Costa and Costa - [2009] FMCAfam 568

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COSTA & COSTA

[2009] FMCAfam 568

FAMILY LAW – Parenting orders – should the time the children spend with the husband, with whom they have a very close relationship, be extended by a further day to six days per fortnight in the circumstances of a high level of conflict between the parties and the husband’s work commitments.

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

Applicant:

MR COSTA

Respondent:

MS COSTA

File Number:

MLC 10689 of 2008

Judgment of:

Bender FM

Hearing date:

4 June 2009

Date of Last Submission:

4 June 2009

Delivered at:

Melbourne

Delivered on:

17 July 2009

REPRESENTATION

Counsel for the Applicant:

Mr Ramsey

Solicitors for the Applicant:

Susan Snyder

Counsel for the Respondent:

Mr Wood

Solicitors for the Respondent:

Middletons

ORDERS

All previous parenting orders be discharged.
The husband and wife have equal shared parental responsibility for the children of the marriage [X] born in 2001 (“[X]”) and [Y] born in 2003 (“[Y]”).
[X] and [Y] live with the husband and wife as follows:
(a)during school term, on an alternating two-week cycle as follows:
(i)in week one, with the husband from the conclusion of school Wednesday until the commencement of school Friday, and with the wife from the conclusion of school Friday until the commencement of school the following Thursday;
(ii)in week two, with the husband from the conclusion of school Thursday until the commencement of school Monday, and with the wife from the conclusion of school Monday until the commencement of school Wednesday; and
(iii)that all changeovers take place at [X] and [Y]’s school;
(b)for half of each of the school holidays in each year, at times and dates to be agreed between the parties, but on the basis that the husband will always have [X] and [Y] in his care for:
(i)the Easter holiday period, including Good Friday and Easter Sunday in each year;
(ii)not less than two weeks, commencing from 27 December in each year;
(iii)for the evening of the Jewish Passover until the conclusion of the first day of Passover in each year; and
(iv)from the evening of the Jewish New Year until the conclusion of the first day of the Jewish New Year in each year;
(c)as otherwise agreed between the parties.
The husband be in substantial attendance on all periods when [X] and [Y] are living with him.
Each of the wife and the husband:
(a)attend and complete, as soon as practicable, a Parenting Apart post separation parenting program ("the program") at an organisation or organisations as nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)pay and otherwise be responsible for all costs associated with the program; and
(d)provide an appropriate certificate of completion of the program to the other parties or their solicitors.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 10689 of 2008

MR COSTA

Applicant

And

MS COSTA

Respondent

REASONS FOR JUDGMENT

Introduction

The matter was initially listed in relation to both property and children’s issues. The parties were able to resolve property matters and final orders were made in relation to an adjustment of the parties’ property by consent. Accordingly, the matter proceeded on a defended basis with respect to parenting issues only.
The husband, in his amended application, sought orders that the children [X] born in 2001 (“[X]”) and [Y] born in 2003 (“[Y]”) live with each of himself and the wife on a week-about basis, for half holidays and special days.
When the matter commenced, the husband’s counsel advised that having read the recommendations contained in the Family Report, the husband was now seeking orders that [X] and [Y] live with him during the school term in a two-weekly rotating cycle from after school Wednesday to before school Friday in week one and from after school Thursday to before school Monday in week two, for one half of the school holidays and by telephone between 6.30 pm to 7.30 pm twice each week. Otherwise he sought that the children live with the wife at all other times.
In relation to his and the children’s birthdays, the husband indicated he was happy to let them spend the birthday with whichever parent they were living with. If the wife preferred orders that provided for birthdays to be shared, the husband indicated he would be agreeable to orders in those terms. The wife made no submissions on this issue and therefore there is no provision for ‘special days’ in the orders pronounced by me.
The wife seeks that the current arrangements continue. Interim consent orders were made on 11 February 2009 which provided for the children to live with the wife and spend time with the husband during the school term in a two-weekly rotating cycle from after school Thursday to

9.00 am Friday in week one and from Thursday after school to 9.00 am Monday in week two, one half of the school holidays and by telephone between 6.30 pm and 7.30 pm twice each week.
Thus, the dispute between the parties is whether the children spend an additional night with their father in each fortnight during the school term.

Background

The husband was born in 1964 and is 45 years of age. He is a qualified [health professional] and is employed as [omitted].
The wife was born in 1975 and is 34 years of age. She is a [healthcare professional], working two shifts per week when the children are with their father.
The parties commenced cohabitation in 1999 and married in 2001. They separated on 20 March 2008 when the wife, [X] and [Y] left the matrimonial home.
Despite ongoing acrimony between them, the parties were able to put in place arrangements for [X] and [Y] whereby they lived with the wife and spent time with the husband for five nights per fortnight.
In November 2008, the husband commenced proceedings in this court seeking inter alia orders that [X] and [Y] live with each parent on a week-about basis. When the matter first came before the court on

13 January 2009
, there were no orders made in relation to the arrangements for [X] and [Y].
On 2 February 2009, the wife issued an application in a case seeking interim orders for [X] and [Y] so that they live with her and spend five nights each fortnight with the husband. It was her contention the husband was threatening to immediately introduce a week-about arrangement for [X] and [Y].
As noted earlier, interim consent orders for [X] and [Y]’s arrangements were made on 11 February 2009 in the terms of the wife’s application in a case.

The husband’s proposal

As set out earlier in this judgment, it is the husband’s proposal that [X] and [Y] live with him in a fortnightly cycle, from after school Wednesday to before school Friday in week one and from after school Thursday to before school Monday in week two, half of school holidays and by telephone from 6.30 pm to 7.30 pm twice per week.
It was his evidence that he has a very close and loving relationship with the boys.
He indicated that whilst he would prefer to have the boys live with him on a week-about basis or in a block of six nights per fortnight, he accepted the observations and recommendations of the report writer, Debra Trueman, and hence his proposal.
The husband’s family have a long involvement with the Scouting Movement, and he takes [X] and [Y] to “Joeys” every Thursday night.
The husband indicated in the week he only has [X] and [Y] on the Thursday night, because that is the night they attend Scouts, there is very little time in that week for the boys just to spend time with him.
It was the husband’s evidence that he wished to have the opportunity to spend time with the boys during the school week when they had no other commitments. It was his position that this would enable him to have the boys’ friends over, for them to do homework together and to just have normal midweek school time.
The husband is [occupation omitted]. To use his words, he is one of the international leaders in this discipline, and has been instrumental in its development.
The husband was cross-examined at length about the level of commitment his position requires of him, and whether he would be available to care for the boys for any time beyond that which is currently in place.
It was the husband’s evidence that whilst he is very work-focussed, his family, and in particular his sons, were of more importance to him. It was his evidence that there is a high level of flexibility in relation to his work commitments and that he is able to organise those commitments around the times that he needs to be available to care for his sons.
He was cross-examined at length about the requirements of his position in relation to overseas travel. The husband conceded that historically, there had been a high level of overseas travel involved with his position, and that prior to separation, the wife and the children had often accompanied him on those trips. He conceded that in 2008, after separation, he was required to take a number of overseas trips, but that was because those arrangements had been put into place prior to separation and he was unable to change them. It was his evidence that in 2009 he had been able to limit his overseas travel to only two trips. One trip took place to Switzerland earlier in the year and the second trip is to Thailand. The trip to Thailand will take place immediately after a family holiday to Bali in July 2009 and in a period when, by agreement, the boys will be spending an extended period of time with their mother.
It was the husband’s evidence that he would be able to give the wife at least one month’s notice of any plans to travel overseas.
In relation to interstate travel, the husband indicated that he travels interstate on a monthly basis, but that he is able to arrange those trips during times when the boys are with their mother.
The husband conceded that he and the wife do not communicate well and that there is a high level of acrimony between them. Whilst he conceded that it was regrettable that this was the case, and that the exchanges between he and the wife could be better, he appeared to place the blame for this primarily upon the wife.
It was his evidence that after separation, it was the wife who unilaterally said she wanted no more direct email or verbal communication with him, and had limited their exchanges to a communication book and some text messaging.
The husband, whilst conceding that the boys love their mother and that she parents them reasonably well, had difficulty in conceding that she had been the boys’ primary carer for most of their lives, as he believed he had been as involved with them as she had been.
The wife was a victim of abuse in the hands of her stepfather as a child. The husband appears to be fixated on this abuse as being the sole reason for the breakdown of the marriage. The husband also believes that the wife is unable to recognise the importance of the boys’ relationship with him as their father because of the experiences that she had as a child. In a lengthy email sent by the husband to the wife shortly after separation, the husband refers to this in great detail. He also referred to this in cross-examination.
The current interim orders make provision for the husband and the boys to speak by telephone each Tuesday and Thursday between

6.30 pm
and 7.30 pm. It was the husband’s evidence that he initially understood this order to mean that he could speak to the boys for the full hour, and there had been occasions when he had played a game of chess with the boys over the phone and had read to them.

When speaking to the report writer, Debra Trueman, the husband told her he:
“doesn’t want the call to end and that he can’t hang up.”
It was the husband’s evidence that the length of the calls is now controlled by the wife, and that she tells the boys when it’s time for them to hang up.
The husband believes that the boys enjoy speaking to him, and when he had called them on the previous night to his giving evidence, the first thing that [X] had said to him was:
“Hello Poppa. I love to hear your voice.”
When cross-examined as to the disruption that lengthy telephone calls at that time of evening would have on the wife’s household, the husband grudgingly conceded that such calls could be disruptive, but indicated that he wanted the calls to be more than just a quick hello.
It was the wife’s evidence that when the boys return from their time with their father they are exhausted, particularly after the four day period, and that it often takes them 48 hours to recover.
In the Family Report prepared by Debra Trueman, she indicated in paragraph 25 that she had spoken to [Y] and [X]’s teachers. She indicated that in her discussion with [X]’s teacher, Ms H, Ms H described [X] as:
“sociable, clear headed, at ease with adult company and interactions, needing some encouragement to engage with his peers, bright academically, enjoys drawing and is often physically tired after spending time with his dad.”
When cross-examined in relation to how the boys spend their time with him, the husband conceded that they do lots of activities together, and that by way of example, on the coming Sunday he would be taking the boys, together with twelve of their friends, for a kayaking excursion. It was noted, however, that this was by way of an outing for [X]’s birthday.

The husband also indicated that one of the reasons he was wanting to have an additional night with the boys in the second week of their time with him was that this would allow he and the boys to have a quiet,

at-home night, as the Thursday night was occupied by Scouts and allowed little downtime.

The wife’s proposal

As set out earlier in this judgment, it is the wife’s proposal that the existing interim arrangements, whereby the children spend five nights each fortnight with their father, continue in place.
It was the wife’s evidence that she had been the boys’ primary carer throughout the whole of their lives and it is to her that they have their primary attachment.
The wife openly acknowledged that the boys adore their father, and that they love spending time with him. She also acknowledged that the husband is a good father, who also adores his children.
The wife is opposed to any increase in the time that the boys spend with their father for a number of reasons.
Firstly, she gave evidence that she believes the boys are “just coping” with the current arrangements and that to add an additional night in the second week that they spend with their father would be too disruptive for them.
The wife was also concerned at the level of exhaustion that the boys display when they get home from their father, and the time it takes them to recover from what she believes are weekends that are too activity-driven.
The wife was particularly concerned about the pressure that the husband’s work commitments place on him. She is particularly concerned that the necessity for him to travel will impact on his ability to be available to care for the children on a regular basis.
Whilst the husband produced a letter from his Head of Department indicating he had discretion around when he could travel, the wife was strongly of the belief that his career relied, in a positive way, on the level of travel he had undertaken in the past and that the commitment to travel would continue into the future if he was to continue to maintain his high reputation within his field of expertise.
The wife conceded that the husband may have the best intentions in the world to contain his travel commitments, but she was uncertain as to whether it would be possible in reality, and that what would happen is that she would be called upon to care for the boys in the husband’s absence.
The wife indicated that she had no issue with caring for the boys, save and except that it made it very difficult for her to make arrangements around her own life and work commitments.
The other major concern for the wife in relation to any increase in time that the boys would spend with the husband related to the parties’ inability to communicate with each other.
It was the wife’s evidence that the husband continued to be overly obsessed by her childhood abuse, to the extent that he raised it in a lengthy email to her as the basis for the breakdown of their relationship. She was distressed that the husband discussed such matters with his friends and colleagues. The wife felt that he could not understand that this behaviour was inappropriate and very hurtful to her, and more importantly, that she had properly dealt with those issues and had moved on in her life.
It was her evidence that this was one of the main reasons she had limited the email communication between them, as she was of the opinion the husband would not be able to refrain from continuing to raise the issue of her past abuse with her.
The wife was cross-examined at length about incidences that had occurred between herself and the husband at changeover. She is of the view that the husband takes an inordinate amount of time to say goodbye to the boys and engages in long hugs and protracted farewells, which made it very difficult for the boys to move easily between their parents.
It was her evidence that when they recently had a changeover for the boys at the [W] Bakery, the wife left her car to come and get the boys from the husband’s car. The husband strongly objected to her doing so and an unpleasant exchange took place between them.
The wife gave evidence of an occasion where she had asked the husband during one changeover to sign certain documentation, and that this too had led to an unpleasant exchange between them in front of the boys.
When cross-examined as to why she got out of her car and approached the husband’s car when she knew that the husband objected to such behaviour, it was her evidence that she liked to get out of the car to meet the children because she didn’t want them to be alone. She did not acknowledge that in doing so, she was contributing to the arguments being witnessed by the boys.
In relation to the telephone calls between the boys and their father, the wife said that there were occasions when it disrupted the boys’ routines, particularly if they were tired, grumpy or having tea, but at other times she has no issue with the length of the calls.
She did confirm that there were occasions when she would suggest that the calls be concluded after 25 to 30 minutes if the boys were fighting, or it was apparent they were tired.
It was the wife’s evidence that she did not oppose an increase of time for the boys with their father in the future. However, she believed that until the communication between herself and the husband had dramatically improved, and in particular, until such time as the husband had come to terms with and accepted their separation and was able to focus on the best needs of the children rather than the demise of the marriage, it was in the boys’ best interests that the current arrangements continue.

Debra Trueman

Debra Trueman prepared a Family Report in this matter dated

28 April 2009
.
In her report, at paragraph 27, Ms Trueman commented that both [X] and [Y] appear well-bonded with their mother and also appear to be emotionally attached to their father. She noted that both of the parties impressed as nurturing parents who enjoy being with their children and strive to offer a high standard of parental care.
It was her recommendation that [X] and [Y] be primarily cared for by their mother, but continue to be cared for by their father on a regular and planned basis, that included both weekdays and weekends, as well as school holidays.

In paragraph 34, Ms Trueman recommended:
“Consideration be given to continuing the arrangements outlined in the interim orders dated 11 February 2009 with the possibility of an additional weekend being included during the week when the boys are with their father on a Thursday night – ie. the boys spend time with their father during school terms in a two weekly rotating cycle from after school on a Wednesday to 9.00 am on a Friday in one week and from Thursday after school to 9.00 am Monday in week two.”
In relation to the husband and his response to the parties’ separation, Ms Trueman commented in paragraph 29 of her report as follows:
“Mr Costa’s feelings towards Ms Costa remain complex. He has expressed feelings of wanting his family to be reunited, feeling sad that this has not occurred. It also appears that at times

Mr Costa has feelings of anger towards Ms Costa that have significantly impacted upon his ability to communicate in a more positive and respectful manner.”
When cross-examined on this issue, Ms Trueman expressed the view that the husband was struggling emotionally in coming to terms with the breakdown of the relationship. She described him as being in shock, quite hurt, quite distressed, missing not having his family together and missing not having the boys living with him.
In relation to the parties’ ability to communicate with each other,

Ms Trueman noted in paragraph 29 of her report:
“There appears to be little willingness on behalf of either Mr or Ms Costa at the present time to engage in any form of parental communication.”
Ms Trueman went on to observe that this was having a negative impact on both [X] and [Y], who:
“have made their own observations in this area”.
Ms Trueman expressed concern about the parties, and in particular the husband’s, failure to shield the children from their dispute by discussing the court proceedings with them, and from not shielding them from the negative views that they hold about each other.
Ms Trueman was cross-examined at some length by the wife’s counsel in relation to this issue, and she was most reluctant to apportion fault as to the party more responsible for the adult’s inability to communicate in an appropriate manner. She conceded that the husband’s ongoing emotional struggle to come to terms with the breakdown of the marriage was impacting on his ability to communicate in a positive way with the wife.
Ms Trueman noted with real concern the failure of either of the parties to greet the other when they were in the same room together during the interview process, and that this was in front of the boys who could not fail to continue their observations of their parents’ inability to communicate.
Ms Trueman did comment however that she felt that both parties were intelligent human beings who were showing some insight into the impact this behaviour was having on their children, and that both parties were capable of taking steps to shield the boys from such behaviour in the future. She expressed the view that they would both parties would benefit from counselling to assist them in improving their communications.
In cross-examination, it was put to Ms Trueman that until the parties, and in particular the husband, developed the capacity to better communicate, that it would be in the boys’ best interests to leave the existing arrangements for their care in place. Ms Trueman indicated that this was one of the considerations that had influenced her recommendations that the parties should largely follow the existing interim orders, but that she was of the view that the possibility of introducing another weeknight for Mr Costa to be involved with the boys after school was also a way forward for this family.
When specifically questioned as to the timing of the introduction of an additional night for the boys with their father, and the timing of that introduction, it was Ms Trueman’s evidence that:
“If I had significant concerns about adding another night (sic at this time), I would have indicated that in the report, and I would have said let’s continue the interim arrangement order that was made in February… From my point of view, I don’t see any significant issue why it couldn’t start relatively soon, but I’m not dismissing the concerns that have been raised, because they are realistic concerns.”
In her Family Report, Ms Trueman flagged the wife’s concerns in relation to the high level of activity that was taking place for the boys when they were with their father. In paragraph 28, Ms Trueman comments:
“At times it appears that there is an over-emphasis on activities with both boys presenting at times as exhausted both at school and upon returning to the care of their mother. Care is needed that this high level of activity is in the boy’s interests with some consideration needing to be given to a balanced family lifestyle and routine that includes rest and reasonable bedtimes.”
In cross-examination, Ms Trueman repeated her observations that it was necessary for the husband to ensure that the time the boys spent with him was balanced between activity and rest, and also made the following observation:
“I do think it is something that could be put to Mr Costa for him to make some decisions at the level of activity that he is involved in could be tailored off a little bit, so the boys do have reasonable bedtimes, that their routines are similar to what they experience with their mother, and that they do have the opportunity of just having quieter time with him. The issue is really about parental communication… It’s not only the high level of activity, all of the things that they do with their dad, but it’s also the boys reacting in terms of what they’re seeing between their mum and dad, and what their mum and dad are saying about the arrangements that they’re involved in.”
Ms Trueman went on to observe that:
“if both parents were able to move forward to a little bit more of a cooperative way of operating, then the impact upon these children is going to be less (sic moving between households).”
When asked to expand upon her observations as to the need for a balance in the time that the boys spend with their father between activity and downtime, Ms Trueman stated:
“A more balanced lifestyle when the boys are with him, that they are able to have that quiet time, and that the Wednesday night, an extra night during the week, would offer the opportunity of just doing schoolwork, of being connected with reading, doing quiet things, just spending time with their dad.”
Ms Trueman was asked whether having the boys on the Wednesday night as well as the Thursday night would allow the husband to be involved in the boys’ weekday routine. Ms Trueman indicated that she thought that was true. She spoke of Mr Costa not wanting to be a “weekend dad” and of wanting to be actively involved in other aspects of parenting the boys, including the normal everyday activities that they are involved in. She noted that both of the boys, when speaking about Thursday nights, said they were lots of fun, that they had pizza and they go to Scouts. Their terms, Ms Trueman gave evidence, was that on Thursday nights “they slept over at dad’s house”. She was therefore of the view that the additional Wednesday night would give Mr Costa the opportunity to be part of ordinary everyday parenting.
Ms Trueman was quite clear in her evidence that any increase of the time that the children spent with their father was contingent upon the court being satisfied that he was able to accommodate that within the pressures and constraints of his work commitments.

Best interests of the child

Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In this case, both parties agree that they should have equal shared parental responsibility for the children. Whilst there are currently major issues for these parties in being able to communicate in relation to their children, it is apparent from their evidence that they have been able to put aside these differences and to make alternative arrangements as between themselves in relation to the children. For example, the husband recently extended his time in Switzerland by a couple of days and was able to arrange for the wife to continue to look after the children. Another example is a recent occurrence where the husband, at the wife’s request, was able to pick [Y] up from school earlier when [Y] was not feeling well. Accordingly, I am satisfied that such an order for equal shared parental responsibility should be made in this matter.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent.
It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)     the time the child spends with the parent includes both:
(i)     days that fall on weekends and holidays; and
(ii)     days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)          the child’s daily routine; and
(ii)     occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65daa (5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Whilst the husband initially sought orders that the children spend equal time with each of their parents, he indicated at the commencement of the hearing that he was not pursuing that application, but was rather seeking a variation of the existing arrangements by extending the boys’ time with him by a further day in the week that they would otherwise spend only one night with him.
Whilst both parties’ proposals involve the children spending substantial and significant time with both their parents, it was the husband’s argument that his proposal was more in accordance with section 65daa(3), in that it would enable him to be more involved in the children’s daily routine. He argued the current arrangements were such that the weeknight that they spent with him coincided with the night that they were involved in the Scouting Movement and thus the children did not spend a ‘normal’ at home school night with him.
When determining the arrangements that should be put in place for children, the best interests of the children are paramount.
When determining what is in the children’s best interests, the court must consider the matters set out in section 60cc(2) and (3) of the Act. Each of the matters contained in the subsections must be considered and assessed in the context of each of the parties’ behaviours and proposals and a decision made as to which party’s proposal, or such other proposal as the court determines, best meets the children’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which the court must take into account when determining best interests and they are as follows:

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

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

Neither party makes allegations that the children will be at physical or psychological risk, or be subjected or exposed to abuse, neglect or family violence whilst in the care of the other party.
Both parties also concede that the children have a close, loving and meaningful relationship with each of their parents.
The issue for the court is which of the alternative arrangements being proposed by the parties means that this close and meaningful relationship the children have with each of their parents continues and is nurtured into the future.
Section 60cc(3) of the Act sets out the additional considerations that the court must look at in determining what is in the children’s best interests and each of those will be considered in turn.

Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

In her report, Ms Trueman at paragraph 22 indicated as follows:
“[X] commented that he ‘really didn’t want to get into it’ and that he and his brother ‘had to be careful about what they said’.
[X] was further quoted as stressing:
“that he didn’t want to express any opinions, as he ‘didn’t really know’.”
In cross-examination however, Ms Trueman indicated that the boys were able to express to her that as well as liking spending time with their dad, they were open to spending a little bit more time with him.
When cross-examined as to whether a seven and a five year old understood what ‘more time’ meant and how seriously their views should be taken, Ms Trueman was of the view that [X] in particular (who is now eight) did have opinions about wanting to spend more time with his father and understood what this involved.
As previously noted in this judgment, both boys are very much aware of the dispute that is taking place between their parents, and are strongly aware that their father would like them to spend equal time with him and that their mother is not in agreement with this proposal. It is also clear from their comments to the report writer, that whilst they are open to spending some more time with their father, they did not want to be the decision makers in this case and were looking to their parents to make the decision for them. This is as it should be and it is most unfortunate for [X] and [Y] that, at least at this time, their parents are unable to do this.
The report writer and both parents made the observation that their sons are intelligent young boys. [X], in particular, was noted to be comfortable in adult company and able to clearly communicate with them.
Whilst the views of the boys about wanting to spend more time with their father will not be the major factor determining the outcome of this matter, their views will be given appropriate weight.

Section 60cc 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and

(ii) other persons (including any grandparent or other relative of the child)

Both parents agree that [X] and [Y] have a close and loving relationship with both of them.
Whilst the husband had difficulty conceding that the wife had been the boys’ primary carer, I am satisfied that this was and is the reality. It is for this reason, amongst others, that a shared care arrangement would not be appropriate for these boys at this time.
Neither party has re-partnered. Further, neither party placed any evidence before the court about the children’s relationship with extended family members, though it would appear that they have grandparents, and other extended maternal and paternal family with whom they have ongoing and meaningful relationships.

Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)     has taken, or failed to take, the opportunity:
(i)     to participate in making decisions about major long term issues in relation to the child; and
(ii)     to spend time with the child; and
(iii)   to communicate with the child; and
(b)     has facilitated, or failed to facilitate, the other parent:
(i)     participating in making decisions about major long term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)   communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Both parents have, generally speaking, encouraged the children to have a close and continuing relationship with each of them. They have acknowledged the other as being a good parent and acknowledged the strength of the relationship that [X] and [Y] have with each of them.
What is of real concern however is the parties’ inability to communicate with each other. Both parties acknowledge their inability to do so appropriately at this time.
What was of further concern, was that each of the parties blame the other for this issue.
The husband sees the wife as controlling, dictatorial and refusing to engage in any communication with him. He points to the fact that she will only communicate with him by way of a communication book and the occasional email or telephone exchange in an emergency, as being indicative of her failure to communicate with him on any sensible level.
The wife sees the husband as being inflexible, demanding and indifferent to her feelings. She believes he is obsessed with her history of abuse as a child and indifferent to her feelings about him constantly raising this with her and with other people. She explained that her refusal to engage in ongoing email and verbal communication with the husband is because of his insistence of continually revisiting the past.
As set out earlier in this judgment, a prime example of the parties’ inability to interact appropriately, particularly in front of the children, was evidence around a recent changeover at the [W] Bakery. The husband arrived with the boys in the car. It would appear that they didn’t have their shoes on or were in any way ready to immediately alight from the car and greet their mother. He entered into a prolonged (by prolonged I mean for up to one minute) farewell with them and during this time, the wife came over to the car and attempted to remove the boys from the car. This resulted in a very unpleasant exchange between them, as the husband felt the wife was intruding on “his space” and the wife felt the husband was unnecessarily prolonging the changeover.
When both parties were cross-examined as to how they could have made this situation better for the boys, neither were prepared to acknowledge that they were at fault or that there were other ways to make this changeover happen more easily. For example the husband did not acknowledge he could ensure that he had made his farewells and had the boys ready to go before they left home and the wife could not acknowledge that she could stay in her car and allow the boys to quietly get out of their father’s car and come over to hers.
Ms Trueman identified the inability of the parties to communicate as an issue of real concern for [X] and [Y]. In paragraph 29 of her report, she commented as follows:
“There appears to be little willingness on behalf of either Mr or Ms Costa at the present time to engage in any form of parental communication. This is having a negative impact upon both [X] and [Y] who have made their own observations in this area. Both boys appear overly aware of this situation, believing it would be better if their parents could speak in a reasonable manner with each other. [X] in particular has made personal decisions to be ‘careful’ in what he says to each parent and that he does not want to be placed in the position of ‘deciding’ who he is to live with.”
Ms Trueman commented, with great concern, about her observation of Mr and Ms Costa when she completed talking with the boys during the interview process for the Family Report. She indicated that when

Ms Costa came into the room, there was no verbal acknowledgement between either of them, not even a hello. Ms Trueman noted:
“So even though both parents might say it’s really important that they have a positive relationship with the other parent, the boys are observing both of them either not acknowledging each other at all or there being negative comments made.”
In her report, Ms Trueman recommended that the parties attend post-separation parenting counselling to assist them in their future parenting and communication. Ms Trueman reinforced these recommendations during her cross-examination, indicating that she felt both parents would benefit from either post-separation course participation or personal counselling to really look at how they could parent together and at least establish some basic form of communication between them that would allow them to focus upon the boys rather than their significant personal issues and the break-up of their relationship.
I also note that Ms Trueman did not support a shared care regime, primarily on the basis of the parties’ inability to communicate effectively. In paragraph 30 of her report, she said:
“The total lack of parental communication remains a significant factor at the present time in considering a shared care arrangement. Successful shared care arrangements are dependent upon a high level of parental co-operation, discussion and negotiation. It is considered that both Mr and Ms Costa would benefit from participating in post-separation counselling to assist them to be able to work together as parents to [X] and [Y] in the future and to aid their communication.”
It was this lack of communication between the parties that formed one of the major bases upon which the wife believed that the boys spending additional time with their father, at this time, would not be in their best interests.
It was argued on behalf of the wife that, until such time as the husband addresses his difficulties in coming to terms with the break-up of the marriage and showed himself to have moved on, it would not be appropriate to increase his time with the children. It was argued on behalf of the wife that the husband had addressed those issues, she would be more than agreeable to considering additional time between the children and the father at that stage.
The difficulty with this submission is two-fold. Firstly, there is no acknowledgment in this submission that the wife also contributes to the parties’ inability to communicate and that she too needs to look at how she can better communicate with the husband. Secondly, it leaves the wife as the determinant of the husband’s state of mind and emotional contentment in circumstances where she refuses to talk to him and where she has real doubts as to his ability or commitment to address such issues.
There is no doubt that the breakdown of this marriage has been particularly difficult for the parties, in particular Mr Costa, for whom the wife’s decision to separate came as a shock, and who is still struggling with the loss of his family unit.
However, both parties struck me as intelligent, insightful and, most importantly, committed to their children and doing what is best for their children. I am encouraged that with the appropriate professional intervention they will be assisted to move forward and to find a way to better communicate so that they can better parent their children.

Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

Neither of the parties’ proposals dramatically alter the children’s circumstances.
Since the finalisation of property matters, the husband has acquired a property in the same area as the former matrimonial home. The wife has retained the former matrimonial home pursuant to the orders, but it is my understanding that it is her intention to place the home on the market for sale. If she proceeds down this path, it can only be hoped that she will re-accommodate herself and the children so that they continue to attend their current schools and be involved with the community and friends in which they have been since birth.

Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

To date, the parties have resided within sufficient geographical proximity to be able to easily manage the care arrangements that are in place for the children. The potential addition of an extra night with their father does not practically change the arrangements that are in place at this time and which have, generally speaking, worked quite well.

Section 60cc 3(f) the capacity of:

(i) each of the child’s parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

Both parents do have the capacity to provide for their children’s physical, intellectual and emotional needs and, generally speaking, have been doing so to date.
However, and as noted in this judgment, their inability to communicate with each other and their failure to shield the children from that ongoing conflict and from the current court proceedings does neither of them credit and it is to be hoped, as set out previously in this judgment, that they will both take on board the necessity for them to address this as soon as practicable.
It was my observation that these parents continue to be emotionally enmeshed with each other, particularly Mr Costa. It may be that he would benefit from some personal counselling to assist him in moving through the separation process to reach a position where he can move on in his life.

Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

As noted earlier in this judgment, the wife has a major concern as to the husband’s capacity to be available to care for the boys because of his work commitments.
Mr Costa is a [occupation omitted] and during the course of the marriage, particularly whilst establishing his career, was required to travel extensively
It was the husband’s evidence that he has a high level of flexibility as to the extent and timing of his travel, and that since separation, he has been able to manage these commitments to ensure that he has been available to care for [X] and [Y] in accordance with the arrangements that have been put in place for them. In 2009, he has limited his travel to only two overseas trips and ensured that any necessary interstate travel takes place when the children are in the wife’s care. The husband indicated he would agree to orders that provided that he be in substantial attendance when the children are in his care.
The wife did not believe he would be able to do this.
I am satisfied that the husband can manage his work and travel commitments so that he is able to care for his children when they are in his care pursuant to the orders sought by him.
I would also note that all parents have opportunities, emergencies and family commitments that do at times intrude upon their time and require them to make alternative arrangements for the care of their children. I note that this year, the husband when travelling to Switzerland, was able to arrange for the wife to look after the children and similarly when the opportunity came up for the wife to travel to New Zealand, it was arranged that the children would be cared for by their father. One would trust and hope that, within reasonable limitations, both parties would be there for the other in similar circumstances or in the event of unforeseen emergency.

Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

Not relevant.

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

This judgment has already touched on, at great length, the behaviours of both the parents towards each other and the negative impact that this has had on their ability to parent their children as well as they might.
I have also commented at length in this judgment on what I perceive to be the necessity for both parents to engage in professional intervention to assist them to improve on their ability to communicate and better parent their children.
Having said that however, [X] and [Y] have positive and loving relationships with both their parents and are reported to be delightful, intelligent and caring young boys. The credit for this must lie with their parents and they are encouraged to do everything within their powers to ensure that their boys continue to develop positively.

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

Not relevant.

Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:

(i) the order is a final order; or

(ii) the making of the order was contested by a person

Not relevant.

Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The wife indicated through her Counsel that she did not oppose there being an increase of time between the children and their father, but that she was of the view that such increase should not take place until the father had addressed his difficulties in coming to terms with the breakdown of the marriage and had exhibited an ability to better communicate with her in relation to the children.
As noted earlier in this judgment, the difficulty with this proposal is that the wife did not seem to acknowledge her contribution to the difficulties the parties have in communicating with each other, and more importantly, the difficulty in knowing when and if such improvement had taken place.
The further difficulty with such a proposal is that it is clearly inviting further litigation between the parties in the event that they are unable to agree that the timing is right for an increase in the boys’ time with the husband.

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

Subsequent to the finalisation of evidence in this matter, the wife brought an urgent Application in a Case in relation to the final property orders.
The agreement reached between the parties provided that the wife would take possession of the former matrimonial home on

7 July 2009
, that she would place the home on the market for sale and that any net proceeds of sale after the discharging of all encumbrances would be retained by her. From the date of the final property orders to 7 July 2009, the husband continued to reside in the former matrimonial home.
The application brought by the wife arose because of the husband’s dismantling and potential removal of the solar heating system for the pool and from the removal by him of the piping from the existing water tank to a potential future water tank, as well as the fire pump.
The husband’s explanation for this behaviour was that the solar heating didn’t work, the piping for the water tank was unnecessary as they never installed the second tank and that he had bought the fire pump after separation. He indicated that with the assistance of his family and friends he had recently purchased a new property in the area and that he would have been able to use those items on his new property.
As the items in question were clearly fixtures, which the orders make clear were to be part of the property retained by the wife for sale, their professional reinstalment and return was ordered by me.
It was argued on behalf of the wife that the husband’s behaviour should be seen as malicious and indicative of his ongoing antipathy towards her.
I did not accept that the husband had behaved maliciously. However I indicated to the husband that I found his behaviour to be insensitive and that it did not reflect well on him.

Conclusion

[Y] and [X] are bright, intelligent and loving children who have a close and meaningful relationship with both their parents. Unfortunately, they are very much aware of their parents’ conflict and have, to date, not been shielded by their parents from this conflict and from these court proceedings.
The existing arrangements for [X] and [Y] have them spending one night in one week with their father and four nights in the second week with their father on a rotating basis. On the one night in the week that they spend with their father, they go to Scouts and from the boys’ perspective it is something of a ‘sleepover’. The husband is wanting the boys’ time with him in that week to be expanded to two nights, to enable the boys to have a normal, quiet school night evening with him.
Because of the conflicted parental relationship, the family report writer, Ms Trueman, made it very clear that it would not be in these boys’ best interests for a week-about shared care arrangement at this time, but did embrace the possibility of [X] and [Y] having the additional night with their father in accordance with his proposal.
It was also the report writer’s evidence that whilst the boys did not wish to express any preference, or to be required to make a decision about the time they spent with each of their parents, both boys showed a willingness to spend a little more time with their father.
I am satisfied that [X] and [Y] would like to spend a little more time with their father and that the addition of a school night without outside activity would be a positive experience for them and enable the husband to spend some more balanced time with the children.
Expanding on that issue of balanced time, there was a criticism levelled at the husband that when the boys were with him, he was trying to pack too much activity and excitement into that time and that he needed to cut back on the activities and just allow the boys to have some quiet and relaxing time with him as well. This criticism is, I feel, justified and the husband needs to ensure that the boys’ time with him is more balanced and that they are not being returned to the wife tired, exhausted, grumpy and out of sorts.
The wife expressed concerns about the husband’s capacity to rearrange his work commitments so that he would be available to care for the boys for any time beyond that which is the current arrangement.
I am satisfied that the husband is able to manage his work commitments in such a way as to be available to care for [X] and [Y] in the event that they were to increase the amount of time that they are spending with him. This conclusion is supported by the reality that in 2009, the husband has considerably reduced the extent of his international travel, and that there was no evidence that at any time his interstate travel had impacted upon his ability to care for the children in accordance with the existing arrangement.
There is no doubt that this separation has not been easy for either of the parties, and particularly Mr Costa, for whom the separation came as a shock. Mr Costa is still clearly distressed at the breakdown of his marriage and this is in no small part contributing to the parties’ inability to communicate.
I am also satisfied that both parents are sufficiently insightful and have the necessary commitment to their children to take active steps toward addressing the difficulties that currently exist in relation to their ability to communicate with each other.
I am satisfied that an order that made provision for the boys to be spending an additional weeknight with their father will be an order that is least likely to lead to further litigation between these parties, at least in the short to medium term.

Accordingly, in light of all the above factors, I have formed the view that it will be in [X] and [Y]’s best interests to make orders that will increase the time that they spend with their father by one night, so that in the first week of the two week cycle, they spend two nights with the husband from after school Wednesday to before school Friday.
There were a number of other ancillary matters that arose during the hearing of the case which I will comment on briefly.
Concern was raised in relation to the husband having prolonged telephone calls with [X] and [Y], and to prolonging his farewells with the children on those occasions where the parties had to meet for changeover.
In relation to the telephone calls, there will no doubt be times when the boys will want to have a long chat to the husband because something exciting has happened in their day, something exciting has happened in their father’s day or they’re just in the mood for a chat. However, there will be other occasions when the boys really just need to say ‘hi’ to dad, tell him everything is ‘ok’ and then get on with what’s happening in their mother’s home at that time. The husband needs to read his sons’ moods when he speaks to them and adjust the length of his calls accordingly. That he ‘needs’ to speak to the boys for long periods of time is not necessarily what they need, and it is incumbent upon the husband, as the parent, to put the children’s needs ahead of his own.
In relation to changeovers, I have already outlined in this judgment my belief that the farewell should be attended to before the husband, [X] and [Y] leave the husband’s home, and I would expect him to take that observation on board. The orders also provide for a majority of the changeovers to take place at the children’s school, thereby minimising the number of changeovers where both parties attend.
There has been extensive comment in this judgment as to the necessity for the parties to engage with professional assistance to help them in developing strategies and skills to better communicate with each other so that they can better parent their sons. I am going to make orders that both parties attend a post-separation parenting course.
I am also concerned that Mr Costa may need some assistance to help him move on from the breakdown of his marriage, and whilst I am not going to formally order that he undertake such counselling or engage such assistance, it is strongly suggested that he consider doing so.
Finally, the husband sought an order that, in the event either of the husband or wife were unable to personally care for the children, the other parent have the first right of care for the children during any period that the parent is unavailable. I indicated during the running of this case that I did not agree with an order being made in those terms, particularly in the circumstances of these parties and their inability to communicate cooperatively. There was some discussion around there being an order in the terms that in the event either of the parties were unable to care for the children for a period of three or more days, they would ask the other parent.
On reflection, I do not intend to make any order in relation to who is to care for the children in the event that the parent they would normally be living with is unavailable. It is to be hoped that there will be times when the parties will call upon each other for assistance, particularly if one or other of them is going to be away for an extended period of time, as they have been doing since separation. However, I am satisfied that what will work best for the boys is that the parent with whom the children are living shall have the responsibility for putting into place proper and sensible arrangements for them. This will allow each of the parties to manage their lives and reduce the potential for further arguments between them.

I certify that the preceding one-hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Bender FM

Associate: Sarah Hession

Date: 17 July 2009