CROFT & CROFT
[2017] FCCA 588
•5 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CROFT & CROFT | [2017] FCCA 588 |
| Catchwords: FAMILY LAW – Final parenting arrangements for care of children aged 15 & 11 – presumption of equal shared parental responsibility – shared care – family violence – high conflict family – meaningful relationship – implications of work arrangements – views of children – weight to be given to such view – best interests – reasonable practicality – how should decision making responsibility be exercised in high conflict situation – injunction. |
| Legislation: Family Law Act 1975, ss.4AB; 60B; 60CA; 60CC; 61DA; 64B; 65C; 65DAA; 65DAC; 65DAE |
| Cases cited: Croft & Croft [2016] FCCA 300 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 Goode & Goode (2006) FLC 93-286 Godfrey v Saunders 2008 FLR 287 Mazorski v Albright (2007) 37 FamLR 518 H v W (1995) FLC 92-598 R & R: Children’s Wishes (1999) 25 Fam LR 712 Astor & Astor [2007] Fam CA 355 Liddell & Liddell [2016] FCCA 2751 Bartel & Schmucker (No.3) [2012] FamCA 1094 |
| Applicant: | MR CROFT |
| Respondent: | MS CROFT |
| File Number: | ADC 1615 of 2015 |
| Judgment of: | Judge Brown |
| Hearing dates: | 5, 6 & 7 December 2016 |
| Date of Last Submission: | 7 December 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 5 April 2017 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the Respondent: | Ms Fuda |
| Solicitors for the Respondent: | Denise M Rieniets & Associates Pty Ltd |
ORDERS
Upon noting the following:
The applicant father is a (occupation omitted) currently employed by the (employer omitted). He is not intending to change his employment or its form for the foreseeable future. He works according to a roster in the following terms, which repeats in the same form every eight weeks:
Mon
Tues
Wed
Thurs
Fri
Sat
Sun
Week 1
Day
Day
Night
Night
Off
Off
Off
Week 2
Off
Day
Day
Night
Night
Off
Off
Week 3
Off
Off
Day
Day
Night
Night
Off
Week 4
Off
Off
Off
Day
Day
Night
Night
Week 5
Off
Off
Off
Off
Day
Day
Night
Week 6
Night
Off
Off
Off
Off
Day
Day
Week 7
Night
Night
Off
Off
Off
Off
Day
Week 8
Day
Night
Night
Off
Off
Off
Off
The time by which the subject children X born (omitted) 2002 and Y born (omitted) 2006 (hereinafter referred to as “the children”) are to spend with the father, during term times, as set out in order (8) of the orders, are made by reference to this roster such that a reference to week one in the orders is a reference to week one in the roster set out above and similarly, so far as each succeeding week in the order is concerned, a reference to a numbered week is a reference to the same designated week in the roster set out above.
The time by which the child spend time with the father during school holidays and on special occasions is not subject to the roster set out above but the time which the children will spend with their father, once school terms have resumed, will be calculated on the basis that the roster has continued to run during school terms so as to calculate the relevant week in which school term time recommences.
For the purpose of these orders, week one is taken to have commenced on Monday 24 April 2017 and to recur on Monday 19 June 2017 and each eighth Monday thereafter.
It is ordered as follows:
The children live with the mother.
The mother have sole parental responsibility for making major long term decisions concerning the children’s health and education subject to the followings conditions:
(a)She shall keep the father informed in writing, which may be in electronic form, of the names of all medical practitioners and allied health practitioners, including psychologists, attended by the children and authorise each such health practitioner to provide to him details of any condition diagnosed in respect of either child together with details of any treatment prescribed for the child concerned;
(b)She shall provide to the father a copy of each child’s school report (or authorise the relevant school authority to provide same to father) within seven days of the report becoming available and advise him in writing, which may be in electronic form, if she proposes to change the school enrolment of either child.
The mother and father retain parental responsibility in respect of all other major long term issues pertaining to the children.
The children spend time with the father, as follows, during school terms:
(a)In week one: (i) from the conclusion of school Friday (following the Monday of week one) until the commencement of school on Monday of week two;
(b)In week two: (ii) from 9.00 Saturday until the commencement of school on Tuesday of week three;
(c)In week three: (iii) from 9.00 am on Sunday until the commencement of school on Wednesday of week four;
(d)In week five: (iv) from after school on Wednesday until the commencement of school the following Thursday;
(e)In week six: (v) from after school on Wednesday until the commencement of school the following Friday;
(f)In week seven: (vi) from after school on Wednesday until the commencement of school the following Thursday;
(g)In week eight: (vii) from after school on Thursday until 6.00 pm the following Sunday.
The children spend time with the father, during short school holiday periods (subject to arrangements for Easter and other special occasions designated hereunder), for one half of each school holiday period, from 5.00 pm Friday until 5.00 pm on the middle Saturday in even ending years and from 5.00 pm on the middle Saturday until 5.00 pm on the Sunday prior to the recommencement of school in odd ending years.
The children spend time with the father (subject to arrangements for Christmas and other special occasions designated hereunder), for the first, third and fifth week from 5.00 pm Friday until 5.00 pm the following Friday in even ending years and for second, fourth and sixth year from 5.00 pm Friday until 5.00 pm the following Friday in odd ending years.
On Easter weekend from 5pm Maundy (Easter) Thursday to 5pm Easter Monday in 2017 with the mother and each alternate year thereafter noting the children will be in the care of the father from 5pm Maundy (Easter) Thursday to 5pm Easter Monday 2018 and each alternate year thereafter.
In the event the father is not working on Father's Day the children spend time with the father from 5pm Saturday prior to Father's Day until 5pm on Father's Day UPON NOTING the children will be in the care of the mother on each Mother's Day from 5pm Saturday the day prior to Mother's Day until 5pm on Mother's Day.
At Christmas as follows:
(a)from 3:00pm Christmas Eve until 3:00pm Christmas Day in 2017 with the father and each alternate year thereafter NOTING the children will be in the care of the mother from 3:00pm Christmas Day to 3:00pm Boxing Day in 2017 and each alternate year thereafter.
(b)from 3:00pm Christmas Day until 3:00pm Boxing Day in 2018 with the father and each alternate year thereafter NOTING the children will be in the care of the mother from 3:00pm Christmas Eve to 3:00pm Christmas Day 2018 and each alternate year thereafter.
That all handovers take place at McDonalds (omitted) between the mother and father or such other location as agreed between the parties.
That the father confirm via email to the mother 1 month prior that he is able to be personally present on special occasions including Easter weekend, Christmas and Father's Day and in the event he is not available the mother have the first option to care for the children.
The father be at liberty to communicate with the said children on one occasion per week when the children are in the mother's care from 7pm to 7.30pm
The mother be at liberty to communicate with the said children on one occasion per week when the children are in the father's care from 7pm to 7.30pm.
The children be at liberty to communicate with either parent subject to their wishes.
The child Y be enrolled in the (omitted) Program and the child X be enrolled in the (omitted) program and the father do all things necessary to ensure the children's attendance at such program when the children are in his care.
The parties use a communication book to travel with the children to address the care, welfare and development of the said children only.
An injunction be granted restraining the father from attending the children's school save and except the father be at liberty to attend school events such as parent teacher interviews, or school events that parents are usually invited to attend.
An injunction be granted restraining each of the parties from:
(a)attending the children's sporting activities save and except when the children are in their respective care;
(b)discussing the proceedings and/or their living arrangements with the children;
(c)contacting the other save and except in case of an emergency regarding the children;
(d)Criticising, denigrating or abusing the other of them to or in the presence of the children;
(e)Physically disciplining the children or permitting any other person to do so.
All applications be otherwise dismissed.
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
These reasons for judgment are concerned with final parenting arrangements for two children – X, born (omitted) 2002 and Y, born (omitted) 2006. The parties to the proceedings are their parents, their father – Mr Croft and their mother – Ms Croft.
Mr Croft aspires to parenting the children in what is commonly referred to as an equal time regime, with X and Y living in each of their parents’ homes for exactly the same amount of time. At the very least, he wishes to spend as much time as possible with the children, in a variety of settings and contexts.
From his perspective, this is the best possible outcome for the children and will ensure that they have an equally strong and loving relationship with each of their parents, neither of whom will be cast in a subservient role to the other as the non-custodial parent.
In addition, it is Mr Croft’s position that he has the ideal occupation to make such an equal time regime work efficiently. He is employed as a (occupation omitted) by the (employer omitted). As a consequence, he works to a roster which allows him many days off per month. As a consequence, he asserts he will be able to allocate extensive amounts of time to discharge his parenting responsibilities allowing him to be a hands on dad on a full time basis.
Mr Croft’s roster is based on an eight week cycle, comprising a rotating number of day shifts; night shifts; and days off. It resets to the beginning after eight weeks. For those uninitiated with the roster’s complexities, it is impossible to know precisely what hours of work Mr Croft will have on any particular day or whether he will be off, without direct reference to a calendar, on which the roster has been explicitly marked out.
In essence, during each of the eight weeks, the various shifts and days off fall on different days of the week. X and Y, being school aged children, largely work to a seven day regime based on the conventional days of the week. Accordingly, during school terms, they will be at school from Monday to Friday and, apart from sporting and extramural activities, at home on weekends.
Ms Croft, like X and Y, also works to a conventional routine. She is employed as a (occupation omitted) at an (employer omitted). She works each Monday, Wednesday, Thursday and Friday, from 8:45am until 2:45pm. She has Tuesdays and the weekends off. It is her case that her work regime is more adapted to the children’s needs. Needless to say, to the uninitiated, it is possible to know where Ms Croft will be, on any given day without reference to some external reference.
As a consequence of these considerations, Ms Croft is sceptical that the father’s regime is as accommodating of the children’s needs, as he contends. It is her position that the children, particularly X, prefer to know where they will be, on any given day, by reference to their own time keeping arrangements, based on a conventional Monday to Friday week.
More significantly, it is Ms Croft’s position that the parties themselves do not have the necessary trust in one another and communication skills to make the father’s preferred regime work. In addition, it is her position that the children prefer to have one home base and spend predictable and defined periods of time in the other parent’s household.
In this context, it is the mother’s position that the children prefer to live predominantly with her. She characterises Mr Croft as a domineering person who is pursuing an equal time regime to satisfy his own emotional and financial needs, which are not congruent with the best interests of the children concerned.
Background
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. They are now divorced.
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.
When this agreement broke down, because from the mother’s perspective, it was not working effectively and was unsettling the children, the father commenced proceedings in May of 2015. He sought the immediate reinstatement of the equal time regime. Accordingly the focus of the proceedings has remained on the issue of equal time and whether such a regime is, on balance, likely to be in X and Y’s best interests. I was called upon to determine this issue on an interim or provisional basis.[1]
[1] See Croft & Croft [2016] FCCA 300
In her responding material, filed in July of 2015, Ms Croft raised issues to do with the settlement of property issues between the parties. At the time, the parties’ major asset was the proceeds of sale of their former family home, at (omitted), which came to around $95,000.00. Ms Croft had modest superannuation; Mr Croft was a member of a defined benefit fund, with the (employer omitted), which was in its growth phase. However, at the time, his superannuation was valued at around $65,000.00. Accordingly, the pool of assets was not a large one.
The parties agreed, in February of 2016, that their various assets and financial resources, should be divided 60/40% in the mother’s favour. This necessitated a split, in Ms Croft’s favour, out of Mr Croft’s superannuation. It also resulted in Mr Croft receiving around $34,500.00 from the sale of the home; whilst Ms Croft received around $60,700.00.
Mr Croft elected to use his funds to purchase another property for himself. At the time of the trial, Ms Croft remained living in rented accommodation, selected in part, because it is close to where X and Y go to school. Mr Croft’s income is somewhere in the vicinity of $74,000.00 gross per annum. Ms Croft’s income is about $37,500.00.[2] Accordingly, neither party can be described as a wealthy individual. In these circumstances, it would be naïve to think that financial considerations have not played some part in forming the stance adopted by each of the parties concerned in the case.
[2] See Exhibit D – Child Support Assessment dated 8 November 2016
In this context, the final property orders, which were made on 11 February 2016, contain a significant notation as follows:
“Both parties agree that the wife is to pay all costs in regards to both children’s schooling until such time that the children have completed their secondary school education.”
As a consequence of this agreement, it is Ms Croft’s evidence that she has not been in a position to purchase accommodation for herself, in contrast to Mr Croft, because of the demands upon her arising from the children’s educational expenses. At present, X’s school fees are around $9,000.00 per annum; whilst Y’s are around $3,700.00 per annum.[3]
[3] See Exhibit E
The initial interim hearing turned, to a significant degree, on the recommendations of an independent expert, Ms M, whom the parties had enlisted to prepare a family assessment report. This report was directed towards directly canvassing the views of the children concerned and assessing whether an equal time regime was reasonably practicable to implement.
In her first report, dated 8 September 2015, Ms M indicated that she could not support an equal time regime for this particular family, given the conflict between the parents concerned and other issues relating to how they communicated with one another, about parenting issues.
As a consequence of Ms M’s recommendations, and other factors relating to the parties’ parenting relationship, I was not prepared to put in place the regime advocated by Mr Croft, on an interim basis. However, in the relevant decision, I was at pains to point out to the parties the implicit limitations of interim hearings, which do not allow definitive findings of fact to be made or for the comprehensive testing of any methodology, adopted by experts, such as Ms M.
In the interim judgment, I described Mr Croft in the following terms:
“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.”
So it has proven to be. It has been necessary for the matter to proceed to final hearing. As a consequence, I have been able to observe each of the parties at close hand and am now able to make definitive assessments of their credibility and temperament, including identifying the likely factors influencing their respective stances in the case.
In addition, I was able to direct that Ms M revisit her first family report and touch base, once again, with X and Y to ascertain whether their views had changed. In her second report, dated 25 July 2016, Ms M recommended as follows:
“I think that it will possibly be easier and generally less disruptive for the children over the long term to adjust to mainly overnights with dad on weekends (and holiday times) plus the midweek Wednesday night periods of time together. I note again that X especially has not shown any natural inclination or preference either for more time with his father or ready adaption to and acceptance of even the current regime”[4]
[4] See family assessment report dated 25 July 2016 at page 20
In the first interim judgment, I made reference to the rationale behind Mr Croft’s parenting philosophy, when I quoted the following passage from his early affidavit:
“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.”[5]
[5] See father’s affidavit filed 27 January 2015 at paragraph 5
This remains his position in the current proceedings. However, given the contents of both of Ms M’s reports, which were unfavourable to this position, Mr Croft has a fall-back position. He proposes that the time the children spend with him be fixed by reference to his eight day roster.
He proposes that, in each eight day period, the children spend three days with him and five days with their mother. In this way, it will be inevitable that X and Y interact with each of their parents, in a variety of contexts and settings, which will be beneficial to them. Necessarily, as will appear in due course, this will be a complicated arrangement.
Given the complexity arising from the father’s proposal, from Ms Croft’s perspective, such a regime is unworkable and will mean that she and the children are forever beholden to the father’s work roster, which does not segue, at all easily, with her and the children’s routine, which is based on a conventional seven day week. In addition, she contends that, in any event, even with the best will in the world, she and the father do not have the communication skills and shared aspirations to make it work, in any way, which is likely to be beneficial for the children.
Significantly, it is Ms Croft’s position (supported by Ms M) that X has expressed a clear view to reside in one home predominantly, rather than swapping regularly between two, on what he perceives to be an unpredictable basis. In this regard, his preference is to live mainly with his mother. It is Ms Croft’s position that X’s view should be respected and to do otherwise has the potential to render him a rebellious and angry adolescent, who will in time vote with his feet, with possibly difficult and unpredictable consequences.
Ms M regards Y’s position as being less clear cut than his older brother. However, it was clear to Ms M that Y was not agitating for any increase in his time with his father but rather would like to keep things the same. In this context, Y indicated to Ms M that “he doesn’t really want to choose, he just wants to go with it.”[6] Ms M regards Y as likely to be attempting to deal diplomatically with his parents by maintaining a position of apparent neutrality.
[6] See family assessment report dated 25 July 2016 at page 14
It is Mr Croft’s position that the views apparently expressed to Ms M are not congruent with his own experience of the children. Accordingly, it is his case that it is probable the children have been either actively or passively influenced, in a negative way, against him by Ms Croft, as a consequence of the ill will, which she bears for him. In these circumstances, he contends that if Ms M’s recommendations are implemented by the court, it will not be in the best interests of either X or Y.
At the earlier interim stage, I was significantly influenced by Ms M’s first family assessment, particularly in regards to the preference expressed by X. However, at the time, I appreciated that Ms M’s report had not been subjected to any rigorous scrutiny and therefore might conceivably be inaccurate or based on some false premise. On that basis and as a prelude to the more thorough inquiry provided by a final hearing, I deemed it prudent that Ms M revisit the family and ascertain if anything significant had changed.
It remains Ms M’s view that the issues identified by her, in September of 2015, remain essentially the same, as at the time of her second report. If anything, she was concerned that the tensions between the parties have intensified rather than diminished. In addition, Ms M, in the second report, has further discounted the possibility of the children having been negatively influenced by their mother.
It remains Ms M’s opinion that X, in particular, has provided mature and understandable reasons as to why he prefers to live predominantly in his mother’s household. In her second family assessment report, under the heading key issues, Ms M opined as follows:
When asked, neither X nor Y said they wanted to spend more time with their father. X again (consistent with his interview in 2015) said that he wants to live in one home, namely his mother's, and go to dad's every now and then on the weekends. When asked, Y first told me that he does not really want to choose regarding spending more, less or the same time with dad. I asked again a little later in the interview and this time Y said he would like to keep things the same. That is, when given the opportunity to express their preferences, as noted, neither child talked about wanting more time with Mr Croft
…
Thus, on the basis of the children's comments to me, I cannot support at this time an extension of time with Mr Croft. I would be concerned that if a significant increase occurred at this time, X especially would become even more resentful.”[7]
[7] Ibid at page 18-19
One of the implicit limitations of an interim hearing is that is does not allow for credibility findings to be made about issues of fact or for the methodology and recommendations of an expert, such as Ms M, to be subject to any detailed scrutiny. These being matters left for final hearing, which is the stage of proceedings at which all relevant evidence is able to be subject to an exhaustive testing, through the process of cross examination.
The final hearing, in this matter, took place over three days, in early December of 2016. As a consequence, I had the opportunity to observe both the father and mother at close quarters, including under pressure in the witness box, and form an impression of what sort of people they are and what is their overall level of insight, as parents.
In addition, Mr Croft was given an opportunity to cross-examine Ms M and test her opinion. Ms M is a highly experienced psychologist, who has assessed very many families for the court. In my view, Mr Croft was unable to undermine, in any significant way, the methodology adopted by Ms M and the recommendations which flowed from it. In these circumstances, I accept Ms M’s evidence.
Mr Croft is a self-assured and determined person. He cannot be described as being rude in any of his dealings, either with me or with Ms M. However, he is not the sort of person who easily takes a backward step or pauses to consider the perspectives of others, with which he does not necessarily agree. To Ms M, Ms Croft described the father in the following terms: “It’s his way or no way”. This seemed to me to be an apt description of Mr Croft’s demeanour during the proceedings.
What was striking about Ms M’s presentation in the witness box, when being cross-examined by Mr Croft, is that he caused her to become somewhat agitated. The source of her agitation apparently being her perception that she and Mr Croft were incapable of engaging in a rational dialogue, about the children, within the same parameters. Essentially, Ms M seemed to express a significant level of frustration, with Mr Croft and his attitude towards her, particularly in the context of her expressing her professional opinion.
When Ms M and Ms Croft see a bullying and domineering person, out of touch with reality, particularly in respect of the views of the children, Mr Croft sees himself as a reasonable individual, who is doggedly pursuing what is best for all concerned, especially X and Y, in the face of considerable and doctrinaire opposition.
As a consequence of these differing perceptions, it is impossible for Ms Croft and Ms M, on the one hand and Mr Croft, on the other to engage in any meaningful level of dialogue. In this sense, it is my impression that the obvious frustration and agitation exhibited by Ms M is explicable by her perception that she and Mr Croft are, to all intents and purposes, living in parallel universes, in respect of how the interests of X and Y are to be best served. However, notwithstanding her impatience with Mr Croft, it is my finding that Ms M applied appropriate levels of objectivity to the task set for her in the case.
In the earlier decision, I described the parties as being decent and law abiding citizens, who undoubtedly loved their children. I also pointed out that, unlike many cases coming before the court, this was not a matter dealing with the corrosive consequences of drug addiction, substance abuse or serious family violence. As such, it is not a case which centres on issues of neglect or abuse of the children as so many other parenting cases do.
I have no reason to revise my initial impressions of the parties. They are each productive individuals with much to offer their children. They are each intrinsically good parents. However, at this stage, they have little else in common apart from their love of the children. It is also my view that there is something significantly awry with their parenting relationship, which is reactive and volatile with little, if any, capacity for authority sharing.
On a fundamental basis, the parties disagree about how the children are to be parented. They have differences in values. Currently both view the other through a distorting prism of hostility. In tandem with these differences in parenting ethos run acrimonious disputes about financial matters relating to the children, particularly arising from the cost of their private school education.
Ms Croft is committed to ensuring the children have the benefits of a private (omitted) school education. It is her position, which Mr Croft is not able to refute, that she and the father agreed that X and Y would attend such schools whilst they were married. As a consequence of this decision and her own views in the matter, she believes that it would be unsettling for the children and contrary to their best interests to change schools now and attend publically funded educational institutions.
As is clear from the final property orders, Mr Croft does not share these aspirations. It is his perspective that the parties cannot afford private schools and the public system is likely to be suitable for the children. He is also aggrieved that Ms Croft does not support his aspirations in respect of the extent of the children’s involvement in sports, which is emblematic of her desire to marginalise him as a strong male role model in the children’s lives.
Accordingly, it is his view that, if Ms Croft wants to send the children to private schools, she should pay for it. From her perspective, Ms Croft believes Mr Croft is selfishly abrogating his obligations to provide an appropriate level of education for the children because of concerns about his own financial security.
In this context, whatever shared character and personality traits or attractions, which brought the parties together in the first place, these have now fundamentally transmuted. The parties now neither like nor trust one another. However, in my view, from my observations of each of them, both the father and the mother continue to share one particular character attribute – they are both somewhat stubborn individuals.
This is particularly so in the case of Mr Croft. His stance in the case is one informed by a sense of his own personal entitlement. He perceives it be his right to have an equal time regime with the children. He approaches the case from this stand point. Such a perception is not likely to assist him to approach the case objectively or to accept easily the perspectives of others, including particularly Ms Croft or Ms M. My impression of Mr Croft is that he is a person who is accustomed to telling people what to do and getting his own way.
Ms Croft believes that Mr Croft’s position, in the case, is informed by narcissism and a desire to bully and control her, which is essentially based on a disingenuous premise – the desire to minimise his financial responsibility for the children. Since the settlement of the financial aspect of the case, Mr Croft has represented himself in the proceedings; whilst Ms Croft has been legally represented, at considerable cost to herself.
In this context, it is Ms Croft’s perception that Mr Croft is quite content to be as unreasonable as possible because he knows that it will cause her more financial hardship, whilst at the same time hoping that he will be able to reduce his liability for child support to her. She believes that Mr Croft is intent on wearing her down in every way open to him, so that ultimately he gets his own way, in respect of arrangements for the children.
Given Mr Croft’s presentation in court and his unwillingness to make concessions, I am not in a position to dismiss these assertions. My overall impression of Mr Croft is of a blinkered individual with little insight into the needs or feelings of the children and little ability to express empathy for the positions or feelings of others.
In my assessment, Ms Croft was the more willing of the parties to make concessions. The most significant example of this is when I attempted to drill down into the minutia of Mr Croft’s roster in order to try and see if some sort of balance could be achieved regarding X and Y spending a mixture of school nights and weekends in their father’s care.
To her credit, Ms Croft was willing to engage in this exercise and, as a consequence, was able to move back from her initial positon at the outset of the hearing. As a consequence, I formed the view that she was the more objective of the parties and, as such, in my assessment, her evidence is, on balance, more likely to be accurate. On the other hand, Mr Croft was not able to make any significant concessions or accept that his conduct had been anything other than exemplary.
For these reasons, I prefer the evidence of the mother over that of the father. In particular, it seems to me to be more likely than not that she has a greater level of insight into the emotional needs of the children concerned. In my assessment, she is a sensitive and exemplary parent.
X and Y are healthy and active children. On their mother’s instigation, they attend good schools – in X’s case, (omitted) School and in Y’s case, its related primary school, (omitted) School. As a result, they each engaged in many extramural activities, particularly (hobby omitted), which is also the father’s passion – he played the game professionally, including in the (country omitted).
As a consequence, not only the parents, but also the children, have busy and complex lives. For obvious and understandable reasons, the parties are each interested in the children’s activities, particularly wanting to observe their sporting and other activities and after such events either congratulate the children on their successes or commiserate with them if things do not go as planned. Such things are the normal incidents of parenthood.
It is Ms Croft’s position that she and the father cannot be physically present together at any of the children’s sporting activities. It is her case that Mr Croft takes any such opportunity to hector her about arrangements for the children, particularly that they should spend more time with him. As a consequence, she seeks strict orders from the court to regulate the parties’ attendance at the children’s extramural activities.
For his part, Mr Croft refutes any suggestion that his behaviour has crossed any boundary of impropriety. It is his position that he has always behaved civilly towards Ms Croft and is entitled to raise issues to do with the children directly with her, which he does in a courteous and non-threatening manner.
The parties and the children’s respective work and school regimes, particularly how those regimes are to interact, are not the only aspect of complexity in the case. Mr Croft has re-partnered. His partner is Ms J. Ms J has two children – A aged around ten and B aged around eight.
A and B live predominantly with Ms J and spend time, with their father, in (omitted) on alternate weekends. Mr Croft has recently purchased a home relatively close to the mother’s rented accommodation. Ms J lives in (omitted).
For powerful emotional reasons, relating to the failure of the parties’ marriage, Ms Croft and Ms J do not have anything approaching an easy relationship with one another and do not communicate with any degree of fluency. In addition, X and Y have reported some level of tension in respect of their relationship with A and B arising from spending some weekends in their company. This tension was noted by Ms M.
As I observed, in the earlier reasons for judgment, both parties have much at stake in these proceedings. Ms Croft, in particular, has invested a great deal, in both emotional and financial terms, in their outcome. Inevitably, as the proceedings have reached their climax, the tensions between the parties, already unacceptably high, have intensified. As a consequence, in recent times, there have been a number of unfortunate incidents between the parties, with each party blaming the other for precipitating the flashpoint concerned, to the emotional detriment of the children.
These proceedings are intended to resolve this complex dispute between the parties on a final basis. Necessarily, this task must be completed against a background of emotional complexity and significant controversy. In so doing, I must remain focussed on the best interests of X and Y, which remain the paramount or most important consideration.
In these reasons for judgment, findings of fact are made on the balance of probabilities. In what follows, unless otherwise stated, statements of fact represent findings of fact.
The legal principles applicable
Part VII of the Family Law Act 1975 deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount 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.
These primary considerations are stressed through the provisions of section 60B(1) & (2) of the Act, which contain a list of aims and principles, which the court is directed to apply to ensure that a child’s best interests are met through any orders it makes.
The list of objects or aims of the legislation is set out in s.60B(1). They are as follows:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
The principles, which underpin these objects, are set out in s.60B(2) and are as follows:
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
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.
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.[8]
[8] 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 …”[9] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[10]
[9] See B v B: Family Law Reform Act 1995 (ibid) at 84,220
[10] See Russell & Russell & Anor [2009] FamCA 28 at [141] per Ryan J
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
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].
Mr Croft seeks the allocation of equal shared parental responsibility between the parties. Ms Croft seeks that she should have sole parental responsibility for the children.
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)].
The Family Law legislation emphasises the importance of parents being actively involved in their children’s lives – in their schooling; sporting activities and recreation; and their daily routine; as well as special occasions; – so long as this involvement is commensurate with protecting the children concerned from harm and in the children’s overall best interests.
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.
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 in 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. The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced.
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 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.
The High Court has recently 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, which arises from s.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.
The High Court has held that it is a statutory pre-condition of the making of an equal 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.[11]
[11] See MRR v GR (2010) 240 CLR 461 at [13] & [15]
The court is required to consider the legislature’s intent that the court should, commensurate with the need to protect a child from harm, ensure any orders that it makes result in both the parents of the child concerned being as involved as fully as possible in their child’s life and care and the child concerned gains the benefits of this involvement.[12]
[12] Goode & Goode (2006) FLC 93-286 at 80,901
However, as As Kay J pointed out in Godfrey v Saunders[13] “what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”. In this context, I must be careful not to determine the case, in the artificial framework of considerations of what is theoretically ideal for the children. Rather I must consider the current reality of their family situation, particularly the emotional topography prevailing between their parents.
[13] See Godfrey v Saunders 2008 FLR 287 at 298
The current regime arising from the interim hearing
From the father’s perspective, the easiest option for the court would be to make an order directing that the children live with each of their parents on a week about basis, moving nominally between their parents’ respective homes on a nominated day at a specified time. Thereafter each would be solely responsible for attending to the needs of the children, in their allocated time and would have to make sure that their respective work commitments did not impinge upon their parenting responsibilities.
This would minimise the number of handovers and so the potential for friction between the parties. In addition, he argues that such an arrangement has the obvious appeal of simplicity. X and Y would easily know whether it was a mum week as opposed to a dad week. It would be incumbent on the parent concerned to keep the children abreast of what was happening, in terms of parenting arrangements, in his or her respective week.
There can be no doubt that Mr Croft’s proposal had the logistical appeal of being simple, particularly in how it would translate into an order of the court, which is not necessarily the case when attempts are made to make idiosyncratic orders by reference to Mr Croft’s roster.
As previously indicated, in the difficult circumstances prevailing following the parties’ separation, when their former family home was in the process of being sold and each had moved in with family, on a temporary basis, this had been the arrangement, which had been adopted. Mr Croft resisted its change at the interim stage.
At the interim hearing stage, its continuation was not supported by Ms M and was vehemently opposed by Ms Croft. In her first report, Ms M opined as follows:
“… 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.”[14]
[14] Ibid at pages 16-17
In the light of Ms M’s first report, Ms Croft proposed the following regime of time spending for the children and their father:
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.
During the Christmas school holiday period that the children spend time with the father and the mother 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.
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.
That the father provide the mother 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.”[15]
[15] See mother’s affidavit filed 20 January 2016 at paragraph 34
On my calculations, this regime constituted eleven overnight stays and six evening meal visits, in the course of the fifty six day roster period. For the reasons provided at the time, I elected to adopt this proposal. I was well aware that Mr Croft bitterly opposed it, on the basis that it deprived him of reasonable periods of time with the children, particularly between weeks 4 and 7, when he only spent some evenings with X and Y.
Naively, I considered that the regime, notwithstanding Mr Croft dissent from it, would be relatively easy to implement. This proved not to be the case. Controversy arose between the parties as to when precisely, in temporal terms, the regime began. The mother being of the view that the father was being difficult for the sake of being difficult; the father contending that there was a lack of specificity in how the court expressed the order. Voluminous correspondence passed between the parties. In my view, this issue is emblematic of the difficult relationship between the parties.
The orders, made on the 19 February 2016 envisaged the children, as far as possible, being exchanged at their respective schools and when school is not available at the McDonald’s restaurant at (omitted). Mr Croft finds the McDonalds in question to be inconvenient to him. Ms Croft’s preference is to exchange the children at a public location. She is vehemently opposed to Mr Croft coming to her home.
The father’s roster and his proposal
At the heart of the controversy between the parties is Mr Croft’s roster. In the earlier proceedings, I described it in the following terms:
“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.”
This is an accurate description of the roster, but with the benefit of hindsight, it is somewhat simplistic. In its operation, the roster is analogous to a mobius strip, in the sense that it does not have a beginning or an end but rather keeps rolling on infinitely.
Accordingly, to make sense of it, it is necessary for those who are affected by it, to agree on a starting point reference, otherwise there is a very real danger that these individuals will be at cross purposes, when discussing its import. Certainly, from the father’s perspective, this had occurred following the making of the interim order.
For the sake of these proceedings and in order to be able to discuss matters intelligibly with both parties, particularly Ms Croft, I elected to delineate as the first week of Mr Croft’s eight week roster cycle, the week which begins with him working two consecutive day shifts, on a Monday and Tuesday. If this approach is adopted, the roster can be reduced to the following chart:
Mon
Tues
Wed
Thurs
Fri
Sat
Sun
Week 1
Day
Day
Night
Night
Off
Off
Off
Week 2
Off
Day
Day
Night
Night
Off
Off
Week 3
Off
Off
Day
Day
Night
Night
Off
Week 4
Off
Off
Off
Day
Day
Night
Night
Week 5
Off
Off
Off
Off
Day
Day
Night
Week 6
Night
Off
Off
Off
Off
Day
Day
Week 7
Night
Night
Off
Off
Off
Off
Day
Week 8
Day
Night
Night
Off
Off
Off
Off
A day shift commences at 7:00am and concludes at 5:00pm. Accordingly, day shifts are ten hours in duration. Night shifts commence at 5:00pm and conclude at 7:00am the following day. Accordingly, they are fourteen hours in duration.
Clearly, the roster is designed to ensure that (occupations omitted) are on hand to deal with emergencies 24 hours a day. As I understand matters, during day shifts, (occupations omitted) are engaged in a number of activities and are kept busy, apart from being on hand to being called out to any (employment omitted).
During night shifts, (occupations omitted) are not expected to attend to routine duties and are free to sleep normally, unless of course called out to some other emergency. It is Mr Croft’s evidence that it is relatively rare for (occupations omitted) to be called out at night.
Accordingly, he refutes any suggestion that a night shift, of itself, necessarily rules out him being in a positon to provide care for the children on the following day. In this context, he is critical of Ms M asserting that she has misunderstood the nature of his roster in this regard. In her second report, Ms M has noted this criticism.
On the basis of this interpretation of his roster, Mr Croft asserts that he is potentially available to care for the children for around 28 of the 56 days in each eight week roster. On this basis, Mr Croft has prepared a copy of his roster, on which he has designated the nights which he proposes X and Y spend with him.
On his calculation, this would result in the children spending 101 nights per year, not including school holidays, in his care.[16] The difficulty with Mr Croft’s proposal is transferring it, from the physical form of the marked calendar, into the words of an actual order, which can be readily understood by those affected by it, including X and Y.
[16] See exhibit A
The surgery itself and its aftermath became the subject of significant conflict between the parties, leading to the involvement of police and the discomfort of X. The surgery seems to have been relatively common place and should have occurred without difficulty. That it did not do so seems solely attributable to the dysfunctional nature of the parenting relationship between the parties.
It is clearly the case that Mr Croft is deeply interested in everything to do with the children’s sporting activities. Ms Croft perceives that Mr Croft dictates to her that she must ensure the children attend such things as (hobby omitted) when they are in her care. I accept that she herself feels uncomfortable attending at sporting activities, involving the children, when Mr Croft is also present.
In all these circumstances, notwithstanding the obvious interest and concern both parties have in respect of the making and implementation of major decisions pertaining to the children, it is my view that the parties are simply incapable of coming anywhere even close to making those decision consensually. In addition, it also appears to me that this level of dysfunction has implications for the emotional wellbeing of the children.
For these reasons, I have come to the conclusion that one parent needs to be conferred with parental decision making responsibility for educational and medical issues. In my view, Ms Croft is far better placed to exercise this responsibility than is Mr Croft. I will direct that Ms Croft keep Mr Croft informed of all such major long term decisions, as they arise, from time to time, for his information, in respect of education and health issues.
As a consequence, it remains the case that the parties share parental responsibility in respect of issues to do with the children’s names and any proposed relocation, which will make it significantly more difficult for the father to spend time with the children. The emphasis is on significantly.
Conclusions
I do not relish having to describe, in these reasons for judgment, the difficult and conflicted relationship between the parties, which has led to every conceivable interaction between them having the strong possibility of ending in conflict. Yet, at the same time, I acknowledge that both X and Y have strong and loving relationships with each of their parents.
In all these circumstances, it seems sad but inevitable that the best outcome for the children is that they are parented largely in parallel, by their mother and father, in order to minimise their exposure to this conflict. What I mean by this is that each party, subject to the mother having ultimate responsibility for most major long term decisions, should have full authority to make decisions about the children, relating to his or her time with them and the activities to be undertaken, independent of the other.
I would hope that the parties have much in common, particularly in terms of sharing the same aspiration that their children become happy, well-adjusted and well educated adults, after having had rich and fulfilled childhoods. However, the disastrous nature of their relationship with one another puts this aspiration at risk.
To use a clumsy metaphor, the parties are travelling down the same highway with one another, in their parenting of the children, with the same destination in mind. However, they make that journey in separate vehicles, divided by an unbroken white line. The difficulty with the metaphor, as with the case, is that the children must regularly pass between their parents’ two figurative vehicles and regularly be passengers in both.
The transition will always be fraught with difficulty – given the nature of the father’s roster; and the inability of the parties themselves to empathise with the difficulties of the other and iron out any resulting difficulties. X’s views in respect of his living arrangements should be respected.
The intractability of the parties’ relationship with one another, in my view, dictates that the children should live more with one parent than the other. In my finding, the parent more qualified to fulfil the role of providing the children’s main place of residence is Ms Croft. However, I must still give close consideration to how X and Y can maintain a meaningful level of relationship with their father.
Given the nature of Mr Croft’s roster and its lack of congruence with the routine by which the children lead their lives, it will necessarily be difficult to coordinate the movement of the children between their parents’ two households to ensure that they have a predominant base but also retain the benefits of a meaningful level of relationship with their father.
Ms M has grappled with the issue but not been able to arrive at an obviously preferable solution to it. I am concerned that the position originally advanced by Ms Croft was inadequate in respect of the extent of overnight time and also led to artificially long periods between the children spending weekend time with their father. I appreciate, however, that this outcome was largely dictated by the exigencies of Mr Croft’s roster.
Ms Croft was prepared to revisit her original proposal. I propose to adopt some of her concessions and adapt, as best as possible, the current orders to Mr Croft’s roster, whilst at the same time given significant weight to the views of the children and my own finding that it is the children’s best interests to live more with one parent. This will result in the children spending sixteen nights out of fifty six nights, during school terms, in their father’s care.
It will also mean that the children spend significant periods of time, with their father, during school holidays. In my view, this will ensure that the children retain a meaningful level of relationship with their father.
The father’s roster will be the guiding hand behind the orders. As previously indicated it continues in operation regardless of school holidays. The eight week regime will be suspended during school holidays, however, its operation will dictate which week it is when the school recommences and what will be the arrangements for the children’s care. It is also posited on the basis that Mr Croft takes leave during the holidays. I take him at his word that he is entitled to a significant amount of annual leave each year and there is some flexibility as to how and when he can take it.
At the end of the day, like Ms M, I cannot find an obvious solution to the problems thrown up by this case, given the intractable nature of the conflict between the parties. The parties simply do not have the capacity to deal with the exigencies, thrown up by Mr Croft’s work situation, on any organic or fluid basis, yet that roster must dictate arrangements for the children to a marked degree.
Although it is not the children’s preference, it seems unavoidable that they must lead their lives according to their father’s roster. In my view, the other options of allocating time, regardless of the father’s roster, on the assumption that Mr Croft will just have to fit in with it or change his work arrangements is not feasible and will lead to more rather than less conflict between the parties.
It is also implicit in these reasons for judgment that I reject Mr Croft’s contention that he has a right to spend time with the children to the extent he seeks and the children will be easily able to accommodate such a routine. I do not accept that this is the case. X has explicitly rejected it and Y is not actively agitating to spend more time with his father.
I have also given consideration to Ms Croft’s application for an injunction restraining Mr Croft from attending at school and extracurricular events, for the children, whilst they are in her care and vice versa, so far as she is concerned. In short granting the necessary order to enshrine formally a process of parallel parenting for X and Y.
Regrettably, given the extreme nature of the parties’ relationship with one another and the unlikelihood that it will be ameliorated at any stage in the foreseeable future, I have come to the conclusion that these orders can be justified as being in the children’s overall best interests. Ms Croft is entitled to be able to attend at school and sporting activities, without being subject to the harangues of Mr Croft.
I also appreciate that such an outcome will have implications for the level of continuity of the children’s sporting commitments, particularly (hobby omitted), which is of particular significance to Mr Croft. However, in my view, it is more pressing that the children be protected from exposure to the parties’ conflicted relationship, at this stage.
These reasons for judgment are lengthy but likely to be unsatisfying for all concerned in their making. They represent an unsatisfactory compromise in respect of all the parties’ (and indeed the children’s) competing considerations.
I appreciate they are analogous to a messy treaty arising after painful hostilities. It is the obligation of the parties to make the orders work by adhering to them, notwithstanding their likely criticisms of them. It would not be in either X or Y’s best interests for the hostilities to be resumed.
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 three hundred and eleven (311) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 5 April 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Procedural Fairness
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