than clear cut and there was no evidence that he himself considered his overseas travel to be a problem as long as he was able to make suitable care arrangements for the children while he was away. Historically the father has balanced his absences from Australia to his satisfaction with an intensive involvement with the children at home and at school upon his return.
The father works from home when he is not overseas or at meetings domestically, and for the purposes of his work in Australia it is immaterial where he lives. The father’s counsel cavilled a little with this proposition during submissions but I am satisfied that it is correct.
The father conceded that if he reduced his overseas travel by 20% he was likely to experience a 20% drop in his income, from $80,000.00 to $64,000.00. He did not consider that this would pose difficulties for him in the future because while he would have a mortgage it would be with his partner.
The father commenced a relationship with Ms T in mid-2009 and commenced living with her in (omitted) 2011, and the relationship is strong and committed. Ms T is 41 and to my knowledge has no children (which I record as a fact, not a criticism). She is the (occupation omitted) with the (employer omitted). At the time of the hearing she was completing a (omitted) internship at (omitted) but she was due to return to her employment with the (omitted) in (omitted) 2012. This position is based in (omitted) in Sydney although Ms T said that a lot of her work could be done remotely and that her need to be at the Sydney office was fairly minimal.
Ms T supports the father’s application and said that she would do whatever was necessary to assist him to care for the children. I accept this evidence unreservedly.
At the time of the hearing the father was living in rented accommodation at (omitted) but shortly prior to the hearing he and Ms T exchanged contracts to purchase a block of land at (omitted), about a 6 minute drive from (omitted) School. The father said that their intention, subject to obtaining development approval, was to build a four bedroom home on this property.
I could speculate that it might be easier for Ms T to travel to Sydney from (omitted) than from some place in (omitted), but no point was made about this by either Ms T or the father in their affidavits and there was no suggestion that it was critically important to Ms T’s work or to the continuation of the relationship that the father and Ms T live at (omitted).
During final submissions the father’s counsel extolled the virtues of a semi-rural lifestyle which living on this property would provide. He submitted that there would also be benefit to the children in experiencing an inner city lifestyle with the mother, and that a combination of these two options was better than the option of the children living in the western suburbs of (omitted).
This is a non-issue. I could not make such a judgment call and in any event as I observed repeatedly during submissions the most important thing to these children is their parents, and as Ms D repeatedly said children are adaptable. No matter what decision is made or where the parents choose to live I am sure that the children will be exposed to many delightful experiences throughout their lives by their well educated and well travelled parents.
The father emphasised the advantage of the children continuing to live in the area in which the family had lived during the marriage. He pointed out that it was close to where the maternal grandmother lived and to the home of the children’s cousins. I do note however that the paternal grandparents, to whom the children are close, live at (omitted) and I can safely take judicial notice of the fact that this is by no means next door to (omitted) School or (omitted) and is about as close to (omitted) city as it is to (omitted). The paternal grandfather would be still able to attend X’s school to do reading with his class if X attended (omitted) school.
The father proposed that X continue and Y commence attending (omitted) School where they would each have/will have as a result of attending the Early Learning Centre many friends. The children’s maternal aunt and uncle teach at the school and some of the children’s cousins attend there.
X & Y
Ms D saw the children at the interviews for the Family Report in February 2011 and was impressed with them. She said as follows:
X (aged six years and 11 months) and Y (aged four years and nine months) presented as bright, articulate and happy children. Both were well dressed and presented as well nourished children who appeared to have met their developmental milestones.[2]
[2] Family Report paragraph 60
X completed Year 2 at (omitted) School in 2012. He achieves highly at school and he has many friends. He does piano lessons at the school facilitated by the father.
Y commenced attending (omitted) Early Learning Centre in 2011 and in 2012 she attended four days a week. She has made good progress, has many friends and also does piano lessons at the school.
In March 2012 the father requested the mother’s consent to him to applying to enrol Y in kindergarten at (omitted) School in 2013, informing her that applications closed at the end of April 2012. The mother did not consent but the father proceeded to enrol Y anyway and he also obtained a readiness assessment for her.
The mother was critical of the father for doing these things but I do not consider that he should be criticised. The possibility that the children might continue to attend (omitted) School was real and it was in Y’s interest that the parents ensure that a place was available for her if required.
The children’s best interests
Any orders I make about X and Y must be orders determined by treating their best interests as the paramount consideration, and s.60CC(2) and (3) of the Family Law Act (as it stood prior to the amendments which came into force on 7 June 2012) contains the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations in s.60CC(2) are:
i)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
ii)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The primary considerations do not assist me. X and Y have a meaningful relationship with both of their parents already and will continue to do so no matter orders I make, and there are no protective concerns.
The first of the additional considerations in s.60CC(3) is any views expressed by the children and any factors (such as the children’s maturity and level of understanding) that the court thinks is relevant to the weight it should give to the children’s views.
Ms D said as follows about X:
X’s perceptions of the litigation between his parents are that he would like to be able to have time with both his father and his mother. He was able to state positive activities in both households and did not report any negatives. He reported positives about both parents’ partners. X’s greatest concern was about changing schools. He said he did not like the new school as they only had a small library and it was noisy. He said he missed all his friends and the space and facilities of (omitted) College and said he really wanted to return to that school. X said he would be “very sad” if he did not spend as much time with his father and he would prefer to change schools back to (omitted). He said, “I want to go to that school because it is (religion omitted) and I am a (religion omitted)”. These views are developmentally appropriate as he obviously has a relationship with both parents. These views appear not to have been influenced by either parent.[3]
[3] Family Report paragraph 63
X’s strong wish to attend (omitted) School was reiterated by the father. His evidence, which I accept, was that X was distressed at the thought of changing schools and that he had told the father that he wanted to stay at (omitted) School until he went to University.
Ms D reported that Y wanted to spend time with both parents and identified positives in both households. Y made no comment to Ms D about schools.
The father’s counsel said that considerable weight should be placed on X’s preference to stay at (omitted) School, but X is very young and lacks life experience. The mother during cross-examination gave a good example concerning meal choices to illustrate her position that while children’s views have to be taken into account they cannot always be allowed to determine the outcome, and I accept that this is correct.
Ms D said that most children did not want to change schools and noted that X’s introduction to (omitted) Primary School had been poorly managed and he had not been given an opportunity to settle in and experience the positives of it.
As a result I can only place limited weight on X’s views and another relevant consideration is that it is impossible to know what the effect on X’s views would be if he knew that staying at (omitted) School could only be achieved at the cost of a considerable reduction in his time with his mother.
The next additional consideration is the nature of the relationship of the children with each of their parents and any other persons including grandparents or other relatives of the children.
The children have a good relationship with their mother. The father to his credit conceded that the relationship was “strong and loving.”
Mr K maintained that he had a positive relationship with X and Y and that he participated in games with them.
Ms D’s observations and the children’s comments to her bore out the claims that the mother had a good relationship with the children and Mr K a satisfactory one. Ms D said as follows:
In observation between the children and Ms Cornish, the children were observed to interact and play with her warmly. When Mr K was introduced they appeared to be comfortable in his presence and included him in their conversation. [4]
[4] Family Report paragraph 67
Mr K maintained that X and Y had an easy relationship with his sons A and B and said that all four children had taken part in family holidays. He also maintained that the mother had a good relationship with A and B.
The father said that X and Y had complained to him that A and B said mean things to them and had thrown a plastic piano at Y and shot at her with toy guns, and in his 3 August 2012 affidavit the father said:
I am concerned that Mr K’s children do not act appropriately towards X and Y and they are inadequately supervised. [5]
[5] Paragraph 106 of father’s affidavit filed 14 August 2012
However the father raised these concerns with the mother and Mr K in 2011 when the incidents allegedly occurred and there was a civil exchange of emails. Mr K’s evidence was that any problems had been resolved and it is not open to me to find that there is any continuing problem between the children when the last specific incident the father referred to occurred in October 2011, nearly 12 months ago,
The father maintained that that the children had a close and loving relationship with himself and with Ms T and the children’s comments to Ms D and her observations also bore this out. Ms D said as follows:
In observation between the children and Mr Cornish, the children were observed to interact and play with him. They were affectionate and spontaneously engaged with him in conversation and play. When Ms T was introduced later the children appeared very comfortable in her presence and also sought her out for play. [6]
[6] Family Report paragraph 66
The father’s counsel suggested to the mother during cross-examination that Y was primarily attached to the father. The mother did not agree with this proposition and there was no evidence to support it. Ms D’ opinion was that the children were well and securely attached to both parents.
The father maintained that the children had a close and loving relationship with their paternal grandparents who they saw about once a week and with other members of their extended family on both sides and I unreservedly accept this evidence.
I must have regard to the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
Each parent strongly wants to get their own way in the current dispute, but I am satisfied that each of them recognises the value of the other parent to the children and has the willingness and ability to facilitate and encourage a close and continuing relationship between the children and the other parent.
I must have regard to the likely effect of any change in the children’s circumstances, including the likely effect of separation of the children from:
a)either of their parents; or
b)any other child, or other person (including any grandparent or other relative of the children) with whom the children have been living.
The mother’s proposal would require the children to change schools. The mother felt that the children would adapt to this and pointed out that while (omitted) School was a good school it had been chosen because of its proximity to the former matrimonial home, and there were other good schools.
Ms D agreed with the father’s counsel that (omitted) School was a special school for X because he had always attended there, had a cohort of friends there and had cousins at the school and two relatives on the teaching staff. She also expressed the view however, and really it is only sound common sense, that it was part of life that many children will change schools, and that the children were young and would manage the change if they were supported by their parents in adapting to it.
Ms D commented that X was a “happy little chap who got on with everyone” and was a well adjusted child who was secure in the knowledge that both parents loved him.
Ms D said that it would be better for the children if both parents lived in the feeder area of the school the children attended.
The mother proposed that the children attend (omitted) Primary School which the father conceded was a satisfactory school. She also proposed a continuation of equal time. However if this was deemed impractical because of the father’s residence in (omitted) logic would suggest that it would have to be accompanied by an order that the children live primarily with the mother and the father’s time with the children would be diminished. The mother is a capable parent but such a loss of time with the father would be a detrimental outcome for the children.
Either of the father’s proposals would result in a diminution of the children’s time with the mother. The father did not concede in his evidence that this would be detrimental for the children but I have reservations about his capacity to recognise the feelings of people other than himself; he did not pick up for example on the extent of the mother’s distress about his overseas travel during the relationship. Ms D’s view was that a diminution in the children’s time with either parent would be detrimental to them and I place weight on this view.
I must have regard to the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The practical difficulty in this case is how the children can maintain equal time or substantial and significant time with each parent if each insists on living in their preferred future location.
After the orders for week about shared care were made on 19 April 2012 the mother needed the help of her mother and stepfather to get the children to and from (omitted) School in her week. On the days she stayed in (omitted) she left at 7.30am and her mother and stepfather travelled from (omitted) and met her halfway. They collected the children and delivered them to school. The children did not arrive home until at least 5.00pm.
The mother said that the maternal grandmother had made it clear that she could not continue to provide assistance indefinitely.
The mother commences work at 9.00am and if she drove the children all the way to (omitted) and allowed sufficient time to be back in (omitted) to start work at 9.00am she would have to leave home at around 7.00am, drive the children 45 minutes to (omitted), leave them at before hours school care and drive back to (omitted). The children would need to attend after hours school care until the mother collected them and they would not get home until well after 5.00pm.
The father commented that the children had complained to him about being required to get up early after the 19 April 2012 orders were made and about being tired in the mother’s weeks, and if the children were also with the mother for some of the father’s weeks, which could happen if he continued to travel as he has done historically, the burden on the mother and on the children would be greatly increased.
The father’s counsel cross-examined the mother and Mr K vigorously on the issue of whether they could move to somewhere which would put the mother within a 20 minute drive of (omitted) School.
The mother said that while she was not opposed to being flexible if she moved to western (omitted) and even to within 20 minutes of (omitted) School it would not help, because the school would be 20 or more minutes away from her in one direction and her work 20 or more minutes away in the other direction. She would still face logistical difficulties in dropping the children at school and then getting to work on time, and the children would still need to attend before school hours and after school hours care.
It would also be impossible for the mother to get to school activities during the day except on the two Fridays a month when she does not work.
If the children attended (omitted) College and the father lived at (omitted) there would be no practical difficulty for the father in dropping the children off and picking them up from school. If the children were enrolled at (omitted) or some other school near the centre of (omitted) however the father would face a 50 minute drive each way twice a day to get the children to and from school in his weeks.
The father does not have any fixed work hours when he is in Australia and he would be able to pick up and drop off the children at the starting and ending time of school and also stay for school events whenever he chose, and he did not give any evidence about a likely adverse effect on him of doing this travel. I am sure he would find it unappealing however and it would involve a lot of travel for the children.
I must have regard to the capacity of each of the children’s parents and any other person to provide for the needs of the children, including their emotional and intellectual needs.
The mother has Bipolar Affective Disorder and had acute mental health crises in 2004, 2008 and 2010. She takes Lithium twice a day and sees her doctor regularly.
The mother attached to her affidavit a report from her treating psychiatrist Dr H and it was admitted into evidence without objection. Dr H confirmed that the mother was well at present and was compliant with her medication.
There is a risk that the mother will have another mental health crisis in the future, and stress and in particular multiple stresses are a trigger, but the mother is adept at recognising the signs of an incipient mental health crisis and responding appropriately. I do not consider that the mother’s mental health is an issue when it comes to determining appropriate parenting arrangements for the children.
The father’s counsel submitted that the mother’s mental illness had the effect of making the mother more self-focussed than would be the case if she did not have a mental illness. Certainly the mother needs to be careful not to become stressed and needs to watch for any signs of impending difficulties, but why this should be seen as something of concern the father’s counsel did not explain and I cannot see.
Prior to separation the mother was the children’s primary carer. I accept that the father was a devoted father but the mother was with the children every day while the father was absent from Australia for at least a quarter of each year.
The father hinted at the fact that there were occasions during the relationship when the mother was unavailable emotionally to the children because of her mental illness but he gave no dates or concrete examples. The mother had only one acute episode of mental ill health after the children were born and while the parties were still together, and that was about three months prior to separation.
Since separation the mother has cared for the children equally with the father. She had one episode of mental ill health in 2010 but apart from that has always been available for the children. She is half of the reason X and Y are such delightful well adjusted children.
The father was critical of the mother for what he claimed was her lack of involvement with the children’s school in the past and her use of before and after school care for the children even when she was not working.
The mother’s counsel submitted that this criticism was unfair as the mother had worked at the (employer omitted), but this is not strictly true. She worked at (omitted) and although I was told that (omitted) was at (omitted), I was given no information about the physical relationship between the College and the School.
When it was put to the mother by the father’s counsel that she had not had much involvement with the children’s school life in the past the mother agreed that this had been the case since she commenced working in (omitted) in (omitted) 2011 but said that prior to that she had attended school excursions (she named one in particular), had gone to the school to do reading 6 or 7 times and had also participated in parent teacher nights, school concerts and in making sure the children got to their music lessons.
The mother pointed out that even prior to her relocating to (omitted) she was employed and there were limits to her availability to attend school events. The mother agreed that the father had attended more school events than she had but pointed out that when the father was at home his time was his own to organise as he chose and he was not subject to the requirements of an employer.
I accept the mother’s evidence about her past school involvement and accept that she genuinely desires to be involved with the children’s school life in the future.
The mother gave very measured and even handed evidence on this topic and made it clear that she considered it important for the children that both parents had the opportunity to be involved in the children’s school life.
The mother did not show much regard for the children’s emotional needs when she re-entered the former matrimonial home in late 2011 or when she unilaterally commenced the children at a new school in 2012. She exposed the children to conflict and her actions smack of her being somewhat insensitive toward the children. In other respects however, for example in trying to vary the ad hoc parenting arrangement which existed between 2008 and 2011, the mother has been insightful about the children’s needs.
No parent is perfect and I do not have any serious concerns about the mother’s capacity to provide for the children’s emotional needs in the future.
The father is also one half the reason X and Y are such delightful well adjusted children. He gave extensive evidence of his involvement with them in a parenting role both before and after separation. He emphasised the extent of his involvement with their school life and as an organiser of their piano lessons and I accept his evidence.
The father said that if he had to travel away during his time with the children then his partner and the paternal grandparents were ready and willing to assist him. Ms T and Ms E confirmed this and I accept that they would do a good and responsible job of caring for the children if required to do so. However the father has traditionally been absent from Australia for up to one third of each year, and as the mother’s counsel pointed out his absences had been on the increase until this year. If I made an order that the children lived primarily with the father and spend each alternate weekend with the mother then unless the father dramatically changed his travel the children could spend quite a lot of time in the care of someone other than a parent.
Ms T has known the children for more than three years and has taken an active role in their recreational activities and home life since she commenced an exclusive relationship with the father and Ms E has a close and loving relationship with the children I am sure that they would capably care for the children but it does seem difficult to justify having them adopt a role which the mother is perfectly capable of carrying out.
The father said that he would be happy for the mother to have the children if he was unable to care for them but if they remained at (omitted) College it might not be possible for the mother do so during the school week.
The father’s counsel submitted that something which tipped the balance in the father’s favour if a choice had to be made between the children living primarily with one parent and spending reduced time with the other was that the father showed greater child focus. The father’s counsel did not explain what evidence supported this contention.
The father has shown empathy for the mother in the past (for example in the email he sent her following the 15 February 2012 orders) and he has also demonstrated a willingness to discuss issues concerning the day to day care of the children with the mother as they arose. An example of this occurred in 2011 when the father initiated email correspondence with the mother and later Mr K over the complaints X and Y were making to him about Mr K’s children. The father dealt very responsibly with this issue.
These things reflect well on the father’s parenting capacity and child focus but I am greatly troubled by the fact that only a short time prior to the hearing the father exchanged contracts for the purchase of a block of land at (omitted) with the intention of building a house on it. If the father proceeds with this plan, and he may be bound to do so, some difficulty will follow for the children if I order that the mother has permission to enrol them at (omitted) or some other school in (omitted).
The father did not explain why he felt compelled to make this particular purchase at this particular time and thus remove any possibility of him living at a place closer to where the mother lives and works. It is difficult to avoid the conclusion that this was a strategic move designed to advance the father’s case, and if this is so it was the reverse of child focused.
I must have regard to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant.
The only applicable matter here is the children’s maturity and that is referred to where relevant in the context of considering other s.60CC(3) matters.
I must have regard to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents.
The parents have provided good care for the children throughout their lives and they both have a strong desire to remain part of their children’s lives. In those respects they have both shown a good attitude to the children and to the responsibilities of parenthood.
The father pays child support as assessed.
The parents are in some respects very similar in their attitudes. The father’s counsel was critical of the mother for choosing to work in (omitted) rather than (omitted), which made a continuation of equal time together with the children attending at (omitted) School difficult, and he implied that she should be criticised for prioritising her work over the children. However between September 2008 and February 2012 the father insisted that the children’s time with him be fitted around his work, suggesting that the father also places a high value on being able to work when and where he chooses.
The father of course says that in future he will prioritise his child care responsibilities, but he has yet to carry this into effect.
I have some concerns about the mother’s attitude to the responsibilities of parenthood as revealed by her actions in early 2012 in enrolling both children at (omitted) Primary School over the father’s strongly expressed opposition. This was high handed and exposed the children to stress. They attended (omitted) for less than two weeks and were then taken back to (omitted) School.
I must have regard to any family violence involving the children or a member of the children’s family, but family violence is not an issue in this case.
There have never been any family violence orders between the mother and father or between either of the parents and any other relevant person.
I must consider whether it is preferable to make the order which is least likely to lead to the institution of further proceedings.
There is reason to be optimistic that once orders are in place (whatever they are) there is little likelihood of the matter returning to court.
I must consider any other fact or circumstance which the court considers relevant.
Three things require mention here.
First, Mr K has behaved in a confrontational and difficult way with the father on occasions. He supported the mother’s decision to move back into the former matrimonial home in September 2011, three years after she had vacated it. He said that he found it intolerable that the mother and children were living in cramped conditions in a granny flat when they could have been living in the former family home, and he formed the view that the mother had been “bullied” by the father into accepting this situation.
Mr K also formed the view that it was “unfair for both Ms Cornish and the children” that the care arrangements for the children revolved around the father’s travel schedule.
Mr K was confrontational with the father when he arrived home to face this fait accompli in September 2011 and his behaviour toward the father on that day and also on 9 May 2012 does him no credit.
Mr K took a most intransigent stance when interviewed for the Family Report. Ms D said as follows:
When asked about the options before the Court, Mr K said if the Court ordered the previous arrangement of care dependent upon Mr Cornish’s schedule, he would not continue a relationship with Ms Cornish. He said, “I wouldn’t be with Ms Cornish ... I wouldn’t put up with it ... We can’t ever get a full weekend and the children need routine.”[7]
[7] Family Report paragraph 35
During cross-examination however Mr K gave quite reasonable and calm answers when questioned about his past actions, and he and the father had a civil exchange of emails in 2011 when the issue arose about incidents between A and B and X and Y. This gives me some confidence that once orders are made and the heat goes out of the matter there will be no need to fear that there will be any further confrontation between Mr K and the father.
Second, the father maintained that (omitted) School was a superior school to (omitted). However I cannot, on the basis of NAPLAN test results, a minor difference in standing on the My School website and the personal opinion of one party make a finding that one school excels over the other.
The parents each agreed that the school proposed by the other parent was a good school. I am satisfied that both (omitted) School and (omitted) would provide a good education for the children, and that if any other school is ultimately chosen the parents will make a good choice.
Third, the mother and Ms T have an amicable relationship and have been able to communicate about the children’s arrangements as required.
Parental Responsibility
Pursuant to s.61DA of the Family Law Act I am obliged to apply a presumption that it is in X & Y’s best interests that their parents have equal shared parental responsibility for them, absent a finding that one of the parents or a person living with one of the parents has engaged in abuse of the children or family violence. The presumption can be rebutted by evidence that an order for equal shared responsibility would not be in the children’s best interests.
There are no family violence or abuse allegations and the presumption applies. Both parents sought an order for equal shared parental responsibility and I am comfortably satisfied that such an order would be in the children’s best interests.
The recommendations in the Family Report
Ms D conducted interviews for the Family Report in February 2012. At that time the mother was seeking orders that the children live with her and spend time with the father every second weekend and the father was seeking equal time, preferably fitted around his travel but with week about as a second option provided that if he missed out on a week he could catch up on his time later.
Ms D said as follows:
It is my opinion that what is in the best interests of the children is for them to continue to have close connected relationships with both parents and that both relationships are of value to the children now and in the future. In my opinion any significant disruption to the relationship with their father or the mother would be detrimental to the children. [8]
[8] Family Report paragraph 73
Ms D recommended that the children live in a week about arrangement with flexibility, so that if the father was away for two weeks he be offered a week on his return, with some time with the mother during that week.
Ms D did not directly make a recommendation about the children attending (omitted) School, although she recommended that pick up and drop off be at this school, noting that this would be difficult for the mother because of the 45 minute travel distance between her home and the school.
I place considerable weight on Ms D’s opinion about the desirability of a continuation of equal time and the likely detrimental effect on the children of a reduction in their time with either parent. Her opinion is soundly based on her observations and the factual information available to her, which coincides with the information available to the court.
Conclusion
As I intend to make an order for equal shared parental responsibility I am required by s.65DAA of the Family Law Act to consider whether it would be in the children’s best interests and reasonably practicable to make an order that they spend equal time with each of their parents and if so to consider making an order of that kind.
I have absolutely no doubt that it would be in the children’s best interests to spend equal time with each of their parents.
The parents are both well educated high functioning adults who can offer their children the very best in nurture and guidance. The children have had a long experience of living in an equal time arrangement and they have thrived in it. They have a good relationship with both parents and do not have a preference for one over the other. Each parent accepts and understands the other’s importance to the children and can be relied on to promote the children’s relationship with the other parent.
Both parents have the capacity to provide for the children’s day to day and educational needs, and while I consider that they have each, by their stubbornness in this dispute if nothing else, not always shown a commendable child focus, I am sure that they each have the capacity to provide for the children’s emotional needs once this dispute is behind them.
I have some concerns about the attitude of Mr K to the father. To put the best possible light on it he has been overzealous in his support of the mother, but he, like the parents, is a high functioning adult and there is every reason to hope that once this dispute is over he will take a more measured approach to dealing with any disturbances which arise between the parents. There was nothing to suggest that he would be likely to make a deliberate attempt to undermine the father’s relationship with the children.
Ms D also endorsed equal time, but as the High Court made clear in MRR & GR :
Section 65DAA(1) of the Family Law Act is expressed in imperative terms. It obliges the Court to consider both the question of whether it is in the best interests of the child to spend equal time with each of the parents and the question of whether it is reasonably practicable that the child spend equal time with each of them. It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.[9]
[9] MRR & GR (2010) 42 Fam LR 531
The High Court went on to say that:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time with each parent.
The matters I must take into account in order to determine whether equal time is reasonably practicable are set out in s.65DAA(5) of the Family Law Act which says as follows:
In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
I must first consider the distance the parties live apart.
At the time of the hearing the mother was living in (omitted) city and the father in (omitted) but they both anticipated changes of address in the immediate future. Mr K’s unit was on the market and the mother and Mr K said that they had been looking at houses in inner (omitted). The father had exchanged contracts for the purchase of a property at (omitted), and if the parties live in these locations they will be 50 minutes driving distance apart.
The mother indicated during the hearing that she wished that the parents could be flexible and agree on an outcome which might suit neither perfectly but which would ensure that equal time could continue without placing an undue travel burden on the children or either of the parents. She suggested the parents should each consider moving to a location in the western part of (omitted) and enrolling the children at a school such as (omitted) College.
This is not an alternative proposal which I can consider however, because the father made it clear that he intended to live at (omitted) and nowhere else and the mother did not suggest that she would alter her intention to live in inner (omitted) unless it was part of a compromise which also involved the father moving, indeed from her perspective there would be no point in her doing so.
I must consider the parents’ capacity to implement an equal time arrangement and I am satisfied the mother would find it extremely difficult to implement the arrangement if the children attended (omitted) School. If the children attended (omitted) however the mother would be close to the school and easily able to implement it.
While at first glance it might seem that a mirror image situation applies for the father this is not the case. Certainly he could more easily implement equal time if the children attended (omitted) School and less easily implement it if they attended (omitted), but he works from home when he is not overseas, and he could leave home in time to get the children to (omitted) at the commencement of their day and collect them when school finished without any impact on his work.
It is true that this would involve the father in a lengthy commute, and Ms D commented and I agree that such travel would be burdensome. The father himself however did not give any evidence about the effect on him of this travel or say that he would find it unbearable.
I must consider the parents’ current and future capacity to communicate with each other and resolve difficulties which might arise in implementing an arrangement of this kind, and I am satisfied that the parents are more than capable of communicating sufficiently to make equal time work. They have made it work in the past, and they are not parents who become fixated on missing shoes or items of clothing or the transfer of homework books and electronic toys between the homes or who refuse to speak to each other on the phone or send each other abusive text messages.
I must consider the impact of an arrangement of this kind on the children and the fixed impact no matter which school they attend is that in one week out of two they will have to travel a considerable distance to school.
Ms D expressed the opinion that it would be best for the children if both parents lived in the feeder area for the school, and expressed the view that a maximum of 30 minutes travel was to be preferred. However she qualified her answer about the burdensome nature of longer travel for the children later and said that how burdensome the commute was depended on the quality of the commute and that if it was used for example for some teaching and learning interaction it did not have to be a painful and negative experience.
The difference between the two situations is that if the children travelled with the father to (omitted) they could get up in time to be at school when it started and could be collected when school finished. If the children travelled with the mother to (omitted) School the constraints of her work would mean that they would need to get up much earlier and be collected much later and attend Outside of School Hours care before and after school.
The father’s evidence was that the children had complained to him about being tired on days they had to travel to (omitted) School from (omitted) after the 19 April 2012 orders were made and Ms D commented that if the children had to attend Outside Hours School Care as well as travel a long distance it would make it a very long day indeed for them.
Another impact on the children of an equal time arrangement if accompanied by enrolment at (omitted) would be that they would have to change schools. This would not meet with X’s immediate approval but Ms D considered that the children could cope with this if both parents supported them in the change, something these parents are more than capable of doing.
X would also cease to attend school with cousins and leave a school at which relatives are teachers, but the parents are more than capable of ensuring that the children keep up a relationship with extended family no matter where the children go to school.
I must also take into account any other relevant matter and I take into account the mother’s mental illness and her psychiatrist’s opinion that stress could trigger an onset of an episode of mental ill health. I would be reluctant to impose on the mother a travel burden which she felt she would not be able to bear.
Taking all these finding into account I am satisfied that if the children continue to attend (omitted) School equal time would not be reasonably practicable. It would be extremely difficult if not impossible for the mother to implement it consistent with her place of residence and employment, the risk of decompensation in her mental health as a result of her trying to do so would not be worth taking, and the children would need to attend Outside Hours School care as well as do the travel. If however the children commenced attending (omitted) then even if the father lived at (omitted) equal time would be reasonably practicable.
An additional benefit to the children in this outcome would be that it would enable the mother to be involved more frequently in their school life. If the children remain at (omitted) School she will at best only be able to go to the school on two Fridays each month, while the father in either scenario will not be restricted from being part of the children’s school life when he was in Australia.
The situation would not be optimal for the children however because of the distance they would be required to travel one week out of two, and I do not have to order equal time just because I find that it would be in the children’s best interests and reasonably practicable, I simply have to consider doing so.
To determine whether I should do so it is instructive to consider the alternatives.
The father put forward two alternative proposals, the first being that the children continued to attend (omitted) School and that they lived with him and spent time with the mother for five nights each fortnight in two blocks, provided however that she lived within 20 kilometres of the school
The time the father proposed for the mother would come within the definition of substantial and significant time in s.65DAA(3) of the Family Law Act, and if I do not order equal time I am required to consider whether the children spending substantial and significant time with each parent is in their best interests and reasonably practicable and if so to consider making an order of that kind.
There can be no doubt that substantial and significant time would be in the children’s best interests if equal time was not ordered and if the mother moved to the area suggested by the father it might become reasonably practicable.
The mother would still be up to 20 minutes plus from (omitted) School in one direction and once she got there 45 minutes from her work in the other direction, but in this scenario the children would be able to get up a bit later in the morning and would arrive home a little earlier in the evening when they were with the mother.
They would still need to attend outside hours school care and the mother would still be prevented from having frequent involvement in their school life, and she would no doubt find the travel burden difficult, but the arrangement might be within the realms of reasonably practicable indeed even equal time with a continuation at (omitted) School might be reasonably practicable in these circumstances, although I would be concerned about the impact of the orders on the mother’s mental health if they placed her under stress and the impact on the children of the limitation in her capacity to be involved in their school life.
However the mother does not live within 20 kilometres of the school and has not done so for some time and this proposal would only really work well for the children if the mother gave up not only her preferred place of residence but also her job. There was also no evidence that Mr K would consider moving so far from (omitted).
The father’s proposal for time if the mother remained more than 20 kilometres from the children’s school was that the children should spend time with her each alternate weekend from after school Friday until the commencement of school on Monday and on Wednesday afternoon each week from after school until 7.00pm in the (omitted) area.
The time on Wednesdays could not be implemented unless the mother gave up her job or alternatively the time started at about 5.00pm and continued for two hours. It is difficult to see how such time, which also had to occur on the father’s proposal in the (omitted) area, would benefit the children, given the restricted locality and the fact that it gets dark in winter shortly after 5.00pm, but even if the mother took it up I do not consider that the father’s proposal as a whole comes within the definition of substantial and significant time.
There would be no meaningful time on weekdays, and the time contained in the proposal as a whole could hardly be considered substantial, a word which is defined in the dictionary to mean considerable in quantity.
A reduction in the children’s time with the mother would be detrimental for the children and is to be avoided if at all possible, and this proposal is also unsatisfactory for the following reason.
Choosing which parent should be the primary carer if a choice had to be made would be exceptionally difficult in this case, because each parent is capable of providing well for the children and the children are equally attached to both. If I was forced to make a choice however the balance would tip in favour of the mother, because I can be confident that absent a serious mental health event (which is not likely to happen often) the mother would routinely be available to care for the children.
The father on the other hand has historically travelled away extensively. He said that he would tailor his travel in the future to meet his child care obligations but his ability to do so in the long term has not yet been put to the test. There is a risk that if I ordered that the children lived primarily with the father they would regularly be cared for by others when the mother was available.
It is a slight basis on which to make a distinction between the parents however and although I am not bound by the proposals of the parties I do not consider that I should make this choice and impose such a loss on the children if something else, while less than perfect, is available.
The reality of the situation of the parents and the children is that the mother is living and working in inner (omitted) and as her first preference intends to continue to do so, and that the father either works from home or works overseas and intends to live in the future at (omitted).
Underlying both of the father’s proposals was the proposition that the mother’s time with the children and possibly her job and choice of residence must all bow to the parties’ previous choice of school for the children, a choice the father is easily able to continue to accommodate in the post-separation environment but which the mother is not. I do not accept that the choice of school should be given such primacy.
The children are ensconced at (omitted) School at present but with support from their parents they could cope with a change of school, and if they changed schools to a school close to the mother’s home and place of work then equal time, the best option for these children, would be reasonably practicable.
I therefore intend to order that the mother be permitted to enrol the children either at (omitted) Primary School or some other school agreed between the parents and that the children spend equal time with the parents.
The travel burden on the children when they are with the father is not ideal but as Ms D pointed out it can be made bearable for them, and it will only occur one week in two and the outcome as a whole is still a better option than radically reducing the children’s time with one of their parents.
I am firmly of the belief that the parents could have solved this matter themselves had they chosen to do so, and come up with a much better solution than I have, but sadly they have chosen not to do so. They might still, after I make orders, choose to agree on something different and if they do I consider that I can be confident that it will be right for the children. However they have not been able to agree to date and I have to make a decision based on the material provided to me.
Ms D recommended that the orders include a provision that if the father was overseas during his week then he be offered a week on his return.
This has something to recommend it. The children are older and spending a lengthy period away from the mother should not prove too difficult for them, and if the general arrangement is week about then the children and the parents will have a routine apart from this possible swap of weeks.
However the father did say that he would try and fit his travel around his child care responsibilities in the future and the mother’s resentment at being required to change her plans to suit the father’s needs has been an issue for her for some time. I therefore intend to order that the father be allowed one make up week each school term, and that he have it provided that the mother is given notice of his schedule the previous term.
The mother sought an order that only the parents care for the children and that if a parent had to be away overnight or during part of their week the children go to the other parent.
This would cause disruption for the children if a parent was only away on one overnight trip or even for a few days occasionally at the end of a week, and it seems to me that if the absence is overnight or even for a few days after a week has commenced, that it would be better if the orderly rotation continued and the children remained in the household they were meant to be in for that week. Each parent has capable adults they can call on to provide back up assistance to care for the children.
For all of the above reasons the orders of the court shall be as set out at the beginning of this judgment.
I certify that the preceding two hundred and thirty seven (237) paragraphs are a true copy of the reasons for judgment of Terry FM
Date: 21 January 2013
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