Croft and Croft

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROFT & CROFT

[2016] FCCA 300

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 13 & 9 – application of presumption of equal shared parental responsibility – nature of interim hearing – is presumption rebutted – whether appropriate for presumption to be applied – equal time – substantial and significant time – significant conflict between parties – father employed as a (occupation omitted) working on a roster – mother works part-time during school hours – family assessment report recommends against equal time – what is reasonably practicable – best interests – views of mature children.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61DA, 64B, 65DAA, 65DAE

Goode & Goode (2006) FLC 93-286
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461
Mazorski & Albright (2007) 37 Fam LR 518
Godfrey v Saunders (2008) FLR 287
H v W (1995) FLC 92-598
R & R: Children’s Wishes (1999) 25 Fam LR 712

Applicant:

MR CROFT

Respondent:

MS CROFT

File Number:

ADC 1615 of 2015

Judgment of:

Judge Brown

Hearing date:

11 February 2016

Date of Last Submission:

11 February 2016

Delivered at:

Adelaide

Delivered on:

19 February 2016

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

Ms Fuda

Solicitors for the Respondent:

Denise Rieniets & Associates

ORDERS

UNTIL FURTHER OR OTHER ORDER:

The children of the marriage X born (omitted) 2002 and Y born (omitted) 2006 live with the mother.
The father spend time with the children in accordance with the regime contained in paragraph 34(i) of the mother’s affidavit filed 20 February 2016 subject to the proviso that the children spend one week of each short school holiday in the care of their father, including the period of Easter, the halves to be agreed between the parties and failing agreement to be the first half in 2016 and each even ending year thereafter and the second half in 2017 and each odd ending year thereafter and so far as Easter is concerned failing agreement to be on Good Friday and Easter Saturday in 2016 and each alternate year thereafter and on Easter Saturday and Easter Sunday in 2017 and each alternate year thereafter.
In order to give effect to these orders and in order to ensure that the orders are coordinated with the father’s actual roster of work the solicitor for the mother is directed to prepare a minute of the order, in accordance with these reasons for judgment, within seven (7) days of today’s date and submit it to the associate of Judge Brown.
The parties share responsibility for making major long term decisions in respect of the aforesaid children.
The parties have liberal telephone and electronic communication with the children when they are in the care of the other parent.
The parties jointly instruct Ms L to update the family assessment report herein, at their joint expense, so that Ms L may re-interview the children and ascertain their contemporaneous views regarding the arrangements told inaugurated as a consequence of these orders.
The hearing before Judge Brown scheduled for 1 & 2 August 2016 at 10.00am is confirmed NOTING 2 days hearing time has been allocated and will not be exceeded without leave of the Court.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 20 June 2016.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 4 July 2016.
On or before 20 June 2016 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Family Law (Fees) Regulations 2012.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1615 of 2015

MR CROFT

Applicant

And

MS CROFT

Respondent

REASONS FOR JUDGMENT

Introduction

This case concerns what, in popular parlance, is known variously as shared care; fifty/fifty; or equal time. Mr Croft “the father” and Ms Croft “the mother” are the parents of X born (omitted) 2002 and Y born (omitted) 2006.
Mr Croft is a (occupation omitted). He works to an eight week roster comprising two nightshifts; then two dayshifts; followed by four days off. In theory, he is available to care for the children for 28 nights out of the 56 nights comprised in eight weeks. However, due to the rotating nature of his roster, those nights will not fall on consistent days of the week.
Essentially, the father’s roster will not mesh with the children’s regime, which is based on a seven day week arrangement, with school from Monday to Friday, during daylight hours; sporting activities after school; and every weekend off. The children also have regular holidays during the year.
Ms Croft is a (occupation omitted). She works on a part-time basis with her hours of work being confined to the periods when the children are at school. However, she does continue to work during school holidays.
The parties are both aged forty-one years of age. They began a relationship in 1993 when both were young. They married on (omitted) 2001. They separated in difficult circumstances on 25 November 2014. In early January 2015, they both vacated their former family home which has now been sold.
When the parties separated they each moved in with their respective parents. They agreed at this early stage that the children should live with each of their parents on a week about basis. This agreement was apparently reached following a process of community based mediation. It was not formalised through any court proceedings or consent orders.
The father commenced these proceedings on 8 May 2015. It was his position that the mother had unilaterally ceased the shared care regime and was with-holding the children from him. In these circumstances, he sought the court’s order that the regime be re-implemented as a matter of urgency. In her responding documents, the mother indicated her view that the week about arrangement was not working for the children and needed to be changed.
The father, neither then nor now, accepts that this is the case. It is his position that the shared-care regime was working and continues to work effectively. As such it was the best outcome for the children, as it ensured that they would have an equal level of interaction with each of their parents.
It is Mr Croft’s case that the mother has longstanding psychological issues arising from depression. As a consequence, he asserts that the mother is emotionally dependent upon the children which has led to her manipulating their true feelings about both him and the shared care regime. He asserts that she has done so in order to undermine the equal time regime so that her own psychological needs can be satisfied.
The matter first came into court on 10 August 2015. Since that time, various interventions have been put in place to assist the parties to resolve issues relating both to the care of X and Y, as well as settlement of matrimonial property issues. Whilst those interventions played out, the parties agreed, with some reluctance on the mother’s part, to allow the week about regime to continue.
To the parties’ credit, they have now been able to agree on how their property is to be divided on a final basis. They remain in dispute about arrangements for their children. As a consequence, the children’s aspects of the case have been listed for trial on 1 & 2 August 2016.
In conjunction with this trial and in order to assist the parties to resolve the matter, it was agreed that they would commission an independent expert to prepare a family assessment report. By necessary implication, the parties recognised that it would be very useful to both them and the court for a suitably qualified person to speak to everyone concerned to ascertain how the current arrangements were working.
In particular, this report was intended to canvas the views of both X and Y, as to their preferred care arrangements as well as examining the nature of relationship which the children had with their parents. In addition, Ms L was asked to comment on the viability of the children living for equal periods of time with each of their parents.
For various reasons upon which I will elaborate shortly, Ms L has indicated in her report that she cannot see how week about could work for this particular family. Ms L is concerned about the level of conflict between the parents and other issues relating to how they currently communicate with one another. In addition, it is Ms L’s view that neither child wishes to live in an equal time regime and their views in this regard should be respected.
Since the middle of last year, the week about regime has continued. However, it is the mother’s positon that the children are becoming increasingly resentful of it and are acting out as a consequence of both this and their exposure to the unresolved conflict between their parents.
In these circumstances, it is Ms Croft’s view that the court needs to act urgently in the best interests of the children and end the week about regime which she asserts is emotionally detrimental to the children.
Mr Croft does not agree. It is his view that both children are coping well with the current regime. As such, he vehemently opposes any change to it which he asserts would be fundamentally unfair to both him and the children. Mr Croft puts his position in the following terms:
“I am seeking 50:50 shared care, as a minimum. As a parent, I have the right to nurture and care for my children, regardless of gender. I believe that the children need their father more than ever during in their pre-teen and teenage years, and I am genuinely concerned that the mother may be unintentionally emotionally manipulating them, as per her accusations in her affidavits.”[1]
[1] See father’s affidavit filed 27 January 2015 at paragraph 5
It is also Mr Croft’s view that Ms L has misunderstood a number of things which he told her during the family assessment report interviews. In addition, he believes that she was not able to discern that the children in their interview with her had been influenced by their mother’s feelings and were therefore not expressing their true views to her.
It is also Mr Croft’s positon that it is the mother who is the parent currently unwilling to communicate effectively and it is she who is manipulating and misrepresenting the nature of their parental relationship both to the court and Ms L. On the other hand, Ms Croft portrays Mr Croft as a coercive and controlling person who is determined to get his own way no matter what and as such, is a person who is insensitive to the feelings of the children.
Mr Croft has re-partnered. His current partner is Ms J. Ms J has two children – A, who is nine and B, who is seven. They spend each alternate weekend with their father in (omitted). Mr Croft plans to purchase another property shortly which he will share with Ms J, A and B, as well as X and Y, when they are in his care. He acknowledges that since the parties separated he has had to move a number of times.
Since May of 2015, Ms Croft has been living independently of her parents. It is apparent from comments made by Ms Croft to Ms L in the family assessment report that the mother has some antipathy for Ms J, whom the parties met prior to their separation and with whom the father began an intimate relationship shortly afterwards.
The parties have each filed numerous affidavits which are essentially critical of the other. It is apparent that they have each committed significant resources to these proceedings. Mr Croft is now self-represented. He was pleasant and courteous in court. He clearly loves both children. I also have no doubt that Ms Croft is also devoted to X and Y.
It is clear that the parties have very different views as to how the children’s interests are to be best served both now and into the future. I do not question the validity of those views in either case. In addition, this is not a case dealing with issues of neglect, abuse of the children or matters relating to drug addiction or substance abuse which often arise in the court.
Both parties are decent and law-abiding citizens who have a significant level of dispute about what is best for their children whom they both love. Regrettably they are unable to resolve that dispute consensually so it falls to the court to determine the matter. The court must perform this function pursuant to principles contained the Family Law Act 1975.
This need for resolution arises at the interim stage. At this stage, there is no time for there to be an exhaustive hearing of all the evidence currently available. The final hearing, scheduled for early August will potentially provide a forum for such an exhaustive hearing involving cross-examination of all relevant witnesses, including the parties themselves and Ms L.
It is through cross-examination that the court is able to determine issues of credit – essentially deciding which pieces of evidence are likely to be more reliable, including the account the parties have given of the nature of the relationship between them. In addition, at final hearing the methodology and recommendations of Ms L may be critiqued and tested.
These things cannot happen at the interim stage, where the hearing is necessarily truncated. The same legal principles, however, apply at both the interim and final hearing stage. The difference being that the hearing at the interim stage is shorter and the court cannot make findings about disputed factual matters as they arise from affidavit material.
Although he does not put in such terms, it is implicit in Mr Croft’s position that the court should not act on the basis of Ms L’s untested evidence and opinion which he does not accept at the interim stage. He is particularly critical that she has misconceived the apparent views of the children and the factors which have influenced how those views were expressed to her.
It is his case that the validity of Ms L’s evidence is an issue for the final hearing, which is relatively imminent. As such the court should not embark upon any wholesale changes in respect of X and Y, at this stage. Rather the current arrangements should be maintained until trial.
It is Ms Croft’s position that what Ms L has reported, particularly as to the children’s views, is deeply concerning. As such, the court needs to act promptly to ensure that X and Y’s interests are properly protected and enhanced.
In this context, it is now necessary for the court to examine the evidence currently available to it, particularly in the form of Ms L’s report, bearing in mind the interim nature of the hearing before it.

Ms L’s report

From Ms L’s perspective X and Y have had to accommodate many changes in the last six months – they have seen their parents separated; they have lived in a number of new homes; and have had to adjust to living with Ms J and her children. In this context, Ms L was concerned that the father had perhaps not appreciated the time it would take for the children to adjust to these very significant changes.
In interview, Y reported to Ms L that it felt weird that his parents had separated and he found it hard to move backwards and forwards between them. It was also apparent to Ms L that Y had a very good idea about what each of his parents proposed for his care. In this context, Y indicated to Ms L that his father was trying to convince him and X to do week on/week off, but he would prefer to do it mum’s way.
In her report, Ms L indicated that her understanding what Y meant by this was as follows:
“When I asked what mum's way was, he said that on Monday they would have dinner with mum and sleep with mum. On Tuesday they would go to (hobby omitted), have dinner with dad and dad drops them off at mums. On Wednesday dad would pick them up and they would go to X’s (hobby omitted) and sleep with mum. On Thursday they would sleep with mum and on Friday dad would pick them up. They would go to X’s (hobby omitted) and sleep Friday night at mums and on Saturday mum would go to the game with them, they would sleep with dad, they would spend Sunday with dad and then Sunday night they would be with mum. When I clarified that there would be one sleep over every week with dad he said yes, but they would see dad most of the time.”[2]
[2] See family assessment report at page 6
Y reported a good relationship with his father which was confirmed by Ms L’s observation of his interaction with both Mr Croft and Ms J. The children were also observed to interact warmly and in a relaxed fashion with their mother.
Y also indicated to Ms L that he would like to spend more time with his dad without B and A being there. Y was also somewhat critical that his dad mostly spent time with Ms J when he (Y) was there. On this basis, he rated time at his dad’s place at 5 out of 10, as opposed to 10 out of 10, whilst at his mother’s home.
X, the older child rated how he got on well with his dad and mum, as 5½ or 6 for dad and 7 for mum. Significantly, X was not positive in his expressed attitude in regards to Ms J, B and A. The statements of both children vis-à-vis Ms J, B and A seem to be the basis of Ms L’s opinion that Y and X are still coming to terms with their new circumstances.
Ms L specifically asked X what was his attitude to the current week about arrangement. Ms L recorded the following response to this inquiry:
“He said he wants to stay at mums and just see dad every now and then. When I asked when, he said on Wednesdays and Thursdays after school and every second weekend or something like that. He said A and B got a choice to stay with their mum or dad. They are a lot younger and he is not allowed to make his own choice.”[3]
[3] Ibid at page 8
Y also indicated to Ms L that it was his perception that his mum was not coping very well with Ms J. In this context, he reported his mother becoming teary and upset. It was X’s view that his mother was not coping particularly well with the week about regime.
In this context, Ms L recorded the following exchange between her and X, in respect of parental communication issues:
“X also said that said dad and mum can't communicate and that affects the week on and week off. When I asked him how, he said that they need to communicate; if dad forgets to pack one thing mum will have to ask for it back. They can't talk in person but they have to do it through email and they can hardly do that. He said they can't talk to each other at all.”[4]
[4] Ibid at page 8
For obvious reasons, Ms L was desirous of teasing out how X himself felt about his perception of the communication situation currently prevailing between his parents. In this context, she reported that X indicated to her that it hurts a lot. He was particular fearful that, at any stage, either his dad would go off at his mum or his mum would go off at his dad. On a scale of 0-10 gauge of how stressed X felt about the tension between his parents, X said to Ms L that he placed himself at 8.
Even if the tensions between his parents could be resolved and communications improved between them, X still held reservations about the week about arrangement. In this context, Ms L reported him as saying as follows:
“He said he just wants a stationary home, and doesn’t want two homes.”[5]
[5] Ibid at page 9
In interview with Ms L, the mother described herself as a stay-at-home mum for eight years. She reported working Monday to Thursday from 8:45am to 2:45pm, so that she could deliver and collect the children from their school. It was obvious to Ms L that Ms Croft had some resentment at the potential for Ms J to tend to the children whilst Mr Croft was at work.

To Ms L, Mr Croft expressed his concern that if Y and X lived more with their mother than with him, he would not be able to spend any decent time with them and would merely be taking them from their sporting activities like a taxi driver rather than a father. The respective concerns of the parties as raised by them with Ms L are reflected in their affidavit material before the court.
Ms L indicated that she was concerned about X, whom she viewed as a child who was intensely feeling the stress arising from his parents’ conflict, as well as his mother’s distress about the separation. In this context, Ms L regarded X’s response to the situation as understandable, even if he had been influenced by his mother’s negative feelings towards Ms J.
In her report, Ms L indicated as follows under the heading Key Issues:
“… X is also saying that he does not like having two homes, that he feels more connected to his mother than to his father and that his preference is to be spending less time with his father. Given his age, and the adjustments required of him, I think X’s preferences should be given weight, and taken into consideration in framing orders.
Y has also expressed a preference for 'mum's way', ie to spend far less overnights with his father than is currently the case. However I think that, in Y’s case, it is possible that he is following X’s lead and also, because he is allied with mum, is easily swayed by her ideas about what should happen, ie 'mum's way'. An important issue for him also seems to be his experience that dad does not spend enough time with him and X. Now even if this is not an accurate representation of what actually happens, Y’s annoyance at Ms J's boys is also quite predictable, as children can be quite possessive of parents and can resent other children's presence. Thus it is very important that Mr Croft is especially sensitive to this, particularly in these early days (for the children at least) post separation.
Finally, there is the factor of Mr Croft's work schedule. As I understand it, it means that there could be some weekends where he will be required to work either during the day or night, the latter meaning he would be sleeping during the day. On these occasions I do not think there is much merit in the children being in his home, given their preference to spend more time with their mother.
Taking all the above into consideration, especially X’s preference to live in one house and abandon the week about arrangement, I cannot see how week about could work. There is also the difficulty and conflict between the parents, but even if this were not an issue, we still have a thirteen year old boy saying quite clearly that he does not like having two homes. My view is that on this basis, his preference in this should prevail.
However, there is an even more significant restraint on how much time the children can comfortably spend with their father, and this is his pattern of shifts. Given the view of the children, there is no point in insisting that they spend time at Mr Croft's home when he is not available because he is working or sleeping following a night shift. Unfortunately the week about pattern thrusts the children into a disproportionate amount of time with Ms J and her children. What would be better is for the children to have time with their father when he is available and can ensure he is focussing on them, so that they can become increasingly comfortable about the new situation, and adapt in a way which enhances all their relationships in their father's home, rather than stressing them further.
Unfortunately there is no consistent fortnightly or monthly regime which will achieve this; I have included a schematic representation of Mr Croft's schedule below, which if the children are to have meaningful time with him, shows that the framework has to be eight weeks, as dictated by the pattern of his shifts which as I understand entails 2 days of day shifts (6.30am to 5.30pm), followed by 2 days of night shifts (4.30pm until 7.30am) followed by 4 days off.”[6]
[6] Ibid at pages 16-17
In all these circumstances, Ms L recommended that X and Y live mostly with their mother and see their father for four or five days per fortnight, as well as for half of the holidays, in a regime which reflected Mr Croft’s work schedule. She also recommended as follows:
“It is crucial that the parents take on board how upsetting their conflict is for X especially and take steps to establish a more harmonious working relationship.”[7]
[7] Ibid at page 17
Ms L presented a picture of two children, who were more emotionally attuned with their mother than their father and who were struggling to adjust to their father’s new relationship and being part of a more complex blended family.
In addition her opinion was that both children, particularly X had a preference to live more with their mother than the father, although she conceded that Y was likely to be influenced to some degree by his older brother. However her view was that the children did not favour the week about regime.
As previously indicated, Mr Croft does not accept Ms L’s recommendations. He does not accept that she has accurately assessed X’s response to his current situation. Rather, he believes that X is emotionally care taking for his mother. That is taking on the responsibility of satisfying his mother’s emotional needs at the cost of his own. In this context, it would appear to be Mr Croft’s position that Ms L has failed to discern the children’s true views.

The mother’s position

Throughout these proceedings, Ms Croft has categorised Mr Croft as a bully who is insensitive both to her feelings and those of the children. She describes Mr Croft as being a person who does not respect her personal boundaries now that the parties have separated. Rather, she alleges that he approaches her on occasions when it should be clear to him that she neither wishes nor is it appropriate for him to engage with her.
In her most recent affidavit, she reports conflict between her and the father regarding one of X’s school shirts and other items of uniform. It is her case that, on 15 October 2015, Y ran away from school, which she asserts was the child’s response to the stresses arising between his parents.
Ms Croft also makes reference to another dispute regarding X’s guitar which the mother purchased as a Christmas present for the child but which the father removed from his school. Other disputes have apparently arisen regarding the payment of school fees. The current arrangement is that Ms Croft will pay the children’s private school fees until they have completed their secondary education.
I have not attempted to unpack these disputes in any great detail, other than the mother asserts that there is a constant level of endemic conflict between the parties and she finds it particularly difficult when Mr Croft approaches her on occasions such as the children’s sporting activities.
It would be Ms Croft’s preference for the parties to communicate in writing by means of a communication book which passes between the parties at each handover. She asserts that the father refuses to comply with such a practice. It is also her position that Mr Croft behaves in an aggressive manner towards her.
The mother’s position can be summarised from the following extract, taken from her most recent affidavit.
“The children are not coping well with the current week about arrangement, and accordingly I seek that the recommendations of Ms L be implemented forthwith, with the children living in my care for the majority of the time and spending time with the father as follows:
(i).     Week 1 – 5:30 pm Friday to 7.30 am Monday;
Week 2 – 9.00 am Saturday to 7.30 am Monday;
Week 3 – 9.00 am Sunday to 7.30 am Monday;
Week 4 – from the conclusion of school to 8.00 pm on Tuesday and Wednesday;
Week 5 – from the conclusion of school to 8.00 pm on Tuesday and Wednesday;
Week 6 – from the conclusion of school to 8.00 pm on Tuesday and Wednesday;
Week 7 – from the conclusion of school Thursday to 8.00 pm Saturday;
Week 8 – from the conclusion of school Thursday to 8.00 pm Sunday.
(ii)     During the Christmas school holiday period, I propose that the children spend time with the father and I on a week-about basis, alternating Christmas Day from 3.00 pm Christmas Eve to 3.00 pm Christmas Day in one year, and then from 3.00 pm Christmas Day to 3.00 pm Boxing Day in each alternate year.
(iii)   In the event the children are in the care of the father on Mother's Day, from 6.00 pm the previous night to 6.00 pm on Mother's Day, on the proviso that in the event the children are in my care on Father's Day, they are in the father's care from 6.00 pm on the previous night to 6.00 pm on Father's Day.
(iv)    That the father provide me with no less than 30 days notice of any changes to the times the children will be in his care due to changes in his work roster or any other reason.”[8]
[8] See mother’s affidavit filed 20 January 2016 at paragraph 34
On my calculations, this would amount to the father spending ten nights out of a potential fifty six with the children during school terms. It would also see the children having six evening meals with them during the middle three weeks presumably to coincide with the father’s shift obligations.

The father’s position

The father denies being either aggressive or difficult to deal with. He has a completely different slant on many of the incidents such as the uniform issue, the guitar issue and Y running away from school. In his submission, Ms Croft is making mountains out of molehills.
In his most recent affidavit, Mr Croft indicates his view that the mother is fabricating claims of harassment, abuse and aggression in order to alienate the children from him. By necessary implication, it is his position that she is making untrue allegations for tactical reasons in order to be successful in these proceedings.
In this context, he expresses his frustration that the mother has now resiled from her earlier acceptance of the week about regime which was arrived at in a process of family dispute resolution in the period following the parties’ separation.
Mr Croft is now representing himself in the proceedings before the court. He presents as an earnest person who deeply loves his children which I accept is the case. I asked him what was his position regarding his work roster, particularly in terms of Ms L’s view that it was likely to be difficult to engage this roster with the children’s schedule.
Mr Croft indicated that his workplace was extraordinarily flexible. He indicated that he would be easily able to swap shifts with colleagues and had very many days off. He refuted any suggestion that he would be significantly reliant on Ms J to care for the children in his absence.
During his evidence, Mr Croft presented me with a chart of his roster for the 2016 year. It was a lengthy document stored in a cardboard tube. I was able to examine it cursorily but as it was Mr Croft’s only copy, he did not wish to tender it into evidence. I was not able to make a great deal of sense of it.
It was Mr Croft’s submission that Ms L had misrepresented the complexity of his work roster, in her report and its implications for the children’s care, particularly she had misunderstood his comment to her, that if he was working he would rely on the mother to care for the children. In contrast, Mr Croft asserted that he told Ms L that he would, on occasion, rely on his mother – the children’s paternal grandmother – to help him rather than Ms Croft.
Otherwise, it is Mr Croft’s position that he will be substantially available to care for the children during his proposed allocated week. In this context, he asserts that there is a level of contradiction in Ms Croft’s positon that she is opposed to week about during school terms because of his work commitments but is willing to accept it during school holidays when he asserts it would suit the mother because of her work commitments.
In this context, Mr Croft asserts that the mother’s objections to the week about regime must be regarded as being essentially tactical, rather than related to any proper consideration of the children’s best interests. He remains concerned that the mother’s previous psychiatric difficulties represent a significant threat to the welfare of the children.

Legal Considerations

The legal provisions relating to how a court determines parenting arrangements for a child are both complex and controversial. They are contained in Part VII of the Family Law Act. Since its inception, the Act has been subject to several major changes reflecting community concerns regarding significant societal issues such as family violence and the on-going relationship between parents, particularly fathers and their children, following relationship breakdown.
Given the complexity of these issues, it is not always easy for the lay reader to distil the actual effect of these legislative changes and what they mean in practice, particularly for the court. I will do my best to explain the relevant provisions. It is also the case that, at the interim stage, I am obliged to follow a specific pathway which was delineated by the Full Court of the Family Court in the case of Goode & Goode.[9]
[9] Goode & Goode (2006) FLC 93-286
In deciding whether to make any particular parenting order, in relation to a child, the court must regard the best interests of the child as the paramount or most important consideration [Family Law Act section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically in the Act in section 60CC.
Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s best interests will be determined in proceedings before it – primary considerations and additional considerations. There are two primary considerations, which are set out in section 60CC(2)(a)(b) namely:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Prior to recent legislative amendments, these considerations were not formally ranked in regards to one another. They have been referred to, in a number of decisions of the Family Court, as “twin pillars”, the importance of which depends on the circumstance of the case concerned.
However, as a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations “to give greater weight” to the primary consideration relating to the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m) the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount. The court’s duty is to deliver individual justice, for the child affected, in every case.[10]
[10] See B v B: Family Law Reform Act 1995 (1997) FLC 92-755
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general …”[11] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[12]
[11] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[12] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
Part VII of the Act is to be interpreted in the light of a number of objectives and principles, which underpin the two primary considerations, contained in section 60CC. These objectives and the principles underlying them appear in section 60B(1) & (2) respectively.
The objects of Part VII include ensuring that children’s best interests are met through them having the benefit of both their parents having a meaningful involvement in their lives, whilst at the same time being protected from coming to any form of harm.
The principles speak of children’s rights to know and be cared for by both their parents and to regularly spend time with each of them. The legislation recognises the fundamental entitlement of children to have a relationship with their biological progenitors. However all these considerations are subject to the overall proviso of the child’s best interests.
Given the importance, which the applicable legislation places on the co-involvement of parents, in their child’s life, and development there is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption relates to the allocation of parental responsibility, not the allocation of the specific amounts of time, which a child spends with each of his or her parents. There is no presumption in favour of equal time per se. This is not the starting point for the court’s deliberations.
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all these circumstances prevailing [section 61DA(3)].
Section 61DA deals with the allocation of parental responsibility in respect of a child. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
The interaction between section 61DA and section 65DAA is complex. The application of the presumption does not result in any mandatory direction that the court must implement an equal time regime (or one based substantial or significant time) if the presumption applies. Both such outcomes are subject to the court being satisfied that two discrete criteria have been met – firstly, they are in the child’s best interests; secondly, they are practical, in an objective sense, to implement.
By application of section 65DAA, if the presumption of equal shared parental responsibility applies, in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.
If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.

The expression “substantial and significant time” is defined in the Family Law Act 1975 [section 65DAA(3)]. It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
More significantly, it is time which enables a parent to be involved in a child’s daily routine and on occasions and events which are of particular significance to the child concerned.
Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The relevant legislation speaks of children’s rights rather than of any parental right to care for or parent a child pursuant to any specific regime. In theoretical terms, an equal time regime may be the most beneficial outcome for a child but the court is directed not to overlook the practical realities, of the overall situation, for the child concerned prior to reaching such a conclusion.
The High Court, in a case known as MRR v GR has considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable. Both these considerations arise as a consequence of section 65DAA(1) & (2) of the Act. It has determined that both questions must be answered in the affirmative before an equal time order may be made or when that has been ruled out, a substantial and significant time regime.
The High Court has held that it is a statutory pre-condition of the making of an equal time order (and a substantial and significant time order) that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child, not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[13]
[13] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
Accordingly, the nature and viability of the relationship between the parents concerned is a legitimate area for the examination of the court both at the interim and final stage. In a case like the present one, it is likely to be of fundamental importance, particularly if the presumption is not rebutted. Accordingly the pathway to an equal time regime is a complicated one. It is not the starting point of the court’s deliberations.
The pathway delineated in Goode & Goode can be summarised as follows:
·consider the section 60CC matters relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC.
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.
In my view, it is noteworthy to point out that it has taken me some thirty paragraphs, or so, to summarise the law relating to parenting orders, in the interim context. The law cannot be regarded as simple, particularly where the issue arising concerns the commonplace controversy of equal time arrangements for children.

Consideration

It is now necessary for me to consider the various factors arising under section 60CC, bearing in mind the truncated nature of the hearing before me and the various evidentiary issues, which remain in controversy.
In the main, the areas of controversy outstanding centre on Ms L’s report and her recommendations. In this context, I note that Ms L’s evidence has not been subject to cross-examination. However, on its face, her report is well considered and Mr Croft himself can point to no obvious methodological flaws in its reasoning, other than Ms L has misreported some of his statements and he does not agree with her conclusions.
However, in my view, two of the fundamental underpinning findings of Ms L remain indisputable. Firstly, the parties’ parental relationship with one another remains fraught with all manner of difficulties; secondly, the father’s work roster is a complicated one, whilst the mother’s working arrangements are temporally consistent.
In my view, this is not a case which centres on protective concerns for the children relating to issues of family violence, neglect or abuse. Although the mother categorises the father as being coercive and controlling of her, she does not raise any specific issue of violence.
Clearly, the parties have very different personalities and views about matters pertaining to parenting. In addition, it is apparent that the circumstances surrounding their separation, particularly the father’s involvement with Ms J, precipitated strong emotional reactions from both parties, particularly the mother.
The more significant aspect of the case centres on how the children are likely to benefit from having a meaningful level of relationship with each of their parents. In this context, I accept Ms L’s evidence that X and Y have a close and loving relationship with each of their parents.
As such, the children will undoubtedly benefit from maintaining a meaningful level of relationship with both their father and their mother. The central question for the court is how this outcome can be achieved given the clear and obvious deficits, in the parties’ parenting relationship with one another at the present stage. These problems are likely to be compounded by logistical factors.
Given the children’s current ages, it is axiomatic that the children know their parents well. This is not a case where long periods of separation will have the potential to undermine nascent parental relationships or, as in the case of very young children, a few consecutive days of separation from a parent will have the consequence of being emotionally de-stabilising or confusing for the children.
Both children but particularly X, can calculate the days of the week and will know readily when they are due to spend time with the other parent concerned no matter what regime of care ultimately transpires. In addition, both children are likely to be readily adept at contacting their other parent through a wide variety of electronic media. The children will be able to touch base every day with each of their parents, through facetime, emails and the like, as well as via the telephone, mobile or landline.
The mother’s proposal is that the children will spend time with their father, every few days or so during every week of his roster. It is her case that this will facilitate a meaningful level of relationship between Y, X and their father because it will enable the children to interact with him in a variety of circumstances.
There will be a combination of some weekends; some overnight periods on school nights; and some overnight periods on weekends. However, in arithmetical terms, it will be far less than the current 28 days per eight week roster which Mr Croft currently has and which he hopes to maintain. The mother approaches the case on qualitative terms; the father more from a quantitative position.
Any parental relationship, in order to be meaningful for the child concerned has to be an important, significant and valuable one for that child.[14] These considerations are essentially qualitative in nature rather than quantitative.
[14] See Mazorski & Albright (2007) 37 Fam LR 518 at [26] per Brown J
In my view, although parental relationships need sufficient time to render them meaningful and allow them to develop, it is what happens in those relationships which is likely to be more significant in terms of the creation and maintenance of value and significance for the children concerned.
These considerations are particularly germane to the current case. Mr Croft already has a meaningful level of relationship with Y and X. It seems more likely than not that this level of relationship can be maintained through Ms Croft’s proposal. Her proposed regime envisages the father interacting, with the children in a variety of contexts and settings, both “fun” ones and ones more mundane and disciplined, such as those likely to arise on a school night.
In this context, I am concerned that much of Mr Croft’s argument centres on his view that it is his right to have the same level of involvement with the children as does Ms Croft. Essentially, he fears that his relationship with the children may be rendered subsidiary to that of the mother and he will be relegated to the role of taxi driver dad or holiday dad.
I can appreciate that, from Mr Croft’s perspective, an equal time regime is the most equitable one for all concerned and, as such, the best one. However, as Kay J pointed out in Godfrey v Saunders[15] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”.
[15] See Godfrey v Saunders (2008) FLR 287 at 298
The distinction is a subtle but important one.The regime promoted by Ms Croft may not be the optimal one, so far as Mr Croft is concerned, but given the regularity with which the children will interact with their father, it is likely to ensure that Y and X continue to benefit from having a meaningful level of relationship with their father.
In terms of the additional considerations, arising under section 60CC(3) the views expressed by X and Y are likely to be central. In the context of a child’s views, the legislation directs the court to consider any factors, such as the maturity of the child concerned or his/her level of understanding, which may be relevant to the weight which should be given to those views.
In this case, X will soon be fourteen. As such, he is likely to be an articulate child who both expects to and is able to express a preference, so far as arrangements for his care are concerned. Y, at nine years of age is less mature but is likely to be able to articulate what he would prefer.
It is often said that children have a right to be heard in proceedings such as these. In my view, the construction of both the Family Law Act and case law derived from the Family Court indicate that children’s views are important and as such require to be given “proper and realistic weight” rather than token regard by first instance courts such as this one.[16]
[16] See H v W (1995) FLC 92-598 at 81,944
It is impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”. What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.[17]
[17] See R & R: Children’s Wishes (1999) 25 Fam LR 712 at 724
I appreciate that Ms L’s report and recommendations are not accepted by Mr Croft. However, at this juncture, her report is the most reliable conduit through which the court may examine what the children concerned, in this case, are likely to prefer. In my view, given the ages of the children, particularly X, it is important that the court gives close consideration to what the children have said to Ms L, particularly in the context of the polarised positions of their parents.
X has clearly indicated that he wants to have one major domestic base. Y, although likely to be influenced by X, expressed a similar view. The children were not in favour of a week about regime. X has provided reasons for his position. They are rational, given the situation in which he currently finds himself. Ms L did not disclose any concern that, in the expression of his views, X was trying to mollify his mother’s feelings.
As previously indicated, I accept that the children have a close and loving relationship with each of their parents. At this juncture, in my view, it would be imprudent of the court to dismiss Ms L’s view that X and Y are struggling to adjust to the father’s relationship with Ms J, which has brought them into contact with A and B.
I appreciate that Mr Croft disagrees with Ms L. However, on balance, given the circumstances surrounding the parties’ separation and Ms Croft’s clear and strong emotional response to it, it does not seem to me to be improbable that both children would take some time to adjust to their new positions in a larger and combined family structure. In my view, considerations of this type arising under section 60CC(3)(b) are highly relevant in such a case as this and are likely to be closely entwined with the various other factors relating to the probable views of the children concerned.
Although the personalities and parenting styles of the parties are significantly different, I accept that both are good parents who wish to be involved in every aspect of their children’s lives. It is the mother’s case that she is more emotionally in tune with the children and more interested in ensuring that they have every educational opportunity than is the father.
Mr Croft presents as a fiercely determined person. Ms Croft asserts that he has told her that he will fight every step of the way to secure his preferred outcome in these proceedings. In my view, this is likely to be the case. As previously indicated, Mr Croft has approached the case very much on the assumption that he has a right to care for the children on a 50:50 shared care basis. In my view, he is not likely to resile from that position.
In these circumstances, it seems likely that the matter will proceed to final hearing in August. From the mother’s perspective, the continuation of the current shared cared regime for a further period of five to six months has the potential to be deeply emotionally destabilising for the children whom she asserts are already acting out in extreme and unpredictable ways.
In my view, this is one of the central dilemmas in the case. On the one hand, the court must act in the manner which it thinks will be best for the children concerned in any case coming before it. In this context, it is preferable that wherever possible, the court bring litigation to a conclusion sooner rather than later, as children do not usually benefit from being surrounded by uncertainty in respect of arrangements for their care.
In this case, it seems more likely than not that the final hearing will proceed. Mr Croft asserts that Ms L has misconceived the dynamic of the family. As such, he asserts that the court should not embark upon any precipitate change in arrangements for the children’s care until her view has been thoroughly tested, in court.
In this context, given that it seems a further hearing is almost certain, I have given close consideration as to whether or not it would be preferable to maintain the current status quo in respect of arrangements for the children, as a change at this juncture is likely to lead to significant feelings of resentment on Mr Croft’s part. Essentially, he will be aggrieved that his entitlement to contest Ms L’s evidence at a final hearing has been potentially rendered otiose. This may have the potential to exacerbate, rather than lessen, the conflict between the parties.
On any view, Mr Croft’s roster is a complex one, in the sense that a person such as I, needs to have reference to Mr Croft’s personal calendar to ascertain what his work arrangements will be on any given day. That is not the case with Ms Croft. Barring unforeseen emergencies, I know where she will be from Monday to Friday. It is also fairly certain where the children will be, particularly during school terms.
The same cannot be said with Mr Croft. In addition, his circumstances are complicated by the fact that he asserts his roster can be changed at short notice because he can swap shifts with work colleagues and presumably also rearrange his days off. It is the implication of this submission that Ms L’s view that his roster renders the week about regime untenable is wrong headed.
In this context, I note that I have not as yet seen this aspect of Mr Croft’s case subject to any rigid scrutiny. As such, Mr Croft’s assertion that his roster presents no great impediment to the shared care regime and he is not likely to be dependent upon Ms J and others to implement it remains untested.
In contrast, in my view, there are no obvious adverse implications arising from Ms Croft’s preferred working arrangements which are obviously child focussed. In addition, for reasons previously provided, Ms L’s view that the children are currently experiencing some level of discomfort in their current level of interaction with Ms J and her children does not seem inherently improbable.
In these circumstances, it seems to me that the court should approach the issues of the workability of Mr Croft’s regime with a high degree of caution. In particular, I do not believe that I am in a position to dismiss Ms L’s view that there is not much merit in the children spending time at their father’s home when he is not likely to be in a position to care for them either because he will either be at work or asleep, particularly given what appeared to Ms L to be the children’s strong preference to spend more rather than less time with their mother.
On its face, Mr Croft’s roster is complicated and it is difficult to see that he would not be dependent upon others to care for the children on at least some occasions. True it is that the same considerations apply to Ms Croft during school holidays. However, these occasions will be fairly limited and be confined to week days, during daylight hours.

Conclusions

I do not think that the presumption of equal shared parental responsibility is rebutted because there are reasonable grounds currently available to me from which I can form a belief that abuse or family violence has occurred. Accordingly, it is necessary for me to consider whether it is appropriate, at this interim stage, for the presumption to be applied.
Appropriate is a common English word, which in this context, means suitable or proper. It is only in this one context – that arising pursuant to section 61DA(3) – that the applicable legislation makes any differentiation between final and interim proceedings.

Having considered all the evidence available to me in this case, I have come to the conclusion that it would not be appropriate for the presumption to be applied at this stage. I do not think that such an outcome would be suitable to supply the needs of these children, at present, particularly given the incontrovertibly and conflicted relationship between their parents at present.
Even were this not so, I do not consider that such an outcome would currently be in the best interests of X or Y. I reach this conclusion primarily on the basis of Ms L’s evidence, which I appreciate remains untested. However, in the current case, unlike many other interim hearings, I have been provided with independent evidence which to a very large extent, supplants the allegations and counter-allegations arising from the evidence of the parties themselves.
Ms L presents a picture of X, in particular, struggling with the current arrangement which is not in line with his preferred outcome. Accordingly, I do not think the application of the presumption is supported by my overall assessment of the various applicable section 60CC factors at this stage.
I am well aware of the artificiality of this analysis when it is applied to the respective positions of the parties. Mr Croft approaches the case from the starting point of equal time which is the final step arising in the pathway described by the Full Court in Goode.
Be that as it may and although issues of practicality are to be considered at the final step, in my view, it is these issues of practicality which are fundamental in a case such as the present one both at the interim and final stage. The High Court has made it clear that I am required to look at the practical reality of what is happening in any individual family concerned from the perspective of the best interests of the child concerned.
In my view, the evidence is such that I can conclude in the current matter that the conflict between Mr Croft and Ms Croft is both endemic and potent. As such, their facility to communicate effectively with one another is extremely limited.
The evidence indicates that they have no facility to resolve the common place parenting problems which will inevitably arise between them. To the contrary, the nature of their relationship has the potential to make these problems worse, with deleterious consequences for X and Y.
In addition, in my view, at this stage in the form of Ms L’s report, there is significant evidence which indicates that the current regime is not working for the children and is adversely affecting them.
In these circumstances, regardless of the application of the presumption, I am of the view that the evidence currently available to me, untested though it is, indicates that the current equal time regime is neither in the best interests of the children nor reasonably practical to implement given the logistical factors arising in this case.
I am well aware that Mr Croft is not likely to accept this outcome and may seek to review it elsewhere, as is his prerogative. I am also well aware that the final hearing is comparatively close. However, in my view, given the paramountcy of the children’s best interests, it is incumbent upon the court to act in the way which it considers will best advance those interests regardless of whether the matter is to be determined at an interim as opposed to a final hearing stage.
For all those reasons, I propose to make the orders as sought by the mother. There are problems with the implementation of these orders as expressed in the mother’s material. The chief one being that I am unable to discern at the present time at what stage of the father’s roster he currently is and therefore specifically when the children should spend time with him according to it.
In these circumstances, I will direct that the solicitor for the mother prepare the necessary orders to give effect to these reasons for judgement in practical terms, particularly on which dates the times proposed by the mother will commence and conclude by reference to the weeks of the father’s roster.
The court has authority conferred upon through the provisions of Part VII of the Family Law Act, to alter the conferral of parental responsibility on any parent or parents which arises by reason of their status as parents of any child concerned. This is done through the mechanism of a parenting order.
A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions [section 64B(2)].
In this case, I have no doubt that Mr Croft is deeply interested in every aspect of the children’s care. As I say, I accept that he is a loving and capable parent. The difficulty in this case arises because of the parties’ poor relationship with one another which renders the equal time regime to which the father aspires problematic.
In these circumstances, I propose conferring parental responsibility for making long-term decisions in respect of X and Y, on each of the parties. Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters which are not concerned with long term issues when the child is spending time with one or other of them. This is to ensure that the myriad decisions which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
Given the centrality of the children’s views in the case, I have given consideration to whether an independent children’s lawyer should be appointed, although neither party has hitherto advocated such a course. However, I have elected not to make such an appointment, chiefly because it is likely to result in a significant financial impost on the parties, neither of whom is to be regarded as a wealthy person.
I will also make the necessary trial directions in anticipation of the final hearing. In addition, given the controversy which most likely will continue to surround X and Y’s views, I will direct that arrangements are made by the parties themselves for Ms L to re-connect with the children in the period six to eight weeks prior to the trial to ascertain their views only regarding their perception as to how the regime to be implemented, as a consequence of the orders made by the court, is working from each of their perspectives.
This will have to take place at the mutual and equal expense of the parties. In my view, this is a more practical option than the appointment of an independent children’s lawyer.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 19 February 2016

[2016] FCCA 300

19 February 2016

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