Dickens and Carey

FEDERAL CIRCUIT COURT OF AUSTRALIA

DICKENS & CAREY

[2015] FCCA 2331

Catchwords:
FAMILY LAW – Parenting – equal time – substantial and significant time.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Applicant:

MR DICKENS

Respondent:

MS CAREY

File Number:

BRC 8345 of 2013

Judgment of:

Judge Howard

Hearing dates:

10 & 11 August 2015

Date of Last Submission:

25 August 2015

Delivered at:

Brisbane

Delivered on:

28 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr Bunning

Solicitors for the Applicant:

Damien Greer Lawyers

Counsel for the Respondent:

Mr Hamwood

Solicitors for the Respondent:

Crowley Greenhalgh Solicitors

ORDERS

That each party shall provide a copy of a proposed Final Order to each other party by 4:00pm on 17 September 2015.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 28 September 2015.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8345 of 2013

MR DICKENS

Applicant

And

MS CAREY

Respondent

REASONS FOR JUDGMENT

The applicant father was born on (omitted) 1973.
The respondent mother was born on (omitted) 1978.
The parties commenced living together on (omitted) 2005 and on (omitted) 2006 the parties married.
There is one child of the relationship namely X born (omitted) 2007.
The parties separated on a final basis on 7 February 2012.
The parties are unable to agree on parenting arrangements for the child X.
The child currently lives with the mother and spends five nights per fortnight with the father.
The applicant father would like to see an arrangement whereby the child lives in a week about shared care arrangement (namely, seven nights per fortnight with each parent).
The mother would prefer to see the current situation remain in place.

Section 60CA

Section 60CA of the Family Law Act1975 (Cth) (the Act) provides:-
“SECTION 60CA CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER
60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

Section 60CC

A Court determines what is in a child’s best interests by having regard to the provisions of section 60CC of the Act. The primary considerations are noted in section 60CC(2). That section states:-
“Primary considerations
60CC(2)    The primary considerations are:
(a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
Mr S has prepared two family reports. Mr S’s first family report is dated 27 May 2014. It is annexed to an affidavit of Mr S filed 7 August 2014.
Mr S prepared an addendum to that first family report. The addendum is dated 23 January 2015. The addendum is annexed to an affidavit sworn by Mr S and filed on 29 January 2015.
Mr S’s most recent family report is dated 24 July 2015 (exhibit 14). It was released by the Court to the parties on 28 July 2015.

Section 60CC(2)(a)

There will clearly be benefits to X in having a meaningful relationship with both her mother and her father. Mr S noted in his first family report (paragraph 58) that X was “very affectionate with both of her parents”. Further, Mr S noted (paragraph 60) that the child “displayed no anxiety in going backwards and forwards between her parents”.
In the most recent report of Mr S he notes that “X has a very fond relationship with each of her parents”.
I also note Mr S’s comments in paragraph 47 of his most recent report:-
“47. Observed with each of her parents, she was outgoing and responsive and engrossed herself in drawing or sitting closely with one or the other.”

Section 60CC(2)(b)

There is no evidence to suggest that the child is at any risk of being subjected to, or exposed to, “abuse, neglect or family violence”.

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

In the first family report Mr S noted in paragraph 58, inter alia:-
“58. …In interview, she said that she liked it at both houses and she spoke in an animated fashion about her cat and dog and a range of things that she likes to do. She said that she would like to have more time with her father but she would miss her mother. She said that she misses her mother a lot when she is away from her. She misses her father too when she does not see him.”
For the purposes of the most recent family report the child was interviewed on 5 June 2015 by Mr S. In his most recent family report Mr S has stated in paragraph 44 (concerning X’s wishes):-
“44. X has a good awareness of how much time she spends with each of her parents. She also said that she is aware of what they think about it. She said ‘daddy wants me to have more time with him and mummy likes it the way it is’. Each of them has asked her what she thought. Her father had asked her but she said nothing to him, but she said in those interviews that ‘I like it how it is now’, but she forgot what she had said to her father.”
It is apparent therefore that at the recent family report interviews X told Mr S that she likes the current arrangement – namely five nights per fortnight with the father. However I also note what Mr S had to say in paragraphs 54 and 55 of his most recent family report. Mr S stated there:-
“54. I do note that X herself expresses a happiness with the way things are and therefore the underlying question is what weight should be placed upon this, and whether an increase in time equates to a benefit that might be passed to her.
“55. Naturally, this is a question that is extremely difficult to answer when one is speaking of the finer points of an arrangement. Future variations in time in the life of a child is not something that X herself might be able to comprehend, and it is naturally easier for her to express her happiness with the status quo. I would think that given her sensibilities and the nature of her positive attachment to each of her parents, an increase in time of some degree would be something to which she could adapt relatively easily.”

Section 60CC(3)(b) – the nature of the relationship of the child with:-

each of the child’s parents; and

other persons (including any grandparent or other relative of the child).

As already noted (under the heading section 60CC(2)(a)) – the child has a close, loving and affectionate relationship with each parent.
I note that X also speaks fondly of the mother’s new partner, Mr T, and X also speaks fondly of the father’s new partner Ms M.
I note in particular the evidence of Mr S at paragraphs 39 and 40 of his most recent report – in relation to Mr T and Ms M.

Section 60CC(3)(c) – the extent to which each of the child's parents has taken, or failed to take, the opportunity:

to participate in making decisions about major long-term issues in relation to the child; and

to spend time with the child; and

to communicate with the child.

Immediately following separation the father did not see the child for approximately six months (apart from perhaps one occasion). The mother gave evidence that the father had left Queensland and had gone interstate as part of his military career. But I do note a letter from the mother’s then solicitor (Hartley Healey – exhibit 10) whereby the mother’s then solicitor informed the father that he would not be able to see the child until there was a court order in place. This clearly shows a reluctance on the part of the mother to, at that point in time, facilitate the child spending time with the father. I do not accept any assertion from the mother that she might not have given instructions along those lines. There is no evidence to suggest that Hartley Healey acted without instructions.
In any event, the matter needs to be looked at more broadly. The father, following the birth of the child, did spend quite a significant amount of time on deployment in the military. He was deployed on three occasions including to (country omitted) and (country omitted). In respect of those periods of time when the father was on deployment – I am not critical of him. He was, obviously, a highly trained military professional. He was serving his country overseas. The mother, to her credit, shouldered the burden of taking care of young X while the father was overseas serving Australia. Both parents are to be commended for their actions during that period of time.
There can be no doubt that since the father left the military and decided to live primarily in Brisbane – that he has earnestly sought a relationship with X. The parents had agreed (to their credit) on an arrangement whereby the child would live with the mother and spend five nights per fortnight with the father. That agreement was reached in approximately November 2013. This indicates to the Court that both parents want to take every opportunity of spending time and communicating with the child.

Section 60CC(3)(ca) – the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.

Whilst the child is in the care of the parents – they both maintain the child in an appropriate manner.
There are some matters that do need to be highlighted. I am less than impressed with the fact that the father has not actually paid child support to the mother – notwithstanding that he has received significant lump sum amounts of money in recent times. The father is currently not working because of injuries he received whilst in the army. But he has received two substantial lump sum payments including a lump sum amount of approximately $200,000 from Veterans Affairs and a further lump sum from an insurance company (in late 2014) in the amount $900,000.
I also note that the father has not in fact paid for any of the child’s extracurricular activities. The father needs to address these issues.

Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

either of his or her parents; or

any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.

Currently the child spends five nights per fortnight with the father. It can be seen from paragraph 58 of Mr S’s first report that the child misses both parents while she is spending time with the other parent.
I note the mother’s evidence and I note the father’s evidence that, in recent times, the child has been a little bit more emotional in relation to the question of what time is to be spent with each parent. I note the mother’s evidence that the child is aware of the current litigation proceedings. It is understandable that, in the last month, the child has become somewhat more emotional – especially in circumstances where she is aware that the Court is about to decide the parenting issues that are outstanding between her parents.
Mr S has stated in his most recent (paragraph 56):-
“56. It is not possible to be over-definitive as to whether this should be an exactly equal time arrangement. My view is that she is happy with the way things are, that she would most likely adapt (in the short term) to an increase in time of one night per fortnight with her father (and that if she made that adjustment it would be of benefit to her) but that an increase to seven nights a fortnight would be more stressful for her.”
Mr S has noted therefore that the child – whilst happy with the way things currently are – “would most likely adapt (in the short term) to an increase in time of one night per fortnight with her father”. He goes on to say that if the child made that adjustment it would be a benefit to her. Mr S does think that an increase to seven nights per fortnight would be more stressful to the child.
I accept the opinion of Mr S to the effect that the child “would most likely adapt” to an increase in time of one night per fortnight with the father.

Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

There are no particular practical difficulties or expenses of this child spending time with or communicating with either parent. The parents live in reasonably close proximity. The father lives in (omitted) and the mother lives at (omitted).

Section 60CC(3)(f) – the capacity of:-

each of the child’s parents; and

any other person (including any grandparent or other relative of the child)

to provide for the needs of the child, including emotional and intellectual needs.

I am satisfied that both of these parents have the capacity to provide for the needs of young X including her emotional and intellectual needs.
I note that the child is performing well at school. I note what Mr S had to say in his most recent family report in paragraphs 51 and 52:-
“51. X presented as a delightful little girl, with a sensitive personality, such that when she spoke about each parent, she did so in a very warm, happy and engaging fashion. She has some self-insight in that she perceives herself to be a shy child, however in my view, she was articulate that she has a very happy relationship with each of her parents. Her awareness of her relationship between them is that they are relatively disengaged, she prefacing this upon what she doesn’t see, rather than what she does see. For her age, I thought this exhibited a sound level of conceptualisation and emotional maturity for her age.
52. I do note that the parents (each in different fashions) have accentuated that X suffers from degrees of anxiety. Of itself, some anxiety in a child of parents who are not exactly conducive is not unusual. There did not appear to be any overwhelming feature in her behaviour that would isolate her anxiety as a particular problem that might affect her development in the future. The parents do have different views about the severity of her anxiety and possible causes, but of itself I did not think it was an overriding factor.”
Concerning the child’s “anxiety” – referred to at paragraph 52 of the report – I note that the father had instructed his lawyers in January 2015 to write to the mother highlighting some of the anxiety issues apparently displayed by the child whilst present at the father’s home. I do note though, that Mr S has seen the child in June 2015 and has come to the conclusion as noted in paragraph 52 above. I accept Mr S’s opinion that some anxiety in a child whose parents are “not exactly conducive” is not unusual. He also notes, of course, that there did not appear to be any “overwhelming feature in her behaviour that would isolate her anxiety as a particular problem that might affect her development in the future”.

Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

There is nothing in particular that the Court need draw attention to under this heading.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child:

the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

the likely impact any proposed parenting order under this part will have on that right.

This subsection is not relevant (or at the very least my attention has not been drawn to any evidence in that regard).

Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

The mother has fully accepted the responsibilities of parenthood from the time the child was born. The mother has an affectionate and loving attitude towards the child.
I also have come to the conclusion that the father has an affectionate and loving attitude towards the child but I have already noted some instances in relation to lapses by the father in “stepping up to the plate” concerning payment of child support and payment (or at least contribution) towards payment for extracurricular activities.

Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.

Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:-

the nature of the order;

the circumstances in which the order was made;

any evidence admitted in proceedings for the order;

any findings made by the court in, or in proceedings for, the order;

any other relevant matter.

The mother maintains that the father has treated her in a derogatory manner. Mr S in fact notes that some of the father’s communications display a degree of overzealousness (leaning towards being derogative). The father does still need to address this issue. There were a couple of instances recently (notably exhibit 5) where the father could have phrased text messages differently in order to eliminate any question of a condescending manner or a derogatory tone. I accept the evidence of Mr S that the father has been working on this particular issue. I also accept the father’s evidence in this regard. I do note that in the witness box the father did appropriately concede that he could have worded those text messages differently. I reiterate – the father needs to continue to work on improving the wording of his text messages and the manner in which he addresses the mother. It is imperative that the child is not exposed to any derogatory language expressed by the father about the mother.
The evidence discloses that the police had decided to seek a domestic violence order against the father in New South Wales. The mother agreed not to pursue that application. I accept the mother’s version of events to the effect that the father had told the mother that it would adversely impact upon his military career if such an order was made. The mother therefore agreed not to proceed. At a later point in time (about the beginning of 2014) the father filed an application for a protection order. The father discontinued that application against the mother.
I am not concerned about any issues of ongoing family violence in relation to this family.

Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

There is no particular order that it is preferable for the Court to make under this subheading.

Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.

X’s education

The mother would like to see X attend (omitted) School for her high school education. (omitted) School is situated on (omitted) in Brisbane. It is close to the father’s residence and not far from the mother’s residence.

The father had been pursuing an order that would have seen X attend the (omitted) School.
On the second morning of the trial, Tuesday 11 August 2015, the father, by his Counsel Mr Bunning, informed the Court that the father would consent to an order that X attend (omitted) School for her high school years.

Communication between the parties

There is no doubt that, on occasion, communication between the parties has been strained.
There is evidence to show that the parties have, in the past, been able to agree on certain issues and to communicate in a civil manner. I note that when the father returned to Brisbane (from Perth) towards the end of 2013 the parties were able to agree that the child would remain living primarily with the mother and spend five nights per fortnight living with the father. This shows good insight and a sensible approach on the part of the mother. The child had lived with the mother since separation. For much of that time the father had in fact lived away from Brisbane. I am impressed with the fact that, upon his return to Brisbane permanently, the mother could see the good sense in agreeing that the child would spend five nights per fortnight with the father. This shows an acceptance by the mother of the importance of the father in the child’s life. It also shows that the mother was very willing to facilitate the child spending substantial and significant time with the father. It shows that the parents were able to agree on a very important issue. Indeed, they were able to agree on the most important issue concerning the child – namely her living arrangements.
Exhibit 13 shows an email from the mother to the father dated 12 February 2014. The tone of the email is civil. Indeed, I would go so far as to say that the tone of the email was “very civil”. The mother is clearly a woman of significant insight. The mother is able to draft appropriate correspondence and avoid provocative language. It is worth including this email in its entirety in these reasons for judgment. On 12 February 2014 the mother sent the following email to the father:-
“Hi
Please find attached information about reward program at school that you can log into.
I have put X school shoes and clothes in her bag. When you drop her on 23^rd can you please make sure she has everything for school, including her lunchbox and other containers that are still with you.
She has swimming next wed 19.02.14 at school. I didn’t pack anything as I know she has rash vest, swimmer and goggles with you. She has also signed herself up with her friends to do choir. It is at 8am on Thursday mornings and starts on 20.02.14. You just need to take her to the music room, she then heads off to class from there. I have provided permission slip already to the office.
Also I have to travel to Canberra for work on 11 and 12 March 14. You are due to have X from 12^th anyway but I was wondering if possible if you can have her one day early from morning of the 11^th. No problem if you can’t as I can ask Ms G.
Would also be good to catch up and discuss plan for school holidays this year also.
Regards
Ms Carey”
Whilst answering questions under cross examination – the mother pointed out that when she used the words “catch up” she intended a telephone catch up rather than a face to face catch up. Whatever way one looks at that email – it certainly indicates an ability on the mother’s part to communicate in an appropriate and civil manner. Indeed, this email makes it clear that the mother’s written submissions (in particular from paragraphs 21-25) are probably not correct. The mother has shown that she is capable of communicating with the father – notwithstanding any disputes they may have had before or since separation.
The initial application in the current proceedings was filed by the father on 16 January 2014. The mother did not file any material until 24 March 2014. Also, it seems, in about February 2014 the father filed an application for a protection order against the mother. The father sought a protection order in his favour and also one in favour of the child. The father discontinued that application. There was no protection order made. That application was in addition to the earlier application mentioned which had been commenced in New South Wales by the police. That application sought a domestic violence order against the father. The mother discontinued the application in New South Wales – as indicated earlier.
Clearly, the father wanted an increase in time from five nights per fortnight to a week about shared care arrangement. The mother was of the view that five nights per fortnight with the father was appropriate for the child. Given that the child had been primarily with the mother for her entire life up until that point and given the long absences of the father from the child’s life – I dare say that the mother was correct in taking a more cautious approach at that point in time.
The filing of the family law proceedings (in this court) and the filing, by the father, of the application seeking a protection order against the mother both definitely seem to have had an adverse impact upon the parties’ ability to communicate.
After the conclusion of the family law litigation I am confident that there will be an improvement in the communication between the parties. In relation to the mother, I am certain this will occur because the mother is insightful and intelligent and, by exhibit 13, it is apparent that the mother certainly has the ability to communicate in an appropriate and civil manner.
I am also confident that the father has the ability to do this. In the final report by Mr S, Mr S noted that the father had improved his communication. I note paragraph 53 of the most recent family report where Mr S stated:-
“53. It was my view that Mr Dickens has made efforts to improve his communication and his involvement in X’s life. There is no mistaking his commitment and concern for her welfare. There remains a degree of over zealousness in some of his communication with Ms Carey – and a leaning towards being derogative – however I thought this was more the exception to the rule now compared to previously.”
Mr S noted an improvement in the communication but also noted that there remained a “degree of overzealousness in some of his communication with Ms Carey – and a leaning towards being derogative”. Mr S did think that was more the exception to the rule now compared to previously.
As mentioned – there have been instances (even recently) where the wording of the father’s text messages has not been appropriate. For instance, annexure “C4” of the mother’s trial affidavit (filed 13 July 2015) contains a text message where the father has said to the mother, interalia, “can you stop playing your little games and just let X and I have a normal relationship”. I also note a text message from the father (which appears to be from about January 2015 contained at page 39 of the mother’s trial affidavit) – where the father included the following words in a text message to the mother – “sorry to see X suffering again, please let this be the last time”. Further, exhibit 5 shows text messages which could have been phrased differently by the father. I note a text message sent Wednesday 22 July 2015 at 3:35pm from the father to the mother:-
“Ms Carey where are the rest of X's clothes. Can you drop them off like I do. Thanks”
The father included the words, “like I do”. There was no need for the inclusion of those words. The father accepted in the witness box that he could have deleted those words (note transcript day 1 Monday 10 August 2015 page 44 line 30).
I also note a text message sent by the father on 23 July 2015 at 10:35am to the mother where it is stated (again this is from exhibit 5):-
“Hello Ms Carey. Can you drop X's dress and other clothes off. Also, I have asked before about the reading program for the school. You have kept it at your house so we cant record the books she is reading with us. And the last time this program was run, we shared the form with you and again you kept it. Can you stop being so controlling as all you are doing is disadvantaging X.”
There was no need for the father to put in words such as “you have kept it at your house so we can’t record the book she is reading”. There was no need for the father to put in words such as “can you stop being so controlling”. These types of text messages are provocative. The father knows they are provocative. The father conceded as much in the witness box. Mr S pointed out that the father may not be able to put into practice what he knows to be the case – namely that it is important to communicate in a civil manner. The father must address this issue. It is essential. These parents need to communicate in a civil manner.
I accept the evidence of the mother that young X told the mother that Ms M had stated to the child that the mother was a “westie bogan full of stupidness”. I also accept that the child told the mother than Ms M had taken the child to task about telling the mother what had been occurring in the father’s household. There is no evidence that X is the type of child to invent stories. I find that it is more likely than not that Ms M did say these things to X. These comments by Ms M gave Mr S cause for concern. It would make X feel insecure.
The father and Ms M need to complete a Parenting Orders Program. The father may have done one already but I will be making an order that focuses the attention of the program provider (and the father) upon the importance of communicating at all times in a civil manner. Further, I will be making an order which ensures that the program provider and Ms M understand that it is imperative that the parents (and their partners) do not in any way speak in a derogatory manner about the other parent and the other household.
I also accept the evidence of the mother that the father did call the mother a “piece of shit” on the telephone. I am not satisfied that the evidence is clear enough to make a finding that X heard those words. I infer that the words were stated by the father not long prior to the last set of family report interviews. I am not surprised that the father denied having said this. I do think though that, on balance, it is more likely than not that he did say it. The mother explained to Mr S that the comments by the father were within the context of the father “complaining” to the mother that she was stopping the father from speaking to X. I find that it is more likely than not that the father was very emotional at the time. However that does not excuse such language. The father must keep a lid on his own emotions and to carefully watch precisely what he says and what he writes. As I have noted elsewhere in these reasons for judgment – all of this information was provided to Mr S. He was well aware of this evidence prior to making his recommendation.
In relation to the father’s tendency to speak in a condescending manner towards the mother and to use derogatory expressions towards the mother and about the mother – Mr S was well aware of this fact. This manner of communication by the father does him no credit. I would have thought that, given that the trial was due to take place in the first part of August 2015 – that the father would have ensured that his recent communications with the mother were more civil. His text messages dated January, May and July 2015 indicate to the Court that he does not yet really know how to communicate properly. I formed the impression that the father is not as insightful as the mother. Apart from his recent text messages I noted, for instance, the evidence in relation to a Facebook posting by the father to a person named “Ms S”. Apparently this person was known to both the father and the mother. The father posted on Facebook in reply to a comment made by “Ms S” a highly inappropriate comment in relation to the mother. In that posting the father stated that he hated the mother. People are, of course, free to love and hate as they see fit. But, it shows a distinct lack of insight for the father to make such a posting on Facebook. The father has to work in a cooperative manner with the mother for many more years in relation to their child X.
The most recent text messages sent by the father were brought to the attention of Mr S during cross examination.
Notwithstanding this inappropriate conduct by the father (in particular as referred to in paragraphs 63, 64, 65 66 and 69) Mr S was still of the opinion that there would be a benefit to X if the Court were to increase her time with the father by one night per fortnight.
Further, the comments made by Ms M to X (as referred in paragraph 67 above) were also brought to the attention of Mr S.
Notwithstanding the fact that all of this evidence was brought to the attention of Mr S, he did not state any opinion contrary to the conclusion he reached in paragraph 56 of his most recent family report. It is convenient to restate here what Mr S had to say in his most recent family report:-
“56. It is not possible to be over-definitive as to whether this should be an exactly equal time arrangement. My view is that she is happy with the way things are, that she would most likely adapt (in the short term) to an increase in time of one night per fortnight with her father (and that if she made that adjustment it would be of benefit to her) but that an increase to seven nights per fortnight would be more stressful for her.”
It is to be hoped that the completion of a Parenting Orders Program (as detailed above) by both the father and Ms M will assist both of them in relation to their future conduct and this will, of course, ultimately be in the best interests of X.
If, in the long term, the father and/or his partner were to continue to speak in a derogatory way to the mother or about the mother – I have no doubt this would be of great concern to the Court.
I must say that the father certainly did appear to be contrite and made appropriate concessions in the witness box. For instance, the father was presented with an email which he had sent to the mother at the end of 2011 (just prior to separation). The email was abusive in relation to the mother. The father stated in the email that he would show the email to X when she was older. I note that this was during a time of significant conflict and distress for the parties. Under cross examination I note that the father confirmed that he had no intention of showing the email to X when she was older. I accept the father’s evidence in this regard. It would be devastating for X to be given access to such correspondence (whether now or at any time in the future). Provided both the father and Ms M carefully follow the strategies which they will receive as part of the Parenting Orders Program – then there is cause for optimism so far as X is concerned. My view in that regard is strengthened by the generally favourable view that Mr S formed in relation to both the father and Ms M. I also formed generally favourable views of the father and Ms M.

Resilience

The mother’s view is that X is a resilient child. I infer from the father’s evidence that he agrees with that conclusion.
Mr S preferred to use the expression that – if there was to be an increase of one night in the child’s time with the father than X will “most likely adapt”. And, I note further, that Mr S made it clear that there would be a benefit to the child in having an increase of one night per fortnight between her and the father.

The child’s wishes

I noted earlier (in relation to section 60CC(3)(a) that X had told Mr S at the most recent family report interview that she liked things the way they currently stand (living with the mother and spending five nights per fortnight with the father). Further to that evidence I also note what Mr S had to say in paragraph 55 of his final report:-
“55. …Future variations in time in the life of a child is not something that X herself might be able to comprehend, and it is naturally easier for her to express her happiness with the status quo. I would think that given her sensibilities and the nature of her positive attachment to each of her parents, an increase in time of some degree would be something to which she could adapt relatively easily.”
I accept this evidence of Mr S. Indeed, when Mr S gave evidence on 11 August 2015 I specifically asked him about X’s wishes. Mr S gave evidence on 11 August 2015 as follows:-
“His Honour: To start with, the child at the time you saw her on that occasion was about eight and a half years old. What’s your view on the insight of both parents of asking her what she thought? Was that appropriate for eight and a half?
Mr S: I don’t think, your Honour, it’s entirely appropriate. Sometimes parents ask children from the point of view of trying to seek out whether they have any views about it one way or the other. It depends, I think, a lot on how it’s put to the child. The way that she provided it there was that – it didn’t seem to me that she was under any exact pressure by her parents but just being aware of what they each wanted made her diplomatic with them.
His Honour:        And the impression I’m getting not only from your evidence but from the evidence of both of the parents is that the child does indeed have more insight than you might expect for an eight year old?
Mr S: I think she does, yes, your Honour. I think she has some potential academically.
His Honour:        That’s what you said before?
Mr S:Mm.
His Honour:        Yes. You have then noted in paragraph 44:
“Her father had asked her but she said nothing to him, but she said in these interviews that, “I like it how it is now”.”
His Honour:        Then you have got:
“But she forgot what she had said to her father.”
His Honour:        So I’m just not quite sure. Was the impression you had that she – she just didn’t answer her dad, or she said something and she now doesn’t remember what she said to her dad?
Mr S: I think I was confused by that as well. I think I asked her if – what she had said to dad and said, “Nothing,” and then something like, “I forgot what I said”.
His Honour:        Right. Right. I see what you mean, yes. She might – yes, I see what you mean. It’s quite clear what – but that she stated a preference for leaving things the way they are though, isn’t it?
Mr S:She says that, yes.
His Honour:        Is there some reservation in your answer where you phrase it as, “She says that”? Do you think that’s her wishes or is not her wishes?
Mr S:I don’t know necessarily, your Honour, that she has an exact wish. I mean, I think she’s happy enough with how things are for her at the moment.
His Honour:        How it is?
Mr S:Her life is pretty good, I think. So for her, I think it was just probably saying the obvious. For her, changing things might be a bit hard to think about.”
His Honour:        Within the context of this – well, noting, for instance, she seems to be intelligent for her age. She has more insight than a lot of eight-year-old children. She’s eight years and seven months now. She has stated to you, “I like it how it is now”. Is there – would there be some scope – do you consider there’s some scope for the court to consider some sort of delay before increasing it to six nights a fortnight? I know you said earlier to Mr – in answer to a question from Mr Bunning that you felt that if she could make the adjustment, well, she will most likely adapt in the short term now. I’m just trying to weigh that evidence with her statement that she likes things the way they are now. Have you got any particular view on that, or not really?
Mr S:I think my answer to Mr Bunning, your Honour, was on the lines of accepting his premise that it was going to change and what the timing points might be.
His Honour:        Yes?
Mr S:I think she would adapt either way. Probably, I would think, increases – in terms of where we’re at now in the school year, increases might be better off to occur at the start of the next year.
His Honour:        New year, yes?
Mr S:If there were to be increases, whatever those increases might be.”

Six nights per fortnight with the father

Notwithstanding the best efforts of the applicant’s Counsel (Mr Bunning) Mr S did not at any stage provide a concluded opinion that an equal time order was appropriate. He really left his opinion on the basis that – if the Court was satisfied that the child is able to adapt (and he considered the child was likely to adapt) then he considered that one extra night per fortnight would be a benefit to the child. Furthermore, notwithstanding the best efforts of the Counsel for the mother (Mr Hamwood) Mr S did not provide a concluded opinion to the effect that the current arrangement should stay in place. The clear import of Mr S’s evidence (both written and oral) is that, one extra night per fortnight with the father is likely to be a benefit to the child.
There is evidence to suggest that the child is resilient and intelligent. On the basis of Mr S’s opinion – I find that it is more likely than not that the child will adapt to one extra night per fortnight with the father. I do not consider that there is any need to rush into such a change.

Importance of the Parenting Orders Programs

The mother completed a Triple P parenting program online. In my view, the mother should also complete a Parenting Orders Program. The mother will require strategies to help her come to the terms with the change in circumstances.
I have come to the conclusion that it will be in X’s best interests for there to be an increase of one night per fortnight with the father. However, I do not consider that should commence immediately. The father needs to complete the Parenting Orders Program – with a particular emphasis to be placed upon his communication (both written and oral) and the importance of avoiding derogatory comments, words and mannerisms in relation to the mother. X must not be exposed to any such conduct.
It is also important that Ms M completes the Parenting Orders Program. This Court does not have the power to make an order requiring Ms M to complete that program. However, the Court can make an order that unless Ms M voluntarily completes a Parenting Orders Program and files and serves an affidavit annexing a copy of a certificate of completion that the child’s time with the father will remain at five nights per fortnight.

Conclusion on best interests

I have come to the conclusion that it is in X’s best interests for there to be an order whereby her time with the father is increased from five nights per fortnight to six nights per fortnight. I have also come to the conclusion that it will be in the child’s best interests for both parents and for Ms M to also complete the Parenting Orders Program. Ms M will have to complete the program on a voluntary basis.
I am unsure as to the availability of such programs. It could take the parties (and Ms M) some months to complete the program. In addition, I note that Ms M is due to give birth to her first child in late 2015. This will bring about a significant change in the father’s household. I consider that it will beneficial to X if the father and Ms M are given some time to adapt to the change in circumstances before X commences six nights per fortnight with the father. Having said that, my primary reason for delaying the implementation of six nights per fortnight is to ensure that the father and Ms M have time to complete the Parenting Orders Program. I have come to the conclusion that this should occur prior to the commencement of the increased time between X and the father.
Accordingly, the child’s time with the father will be increased from five nights per fortnight to six nights per fortnight from 1 July 2016 – provided both the father and Ms M have filed and served affidavits annexing certificates of completion of the Parenting Orders Program as ordered. The mother should also, before 1 July 2016, file and serve an affidavit annexing a certificate of completion of the Parenting Orders Program.

X’s time with the father after the birth of her new sibling

I do think it is in the child’s best interests to spend some extra time with her father once Ms M gives birth in late 2015. The father has sought an order for three extra days. I consider that is appropriate.

Christmas 2015

The mother should be able to travel to (omitted) at Christmas 2015 to spend time with her extended family. The child will therefore spend the first period of the Christmas school holidays in 2015 (from the Saturday following break up of school until 12:00 noon on Christmas Eve) with the father. The child will then spend three weeks with the mother from 12:00 noon Christmas Eve. The child will then spend the balance of the school holiday period with the father provided the child returns to the mother’s household at 12:00 noon on the Friday prior to the commencement of the first day of the school year 2016.

Christening in (omitted)

The mother has long wanted to have the child Christened. The father is not opposed to a Christening. He would like to be able to attend. In the particular circumstances of this case I am not inclined to make an order providing for the father’s attendance at a Christening – especially if the Christening takes place in (omitted). It is quite clear to the Court that the child’s Christening is significantly more important to the mother than the father. It seems to me that the ideal opportunity for the mother would be to have the child Christened in (omitted) (as she wants to) during the Christmas holidays in 2015/2016 when the mother would otherwise be in (omitted).

Section 61DA

There will be an order for equal shared parental responsibility. The parties appear to agree on this. The presumption has not been rebutted. Further, it is in the child’s best interests. In the mother’s own case she seeks an order that the child spend five nights per fortnight with the father. This will require a significant amount of communication between the parties. I have come to the conclusion that the mother does have the ability to communicate sensibly with the father. I have also come to the conclusion that the father does have the intelligence to be able to learn how to communicate appropriately – at all times – with the mother. That is why I have come to the conclusion that it is in the child’s best interests (notwithstanding any previous issues concerning possible family violence or any other disputes between the parents) for there to be an order that the parties have equal shared parental responsibility. I do note that there was very little time devoted during the course of the final hearing to any allegations of family violence.

Section 65DAA

Equal Time

The father sought an equal time order in this case. Primarily based upon the opinion of Mr S I have come to the conclusion that it is not in the child’s best interests for there to be an equal time order. The child is currently comfortable with five nights per fortnight. The child is “likely to adapt” to six nights per fortnight with the father and this will be of benefit to the child (according to the opinion of Mr S which I accept). But Mr S did not take that further step and specifically recommend an equal time order. Indeed, in paragraph 56 of his most recent report Mr S noted that, “an increase to seven nights a fortnight would be more stressful” for X. There was nothing unequivocal stated by Mr S during his cross examination which leads the Court to conclude that he had changed his opinion in that regard. On that basis in particular – I have come to the conclusion that it is not in the child’s best interests for there to be an equal time order.
Such an order would have been reasonably practicable because the parents live in quite close proximity to each other and the child will be attending schools which are in close proximity to both parents – (omitted) School until the completion of grade 6 and then (omitted) School from year seven onwards.

Substantial and Significant Time

The order to be made does come within the definition of substantial and significant time. Such an order is, on the basis of the opinion of Mr S and the findings made by the Court, in the child’s best interests. Such an order is also reasonably practicable given the close proximity the parents live to each other and the child’s school. Both parents are capable of managing the proposed order.

Other matters

The father’s “credit” issues referred to in the written submissions of the mother (relating to the (omitted) property etc.) are, I find, not issues impacting upon the best interests of X. I do not, therefore, consider it necessary to make specific findings about such matters. Indeed, it needs to be reiterated that the scope of the dispute between the parties is not (and has never been) very wide. The applicant father has pressed for seven nights per fortnight. The mother has pressed for five nights per fortnight. Based upon the evidence of Mr S (and for the other reasons stated herein) the Court has concluded that it is in X’s best interests to spend six nights per fortnight with the father. Within the scope of this parenting dispute (being of such relatively narrow compass) – it is not necessary for the Court to consider (or make findings in relation to) many of the aspects mentioned by the parties in written submissions. Many of the matters raised (including questions of the father’s credit relating to the (omitted) property) are simply not relevant to the determination of these particular parenting proceedings. There is no evidence that such matters will impact upon his ability to parent X.
I do not consider that it is appropriate for the Court to make an order requiring either parent to offer “additional time” to the other parent in the event that the first mentioned parent is unable to care for the child (for instance during school holidays). Each parent must make their own arrangements. School holidays should be shared (except as specifically noted concerning Christmas holidays 2015) and there should also be orders in relation to special days.
It is always possible for parents to agree on additional time.
The parties will be given some time to agree on the wording of a final order reflecting the reasons for judgment.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 28 August 2015

[2015] FCCA 2331

28 August 2015

Key Legal Topics

Areas of Law

Family Law