Danbridge & Gaynor
[2023] FedCFamC2F 944
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Danbridge & Gaynor [2023] FedCFamC2F 944
File number(s): MLC 11339 of 2018 Judgment of: JUDGE JENKINS Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – parenting – parental responsibility – lack of communication – similar parenting styles – risk – drug use – children with special needs – split siblings – shared care arrangement Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D, 65DAA, 65DAC
Cases cited: Grella & Jamieson [2017] FamCAFC 21
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Division: Division 2 Family Law Number of paragraphs: 70 Date of last submission/s: 12 May 2023 Date of hearing: 11-12 May 2023 Place: Adelaide Counsel for the Applicant: Mr Robertson Solicitor for the Applicant: Chinka (Hep) Steel Counsel for the Respondent: Mr Chislett Solicitor for the Respondent: Peter Baker & Associates Counsel for the Independent Children's Lawyer: Mr Jackson Solicitor for the Independent Children's Lawyer: Joliman Lawyers ORDERS
MLC 11339 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DANBRIDGE
Applicant
AND: MR GAYNOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE JENKINS
DATE OF ORDER:
11 AUGUST 2023
THE COURT ORDERS THAT:
1.The parents have equal shared parental responsibility for the children X born in 2008 (“X”), Y (born in 2014) (“Y”) and Z (born in 2017) (“Z”) (collectively “the children”).
Live With
2.The child X live with the father.
3.The children Y and Z live with each of the parents on a week about basis, commencing with the father from the conclusion of school on the Friday following the making of these orders (or 3:30pm if a non-school day).
Spend Time
4.X spend time with the mother in accordance with her wishes from time to time.
5.Y and Z spend time with each of the parties during holidays and on special occasions as follows:
During School Term Holidays
(a)In 2023, with the father in the first half of each school term holiday commencing at the conclusion of school on the last day of term and concluding at 5:00pm on the middle Saturday of such holidays, and alternate years thereafter;
(b)In 2024, with the father in the second half of each school term holiday commencing at 5:00pm on the middle Saturday of such holidays and concluding at the commencement of school on the first day of the following term, and alternate years thereafter;
Long Summer School Holidays
(c)In 2023, with the father in the first half of the long summer school holidays commencing at the conclusion of school on the last day of the school year and concluding at 5:00pm on the middle Saturday of such holidays, and alternate years thereafter;
(d)In 2024, with the father in the second half of the long summer school holidays commencing at 5:00pm on the middle Saturday of such holidays and concluding at the commencement of school on the first day of the following school year, and alternate years thereafter;
Special Occasions
(e)Y and Z spend time with the father:
(i)In 2023, from 3:00pm Christmas Eve until 3:00pm Christmas Day, and alternate years thereafter;
(ii)In 2024, from 3:00pm Christmas Day until 3:00pm Boxing Day, and alternate years thereafter;
(iii)In 2025, from 5:00pm Good Friday until 12noon Easter Sunday, and each alternate year thereafter;
(iv)On Father’s Day in each year from 9:00am until 5:00pm.
(f)Y and Z spend time with the mother:
(i)In 2023, from 3:00pm Christmas Day until 3:00pm Boxing Day, and alternate years thereafter;
(ii)In 2024, from 3:00pm Christmas Eve until 3:00pm Christmas Day, and alternate years thereafter;
(iii)In 2024, from 5:00pm Good Friday until 12noon Easter Sunday, and each alternate year thereafter;
(iv)On Mother’s Day in each year from 9:00am until 5:00pm.
Birthdays
(g)Y and Z both spend time jointly from the conclusion of school (or 3:30pm if a non-school day) until 7:00pm on each of their birthdays with the parent who did not have the care of Y and Z that morning;
General
(h)Y and Z’s school term time continue after the school holiday periods in the same pattern as if the school holiday period had not occurred;
(i)The spend time Orders herein be otherwise suspended as required to give effect to holidays and special occasions herein;
(j)As may otherwise be agreed in writing between the parents.
Changeovers
6.All changeovers to take place:
(a)At the children’s school/s if a school day; and
(b)If a non-school day:
(i)at the father’s home at the commencement of time; and
(ii)at the mother’s home at the conclusion of time.
Children’s Communication with Parents
7.Each of the children may communicate with the parent whom they are not then in the care of at all reasonable times as they may request and shall be afforded privacy when communicating with the other parent.
Extra-curricular activities
8.Each parent shall ensure that as far as reasonably practicable the children will attend at extra-curricular activities which occur during the children’s time with that parent, provided that both parents have provided their agreement for such child to be enrolled in such extra-curricular activity. For the avoidance of doubt, in the event that one of the parents unilaterally enrols a child in an extra-curricular activity without the other parent’s consent, then there is no obligation on the other parent to facilitate that child’s attendance during the child’s time with them.
Parental Communication / Information Sharing /Notifications
9.The parents are to communicate in relation to the children through the ‘My Family Wizard’ co‑parenting application (or such other parenting app as agreed between the parents in the event that My Family Wizard ceases to operate) (“the Parenting App”) in relation to any of the children’s health, education, care, welfare and development, spend time and changeover arrangements, and both parents shall be courteous and respectful of each other in such communications AND FURTHER, for the purpose of these Orders the term “in writing” means by way of the Parenting App.
10.Each parent shall keep the other parent advised of their current residential address and telephone contact details and advise the other parent within forty-eight (48) hours of any change to such contact details.
11.Each parent shall notify the other of any significant illness or serious injury sustained by any of the children whilst in their respective care as soon as practicable, and no later than twenty-four (24) hours after such event. Notification shall include the nature of such illness or injury suffered, particulars of any treatment received and/or medication prescribed, together with the name and address of the treatment provider and/or location at which the child is a patient.
12.Each parent be at liberty to attend school-related events and extra-curricular activities involving any of the children that parents normally attend.
13.Each parent be at liberty to liaise with the children’s school/s to obtain information about the children’s progress and obtain copies of reports, photographs, newsletters and all other documents usually provided to parents, at the requesting parent’s own expense (if any), and this Order stands as authority for same.
14.Each parent immediately notify the other of any appointments made with the children’s paediatrician or any other health professionals conducting an assessment or health review of the children and both parents be at liberty to attend such appointments.
15.Each parent be at liberty to liaise with the children’s treating medical practitioner/s and any allied or auxiliary healthcare professionals to which any of the children has been referred from a treating medical practitioner, to obtain any information, document or thing in relation to the child, with the costs (if any) of the provision of information to be paid by the parent seeking the information, and this Order stands as authority for same.
16.Each parent shall ensure they comply with any health plan, medication regime and/or recommended treatment for each of the children, including the timely administration of prescribed medication/treatment.
17.Each parent have leave to provide a copy of these Orders to each of the children’s school/s, treating medical practitioner/s, and any allied or auxiliary healthcare professionals to which the child has been referred from a treating medical practitioner.
Restraints
18.Without admitting necessity for the same, each of the parents by themselves, their servants and/or agents be and are hereby retrained by injunction from:
(a)Denigrating, intimidating, rebuking, impugning or belittling the other parent, or extended family members, to or in the presence or hearing of any of the children, and from allowing the children to remain in the presence of any other party who may be so doing;
(b)Discussing these family law or other court proceedings with or in the presence or hearing of any of the children or allowing the children to remain in the presence of any other party who may be so doing;
(c)Permitting any of the children to access or to read any court documents relevant to these family law or other court proceedings;
(d)Using the children to pass messages to the other parent;
(e)Using physical discipline on any of the children;
(f)Exposing the children to or involving them in any parental conflict, or conflict between any other person in the household, or any other family violence;
(g)Consuming any non-prescription/illicit substances other than those prescribed by a treating medical practitioner, for twenty-four (24) hours prior to spending time with the children or whilst the children are in their care;
(h)Being under the influence of or consuming alcohol to reach a Blood Alcohol Level at or above 0.05% BAC for twenty-four (24) hours prior to spending time with the children or whilst the children are in their care;
(i)Discussing, questioning or placing pressure on any of the children regarding future live with or spend time arrangements;
(j)Questioning the children about the other parent or activities in the other parent’s household.
Jurisdiction
19.Pursuant to ss.68P and 68Q of the Family Law Act1975 (Cth) the Court declares that, to the extent that any of these Orders conflict with an extant Family Violence Protection Order, these Orders shall prevail and the Family Violence Protection Order is invalid but only to the extent of such conflict.
Procedural
20.All extant Applications be otherwise dismissed and the matter be removed from the active pending cases list maintained by this Honourable Court.
21.Pursuant to Rule 22.14 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules2021 the Court certifies that it was reasonable for the parties to employ an advocate/solicitor appearing as advocate.
22.Pursuant to ss.62B and 65DA(2) of the Family Law Act1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, are set out in ‘Attachment A’ hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION
This is a parenting matter that involves three children: X (“X”) now aged 15 years, Y aged nine years and Z aged six years. Y and Z have both been diagnosed with ADHD and Z and a medical condition.
The parents agree that X should remain living with the father and that she spend time with the mother in accordance with her wishes.
The younger children currently live with the mother and spend time with the father one overnight and one evening each week.
The father wishes to return to a shared care arrangement for the younger children, which had previously been ordered on a final basis by consent in September 2019. The mother proposes the younger children live with her and spend time with the father on four nights each fortnight. The mother’s proposal is supported by the Independent Children’s Lawyer (“the ICL”).
BACKGROUND
The parties were in a relationship from about 2002 to 2018.
The parties live in the City B area. The father, Mr Gaynor, is a disability pensioner and is mainly wheel chair bound as a result of an accident about 13 years ago. He has not re-partnered.
The mother, Ms Danbridge, is unemployed and has remarried but her husband only spends about three nights per week in her home due to work commitments.
The mother has one son from a previous relationship, Mr C who is now aged 20. The father has a daughter from a previous relationship, Ms D aged 27 years.
Following separation the mother initiated proceedings in this Court, however the parties were ultimately able to reach agreement and final orders were made by consent for shared care (and building to shared care in the case of Z) in September 2019.
In July 2021 the mother ceased time between the children and the father on the basis that she believed the father was using illicit drugs. She obtained an Intervention Order in relation to the children and filed her application in these proceedings.
In November 2021 X had an argument with the mother and X alleged the mother had assaulted her. X left the mother’s home but because she was prevented from staying with the father by the Intervention Order, she went to live with the paternal grandmother, Ms E. The Department for Families, Fairness and Housing (“the Department”) subsequently became involved.
Ms E was accordingly made a reluctant party to these proceedings in the interim.
In April 2022 orders were made for the father to spend time with all three children from 10:00am until 5:00pm each alternate Saturday and Sunday, with the paternal grandmother in substantial attendance.
In December 2022, upon the father producing evidence as to his cannabis use being medicinal, he commenced spending overnight with the children each alternate weekend.
On 28 February 2023, following the release of the Family Report by Ms F (“the Family Report”), the parties agreed to consent orders that X live with the father and spend time with the mother in accordance with her wishes. By the time of the trial, X had begun spending some limited time with the mother.
THE EVIDENCE
This matter proceeded by a Microsoft Teams hearing. Although there were occasional technical difficulties, I am satisfied that these did not disadvantage any of the parties nor impact the fair running of the case.
It has not been possible to include every aspect of the evidence in these reasons. However, I have taken all the evidence into account. While I may not mention something specifically in these reasons, that does not mean I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
THE ISSUES IN THIS CASE
·Should the parties’ lack of communication preclude them from having equal shared parental responsibility for the children?
·What risk, if any, does the father pose to the younger children?
·If the father is not a risk, is it in the children’s best interests to spend equal time between the parties?
SHOULD THE COURT MAKE AN ORDER FOR EQUAL SHARED OR SOLE PARENTAL RESPONSIBILITY?
The father proposes that the parties have equal shared parental responsibility. The mother and ICL each propose orders that the father have sole parental responsibility for X and the mother sole parental responsibility for the younger children, subject to keeping the other parent informed and consulting them prior to making a decision.
Section 61DA of the Family Law Act 1975 (Cth) (“the Act”) states as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
In this case there have been Intervention Orders in place involving each parent however, although there are a myriad of allegations, I have not been asked to make a finding about family violence. Accordingly I am not in a position to say there are reasonable grounds to believe a parent has subjected the children to abuse or family violence and thus that the presumption of equal shared parental responsibility has been rebutted.
In any event, the Court is still at liberty to make an order for equal shared parental responsibility if it would be in the best interests of the children.
In the Family Report the following observation was made at [65]:
It appears the risk of family violence is significantly reduced when there are IVO’s in place and when the parents have limited contact with one another, however this level of intervention prevents the parties from resolving their difficulties or working towards a functioning co-parenting relationship.
This is important in the context of s 65DAC(3) of the Act which states as follows:
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
The evidence in this case is that the parents have not had any direct communication with each other for some time and have relied heavily upon the paternal grandmother as an intermediator in that regard. However that is not to say they are incapable of communication. The Family Report writer notes that despite the acrimony, they have similar parenting styles and in particular at [67]:
They are both supportive of the children engaging in further assessment to provide clarity on the level of support the children need which suggests there may be opportunities for them to jointly advocate for the children.
Although Ms F also noted at [50]:
[Mr Gaynor] became defensive during discussions regarding the co-parenting relationship and was reluctant to consider alternative methods of engaging Ms [Danbridge] constructively with regard to the children’s needs.
However ultimately Ms F’s assessment was that the parties should retain equal shared parental responsibility and her opinion was not challenged.
Accordingly I propose to make orders for the parties to have equal parental responsibility. In making such an order the Court must then consider whether it is in the children’s best interests to spend equal time with each of the parents and/or substantial and significant time and whether in either case, such arrangements are reasonably practicable.
WHAT ARE THE LEGAL PRINCIPLES THE COURT APPLIES IN DETERMINING WHERE A CHILD SHOULD LIVE?
Pursuant to s 60CA of the Act the best interests of a child are the paramount consideration for the Court when making a parenting order.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. The Court may therefore use its discretion to determine what is "proper". In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 has said at [18]:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
HOW DOES THE COURT DETERMINE WHAT IS IN THE CHILDREN’S BEST INTERESTS?
Section 60CC of the Act sets out the matters to be taken into consideration when determining best interests.
There are two primary considerations. The first of which is the need to consider the benefit to the children of having a meaningful relationship with each of their parents. Secondly I must consider the need to protect the children from harm.
If there is conflict between those two considerations, then greater weight must be given to the need to protect the children from harm.
There are also a number of additional considerations set out in s 60CC(3).
I have considered each of the matters under s 60CC(2) and (3) however I will only specifically refer to them to the extent that they are relevant to my decision in this matter.
Do the parties’ proposals provide for a meaningful relationship between the children and each of their parents?
The Full Court of the Family Court of Australia in the case of McCall & Clark [2009] FamCAFC 92 at [115] observed that the Act does not provide a definition of the word "meaningful", however they noted with approval the view of Brown J in the decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as "significant", "important", "of consequence" and "valuable to the child".
Based on this definition the parties both propose orders that would enable each of them to have meaningful relationships with the younger children.
Are the younger children at risk of harm in the father’s care?
This family has a complex history which was illustrated in the Family Report at [14]:
The 67Z Response report dated 5 October 2022 noted 14 previous reports had been made to Child Protection between 2006 and 2022 alleging concerns pertaining to exposure to family violence, alleged parental substance use and criminal activity, allegations of sexual abuse of [Z] by Ms [Danbridge]’s ex-partner [Mr G] and previous allegations of physical discipline of [Mr C].
(as per the original)
Nonetheless, the primary risk identified at trial was the father’s drug use. Although the mother said she had some concerns about the children’s wellbeing in the months prior to filing her most recent application in this Court, the catalyst for the application appeared to be a video she became aware of, purporting to show the father blowing smoke into Mr C’s face.
The father’s evidence was that he was in fact blowing cigarette smoke and that this was a joke. Whether or not this was the case, it has subsequently come to light that the father lost his licence at the end of 2020 for driving whilst affected by drug use. This, I would have assumed, was of greater concern but was not really explored in any great detail in cross-examination.
It was not in dispute that the father had a history of illicit drug use, and that he was continuing to use cannabis and had been taking prescription medication since his accident. The father’s evidence, was that he was taking cannabis medicinally to assist with his pain and had been doing so for many years.
The ICL and the mother ran their cases on the basis that the father had not satisfied the Court as to his drug use and as such his time should be limited. The ICL and the mother proposed the father spend four nights per fortnight with the younger children being from Friday to Monday each alternate weekend and overnight on the Wednesday in the other week.
I consequently queried why, if the father had not provided sufficient evidence as to his current drug use, the children were not at risk on the weekends and extended holiday time. This was never really satisfactorily addressed. I accept the Family Report writer recommended that if the Court had ongoing concerns about the father’s use of illicit substances then he should only have alternate weekends, but as Ms F was not called to give evidence the logic of this was never explained.
In any case, the evidence was that the father had provided a hair follicle test which was clear of drugs. Furthermore, in the Family Report the mother appears to accept he is not currently using drugs and was reported to say with respect to cannabis at [31]:
“[the father] doesn’t have a problem with marijuana, it makes him communicate more and he isn’t angry”. Her only concern is if [Mr Gaynor] were to “relapse” [on [drugs] and the impact this would have on his capacity to care for the children.
Despite this, the ICL and the mother’s counsel cross-examined the father at length about his drug use as well as his failure to provide drug screens and to attend drug and alcohol counselling. In regard to the latter there was little evidence about the extent of the father’s historical drugs use and whether he would benefit from drug and alcohol counselling. The father’s evidence was that he had attended many courses, but there was no other evidence to corroborate this claim.
Ultimately I could not reconcile the assertion that the father was a risk to the children but was able to spend extended holiday time with them. By the end of the hearing the ICL did not heavily press this assertion but rather submitted shared care was not in the interests of the children based on the lack of parental communication. The mother’s case was put on a different basis and that was if the father relapsed then the children would be less affected if their time had to go from four nights per fortnight to being supervised or no time, than if they were living in shared care.
I note further that despite any alleged risk, the mother agrees that X should remain in the father’s full time care and that the Department, who have been involved in this matter, have no ongoing concerns in that regard.
In any event, I am satisfied on the evidence before the Court that the father’s drug use does not currently pose an unacceptable risk to the children, whether they spend four nights or seven nights per fortnight in his care.
Whilst there may always be a risk of relapse, there was insufficient evidence on which to gauge the likelihood of same.
What are the views of Y and Z?
The children were observed as part of the Family Report. Y indicated he wanted equal shared care and Z wished for her parents to get back together. Given their ages and special needs, their wishes were not given great weight in this matter.
What is the relationship of Y and Z like with each parent and with X?
The children did not identify any concerns with either parent in the Family Report. Both “demonstrated warmth and connectedness with each parent” with both parents appearing “to have very similar approaches to engaging with the children and subsequently the children responded to both parents with warmth and respect”.
In relation to the younger children’s relationship with X, Ms F observed at [60]:
[X] was united with her siblings in the playroom and this was a warm reunion and the siblings appeared to have a positive relationship with each other, with [X] sharing her time between the siblings as well as engaging in independent activities throughout the day.
Does each parent have the capacity to meet the children’s needs?
Both of the younger children have been diagnosed with ADHD and Z with a medical condition. The mother’s evidence is the children see a paediatrician every 3 to 6 months and that Y is otherwise prescribed Ritalin and sees a speech therapist at school. Z was soon to receive play therapy and counselling.
The father’s evidence was that he had been excluded from the children’s assessments and as such he was unsure about the children’s developmental needs. It was concerning that he did not appear to have been proactive in this regard. He says that he was restrained from making such contact due to the Intervention Order however my understanding is that this Intervention Order was struck out in May 2022. Curiously, and in contradiction to the father’s evidence, the mother said the father did in fact attend an appointment with the paediatrician.
Nonetheless, the father’s ability to manage the children’s needs was not raised as an issue by the mother in the list of issues she prepared at the commencement of the trial and which became an exhibit in this matter nor was it identified as a significant issue in the Family Report, save that Ms F recommended he be included in any future assessments.
I note also that Ms F was of the view that the father had a good understanding of X’s “developmental needs and was supportive of her burgeoning young adulthood”.
How would a shared care arrangement impact on the children?
The mother is concerned about the impact on the children of a significant change in their circumstances. The mother told the Family Report writer that she was concerned that due to Y’s ADHD he would struggle with any significant change in his parenting arrangements and that this may impact him academically. She also asserted that Z would struggle being separated from her.
The mother’s case is that prior to ceasing time in July 2021 she had held concerns with how the children were coping with the arrangement and intended participating in mediation to discuss these issues. She asserts that it was observed that Z was not coping at kindergarten and that Y was exhibiting disturbing behaviours such as “smearing his poo everywhere”. Nonetheless, there is no evidence to corroborate these assertions. Furthermore, both children have since been diagnosed with ADHD which may have contributed to their behaviours at that time.
However, Ms F expressed the following opinion at [72]:
[Y] has some particular developmental needs which may support a primary home, however with the sharing of information and some careful planning, [Y] may not be overly impacted by a shared care arrangement. He appears to derive positives from both homes, and restricting time in either home may limit his ability to gain the benefits each parent can offer him.
WHAT ARE THE ORDERS THAT ARE IN THE CHILDREN’S BEST INTERESTS?
The ICL submitted that shared care was not in the best interests of the children because the parties had little communication and were unlikely to attend or get the benefit of family therapy. This appeared to be based on the recommendation of the Family Report writer at [78]:
Should the Court find that there are no risks in association with [Mr Gaynor]’s drug use and if there are no current concerns for family violence present, the Court may consider implementing the previous shared care parenting arrangements for [Y] and [Z], with consideration for the parents to engage in the following:
a. Parenting Orders Program;
b. Family Therapy;
c. Consideration for this report to be released to professionals supporting the family.
However the recommendation of the writer to consider shared care was not in my view conditional on the parties addressing their lack of communication through family therapy. The therapy was only something for the Court to consider if shared care was ordered. Indeed it is evident that Ms F specifically considered the parties lack of communication and recommended shared care be considered in spite of it. At [67] she observed:
Normally an inability to communicate would contraindicate the viability of a shared care arrangement, however there [are] a few factors which may suggest there are benefits to implementing a 50 / 50 care arrangement for this family. There are some parenting limitations associated with each parent which suggests they may both benefit from some respite from the rigours of full time parenting. This includes both parents capacity to adequately respond to the children’s needs respond to them appropriately and a shared care arrangement may alleviate some of the pressures of full time parenting.
In addition, Ms F was of the view there were other positives of a shared care arrangement that needed to be factored in for example at [67]:
Bringing the siblings together should be prioritised and maintaining the sibling relationship is likely to be more successful in a shared care arrangement with the younger children likely to see [X] more frequently. Limiting the time the younger children spend with [Mr Gaynor] could inadvertently result in limiting their time with [X] thereby negatively impacting the sibling relationship.
Furthermore and significantly at [75]:
Both parents clearly love and care for their children and it is apparent that this and their parenting skills and approaches have similarities which has ensured the children have experienced positive parenting across both homes. The children derive different perspectives and world views from each of the parents and this appears to be advantageous to them rather than detrimental. It may be more unfavourable if their time with either parent was limited and the children would benefit from spending substantial time with both parents. Notwithstanding the risk issues that have been canvassed in both homes, the warm bond the children appear to have with each parent suggests that this hasn’t impaired their capacity to maintain a positive relationship with each of them.
In my view Ms F carefully weighed the positives and negatives for the children of living in a shared care arrangement and failing there being a risk to the children, recommended the Court consider re-implementing that arrangement. Furthermore, as Ms F was not called to give evidence, that recommendation was not challenged.
Having found no unacceptable risk to the children of the father’s drug use and with no ongoing concerns about family violence, and having factored in all of the considerations in s 60CC, I have determined that it is in the best interests of Y and Z to live in a shared care arrangement on a week about basis between the parties.
I have also considered each of the matters in s 65DAA (5) of the Act including the distance between the parties and the impact on the children and find that an equal shared care arrangement would be reasonably practicable.
In coming to this conclusion I have considered the mother’s submissions as to the impact on the children if the father were to relapse but as I have already stated, there is insufficient evidence on which to determine that such a relapse is likely to occur.
Otherwise, I propose to make the orders that were by consent of all of the parties, and which I find are in the best interests of the children.
The only additional order that I make is that the parents ensure the other parent is notified immediately of any appointment made with the children’s paediatrician or any other health professionals conducting an assessment or health review of the children and both parents be at liberty to attend any such appointments. I appreciate this may cause some angst for the parties, but they were able to be in the same room together at the Family Report and were able to conduct themselves in a civil manner so there is no reason they could not do so at such medical appointments. In any event, it is important that each parent hears the same information at the same time so there is no doubt what is required for the children going forward.
For all the aforementioned reasons, I make the orders as set out at the beginning of this judgment.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 11 August 2023
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