Coyle and Shedden

FEDERAL CIRCUIT COURT OF AUSTRALIA

COYLE & SHEDDEN

[2016] FCCA 3092

Catchwords:
FAMILY LAW – Contravention – parenting orders.

Legislation:

Family Law Act 1975 (as amended), ss.60B, 60CA, 60CC, 61DA, 65DAA(1), (2), (3) & (5), 70NAC

Applicant:

MS COYLE

Respondent:

MR SHEDDEN

File Number:

ADC 3536 of 2008

Judgment of:

Judge Mead

Hearing dates:

31 August 2016, 1 & 2 September 2016

Date of Last Submission:

2 September 2016

Delivered at:

Adelaide

Delivered on:

6 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms Lindsay

Solicitors for the Applicant:

Helen McCance

Counsel for the Respondent:

Mr Dillon

Solicitors for the Respondent:

Websters Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Cocks

Solicitors for the Independent Children’s Lawyer:

Ian Charman & Associates

ORDERS

That all previous parenting orders made herein be hereby discharged.
That the parties have equal shared parental responsibility for the children X born (omitted) 2006 and Y born (omitted) 2007.
That in the event that the parties do not agree as to matters relating to education, sporting commitments or any other issues relating to the care, welfare and development of the said children or either of them the parties shall attend for Family Dispute Resolution at a community based family relationships centre for mediation as to same and the parties shall each make a good faith attempt at resolving the issue or issues in dispute prior to instituting further proceedings in this court.
That the said children live with the mother.
That the said children spend time with the father as follows:
(a)during school term time from the conclusion of school on Thursday until the commencement of school on Monday and during the same times in each alternate week thereafter commencing on 8 September 2016 NOTING THAT the time shall be extended to the commencement of school on the Tuesday morning in the event that the Monday is a public holiday or a pupil free day;
(b)during the school holiday periods at the end of terms 1, 2 and 3 in each year as follows:
(i)from the conclusion of school on the last Thursday of the relevant term to 4:00pm on the first Friday of the school holiday period if the children’s time with the father would ordinarily commence on that last Thursday; and
(ii)from 4:00pm on the first Thursday of the said holiday period to 4:00pm on the last Friday of the said holiday period if the children’s time with the father would ordinarily commence on that first holiday Thursday.
(c)for one half of the Christmas school holiday period in each year:
(i)from the conclusion of school on the last Thursday of Term 4 to 5:00pm on the first Thursday of the school holiday period and each alternate week thereafter between the same times (with handovers at 5:00pm) if the children’s time with the father would ordinarily commence on that day; or
(ii)from 5:00pm on the first Thursday of the school holiday period to 5:00pm on the second Thursday of the school holiday period and each alternate week thereafter between the same times if the children’s time with the father would ordinarily commence on that day.

PROVIDED HOWEVER

(iii)the children shall spend any holiday period remaining after three alternate week rotations for equal time in the same pattern of rotation with each parent.
(iv)this order is subject to the terms of paragraph 6 hereof.

(d)in 2017 and each alternate year thereafter from 4:00pm on Easter Thursday to 5:00pm on Easter Monday PROVIDED HOWEVER that notwithstanding the terms of any other order herein the children will also be in the care of the mother from 4:00pm Easter Thursday to 5:00pm Easter Monday in 2018 and each alternate year thereafter.

The children shall spend time with the parties for Christmas as follows:
(a)with the mother from 4:00pm on 24 December 2016 to 12:30pm on 25 December 2016 and during the same times in each alternate year thereafter;
(b)with the father from 12:30pm on 25 December 2016 to 4:00pm on 26 December 2016 and during the same times in each alternate year thereafter;
(c)with the father from 4:00pm on 24 December 2017 to 12:30pm 25 December 2017 and during the same times in each alternate year thereafter;
(d)with the mother from 12:30pm on 25 December 2017 to 4:00pm on 26 December 2017 and during the same times in each alternate year thereafter; and
(e)such further and other times as may be agreed between the parties in writing including by SMS text message.
That if Mother’s Day falls on a weekend when the father would otherwise have the children in his care pursuant to these orders the father’s time is to conclude at 5:00pm on the evening prior to Mother’s Day.
That if Father’s Day falls on a weekend when the mother would otherwise have the children in her care pursuant to these orders the mother’s time is to conclude at 5:00pm on the evening prior to Father’s Day.
On each of the birthdays of the children and the parties, the children shall remain in the care of the parent with whom they are living or spending time that day.
That handovers which do not occur at the school/s of the children shall occur at:
(a)Hungry Jacks (omitted); or
(b)at such other locations as the parties may agree in writing by SMS text message.
That the parties shall communicate with each other by courteous SMS text message or email and in a similar vein by telephone in the event of an emergency.
That the parties be restrained and injunctions are hereby granted restraining each of them from:
(a)residing more than 150 kilometres from the Adelaide General Post Office without the prior written consent of the other of them;
(b)removing the said children from the state of South Australia without providing a trip itinerary and contact details for the children to the other party not less than seven days prior to the proposed departure date and provided that such removal is not during any time the children are due to spend with the other party pursuant to these orders, unless with the prior written consent of the other party;
(c)denigrating the other party to the children or in the presence of the children or either of them or permitting any other person to do so;
(d)abusing or using derogatory language to the other party in writing in SMS text messages or other written communication;
(e)posting offensive material or material which relates to the allegations raised in these proceedings or relative to these proceedings or a party to these proceedings on any form of social media whatsoever, or causing or permitting any other person to do so and responding to any such material posted by other persons; and
(f)denigrating the partner or family members of the other party to the children or within the presence or hearing of the children or either of them or permitting any other person to do so.
That each of the parties advise the other in writing of any change of place of residence, telephone or email addresses within 48 hours of such change, with the advice to include the details of such changes.
That the children be at liberty to communicate with their parents at any reasonable time and the party with the care of the children shall facilitate their communication with the other party.
That the parties are each at liberty to obtain at their own expense in all things copies of all information, newsletters, school photos and school reports such as are ordinarily provided to parents.
That each party be at liberty to attend all sporting and other extra-curricular activities and at all school activities at which parents are ordinarily permitted to attend including but not limited to concerts, sport matches and sports day.
That each party advise the other as soon as possible as to any serious medical or other emergency event relevant to the care, welfare and development of the children or either of them.
That each party be at liberty to attend upon the children or either of them during any period of hospitalisation subject only to the rules of the relevant hospital.
That each party provide to the other of them a Certificate of Completion of the Kids Are First Program on or before 28 April 2017.
That the order for appointment of the Independent Children's Lawyer be discharged.
That all extant substantive applications do otherwise stand dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3536 of 2008

MS COYLE

Applicant

And

MR SHEDDEN

Respondent

REASONS FOR JUDGMENT

This matter comes back before me this afternoon for judgment, both in respect of the contravention application and the substantive application which related to a dispute between the parties as to the time that their two children were to spend with them. The two children that are the subject of these proceedings are X who was born on (omitted) 2006, who turned 10 in (omitted) of this year, and is now ten and a half and Y, who was born on (omitted) 2007 and is now just over nine years old.
I will deal with the contravention matter first. By way of brief background, the parties separated in 2008. They very sensibly reached agreement about orders that would be in place for parenting issues, and a final order was made by consent on 8 May 2009.
That order was varied in or about May 2015, with the extent of the variation being that in place of the children living with the mother and spending time with the father on alternate weekends from Thursday evening to Sunday evening, the time was extended to the Monday morning. There was also a change with respect to the place of handover, which moved from (omitted) McDonalds to Hungry Jacks at (omitted).
By May 2010, cracks had begun to show when the father filed a contravention application. This was finalised quite quickly and did not result in any findings of contravention. The application, filed in May 2010 resulted in orders of August and September 2010.
On 16 May 2014, the father filed the first of a series of contravention applications, the last being filed on 3 February 2015.
At the hearing on 1 September the mother admitted the contravention allegation contained in an application for contravention filed 21 May 2014, namely that on a weekend when the children were to spend time with their father pursuant to the existing order, they went instead with their maternal grandparents to (omitted). There was no dispute really about the facts of that matter and, as I say, the mother admitted the contravention.
The other alleged contraventions of the order of 8 May 2009 that did not proceed, some because they related to days that weren’t contained in the order, others because the Court was not satisfied as to service related, in the main, to an ongoing series of allegations that the mother had failed to attend at the proper place of handover pursuant to the terms of the order. There was also an issue, the facts of which were not in dispute between the parties, namely that during the recent Christmas school holidays of 2015/16, the mother had determined that the children were going to go to a (hobby omitted) program at (omitted) at a time when, pursuant to the existing order, they would otherwise have been with the father.
I make those comments not in the context of the contravention application having proceeded with respect to that matter, but rather that that was a concession made by the mother during cross-examination. It was of course a serious matter because the existing order for Christmas holiday time was for the children to spend time with each of their parents week about.
The meaning of contravention of an order is set out in section 70NAC of the Family Law Act1975 (as amended). Section 70NAC is in the following terms:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children, if, and only if:
(a) where the person is bound by the order –
and that was certainly the case in this matter –
... he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order.
There was no doubt at all on the mother’s own evidence that she had intentionally failed to comply with the order.
When I make orders at the conclusion of these reasons, I will make a finding against the mother on her own admission. The circumstances of that admitted contravention to my mind constitute a serious breach of an order.
I might not have been of that view if this issue had related to just handover places and the like. This however is a breach of an order that the mother knew was in place. She determined however that because her parents were going to (omitted) to see relatives it would be nice for the children to go and so they went. The mother does not have the right to abrogate to herself the responsibility for complying with orders when she feels like it or when she thinks it is best for the children.
We have orders because parents who should be able to reasonably, sensibly and rationally make arrangements for their children are unable to do so. They come to Court and have those matters determined by way of order. If there was no consequence for breaching an order, there would be no point at all in having the orders. As I say, I consider that the breach admitted by the mother is a serious breach.
It is a matter for the Court as to penalty. The father’s proposal was that there should be a bond. The mother’s proposal was that there should be make-up time. I find that there should be both. I intend to require the mother to provide make-up time, which is, essentially, just an extra weekend. In addition to that, I will require her to enter into a bond in the sum of $500 for a period of 12 months to comply with the orders of the Court that I will make in due course. Otherwise, for the reasons that I gave previously, the other contravention applications will be dismissed.
Turning then to the substantive proceedings. The current order with respect to parenting issues was a consent order of 8 May 2009 as varied by the order of 26 May 2015. What the father sought in his trial affidavit was in simple terms a complete reversal of the children’s living arrangements so that they lived with him and spent alternate weekends and half the holidays with the mother. He otherwise basically wanted all of the other orders to remain in place. There was however one important issue, namely that he wanted the children to go to (omitted) School rather than to continue at their state school.
He also did not see the need for paragraph 16 of the existing orders to continue. That is an order that provides for him to be at liberty to attend at any event at which parents normally attend, such as concerts or sports days. But it is slightly different to that in that it says that, upon the provision of not less than seven days’ notice in writing to the mother, he would be at liberty, rather than the blanket liberty that one might normally expect to see in an order.
At the time of trial however the father’s position had changed. He was seeking the same orders to which I have just referred about (omitted) School and paragraph 16 of the existing order, but otherwise that the children live with him on a week-about basis or in the alternative for an extra night.
The mother, for her part, sought that the existing orders remain. She wanted however some further restriction on where the parties were able to live. Importantly, she also wanted to be able to have the children attend at (omitted) for (hobby omitted) whenever that might fall in the Christmas school holidays in each year.
The matter therefore was really about:
·Should there be equal shared time;
·Should the children go to (omitted) School; and
·Should they be allowed to have their Christmas holidays organised so that they go to (hobby omitted) at (omitted) each year.
The parties were agreed that they continue to have joint parental responsibility for the children.
The reality is that this matter was very much about an angry mother who has borne almost sole financial responsibility for the children for the years since separation. The father is approximately $12,000 in arrears of child support and, clearly on his evidence, has no intention anytime soon of remedying that situation. The father is also very angry because the mother keeps thwarting court orders. And so the very concept of the chicken and the egg arises: which comes first?
These are two parents who are not thinking about their children at all. They are engaged in an ongoing war and engaging in a trial about matters that, quite frankly, are really about their argument and not about the children. I say that because these are two children who clearly love each of their parents – that is perfectly clear from the report of Mr M – and who must now be quite sick and tired of being the source of disputes in circumstances where their parents have been in court on and off – I accept that there has been significant periods of off – since 2008. It is now 2016.
The children tell Mr M in his report on pages 7, 8 and 9 that they love both of their parents. The matter that is to the credit of the parents is that their ongoing acrimony does not seem to, at this stage, have impacted on the children’s relationship with each of them.
It was perfectly clear from what Mr M had to say in his report and in addition, it is pure common sense that if this war doesn’t end soon, the children will fast come to an age where they will decide that the easiest thing to do is side with one parent or the other and vote with their feet.
Both parents need to seriously look at the way they behave towards the other of them if they do not want to find themselves in a position where they have each contributed to stressed, distressed or dysfunctional children as a result of continuing to argue at a really quite vehement level.
When there is an order for shared parental responsibility – and I accept that it is a perfectly reasonable order in this matter noting that it is the existing order and there is no suggestion that either of these parents are not interested in the long-term health, welfare and wellbeing of their children – the court has to consider whether there should be an order for equal shared parenting time or an order that the children spend substantial and significant time with each of their parents[1].
[1] Family Law Act 1975 (as amended) s. 65DAA(a) & (b)
If there is an order for equal shared parental responsibility, section 65DAC of the Family Law Act tells us that the order is taken to require decisions to be made jointly by the people who share equal parental responsibility. That is clearly very difficult for these parties. Nevertheless, since they each grudgingly concede that that is the common position, I am not about to do anything to interfere. In particular, I certainly would not contemplate an order as suggested by the mother that if they go to mediation to try and sort out issues such as school and sport and cannot reach an agreement that she gets to make the decision.
If these parties cannot agree on important things they will need to have a level playing field to come back to a Court of some sort if they cannot reach agreement at mediation.
Section 65DAA(1) of the Family Law Act 1975 (as amended) requires the Court if there is an order for shared parental responsibility to:
(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, make an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

If one goes to section 65DAA(5) of the Act, in determining 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:
·How far apart the parents live from each other
·The parents’ current and future capacity to implement an arrangements for the child spending equal time or substantial and significant time with each of the parents;
·The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangements of that kind; and
·The impact that an arrangements of that kind would have on the child and such other matters as the court considers relevant.
The legislative backdrop to all of those sections is the requirement that any order that the court makes in relation to parenting matters must be an order that is in the best interests of a child[2]. In making that decision, the court is required to consider the factors set out in section 60CC(2) and section 60CC(3) of the Family Law Act.
[2] Family Law Act 1975 (as amended) s.60CA
The object and principles of the Act, which are set out in section 60B of the Act include:
·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;
·Protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The section goes on to say that:
·Children have the right to know and be cared for by both of their parents;
·They 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;
·That parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·That they should agree about the future parenting of their children.
Parties who cannot agree end up in a courtroom situation. This is usually remarkably unsatisfying and unsatisfactory from the point of view of both of the parties, because instead of taking a collaborative approach to the parenting of their children – and of course they are the ones who know their children best – they place that responsibility in the hands of a court. A court has to consider the issues strictly in accordance with the provisions of the Act and there is little leeway to perhaps comprehend and facilitate the particular nuances of relationships between children and parents in particular families.
To determine what is in the best interests of the children in this matter and then consider the equal or substantial and significant time issue I turn firstly to the primary considerations in section 60CC(2). The first is the benefit to the child of having a meaningful relationship with both of the child’s parents. That goes without saying in this matter. These children benefit from their relationship with each of their parents. They have a meaningful relationship with each of their parents. They love both of their parents. They enjoy spending time with each of their parents. I have no difficulty finding that a meaningful relationship with each of their parents is significantly beneficial to both of the children X and Y.
The second subsection, defined by the Act as being the more important of the subsections, is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
I am not satisfied at this particular point in time that that is a relevant consideration. However, I have already said – and I repeat – that if the parties in this matter cannot start to adopt a more collaborative approach towards their parenting, ultimately they run the very significant risk of subjecting their children to psychological harm because of the pressure that these children will find themselves under trying to keep each of their parents happy. This is clearly not an easy thing for them to do.
I then move to section 60CC(3), which is headed “Additional considerations”. The first of those are any views expressed by the child and any factors such as their maturity or level of understanding that the court thinks are relevant to the weight it should give to the child’s views. The place that we find the independent information about the views of the children is in the interviews that Mr M had with the children. He has set out the details about that on pages 7 and 8 of his report that was dated 23 September 2015.
Y talked about time with both of her parents as being good. She said with Mum it is more better than good and with Dad it is good. She said that she likes things the way they are now and she has a lot of friends at (omitted) School and might go there for high school because kids from her school go there for high school. She said it was too hard to decide who was right in terms of where she should live knowing that both of her parents wanted her to live with them more. “Both tell me what they want to do. It is too much to decide.” She said she misses one if she is with the other one and vice versa. She said that when she was little her parents got on well until they did not and she did not know why they stopped getting on well.
X, who was described as sensible, intelligent and articulate – (Y was described as confident and outgoing) said that it was a really hard question in trying to decide where to live. She said it is nice living with Mum and it is nice living with Dad and “I would like to go to (omitted) because I have friends from basketball there”. It is all too hard, she said, to choose between living with her father or her mother. Then she said she would prefer one week with Dad and one week with Mum and that was “so we get to see them equally and not just see Dad on weekends.” She said her parents are not nice to each other and that they should be.
I am satisfied – and it was clear from the views of Mr M – that these are children who love both of their parents. They know that their parents do not get on well. They would like them to do so. I do not consider overall that any views that the children expressed should be determinative of the matters that are in dispute before the court. They both like living with both of their parents. They miss the other one when they are not with that parent, and of course X talked about time being equal, which is not an unusual comment to hear from children who are in the middle of an ongoing dispute and who want to please both of their parents.
As to the nature of their relationship with each of their parents and other persons, including grandparents or other relatives[3], they have a close and loving relationship with each of their parents. They enjoy spending time with their parents. There is no evidence before me that would suggest that their parents are not able to meet their immediate day-to-day needs. They also have a very close relationship with their maternal grandparents, with whom they spend a significant amount of time. They do not appear to have any close family relationships with paternal extended family members. The father’s evidence would suggest that that is not something that he pursues himself on a regular basis. They do however from time to time have some connection with the extended paternal family. I find that they have a solid and secure relationship with each of their parents and with their maternal grandparents.
[3] Family Law Act 1975 (as amended) s.60CC(3)(b)
As to the extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children[4], the only significant major long-term issue at the moment is school, and the parties have not been able to agree in relation to that issue. I am satisfied that they have both spent regular time with the children as provided for in the orders and communicated with the children as provided for in the orders. And I accept that at least on two quite significant occasions the father has been thwarted, in terms of the time that the children are entitled to spend with him, by the actions of the mother.
[4] Family Law Act 1975 (as amended) s.60CC(3)(c)
As to the extent to which each of the children’s parents has fulfilled or failed to fulfil a parent’s obligations to maintain the child[5], the father’s evidence about his child support issues was extraordinary. He is something just over $12,000 in arrears in respect of child support payments. In cross-examination he confirmed he had no plans to remedy that anytime soon. He also conceded something like a $12,000 child support debt in relation to an older child that he also has no plans, on his evidence, to remedy. He can hardly be surprised about the mother being angry about that. He complains about the mother working and the children being too often in the care of the grandparents, having clearly failed to think that if he paid his child support the mother may not work the hours that she does or work at all, in which case he would not have any complaint.
[5] Family Law Act 1975 (as amended) s.60CC(3)(ca)
It is even more extraordinary that he gave the evidence about his child support liability in what might best be described as a confrontational manner and then conceded that he had paid something over $17,500 to his solicitors in relation to either this matter or some other matters.
It was not particularly clear what he had paid the money to Webster’s Lawyers for, but he certainly had not paid it to the child support agency in circumstances when apparently on a very limited income he had $17,500 available to him. I find that the father has failed to fulfil his obligations to maintain the children.
As to the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents or any other child or other person, including any grandparent or other relative with the child with whom he or she has been living[6], the father’s proposal at trial would be a very significant change indeed for the children.
[6] Family Law Act 1975 (as amended) s.60CC(3)(d)
Historically now for many years they have been in the care of the father on alternate weekends and during the holidays. It is the mother and the grandparents who have attended to most of the children’s day-to-day needs, including getting them to school. The mother’s evidence was that even if they stay overnight with the grandparents she is there first thing in the morning getting them ready to go to school.
Under the father’s proposal the children’s weeks would be altered in that there would be a situation where he was responsible for getting the children to and from school. There would be a change in how that was organised. There may or may not be out-of-school-hours care. All things considered however, there would be a very significant change indeed.
As to the capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs[7], I have already expressed my concern about the capacity of both parents to provide for the children’s emotional needs when they continue to engage in litigation that causes a “pressure cooker” environment for the children.
[7] Family Law Act 1975 (as amended) s.60CC(3)(f)
I am hopeful that once they have attended at the Kids are First post-separation parenting program, into which the father has now enrolled and the mother will do so by Friday – that they will open their minds to learning some alternate ways of communication. The hope is this would remove from the children the responsibility for trying to keep both of their parents happy all of the time. That situation imposes on the children a limitation in how freely they feel they can love each of their parents when they know the vitriolic attitude that each of the parents has to the other of them.
I am satisfied that both parents can provide for the children’s intellectual needs, but I have already expressed my severe reservation about the father’s ability to provide for the children’s cost of living needs in getting to the state where he is approximately $12,000 in arrears with such low assessed child support payments due.
As to the maturity, sex, lifestyle and background of the children[8], these children are two girls. They are sporty. They enjoy school. They learn many skills from a maternal point of view and many skills from a paternal point of view. It is clearly best for them to be able to continue to gain the benefits of the skills that each of their parents bring to parenting, and that clearly the children enjoy.
[8] Family Law Act 1975 (as amended) s.60CC(3)(g)
The next relevant subsection refers to the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents[9]. I have referred to the acrimony that they continue to engage in and the impact that may have on the psychological health and wellbeing of their children.
[9] Family Law Act 1975 (as amended) s.60CC(3)(i)
I find that the mother undertakes the day-to-day duties of parenthood well. She utilises the assistance of her parents. The children spend quite a deal of time with the maternal grandparents. The mother’s working hours are not long. She stays overnight at her parents if she finishes work early enough, otherwise she is there first thing in the morning to take the children to school.
I find that she is balancing the need to earn money to support the children with the duties of parenthood, and looking for the assistance, appropriately, of her parents to help her in that regard. The father has seriously failed in terms of assisting with financial support for the children. I find that the criticism of the father about the mother’s parenting capacity and the arrangements that she makes for the children are extraordinary in the circumstances of his default on the question of child support.
Family violence[10] is not relevant in this matter. The parties have been separated for years and might exchange angry words, but that seems to be the extent of the matter.
[10] Family Law Act 1975 (as amended) s.60CC(3)(j)
I refer then to section 65DAA as set out if pages 7 and 7 hereof and the question of whether or not the children should spend equal time with each of their parents. I find that it is not in their interests to do so. It was the position of the independent children's lawyer that such an order would not be in the children’s best interests.
As to section 65DAA(5) and the issue of reasonable practicality, there is no doubt that equal time could be implemented in terms of the parents living in a reasonably proximate area. As to the question of the parent’s current and future capacity to implement an arrangement for the children spending equal time with each of them, I find these are parents who cannot agree on a school and who cannot agree on places of handover. The father does not support the children in terms of child support, and the mother has taken a high-handed attitude in terms of, on occasions, complying with orders.
Considering the lack of capacity in that regard, and then turning to the next subsection, which is their current and future capacity to communicate with each other and resolve difficulties, I could not possibly find that either of these parents have the capacity to support an order for equal shared parenting time.
I am satisfied however that they have the capacity to support an order for substantial and significant time, as of course this has been the very position and situation that the children have experienced since 2009.
Substantial and significant time is defined in section 65DAA(3) of the Family Law Act 1975 (as amended) as:
(i) days that fall on weekends and holidays;
(ii) days that do not fall on weekends or holidays; and
time that the child spends with the parent allowing the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significant to the child; and
... allows the child to be involved in occasions and events that are of special significance to the parent.
The existing order, although the father says it should be discharged in terms of paragraph 16, is a classic example of where both parties should be able to be involved in events at the children’s school. I do not accept the submission of Mr Dillon that such an order is not necessary.
Many matters have come before me where schools have been unwilling to facilitate both parents attending because there is not an order to that effect in place, even though the lawyers at the bar table might understand that an order for equal shared parental responsibility means that such an order should go without saying. The fact of the matter is, in practical terms, it often does not. Existing orders would also provide for school holiday time, for special occasion time, including Christmas, Easter, Mother’s Day and Father’s Day.
For those reasons, in terms of the father’s application for equal shared time, I do not consider that the children’s best interests would be met by such an order but rather by a continuation, effectively, of the existing order.
There are however two other matters that I have to address. One is whether the children should go to (omitted) School. (omitted) School is a private college. It has private school fees. I find that the mother has no capacity whatsoever to contribute to private school fees. The father would seek to persuade the Court that, not withstanding he has done nothing about paying approximately $12,000 in child support arrears and managed to find $17,500 to pay his lawyers in the last few months, the mother should be completely confident that if he gets his wish and the children go to (omitted) School, there will be no problem with their school fees being paid.
Until I had some sense that the father’s attitude towards his financial responsibilities would change, such that it was not a matter of being happy to pay money if he got what he wanted but that he was not going to pay if he did not get what he wanted, I cannot see any benefit to the children of going to (omitted) School. This is in circumstances where the father’s evidence of his income is that it is not a high income and that on its own it would not support school fees.
The only reason the mother is opposed to (omitted) School – she is not on her evidence opposed per se - is because of a possible situation arising where the children go to (omitted) School and then have to be taken out because the school fees are not paid. I find the mother’s position in that regard to be perfectly sensible and reasonable. I cannot find that it is in the best interests of the children at this time to go to (omitted) School.
This is a classic example where, if these parties move on a bit, and if the father does something about his child support arrears, and if the mother gets some confidence in that regard, I have no doubt the mother will sign any forms that are necessary to send the children to (omitted) School. It has to be however that there is good will on both sides. There is no good will on the father’s side in that regard at this time.
In terms of (hobby omitted), I understand that is a matter important to the mother, but quite frankly, as I said at the commencement of these proceedings, I do not consider that it outweighs the need to have a proper, immovable order in place for Christmas school holidays.

If (hobby omitted) falls during the mother’s time, or a few days of it do, so much the better. If it does not so be it. To have an order for (hobby omitted) at (omitted) would require there to be flexibility in an order. These parents cannot deal with flexibility. If they could they would not be here.
The mother says that for a period of time the father agreed to it and then changed his mind. That may well be true. But the reality is that any order that is put in place by the Court now must be an order that gives neither of the parents what might be described colloquially as “wriggle room”. The mother’s proposal in terms of (hobby omitted) would do exactly that.
Taking all of those matters into account, I find that orders should be made as follows:

I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 1 December 2016

[2016] FCCA 3092

6 September 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies