Croft and Croft (No. 2)

[2014] FamCA 776

FAMILY COURT OF AUSTRALIA

CROFT & CROFT (NO. 2) [2014] FamCA 776

FAMILY LAW – CHILDREN – Interim parenting – With whom a child lives – Best interests of child – Where mother and father lived in close proximity – Where there is a complex care regime – Equal shared parenting arrangement where communication is poor

Family Law Act 1975 (Cth) ss 60CA, 60CC

Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

APPLICANT: Ms Croft

RESPONDENT: Mr Croft

FILE NUMBER: PAC 654 of 2014

DATE DELIVERED: 17 September 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 5 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Rowlandson of Rowlandson & Co

COUNSEL FOR THE RESPONDENT: Ms Druitt

SOLICITOR FOR THE RESPONDENT: A R Walmsley & Co

Orders

1. That the father’s application is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Croft & Croft (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 654  of 2014

Ms Croft

Applicant

And

Mr Croft

Respondent

REASONS FOR JUDGMENT

Introduction

1. This application concerns N (“the child”) who is 6, the only child of Mr Croft (“ the father”) who is 49 and Ms Croft (“the mother) who is 44.

2. After the parents separated but remained living in the former matrimonial home, the child was cared for by both of his parents within that home until August 2013. The wife then moved to a house next door to the former matrimonial home and the parents then shared the care of the child within their respective homes.

3. On 30 June 2014, the day before the mother was to move home she brought an application which was heard on an urgent interim basis and interim parenting orders were made. Under these orders the child lives with his mother and spends time with his father from Friday after school until the commencement of school the following Monday each alternate week and overnight on Tuesday, almost half school holidays and on other special days.

4. On 5 September 2014, the parties participated in the first day of the Less Adversarial Trial.  At the conclusion of those proceedings the father sought to vary the interim orders, so that the child would live with him and the mother under an equal shared care regime.  The father’s variation to interim orders is opposed by the mother.

5. The question for me to determine is whether the father’s proposed orders, the current regime or some other orders meet the child’s best interests.

Background

1. The child’s parents began living together in 1997 and in November 1998 were married.

2. The child was born in 2007 and the mother took 12 months maternity leave following his birth to care for him.  The father has also been extensively involved in the child’s care and other extended family members such as the paternal grandmother have also assisted in his care.

3. In December 2009, the parties moved to the matrimonial home at R Street, Suburb S.  The care arrangement for the child continued.

4. On 13 August 2012, there was an incident between the parents at their home, though there is significant dispute concerning it.  As a result police were called and a provisional Apprehended Domestic Violence Order (“ADVO”) was made to protect the mother and the child.  Approximately two months later the provisional ADVO was revoked.

5. The mother and the child remained living at the family home following the incident, though the mother says that the parties were separated from this date.  The father says that the parties did not separate until January 2013.

6. At the start of the school year in 2013 the child commenced school at T School.  The father cared for him before school after the mother left for work and after school until the mother returned from work.

7. In August 2013, the mother moved into a house next door to the former family home which she rented.

8. After the mother moved next door, very complicated parenting arrangements for the child commenced whereby over a two week cycle there were ten changeovers in care arrangements. The arrangements included the mother dropping the child to the father after spending the night with her and the father taking the child to school. The father then collected the child from school until the mother returned home. These arrangements were able to operate due to the very close proximity of the parties.

9. The former matrimonial home was sold at auction in May 2014

10. Immediately before the mother was to move residence an urgent interim application was heard on 30 June 2014.  It was made clear in the course of the proceedings that these were short-term interim or interim-interim arrangements and that if further evidence came to light following the first day of the Less Adversarial Trial that indicated that other orders may be in the child’s best interests it was open to the parties to make a further application for interim orders.

11. The parties participated in the Child Responsive Program on 21 July 2014 and a very helpful Memorandum was available to the Court on the first day of the Less Adversarial Trial.

First Day Less Adversarial Trial

1. The parties to their credit each personally engaged actively at the first day of the  Less Adversarial Trial and had clearly reflected upon the Family Consultant’s evaluation that poor communication and cooperation regarding the child and exposing him to serious parental conflict had had a significant impact upon the child.  They were concerned that the child presented to the Family Consultant as a “sad child who desperately wanted his parents to cease arguing and settle on a plan that was clear to him”.  Overall, the Family Consultant felt that the parents were “decent good people” and the quality of care they provided to the child was very high.  However, the Family Consultant strongly recommended that the parents think more creatively about a realistic and routine care plan for the child (taking into account the parents’ work schedules and the child’s sports, as well as changeovers) and communication plans that protect the child from the parental conflict.

2. The father’s proposal at all times, including his current application for interim orders, is an equal time parenting arrangement.  The Family Consultant gave evidence concerning this particular type of arrangement and referred to research which informed her view that such arrangements are only successful where parents are able to communicate really well and respond flexibly to a child’s needs and cooperate. She was of the opinion that these parents had some way to go and that she did not think that any type of an equal time arrangement was in the child’s best interests at this stage.

The law to be applied

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.

3. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Framework for interim applications

1. Goode (supra) sets a framework for the conduct of interim proceedings.  After identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts, the first issue to ordinarily be considered is that of parental responsibility.

2. In this matter, each parent agrees that equal shared parental responsibility should continue.

3. So far as other orders are concerned, the Court must make such orders as are in the best interests of the child/children as a result of consideration of the matters set out in s 60CC.

Section 60CC considerations – What order is in the best interests of the child?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

   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.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

3. In this matter there is no doubt that either maintaining the current arrangements as the mother seeks or making the orders sought by the father would support the child receiving the benefit of having a meaningful relationship with both of his parents, according to the meaning given to the expression “meaningful relationship” in the authorities.  There are no allegations that the child has been exposed to abuse, neglect or family violence.

The child’s views

1. The child told the Family Consultant when interviewed for the Child Responsive Program that the parental conflict made him feel sad. He said he found his current arrangements confusing and remarked that he was getting stressed and would prefer to know exactly which particular days he should spend with each parent.  It seems that at this stage he was reflecting upon the arrangements prior to the interim orders, when he was being cared for by each of his parents for part of most days.  The child also said that he preferred to live in an equal time arrangement.

2. Bearing in mind the child’s age and the difficult situation he is in with a very high level of parental conflict, I attach little weight to his preference for an equal time arrangement, though I attach significant weight to his desire to be cared for by both of his parents.

The nature of the relationship of the child with each of his parents

1. Despite their conflict, the Family Consultant was of the view that the child had a close attachment to each of his parents.

Parental participation

1. Each parent has demonstrated that they are committed and have taken the opportunity to participate in decision making, to spend time with and communicate with the child to the greatest degree possible.

Likely effect of change in child’s circumstances

1. In my view this is the most salient feature of the interim application.  If the father’s orders were made the child would have the third change in his circumstances within three months.  Significantly, should the father’s proposed orders be made, the child would be cared for by his parents under an equal time arrangement, that is seven days per fortnight in each parent’s care. 

2. Whilst the Family Consultant recommended that the parents be creative in coming to an arrangement that best meets both their own and the child’s routines as well as reducing changeovers, she was of the view that they still had some way to go before an equal time arrangement could be viable for the child.  Whilst the parents participated well in the first day of the Less Adversarial Trial, they had only just begun to address their communication difficulties and to appreciate the impact that their conflict has had upon the child.  In my view, at this stage there would be considerable disruption for the child if he were to be cared for equally by both of his parents.

3. It was emphasised on behalf of the father that one of the changes in the child’s circumstances under his proposed orders would be that he would be cared for at home before and after school rather than going to before and after school care.  The child made no complaint to the Family Consultant about before and after school care and I am not satisfied at this stage that it is a negative experience for him.  One of the other previous potential disadvantages of utilising before and after school care was that the centre was not located at the child’s school and involved being taken to another school for that purpose.  However, from term 4 there will be a before and after school care centre at the child’s school.

4. Many of the other best interest factors are not of significance in this matter.  For example, there are no practical difficulties and expenses associated with the child spending time with each parent under the two proposed sets of orders. Also, there are no particular issues relating to the capacity of the parents or their attitude towards the child or the responsibility of parenthood except to say that the Family Consultant identified in each parent, occasions where it appeared that they each were prioritising their own needs above the child’s.  However, this is not a matter of significance and is not unusual in the context of family breakdown.  There are no issues relating to family violence. 

5. An issue in relation to lifestyle arose in that the father places particular emphasis upon the child’s extra-curricular activities, especially sport.  The child appears to have a particularly busy schedule for a six year old whose parents are separated.  It was submitted on behalf of the father that the proposed orders are the sort of creative solution that the Family Consultant had suggested. Under his orders, the father would be available  to take the child to rugby training which would be an advantage to the child as he had on occasions not been taken to rugby training when in the care of the mother.  However, this matter was largely resolved in the course of the first day of the Less Adversarial Trial and in any event the rugby season has come to an end.

6. Taking each of the factors referred to into account especially those which I have indicated I regard as significant, I am of the view that changing the child’s current parenting arrangements at this stage is not in his best interests especially as the parents have yet to resolve their communication difficulties which would be essential to make an arrangement such as that proposed by the father viable.

7. For the reasons given, the father’s application is dismissed and the current interim orders are to continue.

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 September 2014.

Associate: 

Date:  17 September 2014