DWYER & DWYER
[2013] FMCAfam 288
•11 April 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DWYER & DWYER | [2013] FMCAfam 288 |
| FAMILY LAW – Parenting proceedings – children aged 15 years and 11 years at time of hearing – children living predominately with mother since separation in February 2010 – the children spending substantial and significant time with the father – poor communication between parents – dispute between parents as to whether children should attend fee paying private schools – father contends beyond parents financial means – father seeking week about time with children resisted by mother – weight to be attached to children's wishes – whether relationship between parents precludes equal shared parental responsibility – best interests of children. |
| Family Law Act 1975 (Cth) - Part VII |
| Goode & Goode [2006] Fam CA 1346; (2006) 36 Fam LR 422; FLC 93-286 Mazorski & Albright (2007) 37 Fam LR 518; at 526 G & C [2006] FamCA 994 McCall & Clark [2009] Fam CAFC 92; (2009) 41 Fam LR 483 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531 |
| Applicant: | MR DWYER |
| Respondent: | MS DWYER |
| File Number: | NCC 1580 of 2011 |
| Judgment of: | Coakes FM |
| Hearing dates: | 23 & 24 August 2012 17 October 2012 |
| Date of Last Submission: | 17 October 2012 |
| Delivered at: | Newcastle |
| Delivered on: | 11 April 2013 |
REPRESENTATION
| The Applicant: | Self Represented |
| Counsel for the Respondent: | Mr M Weightman |
| Solicitors for the Respondent: | NLS Law |
ORDERS
That the parents have equal shared parental responsibility for the children [X] born [in] 1997 (“[X]”) and [Y] born [in] 2001 (“[Y]”) (“The children”).
The parents are to consult each other in relation to any long term issue in relation to the children and are to make a genuine effort to come to a joint decision about issues concerning their care, welfare and development of a long term nature which include (but are not limited to) issues of that nature about:
(a)Their education both current and future;
(b)Their religious and cultural upbringing;
(c)Their health;
(d)Their name;
(e)Changes to living arrangements for them which make it significantly more difficult for either of them to spend time with either parent.
That [X] and [Y] live with the mother.
That [X] spend time with the father as follows:
(a)From after school Thursday 16 May 2013 until return to school Monday 20 May 2013;
(b)During school terms every fourth weekend commencing on the Thursday from after school until the following Sunday at 5.00pm and concurrently with the time [Y] is spending with the father, or such other time as the parents and [X] agree and commencing Thursday 18 April 2013 and each fourth weekend thereafter;
(c)
From 10.00am Boxing Day 26 December until 3.00pm
28 December each year commencing 2013;
(d)For one week of the school holidays at the conclusion of the second term applicable at the school attended by [X], and concurrently with [Y] or at such other times during such holiday period as [X] and the father agree;
(e)For two weeks of the Christmas school holidays each year applicable at the school attended by [X] as agreed between [X] and the father but in the absence of agreement for the last two weeks commencing at 10.00am on the Saturday falling 14 days prior to the end of the school holidays and concluding at 7.00pm on the Saturday immediately preceding the start of the new school term;
(f)At such other times and places as the father and [X] agree.
That [Y] spend time with the father as follows:
(a)From after school Thursday 16 May 2013 until return to school Monday 20 May 2013;
(b)During school terms, each alternate week from after school Thursday until the commencement of school the following Tuesday morning commencing Thursday 18 April 2013 but otherwise commencing during the first week of the new school term when [Y] has spent time with the father during the first half of the immediately preceding school holidays or commencing on the second Thursday of the new school term when [Y] has spent time with the father during the second half of the immediately preceding school holidays;
(c)For one half of each school holiday period at the end of terms 1, 2 and 3 applicable at the school attended by [Y] and commencing at the conclusion of school on the last day of the school term and continuing until 5.00pm on the Saturday falling in the middle of such holiday period in even numbered years and commencing at 5.00pm on the Saturday in the middle of such holidays until the commencement of school at the beginning of the new school term in odd numbered years;
(d)From 10.00am Boxing Day 26 December until 3.00pm 28 December each year commencing 2013;
(e)For two weeks of the Christmas school holidays applicable at the school attended by [Y] as agreed between the father and the mother and to occur concurrently with [X] but in the absence of agreement for the last two weeks commencing at 10.00am on the Saturday falling 14 days prior to the end of the school holidays and concluding at 7.00pm on the Saturday immediately preceding the start of the new school term;
(f)For such other times and for such other days as [Y] and the parents agree;
That both [X] and [Y] spend additional time with the father as follows, if not already spending time with him:
(a)From 5.00pm on the Saturday of the Father’s Day weekend until 5.00pm on the Sunday of the Father’s Day weekend;
(b)A period of five hours as close as is possible to [X]’s birthday, [date omitted] and [Y]’s birthday, [date omitted] each year at a time agreed between the parents with the father to give not less than seven days prior notice in writing to the mother of the five hour period he proposes with the father to ensure that such period is not to occur when he is engaged in his ordinary employment.
The periods during which either child is spending time with the father as referred to above are suspended, insofar as it is necessary or are varied to ensure each of the children is:
(a)Living with the mother on the Mother’s Day weekend from 5.00pm on the Saturday until 5.00pm on the Sunday of such weekend;
(b)Spending time with the mother on 25 March and 21 April each year from 12.00noon until 5.00pm on each of such days if it is a non school day or from after school until 8.00pm if either such day is a day upon which either child is attending school;
(c)Is living with the mother in the event that she wishes either child to attend her Church Family Camp with her with the mother to give the father not less than 4 weeks prior notice in writing of the dates and venue of such camp and with the mother to ensure any time forsaken by either child which otherwise would have been spent with the father pursuant to these orders during the period of such camp is made up within 8 weeks immediately following such camp.
Except for those occasions when implementation is to occur at the school of either of the children, implementation at all other times is to take place at the homes of the respective parents and with the parent with whom each child has spent the previous period of time delivering the child or children to the parent with whom the child or children are to live for the ensuing period.
The following provisions are to apply in relation to any medical expense in excess of $50.00 incurred for either child:
(a)Whilst a child is in the care of that parent the parent who incurred such expense is to pay the expense incurred, subject to any rebate from a medical benefits fund or Medicare or both and within 7 days is to forward a copy of the paid invoice to the other parent and with the other parent within a further period of 7 days to reimburse to the paying parent one half of the nett cost of such medical expense;
(b)For the purposes of this order medical expense is defined as including but is not limited to any consultation fee or treatment fee with a medical general practitioner, surgeon, treating specialist, psychiatrist, psychologist, physiotherapist, dentist, optometrist and ophthalmologist and prescription and over the counter medication recommended by a medical practitioner.
In the event that either parent proposes that either child is to travel outside Australia and irrespective of whether it is proposed one parent or the other accompany such child, the parent who is responsible for arranging such travel or approving such travel is to give not less than 4 weeks prior notice of the particulars of such travel to the other parent including but not limited to date of departure, port of departure, place or places of destination, identity of carrier including flight number, an itinerary for the whole journey, the purpose of the journey, date of return and port of return and identity of the carrier in each case, flight number or booking number.
In the event that the parent receiving notice of the proposed travel referred to in the preceding order does not consent, the parents are to confer immediately with a view to reaching an agreement but if no agreement is reached are to consult with a Family Relationships Centre practitioner pursuant to order 25 below of these orders.
Provided that the mother pays all necessary school fees and levies and any extra-curricular costs charged by each school, both parents are to do all acts and things and sign all documents to ensure that [X] remains at and continues her education at [S] School until the conclusion of the academic year 2013 and that [Y] remains enrolled at and attends [C] School until the conclusion of the academic year 2013.
Provided that the mother pays all necessary school fees and levies and any extra-curricular costs charged by each school, both parents are to do all acts and things and sign all documents to enrol [X] at [F] School for the academic years 11 and 12 in 2014 and 2015 and are to do all acts and things and sign any necessary documents to enrol [Y] at an independent fee paying school upon which they both agree including but not limited to [P] School or [S] School.
Each parent is to encourage and facilitate each child having reasonable telephone communication at any reasonable time with the other parent during both school terms and holidays and shall ensure privacy for each child during such telephone calls.
Each parent is to inform the other of any change of particulars of that parents current residential address, landline telephone number, mobile telephone number and if applicable, email address and within 24 hours of such change occurring.
Each parent is to advise the other parent as soon as possible by the best available means in the event of any of the following occurring:
(a)Either child being seriously injured or falling seriously ill;
(b)Either child requiring urgent medical treatment from a Doctor or Ambulance crew;
(c)Either child being involved in an accident or admitted to hospital.
Each parent is to speak respectfully to the other parent in the presence or hearing of the children or either of them.
Each parent is restrained from denigrating the other parent in the presence or hearing of either of the children including making rude comments, making insulting comments, swearing at, shouting out and making obscene gestures and each parent is further restrained from causing or permitting any other person from engaging in such behaviour in the presence of either of the children.
Both parents are to authorise the Principal of the school attend by each child from time to time to supply to the other parent copies of progress reports, school reports, notices relating to pupils at such schools, school letters, invitations to any carnival, sporting or social function, notices of and invitations to parent teacher interviews and any other notices directed to parents of children attending such school, and service of a sealed copy of these orders upon the Principal of such school is sufficient discharge of this order.
Each of the parents is permitted to attend any function at the school at which either child is a pupil from time to time and to which parents are normally invited.
Within fourteen (14) days of the date of these orders the mother is to advise the father in writing of the name and address of the present General Practitioner (Doctor) for each child and thereafter keep the father informed of any change of such particulars of the treating General Practitioner for either child.
Each parent is at liberty to obtain all relevant medical records including dental and hospital records and to consult with medical and dental practitioners and any specialists in order to obtain any information he or she may require in relation to either child and service of a sealed copy of these orders upon such medical practitioner, dentist or specialist or hospital is sufficient authority for that purpose.
Each parent is restrained from enrolling either child in any school activity to occur during the morning or evening of a school week when either child is due to be with the other parent and each parent is further restrained from enrolling either child in any school or extra-curricular activity to occur on a weekend or holiday period when either child is due to be living with the other parent pursuant to these orders without first discussing the proposed activity and possible enrolment with the other parent with a view to reaching an agreement, with such enrolment not to occur unless both parents agree.
Each parent is to advise the other as soon as practicable of any existing sporting, social or cultural event which it is expected either child may attend including any further events of such nature arranged from time to time with a view to the parent with whom the child is then living or spending time enabling the child to attend such activity, and in the event of not being so able, arranging with the other parent or a third party known to the child for the child to attend such event.
Both parents are to consult with a Family Dispute Resolution Practitioner at a Family Relationships Centre or elsewhere or such other Family Consultant that may be agreed between the parents to assist with;
(a)Resolving any dispute between them as to the terms or operation of these Orders;
(b)Reaching an agreement about any changes to be made to these Orders arising from any change in the needs or circumstances of the children or either of them or the parents, in the event that any such dispute or disagreement arises from such changes.
Each parent is restrained from making an application to the Court for variation of these orders arising from any of the matters referred to in Order 25(b) above without first having complied with order 25(a) above in relation to such matters.
IT IS NOTED that publication of this judgment under the pseudonym Dwyer & Dwyer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1580 of 2011
| MR DWYER |
Applicant
And
| MS DWYER |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a case in which the two parents earnestly seek what is best for their two children, particularly in relation to their education given some financial constraints which affect them both. Both parents would like to spend as much practical time with both children as can be put into place subject to availability in conjunction with work commitments and suitable accommodation. Both parents have regard for the other’s parenting ability and there is no suggestion at all of inappropriate use of alcohol or prohibited substances or family violence.
The parents however are unable to agree upon matters concerning education and are in dispute as to the amount of time each child should spend with each parent, parental responsibility so far as concerns education, the age at which both children should determine the time they spend with each parent independently of any orders and some practical matters. These issues are best summarised as arising from different styles in parenting.
It is common ground that one of the continuing sources of conflict in the relationship was finance exacerbated by disagreement on choice of schools for the children and the attendant cost.
The subject children are [X] born [in] 1997 (“[X]”) aged 15 years and 5 months of age at the time of the hearing and a pupil in Year 9, now Year 10 at [S] School in [M] and [Y] born [in] 2001 (“[Y]”) aged 11 years and 4 months at the time of the hearing and then a pupil in Year 5 now Year 6 at [C] School in [W].
At the time of the hearing [X] had casual employment at [omitted] on Tuesday and Friday and Saturday afternoons.
The respective applications at the hearing
The respective applications crystallised at the time of the hearing and were somewhat different from the initiating applications.
The orders sought by the father are found in his case outline. The father has at all times represented himself in these proceedings and in such a manner that I am satisfied he was not disadvantaged.
I was satisfied from the affidavit material upon which the father relied and the manner in which he conducted himself during the hearing both in his own case and cross-examination of the mother and the Family Consultant that he was able to present to the Court every aspect of his case which he considered important. I am satisfied also that the father had a good understanding of the principles the Court is required to apply and the relevant law under Part VII of the Act in relation to parenting proceedings.
The father sought orders on a final basis which I précis as follows:
i)The parents have equal shared parental responsibility for the children;
ii)That both children remain at their current schools until the end of 2013 except if the mother is unable to pay the school fees or negotiate a payment plan with the schools or the children are expelled in which case the children are to attend Public Schools selected by the father and with the children to attend Public Schools from 2014 unless all current outstanding school fees are paid;
iii)That the children live with the father from after school on the Monday until 5.00pm Sunday each alternate week during school terms and school holidays and with the mother for the balance of the fortnight. In other words, the children would be with their father for 6 nights in each 14 nights and for 6 days;
iv)Until each child attains the age of 16 years they spend alternating defined periods with each parent at Christmas, a fixed period with each parent at Easter, with the mother for the greater part of the Mother’s Day weekend and the father for the greater part of the Father’s Day weekend with other special provisions for children’s birthdays and other special occasions;
v)Broad and unrestricted telephone communication;
vi)A prohibition on overseas and unaccompanied travel in the absence of agreement, and a variation of arrangements if either child travels within Australia with either parent;
vii)An injunction restraining the mother from affecting any change to the children’s surname in the absence of consent;
viii)An injunction restraining the mother from leaving the children alone in the presence of a Ms C, later identified as Ms C;
ix)A number of other practical parenting orders including notification in an emergency, change of contact particulars, authority to obtain reports from medical practitioners and that medical expenses less than $50.00 incurred for a child be met by that parent but medical expenses in excess of $50.00 be shared equally;
x)During the course of the hearing the father proposed an alternate position he was prepared to consider but emphasising that it was not his preferred position nor indeed his application. The alternate position would be that both children live with him during school terms from Tuesday, and by inference after school on the Tuesday until the following Sunday at 5.00pm and on a fortnightly basis.
The mother seeks orders in accordance with her amended response filed 27 July 2012 which I précis as follows:
a)That there be equal shared parental responsibility except for education;
b)That the mother have sole parental responsibility for decisions concerning education;
c)That the children live with the mother;
d)That [X], the elder child spend time with the father concurrently with the younger child but otherwise by agreement between the parents and [X];
e)That until the younger child attains the age of 16 years he spend time with the father each alternate weekend during school terms from 3.00pm Thursday until 5.00pm Sunday, for half of each school holiday period alternating between the first half and the second half in even and odd numbered years and for special periods at Easter and the Father’s Day weekend;
f)That the children spend time with each parent on special occasions and with the mother each year to enable the mother and the children to attend an annual Church camp;
g)That the father pay half of all dental and optometrist expenses and medical expenses not including General Practitioner visits for both children;
h)The father to pay half of all driving related expenses and lessons for both children;
i)The father to pay the mother each calendar year one half of the children’s sporting and extra-curricular activity costs;
j)Liberal telephone communication;
k)A number of other practical parenting orders very similar to those proposed by the father.
Existing orders
On 2 August 2011 interim consent orders were entered into that both children live with the mother, that the parents have shared parental responsibility for them with the children to spend time with their father from after school on Thursday until the commencement of school on Monday each alternate week commencing 4 August 2011, suspended during the term 3 school holidays with the father to spend time with the children from 5.00pm 26 September 2011 to 8.30am 3 October 2011 with the alternate weekend time to resume 13 October 2011.
A number of other orders were made restraining the parties from removing the children from the Commonwealth of Australia except by consent, changing the children’s enrolment from their schools at that time, telephone communication, a joint authority to schools to forward school reports and similar documents and to attend school functions, both parents authorised to obtain information from treating medical practitioners and some other practical parenting orders.
On 19 October 2011 further interim consent orders were made enabling the father to spend time with the children from 4.00pm Christmas Eve until 2.00pm Christmas Day and with [X] to be permitted to travel to India between 4 and 21 January 2012 for a Church Youth Mission trip and with the father to spend time with [Y] from 6 January to 19 January 2012 and with some special provisions for the mother to deliver and collect the children from their Church activities on a Friday when otherwise they would be with their father.
On 3 February 2012 further interim consent orders were made continuing the orders of 2 August 2011 and enabling the children to spend additional time with their father from 8.00am Friday 6 April until 8.00am Saturday 7 April 2012 and from 5.00pm Monday 9 April to 5.00pm 16 April 2012 and from 12.00noon [date omitted] until 3.00pm the same day for [X]’s birthday and from 12.00pm until 3.00pm on [date omitted], [Y]’s birthday and with the children to spend time with their mother on the Mother’s Day weekend from 5.00pm on the Saturday until 5.00pm on the Sunday.
On 24 August 2012, at the conclusion of the second day of hearing the Court made an order that each parent is restrained from removing either child from their present school and each parent is further restrained from enrolling either child in any other school noting that [X] was currently attending [S] School and [Y] was attending [C] School.
On 17 October 2012 the Court ordered that during the 2012 Christmas School holidays [X] and [Y] spend time with the father from 5.00pm Thursday 3 January 2013 until 9.00am Monday 7 January 2013 and from 5.00pm Thursday 17 January 2013 until 9.00am 21 January 2013 or such other times as the parents agree in writing, and by consent it was agreed and ordered that the children spend time with the mother from 10.00am 24 December 2012 (Christmas Eve) until 10.00am 26 December 2012 (Boxing Day) and with the father from 10.00am 26 December 2012 until 3.00pm 28 December 2012.
Background
The father is 48 years of age and is currently employed as a [omitted] where he commenced employment in February 2012. The father works varying shifts to which I will refer later. The father anticipates this employment to be permanent.
The father lives in rented premises in [W] which he occupies alone and where the children stay when spending time with the father. There is an issue as to the suitability of such accommodation for the children to which I will refer later.
On the evidence before me, the father has not repartnered.
The mother is also 48 years of age and is employed as a casual [omitted] working generally three days per week, although it can be longer and generally between 9.00am and 2.30pm.
The mother lives in the jointly owned former matrimonial home at [address omitted], [M] with the children.
On the evidence before me, the mother has not repartnered.
The distance between the parent’s homes is currently about
2.5 kilometres and a short drive by motorcar, something less than 10 minutes. Evidence was given by both parents of negotiations having commenced for alteration of property interests and whilst the mother could not say with any precision as to where she would live, she made it clear it would be within the Newcastle area in a District which she could afford but preferably in the same area so as to facilitate the children travelling with ease to their current schools or at the worst, there would be a bus service to take them to and from their present schools. Similarly, the father’s evidence is clear that he does not propose to leave the area where he currently lives, and if he is to find other accommodation, it will be in the same district.
The parties commenced their relationship in September 1994, were married [in] 1995 and separated for the last time on 21 February 2010. A divorce order was made on 26 June 2012 on the father’s application to become effective in one month.
The two children of the relationship are [X] and [Y]. There are no other relevant children.
The evidence
In the father’s case I read the following documents:
a)The father’s affidavit affirmed and filed 15 July 2011;
b)The father’s affidavit affirmed 21 November and filed 24 November 2011;
c)The father’s affidavit affirmed 18 July and filed 24 July 2012;
In the mother’s case, I read the following:
a)The mother’s affidavit sworn and filed 27 July 2012;
Admitted into evidence was a Child Dispute conference memorandum by Ms R, a Family Consultant attached to the Newcastle Registry dated 19 October 2011 following a Child Inclusive conference that day with both children.
I also had the benefit of a Family Report by Ms D published in late December 2011 following interviews with the parents and both children in early December. Ms D gave evidence and was cross-examined.
There were the following exhibits:
Exhibit F1 – School report for [Y] from [C] School, [W], second semester 2011 and student progress report dated 7 May 2012 from [S] School for [X];
Exhibit F2 – Transaction listing for school fees due to [P] School;
Exhibit F3 – School fees schedule for [P] School 2012;
Exhibit F4 – Sketch plan of the floor plan of the father’s home at [W];
Exhibit F5 – Father’s current child support assessment for the period 1 October 2011 to 31 December 2012 for an amount of $583.83 per month;
Exhibit F6 – Student report for [X] for Semester 1, 2012 from [S] School;
Exhibit F7 – A school report for [Y] for first semester 2012 from [C] School, [W];
Exhibit F8 – Email of 25 February 2010 from the mother to the father;
Exhibit M1 – account in the name of the mother from [P] School term 2 April 2012 for $1,793.08, account in the name of the mother from [S] School, [M] of 20 August 2012 for $2,055.60 and an account in the name of the mother from [C] School for [Y] as at 16 July 2012 with a credit of $488.20.
Prior to the third day of hearing, and on 7 September 2012 the father filed comprehensive and carefully prepared post trial submissions which I read and took into account.
The issues
It seems to me the issues are these:
a)What are the appropriate parenting arrangements for [X] and [Y] both in the immediate future and the longer term given their ages;
b)What is the nature of the relationship between the parents and their ability to communicate about their children;
c)Does the level of conflict between the parents preclude them from being able to discuss with the prospect of reaching an agreement matters concerning the long term care, welfare and development of the children, particularly education and such that an order for equal shared parental responsibility is not appropriate or, whether such an order is appropriate for all matters, or whether education should be quarantined in favour of the mother or the father;
d)The weight to be attached to the wishes expressed by each of the children both as to equal shared time with each parent or otherwise;
e)Whether the father’s present accommodation is appropriate for the children.
The relevant law
I have regard to Part VII of the Family Law Act. The significant sections are, and to which I must have regard, s.60CA which provides that:
“In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration.”
I must consider, in determining a child's best interests, the matters set out in s.60CC. There are two primary considerations:
“(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.”
There are a number of additional considerations in s.60CC(3) to which I must have regard insofar as they are relevant and I must also have regard to s.60CC(4).
I must also have regard to s.60B which sets out the objects of Part VII and the principles underlying those objects. I must have regard to s.61DA which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe that there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the Court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The relevance of the presumption of equal shared parental responsibility where it does apply or is found to apply is that the Court is then obliged to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable, the Court must go on to consider making an order, if it is consistent with the best interests of the child and reasonably practicable, for the child to spend substantial and significant time with each of the parents[1].
[1] Subsection 65 DAA Family Law Act1975
It seems to me that there is a shift toward the Court being required to consider in a much more practical manner how a child's development can be nurtured and promoted by being exposed to and enjoying in a beneficial sense all the aspects of living with each parent. It seems to me that this requires an involvement in the whole of the ordinary household routine where it is appropriate. See the Full Court decision of Goode v Goode[2].
[2] Goode & Goode [2006] FamCA 1346; (2006 FLC 93-286; (2007) 36 Fam LR 422
I have considered also the decision in Mazorski and Albright[3], a case involving relocation where Her Honour Justice Brown after setting out the definition of “meaningful” and “meaning” said at paragraph 26:
“What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant”.
[3] Mazorski & Albright (2007) 37 Fam LR 518; at 526
Section 60B (1) (a) in my view leaves no doubt as to the role to be played by either parent in having a meaningful relationship in the lives of their children.
In the Full Court decision of McCall & Clark[4] their Honours Bryant CJ, Faulks and Boland concluded that there are three possible interpretations of section 60CC(2)(a) finding that the preferred interpretation of the benefit to a child of a meaningful relationship is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant.[5]
[4] [2009] Fam CAFC 92; (2009) 41 Fam LR 483
[5] Paragraph 119
The Full Court rejected the notion that a Court should assume there is a benefit to all children in them having a meaningful relationship with both parents, finding that if the legislature had intended to elevate the benefit to a child of a meaningful relationship to a presumption, then it would have said so in clear and unambiguous language[6].
[6] Paragraph 120
Her Honour Justice Bennett discussed the terminology in G & C[7] finding that the enquiry was a “prospective” one which requires the Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[7] G & C [2006] FamCA 994
The Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski (supra), and consistently with their conclusions also agreed with the reasoning of Bennett J in G & C (supra).
The Full Court also said[8]:
“In reaching these conclusions, we also considered the legislation requires a Court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft Orders to foster a relationship with one parent if this would not be in the child’s best interests.”
[8] Paragraph 122
Consequently, I conclude that I am bound by the existing authorities, some of which I have referred to in the preceding paragraphs, and subject to the facts of this particular case. It seems to me the legislation provides a focus and emphasis on both parents being not only involved but substantially involved with the lives of their children except when it is or would be contrary to the child's best interests.
The Family Report
The interviews for the Family Report were conducted by Ms D with the parents and the children on 8 December 2011 together with observation sessions with some supplementary telephone interviews later in the month.
Consequent upon the evidence before me, I am satisfied that Ms D set out accurately the parties perceptions as to the onset of the breakdown of their relationship and the causes.
The mother told Ms D that she was seeking a continuation of the current arrangement[9], that is the children primarily live with her and spend time with their father fortnightly from Thursday to Monday but indicated her preference for the children being returned on Sunday afternoon rather than on a Monday. It is significant however that the mother amended her response on 27 July 2012 when she sought orders quite different from her proposal to Ms D, namely that [X] be at liberty to spend time with her father at any times [Y] was spending time with his father pursuant to Orders, or by agreement between the mother and the father and [X]. In other words, the mother had varied her proposal and was proposing at the time of the hearing that there be no compulsion for [X] to spend time with the father.
[9] Paragraph 15 of the Family Report.
The mother told Ms D that she perceived the father was motivated to bring his application as a consequence of his obsession with money, that is the father’s reluctance to spend money and his fear and belief that she would remove the children from Australia to live with her father in Guatemala, which the mother denied was to occur.
The father told Ms D that he would like the children to live week about, one week with him and one week with the mother on the premise that he did not spend enough time with the children but would also like some flexibility to negotiate different arrangements from time to time, about which he had some confidence the mother would agree[10].
[10] Paragraph 18 of the Family Report.
Neither parent criticised the other’s parenting capacity or ability to
Ms D to any extent that the other parent’s time should be limited or supervised. The mother raised some criticism of the father of a relatively minor nature[11].
[11] Paragraph 32 of the Family Report.
Both parents told Ms D that they should share parental responsibility although it is clear from the issues identified by the father that he wished to have all responsibility for school choice because the mother could not make rational decisions and had a fetish for private schools which he could not afford[12].
[12] Paragraph 29 of the Family Report.
The father reported to Ms D that the children had changed schools three times in two years as a consequence of the parent’s inability to agree on schools, and that the father wanted to be involved in the process of decision making as to schools.
Ms D found [X], during her interview with her and who was then 14 years and 8 months of age to be an assertive confident child who was very cooperative during the interview and interacted with the Family Consultant well.
[X] told Ms D that she enjoys her current school, that is [S] School and that she would like to attend [F] School for Years 11 and 12, that is 2014 and 2015. Ms D noted the mother’s concerns that [X]’s academic performance had been declining which the mother attributed partly to separation but also to the father having removed both children from schools they had previously enjoyed as a consequence of financial circumstances. It is the mother’s view that the children should attend schools of the children’s choice with the mother also to have some input into the decision making process for schools.
Ms D agreed with the mother’s assessment of [X]’s development consequent upon her interview with [X].
Ms D reports[13] that [X] agrees with her mother’s proposals but wants to spend time with her father from Thursday until Monday. [X] did not agree with the father’s proposal that is from after school on Monday until 5.00pm on Sunday, or week about for the reason she finds the father’s home unstable and has some criticism of the nature of the accommodation.
[13] Paragraph 43 of the Family Report.
[X] told Ms D that she would like to spend Christmas Day with her mother, is happy to spend some time with her father on her birthday but not the whole day or half a day and two or three hours would be sufficient and is happy to spend time with her father on Father’s Day but wants a less structured approach to the holidays stating specifically that she does not want to spend half the holidays with him but rather some intermittent time.
Ms D found these views to be developmentally appropriate[14] as [X] is of an age were she can make decisions for herself in terms of where she wants to live primarily, further commenting that these views show maturity in respect of what [X] wants for herself. Ms D reported specifically that these views did not appear to have been influenced by either of the parents.
[14] Paragraph 44 of the Family Report.
As to [Y], Ms D found him to be a warm and friendly child who openly and willingly answered the Family Consultant’s questions and presented as a very jovial person.
[Y] told Ms D that he does not really enjoy attending [C] School, which is his present school and would prefer to attend [P] School where he was previously a pupil and has friends.
Both parents told Ms D that [Y] is presenting developmentally within normal parameters and that his behaviour is stable and that he is maintaining his performance at school despite his parent’s separation. Ms D concurred with such assessment following her interview with him.
[Y] told Ms D that he agrees with the mother’s proposals but would like to spend additional time with his father from Monday into Tuesday but does not agree with the father’s proposal for either spending time with him from after school on Monday until 5.00pm on Sunday or week about. His reasoning was the same as [X] and there is some criticism of the father’s accommodation.
[Y] wanted to spend Christmas Eve and Christmas Day until 7.00pm with his mother and then spend the remainder of Christmas Day and Boxing Day with his father, one week during school holidays alternating with his mother in such fashion and with the morning of his birthday with his father and the remainder with his mother.
Ms D found these views[15] to be developmentally appropriate as [Y] presented as a very mature person at the interview and also appeared to know exactly what he wanted for himself. Ms D considered such views showed maturity and appeared not to have been influenced by either parent.
[15] Paragraph 51 of the Family Report.
In her evaluation[16] Ms D considered that the views of both children should be given sufficient weight due to their ages and their level of maturity.
[16] Paragraphs 54 – 61 of the Family Report.
Ms D considered that the impact of the father’s proposal on the children is that it would be too disruptive for the children to live in the father’s house one week and the mother’s the next week with the children having already identified that they prefer living primarily with their mother due to the state of the father’s home[17].
[17] Paragraph 58 of the Family Report.
Ms D considered that the impact of the mother’s proposal meant that the children’s current routine would be maintained and with which the children appeared happy and with the mother’s proposal representing greater consistency for meeting the children’s needs[18].
[18] Paragraphs 59 and 60 of the Family Report.
Ms D recommended that the parents have equal shared parental responsibility and that [X] live primarily with her mother and spend fortnightly periods with her father from Thursday to Monday, and that [Y] live primarily with his mother and spend time with his father fortnightly from Thursday until Tuesday with the children’s requests as to other time to be put into place.
Ms D suggested that the arrangements not be flexible for the reason that this was likely to cause issues that would impact upon the children.
Ms D considered that telephone communications should continue as it was and that consideration be given by both parents to the children’s expressed preference as to choice of school.
Mr Weightman, Counsel for the mother asked Ms D in cross examination whether it was appropriate for the Court to prescribe a specific time for [X] to spend with her father given that she now had casual employment on Tuesday, Fridays and Saturday afternoons, was reaching the age of 16 years in March 2013 and also having regard to her maturity.
Ms D considered there was no benefit or necessity for [X] to spend specified time with her father both because of her level of maturity, her age, the fact that she had obtained some employment all of which indicated that she was growing up and able to make decisions on her own with regard to such matters.
When asked by Mr Weightman whether Ms D considered there was any possible concern of the mother interfering with the flexible arrangement for [X], and by way of illustration whether she may be overbearing Ms D considered it was unlikely. From her notes, the mother had not been overbearing during the interview, and [X] had expressed her views independently, and as she assessed at the time, free from any parental or other influence.
As to [Y], Ms D said that it was [Y]’s idea to enlarge his time until the Tuesday morning and that was something he had raised specifically with her.
Ms D was asked to consider whether it was appropriate for [Y] to look after himself in the morning when staying with his father if neither his sister or paternal grandmother were present. Ms D considered that she would have some concerns given his age as to both his safety and a number of general matters concerning getting himself dressed for school, having an appropriate breakfast and getting to school but more importantly what would occur if he hurt himself or was in danger or sick or unwell.
When Mr Weightman put to Ms D the two proposals by the parents, specifically that the father’s primary position was that the children spend time with him from a Monday after school until the following Sunday at 5.00pm alternating fortnightly in such fashion and the mother’s primary position was that the children spend time with the father from after school on Thursday until 5.00pm Sunday on alternate weekends, and given that both parents agreed to the children returning at 5.00pm, Ms D was asked to consider whether there was any advantage in the father’s proposal over the mother’s proposal.
Ms D considered there to be no benefit but more specifically, said that she did not consider that for the children to spend time with their father from after school on Monday until the following Sunday would be in the children’s best interests on the basis that it was quite an extended period of time and is different from the present arrangement, namely that the children spend time with the father from after school Thursday until the resumption of school Monday morning in alternate weeks.
Ms D considered that on the basis of research, a week about was not in the best interests in the children for the reason that they need stability and predictability and structure. When asked to consider the circumstances pertaining to these parents and their difficulty in communicating and the particular matter in relation to [X] in relation to some hair product, Ms D said clearly that she did not wish to change her opinion of what she considered appropriate.
During cross examination by the father, Ms D was asked whether she would say unequivocally that the children had not been coached as to the views they had expressed. Ms D said that in her opinion at that time there was no evidence that either of the children had been influenced.
The father asked Ms D a number of questions which went to the issue of whether it was appropriate parenting to give teenagers free reign as to where they lived from day to day or week to week or whether defined living arrangements were preferable by providing structure and stability. Ms D was unable to give a specific answer as it depended upon a number of factors.
When asked by the father what Ms D considered to be the children’s demeanour and self confidence and maturity, she said she would rate that quite high for both children to which a number of factors would have contributed including primary attachment figures, extended family and temperament.
Ms D agreed that the children had a close and loving bond with each other and when asked by the father if it would be appropriate for them to spend different or separate periods of time with their parents, Ms D considered that given the ages of these children and the different views they had expressed, she found them to be of a level of maturity to give their different expressed wishes weight and it was for that reason she had made the recommendations she had made[19].
[19] See paragraph 63 of the Family Report.
When asked by the father as to the basis upon which she had suggested the father’s accommodation was not suitable for the children, Ms D said that it was a suggestion by her and not an assertion, and was not aware the children shared a room in their mother’s home.
Mr Dwyer asked Ms D whether, given that the children had expressed different views as to their preferences for spending time with him, and in particular that [X] was content with the present arrangement whereas [Y] wanted to increase the time, whether it would be in everyone’s best interest to strike a balance between the two proposals, perhaps by going down the middle in the fathers own words.
Ms D said “no” and that she had included in her report the very clear wishes expressed by the children as to what they wanted and which she considered did not give rise to any issues. Ms D considered splitting down the middle was not a consideration.
Ms D added that she did not think it too complicated for the children to understand or follow the suggestions the children had made.
In response to a question from me as to Ms D’s evidence that it may not be appropriate to impose specified time for [X] to spend time with her father, and whether there was a risk that if there was no specified time for [X] then it may not occur, Ms D agreed that such a risk was possible and with a further risk that the father may accuse the mother of not releasing [X] which could cause conflict and which then would impact upon the child, and that would be a concern.
I indicated that what I sometimes do in circumstances of this nature is make an order requiring a child to spend a minimum specified amount of time with the other parent which could for example be one weekend per month as negotiated between the child and the father. Ms D considered that such a proposal would be appropriate, and the same principal could be applied to holiday time which would provide for a default period if negotiations were unsuccessful.
I find on the evidence that the observations and recommendations of Ms D were not the subject of any challenge by either the mother or the father to warrant her changing her opinion, save that there be some flexibility with the time [X] spends with her father both during school terms and holidays but with a prescribed minimum period in each case in the absence of agreement. I therefore accept the evidence and recommendations of the Family Consultant.
Discussion
The father secured employment as a [omitted] in February 2012 based at [omitted] in Newcastle and generally working approximately 38 hours per week but with varying shifts. The father has completed his probationary period but at the time of the hearing was not yet on a permanent roster but anticipated being on a permanent roster by the end of 2012.
The father gave evidence that his work involves shift work, by far the greater part of which, and something in the order of 90% is from 7.00am on weekdays until 4.00pm. Occasionally, he is required to work a split shift between 6.00am and 6.00pm with a 4 or 5 hour break in the middle and occasionally he is required to do a late shift starting at about 3.00pm and finishing at about midnight. The father’s evidence was to the effect that he had requested certain shifts to accommodate his care of the children when they have been with him pursuant to the existing orders and that such requests have been successful.
The father gave evidence that he proposes that his employment with [omitted] be long term for the reason that it gives him certainty of employment and some certainty as to hours whereas his previous employment with [omitted] was contract based with no stability or certainty and little flexibility as to hours.
As an employee of [omitted] the father thought he was entitled to
5 weeks annual leave for which he had become eligible, as to part, at the time of the hearing.
He leaves home at about 6.30am to be at the [workplace] in time for the 7.00am shift. Occasionally, there is voluntary overtime for which he can volunteer but which is not compulsory.
The father described a number of other special shifts which could be available to him, for example starting at 10.00am and finishing at 7.00pm or starting between 5.00am and 5.30am and finishing at 1.00pm and a number of other broken shifts.
The father gave evidence in cross examination that in the past, when the children had been staying with him on weekdays and he had left for work at 6.30am, there were two occasions when he asked the children to get themselves to school. The father lives about 100 metres from [Y]’s school and [X] sometimes gets a bus to school. The father said that he put appropriate measures in place for their security and was satisfied that they could look after themselves for a short period.
The father told Mr Weightman in cross examination that generally he arranged for his mother to be at his home to care for the children if he had gone to work. The father qualified this evidence by adding that in his view, [X], given that she will be 16 years of age in March 2013 would be capable of caring for [Y] for a short time.
The father made it clear in cross examination if his application for the children to stay with him fortnightly from after school on Monday until Sunday night at 5.00pm was successful he would continue to work in a full-time capacity. The father said that [omitted] had afforded him some flexibility with his working hours when he has been required to care for the children but that of course at the present time is fortnightly from after school on Thursday until the commencement of school the following Monday morning.
There is no evidence before me upon which I can make any finding that the father will continue to be afforded flexibility if the children are living with him pursuant to his application, namely 6 days and nights each fortnight. Indeed, the father frankly conceded that he did not expect [omitted] to accommodate him to the same extent.
I am satisfied however that the father will work as best he can to maximise the time he is able to be with the children during those periods when they will be living with him.
The father was cross examined as to what arrangements he would make to ensure the children attended any extra-curricular activity after school, whether sport, employment or otherwise and I am satisfied on the father’s evidence that he would ensure arrangements were put into place if he was not able to take either child himself to ensure continuity of attendance. The father identified a particular friend to assist if necessary and the evidence establishes that the parents have been able to assist each other in this respect when required.
[X], at the time of the hearing, was employed at [omitted] at [M] on a permanent part-time basis on a Tuesday, Friday and Saturday afternoon. The evidence establishes that each parent has been able to ensure she has been able to attend this employment and be collected at the end of her day.
The father was cross examined in relation to an incident which occurred on the morning of Monday 23 July 2012 when the father had gone to work in the morning and [X] missed the school bus but had the presence of mind to telephone her mother who collected her and took her to school. The father conceded that at the time of that incident he had not discussed with [X] the arrangements to be put into place if she missed the school bus and said that a contingency plan had not yet been formulated but it was something that was going to be done.
The father conceded in cross examination that he was angry at [X] for missing the bus and that she had involved her mother because it has painted him in a poor light as a parent.
The father conceded in cross examination that at the time of the hearing on 23 August he had not yet discussed with [X] any contingency arrangement should a similar event reoccur.
I was left with the distinct impression from the manner in which the father gave his evidence about this issue that whilst he would not knowingly fail to make appropriate care arrangements for the children when he is absent at work, he had nevertheless given very little consideration to the practical problems which may arise in his absence and how they can be dealt with. The father conceded it was not necessarily an easy option for him to be telephoned at work and he did not intend to rely upon the mother. The father made it clear that his preference would be that she not walk to school, a distance of about 1.8 kilometres but it was an option which need not necessarily be ruled out. It would take her between 30 and 40 minutes.
The father gave evidence, which I accept, that [X]’s bus is at about 8.00am with [Y] leaving to walk to school at about 8.30am, sometimes with the paternal grandmother. The father said that [Y] had been left on his own for the ½ hour period on about 3 occasions. His mother lives not far from his home but does not drive a motorcar and occasionally relies upon a walker device.
On the Thursday and the Friday when the children are with their father, [Y] goes to after school care on those days unless the father is at home. The father gave evidence, which I accept, that his mother is now at his home every day when the children are with him to ensure neither child is left alone.
The father conceded that there had been two occasions when [Y] had signed himself out of after school care and gone home but I am satisfied on the father’s evidence these were isolated occasions and that [Y] is of an age where he is able to look after himself for a short period of time.
Clearly, the mother has some concerns about the children being left unattended although she conceded in cross examination she had also left them alone on rare occasions.
It seems to me that the circumstances under which the children are left alone need to be considered against a background of the reality of a working parent ensuring he or she is present for the majority of the time but catering for the odd occasion when children of this age may be left alone, or together for a period probably not exceeding two hours, if that, and occasionally making their way to or from school. The reality must be weighed against the risk of anything untoward occurring, and the risk, on the evidence before me, is very slight.
Neither parent suggests that any incident has occurred in which either child has exposed himself or herself to danger or been exposed to any danger beyond their control.
On the evidence before me, the children present as mature, sensible and responsible. That is not to say of course that they do not need to be cared for appropriately.
I am satisfied that neither parent will willingly expose either child to any risk and will ensure insofar as possible that appropriate measures are in place at all times.
It is also appropriate in my view for children of this age to begin to explore their own world to gain some feeling of independence and responsibility.
As to the children moving between the two homes, one of the issues raised by [X] when she saw Ms R, a Family Consultant on 19 October 2011 was the ferrying of copious amounts of personal items such as product for her hair. The father conceded readily in cross examination that it was an issue for [X] and was not something that she had particularly enjoyed but that she now packs her own bag and has not made any recent complaint.
There was evidence of an issue for [X] for not having a particular hair product of her choice at a particular time when she was with her father and the father conceded that he had not asked her which particular brand she wanted so as to acquire it for her. The father said that [X]’s needs in this respect varied from month to month and that he did not know which specific brand she wanted.
When it was suggested to the father that if she was living in a week about arrangement and that it could present a problem, the father did not accept such proposition and raised the issue of what would happen if he could not afford the specific hair product she wanted and would then suggest to her that they share the cost based on the fact, in part that she is working. The father made it clear in his responses that he did not see this as a major issue and [X] did not see it as an issue.
I was left with the distinct impression from the tenor of the father’s evidence in relation to this issue that he was likely to see it more as one of cost or potential cost rather than recognising [X]’s need at her age for care products which she found significant. The father’s admission that he did not see it as a major issue but would consider it if it became an issue suggests perhaps that he is not as attuned as he could be to being sympathetic with his daughter’s needs.
The father conceded in cross examination that he had taken [X] to an abandoned warehouse area in [M] with a view to introducing her to the basic technique of driving and controlling a motorcar. The father had taken [Y] as well. This occurred just prior to the hearing on a Sunday and continued for about ½ hour. The father conceded readily that [X] was not yet old enough to have a learner’s permit but shortly is eligible to make application for her “L” plates.
The father’s evidence, which I accept, is that he had suggested this to [X] and that she was welcoming of the idea. The father considered that she was of an age when she could start to appreciate what driving means and to get a feel for it in preparation for making application for her “L” plates.
The father could not recall speaking to the mother about the proposal and I find, on the evidence, that he did not do so and that it was his decision.
The father gave detailed evidence as to the site where the driving instruction occurred. The father was asked whether he was concerned that potentially it was against the law for [X] to drive a motor vehicle without a learner’s permit.
I accept the father’s description of the area which he selected as being off the public road in an abandoned warehouse area known to the father and where there were no other vehicles.
The father described the vehicle he used as an old Magna Mitsubishi with an automatic gearbox and that the driving by [X] comprised driving around in circles, the father showing her the safety features of the car followed by some practice with steering to get a feel for it. There was no suggestion of leaving the chosen area. [Y] was not in the vehicle but nearby playing at some distance within sight.
The father was asked whether he accepted that there was a potential risk of harm if something completely unforseen had happened in relation to the car. The father did not accept such proposition. The father was asked what may have happened if [X] had lost control of the car which the father denied was a possibility both because of the speed at which the vehicle was travelling, the fact that he is a professional [omitted] and was instructing her and with a handbrake within his reach in the central console.
When asked whether in retrospect the father should perhaps have raised that with the mother he said that perhaps it would have been a good idea but that he did not always tell her what he was doing with the children and that he did not expect her to do the same and had complete trust in her most of the time.
When asked by me whether he would still have taken her if he had raised if first with the mother and she did not give her consent or blessing, he said he did not know but he may have just have gone ahead in any event.
It is clear from the mother’s evidence she considered this to be inappropriate and by inference is critical of the father for doing so and sees that as a failure in parental responsibility on his part.
It seems to me that the mother is being somewhat overcautious in this respect and that criticism of the father for doing this is not warranted.
My reasoning is that the father, as he says, is a professional [omitted]. This is not the first time he has worked for [omitted]. I am satisfied that the father did not place [X] at any risk at all and closely supervised her first driving lesson. In my view, it is entirely appropriate to introduce a young person to a vehicle in this fashion in a place where no other person or vehicle was present, there was no risk of mishap on the evidence before me but if I am wrong, the father was readily able to bring the vehicle to a halt and there was no danger to [Y].
It seems to me there is a distinct advantage for a young person, before embarking upon learning to drive a motor vehicle on public roads to become familiar with the basic controls for driving a car and an awareness of how to control by steering, accelerating, braking and learning how to use an automatic gearbox.
Driving a motorcar has inherent risks, wherever it may be but I am satisfied that the father took that into account properly and appropriately and enabled his daughter to experience for the first time becoming familiar with the operation of a motorcar. Further there is no evidence that any road traffic or other law was infringed or broken by either [X] or her father.
As to the father’s accommodation, he rents a shop which has been converted into a residence and of which he drew a sketch plan as to the facilities and accommodation[20]. The father described in detail in cross examination the sleeping arrangements that provide that [X] has her own room and space and that [Y] generally shares bedroom space with the father and that his mother when she is staying overnight sleeps in what is normally [Y]’s room. On some occasions, the father and [Y] share the same bed when the paternal grandmother is staying, otherwise he has separate living space within the premises.
[20] See Exhibit F4
The father gave evidence that he did not intend this to be permanent accommodation but that it is something that he can afford at the present time and that he considers appropriate for the time the children spend with him.
The father said that if his application for virtual equal shared time was successful he would have to find different and larger accommodation.
The father conceded that his present accommodation is within his budget and is the best he can afford at the present time.
On the evidence, I find that the father’s present home is not optimal accommodation for the children whether they are spending four days a fortnight with their father or longer periods. It is not in [Y]’s best interests to share a bed with his father. Whilst there is no complaint from [Y] about such event, it seems to me that it is essential for proper rest and sleeping given the father’s work hours and the time he leaves for work both the father and [Y] will benefit from undisturbed sleep. Whilst there is no direct evidence produced before me of either the father or [Y] suffering from broken sleep, it seems to me inevitable upon the balance of probabilities that this arrangement needs to be addressed by the father by, for example, requiring a separate bed for [Y], which perhaps could be placed elsewhere within the accommodation.
Further, the father had been in his present employment, for some months and did not suggest in his evidence that his salary was likely to increase in the near future.
Whilst the father acknowledged that if his application was successful he would require larger accommodation he conceded that nothing was about to change with his financial circumstances but he hoped to find something a little better and not much more expensive.
Currently, the father pays $215.00 a week rent and that from enquires he had made expected to pay within $270.00 and $320.00 for larger accommodation and encompassing the suburbs of [W], [L] and [omitted]. He had occupied his present home for about twelve months.
As to use of telephones, both children have mobile phones with the mother paying for [X]’s and the father pre-paying for [Y]’s for fixed periods and in respect of which the father does not expect [Y] to exhaust his credit on the basis that the father has introduced very direct and clear ground rules for [Y] for the use of the telephone. The prepaid period lasts for three months.
The father gave evidence that [Y] has told his father that the credit has run out and the father had made it clear to him that it will not be renewed until the three month period has expired.
The father also has a landline at home which the children are able to use.
The evidence suggests the telephone communication between each of the children and the parents is without difficulty.
The evidence establishes that communication between the parents is somewhat poor and may not be capable of resolution although it is equally clear there are some matters about which they are able to co-operate with parenting arrangements.
The evidence suggests, and I find on the balance of probabilities, that household financial circumstances has been a festering sore for many years with the father adopting the view that the mother is prone to excess and indulgence particularly so far as concerns education of the children and the mother adopting the view that the father is unwilling to spend money and borders on being miserly.
Inevitably, this has led to some mistrust. The father illustrated the poor communication by his assertion that the mother did not talk to him about [X] being able to enjoy an overseas trip to India when she was fourteen and there was an application for a passport. The mother asserts that she told the father when she became aware of the event and before the event. The father recalled [X] had talked to him briefly about the possibility of going to India on a Church trip some eighteen months prior to the event but nothing further.
When it was suggested to the father that it would not be possible for the mother to take [Y] abroad unless both parents sign a passport application for him, the father said, somewhat surprisingly that he thought it was a possibility that the mother could forge his signature on a passport application for [Y]. When it was put to the father that the mother had done nothing, to his knowledge of a fraudulent nature, he said:
“I can say with equivocation, no or that I can prove.”
The father conceded in response to a question from me that there was no proper basis to think it was a possibility that the mother could forge his signature.
It is this lack of trust which seems to me flows more likely than not from the inability of the parents to communication about some issues.
Another issue which has given rise to a degree of mistrust is the father’s fear that the mother will leave Australia permanently and move with the children to Guatemala where her father lives and who is divorced from her biological mother.
Mr Weightman suggested to the father that the mother has considerable ties in Australia with her employment, her home, teenage children being educated at private schools in accordance with her preference and put simply, very considerable community ties that would preclude the real possibility of the mother leaving the country with the children to settle abroad.
The father’s response to such proposition was that his research into the possibility of parents taking children from the country, even though they may have ties and connections does not prevent them from doing something to keep the children from the other parent.
When asked by me whether he thought that the mother’s ties in Australia were insufficient to prevent her from moving to Guatemala, the father acknowledged such ties but that they were not strong enough to prevent her leaving Australia and that he believed it was possible that she would go anyway.
It is concerning that the father adduced no evidence at all in his case from which I could make any finding that the mother is likely to leave Australia with the children to live in Guatemala.
The father’s responses to the matters put to him about this issue are more indicative of a perception that the mother is trying to frustrate his relationship with the children when the evidence is to the contrary. Further, Ms D formed a clear opinion that the preferences expressed by each child appeared not to have been influenced by either of the parents[21].
[21] See paragraphs 44 and 51 of the Family Report.
It is unfortunate that the father has adopted such a jaundiced view against the mother which colours his perception of her and which, if reality tested by him ought to lead him to the conclusion that his lack of trust and suspicion is misplaced and no doubt contributes to the poor communication between them concerning those matters about which they do not agree.
As to the father’s financial circumstances, he gave evidence that his gross annual pay is between $48,000.00 and $49,000.00 and that deducted from his gross pay is income tax, union fees, instalments for a tax debt and a student loan debt.
His outgoings include hire purchase of $25.00 a week with an outstanding debt of about $9,500.00, his credit card used for day to day ordinary recurring household expenditure, a personal loan with Westpac for which he pays $90.00 per week with an outstanding balance of about $5,500.00 and his Child Support Assessment currently in an amount of $583.83 per month[22] for the period 1 October 2011 to 31 December 2012 which the father anticipates will increase consequent upon his increase in pay.
[22] See exhibit F5
The father pays $25.00 per week to [P] School when he is able to as a contribution toward accrued and unpaid fees. His assets comprise shares worth about $1,500.00, superannuation and a motor car.
As to the education of the children, it is the father’s clearly stated wish that he would like the children to remain at their present schools until the end of 2013, that is [X] remaining at [S] School until the conclusion of Year 10 and [Y] at [C] School until the end of Year 6 which therefore completes his primary education before moving to a high school.
In response to questions concerning [X]’s schooling for Years 11 and 12, the father said that he had spoken to [X] about her wish to go to [F] School, that she had told him it is a feeder school from her present school, [S] School and that she does not want to go to [P] School. The father confirmed that [X] had again expressed the same wish about [F] School some three or four months prior to the hearing.
The father said that [X] had also mentioned [U] School for Years 11 and 12, and which is also a Catholic School but the father could not confirm if he knew, from his own knowledge that [U] School catered for Years 11 and 12 students. The father said also that [X] had told him that she does not want to go to [P] School but he could not recall when she said this.
When asked by Mr Weightman if the father accepted her wish to go to [F] School, the father accepted that that is what [X] reported to Ms D but then said:
“But we don’t have to give everything to our children that they express a wish for.”
When asked, apart from the issue of finance, whether he would prevent [X] from going to [F] School if that is her preferred choice the father said:
“Not necessarily.”
The father emphasised that [X] told him that she wanted to go to [F] School both because it is a feeder school and because all her friends from [S] School would be going there but that there was a costs element to be considered as it was an independent school.
The father said that both children knew that he did not have the capacity to fund private schooling, and that he had suggested other schools to them, including [M] School which it is acknowledged is a selective State High School.
When the father was asked by Mr Weightman whether he accepted that the mother was willing to pay private school fees he said:
“No, I’m not accepting that. It hasn’t been proven. There is no evidence to suggest she can afford it. That’s why I asked for the subpoena. So I’m not accepting that because it hasn’t been physically said that she will take responsibility for that if she wants it for the kids.”
When it was put to the father that the mother had been paying the greater part of the school fees since 2010 for [X] at [S] School and [Y] at [C] School the father conceded that was the case but understood she benefited from a discount or received a subsidy, about which he did not have any problem.
When the father was asked whether he had any objection to the children continuing to attend private schools, the father said:
“No, I don’t but as long as she can prove she can meet them because I’m not having this family again being forced into debt or financial hardship because of private school fees. And even though we are separated, we are still a family. Our kids are the subject children here, OK so no, I don’t provided she can verify it and validate it.”
It was put to the father by Mr Weightman that [Y] had indicated a preference to go to [P] School rather than continue at [C] School[23], of which the father became aware when he read the Family Report.
[23] See paragraph 46 of the Family Report.
The father did not rule out [P] School as an option for [Y] and he is not opposed to the school, but for the cost.
The father conceded that he would take some comfort as to the children attending private schools if the Court made an order to the effect that the mother was solely responsible for all private school fees and that on that basis he would not have any difficulty with them remaining in their present schools until the end of 2013.
The mother gave evidence that she has a current liability to [P] School for unpaid school fees of a little more than $1,700.00 which she is paying, by arrangement at the rate of $25.00 per week when she can afford to do so and more if she can afford to do so.
The mother also gave evidence that following discussions with the Principal at [P] School, the school would not object to either child being enrolled at [P] School whilst there were earlier unpaid school fees.
The mother gave evidence that school fees for [X] to attend [S] School were about $1,800.00 after the subsidy had been taken into account and that she paid extra for excursions with an additional amount of between $300.00 and $500.00 each year for other school expenses including excursions, equipment, additional books and stationary and similar items.
The mother said that whilst she was a little behind with the fees for [X] at [S] School the school was not insisting upon any immediate payment.
The mother said that the fees for [Y] at [C] School were about $2,000.00 a year after taking into account the discount, and that [Y]’s school fees are up to date.
On the second day of hearing, the mother confirmed the school fee liabilities as $1,793.08 for [P] School and $2,055.60 for [X] at [S] School during 2012 and a credit of $488.20 as at July 2012 for [Y] at [C] School[24]. The mother explained that the [C] School account is in credit consequent upon her mother contributing some school fees in 2011.
[24] See Exhibit M1
When asked by the father as to the future proposal to which the mother deposed that she would like the choice to return the children to [P] School[25] or to keep the children in the Catholic school system the mother confirmed her preference as to the latter but rather that there be an option to go back to [P] School.
[25] Paragraph 97 of the mother’s affidavit sworn 27 July 2012
Given the mother’s earlier evidence, I am left with the distinct impression that she is content for [X] to attend [F] School from 2014 and for [Y] to attend [S] School for his secondary education.
I have referred to the children’s views at some length earlier in these reasons for judgment and particularly in relation to the observations by Ms D.
I am satisfied on the whole of the evidence that the views expressed by the children must be given considerable weight.
The rationale behind those views was not the subject of any evidence either in cross examination or otherwise which would cause me to depart from such conclusion. Further, Ms D’s opinions as expressed in the Family Report were not the subject of any testing or cross examination which warranted her to change her views, save that Ms D considered it would be appropriate for [X] to spend some fixed or certain periods of time with her father to avoid the risk of not spending any time at all if she found her other interests more attractive as she grows into young adulthood and individuates from both her parents.
I am satisfied on the evidence that both children are sufficiently mature and gave very careful consideration to the expression of their preferred wishes. In particular, I give significant weight to [Y]’s wish to spend more time with his father.
b)the nature of the relationship of the child with:
(i)each of the child's parents; and
There is no doubt on the evidence before me that both children have a fond, close and loving relationship with each of their parents although equally, I find that the nature of such relationship with each parent is different with the mother being more accommodating and understanding of the children’s changing needs as they grow and the father being a little more rigid. In particular, I find on the evidence that the father has some limitation in his capacity and insight to accept the need for flexibility in relation to the time [X] spends with him. The father’s preference for a rigid regime with [X] does not recognise her changing needs as she becomes a young adult.
(ii)other persons (including any grandparent or other relative of the child);
The evidence establishes, little though it is, that the children probably have a close and loving relationship with the paternal grandmother and probably relate well to adult friends of each of the parents who are enlisted from time to time to assist with the care of the children if the need arises.
c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Whilst it was the subject of some evidence in cross examination, I am satisfied that both parents are willing and able and do facilitate and encourage the children to continue to have a close and loving relationship with the other parent.
Whilst the mother was hesitant in her evidence about the praiseworthy qualities she could find in the father as a parent, I find on the evidence that the father has much to offer both children.
I find equally that the mother has much to offer the children. It is unfortunate that their differing styles of parenting are not entirely complementary but at the same time, neither style of parenting is established on the evidence to be detrimental to either child or not in their best interests.
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
Neither child will be separated from either parent under any of the proposals I am asked to consider or indeed any conclusion I may make as to continuing parenting arrangements for each of the children.
It seems to me, and I find on the evidence that it would not be appropriate for [X], in effect, to be able to choose when she spends time with her father. Consequently, I propose to order, based partly on the evidence of Ms D and partly on what I find to be in [X]’s best interests that she will spend prescribed and certain periods of time with her father with flexibility as to other times.
As to [Y], it seems to me that he should have the opportunity to spend longer periods of time with his father. In so concluding, I take into account the father’s strongly expressed wish that both children return to the mother on the Sunday evening at 5.00pm during school terms but for the reasons to which I have referred earlier, it seems to me important for [Y] and in his best interests to have this opportunity to spend additional time with his father.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
This has minimal application on the evidence before me and no finding is necessary.
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;
It is unnecessary for me to consider any aspect of difficulty and expense. The parents have lived and will continue to live, in all probability, in close proximity to each other, both have means of transport and their children will be able to continue to move between their respective homes, even if the ultimate outcome of the property negotiations is that the home occupied by the mother is sold.
f) the capacity of:
(i) each of the child's parents;
(ii) 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 on the whole of the evidence before me that both the mother and the father are able to provide for both children’s day to day physical needs as well as their respective emotional and intellectual needs.
Whilst there is some criticism of the father’s accommodation, I am not satisfied on the evidence before me that the children are disadvantaged in such accommodation or that it is to their detriment. As to the father’s evidence concerning his intention to perhaps change his residential premises, it seems to me that if my decision is that the current arrangements pursuant to the existing orders remain in place, or something similar to that he is likely to remain where he is but on the other hand, if the father’s application is successful he will find improved accommodation.
I am equally satisfied that if the home the mother occupies is to be sold she will do her best to find appropriate accommodation for herself and the children within her means.
More significantly, I am satisfied on the evidence that the mother will meet school fees from the legacy she is to receive from her mother’s estate.
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;
Both children on the evidence before me present as confident, mature, well adjusted children with behavioural characteristics appropriate to their respective age and development.
It is a credit to both parents that in spite of their differences, they have been able to raise children who present in this fashion and who no doubt will continue to grow and develop appropriately.
h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
On the evidence before me this has no application.
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
To some extent, both parents have failed in their responsibilities of parenthood by continuing to maintain a dispute as to education, boundaries to be set for the children and disputes concerning financial matters, and each must accept responsibility for this failure.
Both parents have also failed to a certain extent in being responsible parents in permitting their dispute with each other to ferment and continue. The evidence establishes, and I am satisfied on the balance of probabilities, that neither parent has made any real effort to improve their communication such that communications concerning the matters about which they are in issue is successful.
I was left with the distinct impression from having observed both parents give evidence and hearing the manner in which such evidence was given that each believes sincerely that his and her approach to parenting is the preferred approach but this has not allowed any compromise or a better understanding or an acceptance of the other parent’s position.
This is not a matter in which I propose to require the parents to attend any form of therapy to improve their communication. Both parents can adopt that course if they wish but it requires a degree of willingness on their part for such therapy to succeed and I am not left with the impression that either parent is prepared to adopt a degree of flexibility in that sense.
Against that, and it is somewhat of a conundrum, I was also left with the distinct impression that neither parent wants the present difficulties to continue.
At the end of the day, it is a matter for each of them to be able to improve their relationship between each other in the interests of their children and discuss those matters about which they do not agree with a positive approach to reaching an agreement and which of course requires compromise.
j)any family violence involving the child or a member of the child's family;
This has no application on the evidence before me.
k)any family violence order that applies to the child or a member of the child's family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
On the evidence before me, there is no current family violence order in force.
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;
In framing the orders I propose to make, I will endeavour to avoid the need for further proceedings. In particular, I will order that the parents must confer with a family dispute resolution practitioner or other consultant as a prelude to any further parenting proceedings being instigated.
m)any other fact or circumstance that the court thinks is relevant.
There is none.
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
I have considered these matters at some length earlier in these reasons and no further comment is necessary
Section 61DA
When making a parenting order the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have equally shared parental responsibility for the child, subject to the presumption not applying or being rebutted in the circumstances provided in the section.
The only relevant circumstance is found in Section 61DA(4) which provides as follows:
“The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
The father proposes equal shared parental responsibility for both children.
The mother proposes equal shared parental responsibility for all matters but excluding decisions concerning the children’s education which she asks be preserved to her.
In the orders I propose to make I will define those matters about which the parents are required to consult with a view to reaching an agreement.
In proposing to make such orders, I find that the poor relationship and poor communication between the parents is not such that they are disabled from talking to each other about the major long term issues concerning the children’s care, welfare and development.
Whilst both parents maintain a degree of lack of trust of the other parent and each criticises the other for not notifying some significant matters including health and education, it seems to me, and I find on the evidence that for there not to be an order for equal shared parental responsibility is not in the children’s best interests.
In coming to the conclusion that the presumption of equal shared parental responsibility is not rebutted, I take into account those matters about which the parents are required to confer and consult with each other and make a genuine effort to come to a joint decision are likely to revolve around education. Whilst at the commencement of the hearing one might have been left with the impression that education and choice of school was an intractable issue with the high probability of dead lock and some possibility of leading to further proceedings, the evidence at the conclusion of the hearing is quite different.
The evidence establishes that there is no real issue about choice of school for the children with both parents supportive of the proposition that both children continue to receive the best education that is available for them. The issue in relation to education flowed from cost with the father’s assertion that the parents could not afford a private education.
The father’s evidence at the end of the case, quite clearly, is that he does not object to the schools for each child for the remainder of 2013 or beyond, and the mother has agreed to pay the fees. It seems to me that in the best interests of the children, the right should be reserved to both parents to share jointly the responsibility of choosing a school, whether it be private or public. The decision of a public school may arise, when, for example, if the mother’s legacy from her late mother’s estate is not sufficient to fund the remainder of the children’s education. In my view, it is appropriate therefore for both parents to consult each other and make a genuine effort to come to a joint decision about an appropriate public school if such need arises.
It seems to me that the poor level of communication does not mean that one parent ought to be excluded from the decision making process in relation to the children’s education. It would be different if one parent was disinterested in the child’s education or had not taken any active part in the upbringing of the child or had not shown a commitment to spending time with and caring for a child.
In this case, clearly on the evidence before me, the father is an interested and devoted parent and I find on the whole of the evidence that the children’s attachment to him, as well as their mother, requires input from both parents as to choice of school, if the need arises.
In coming to this conclusion, I find on the evidence that this is not a case where the parents inability to communicate relates to all aspects of the upbringing of their children and has not resulted in chronic intractable conflict from which the children have suffered as to any decision made by their parents.
In coming to this decision, I have taken into account the written submissions made by the father and the oral submissions made by
Mr Weightman on behalf of the mother.
The father submitted that the issue of schooling after 2013 is a difficult matter and seems to require an adjudicator. Mr Weightman submitted that it was necessary for one parent to have sole parental responsibility for selection of the high school and that it was appropriate for the mother to bear that responsibility but with appropriate notice to be given to the father, for example of about six weeks prior to an enrolment being made to enable him to be kept informed, and on the premise not that there would be the possibility of a Rice and Asplund argument if there had been no change of circumstances but that he be kept informed of the mother’s selection in those circumstances prevailing.
For reasons I have given, when I come to weigh the whole of the evidence and whilst at first sight it may be an attractive proposition for the mother to have sole parental responsibility for the selection of a high school, and whilst there is no suggestion the mother would act capriciously, I conclude it is preferable for both parents to share the responsibility of selection of high school, particularly for [Y], if it becomes necessary.
It seems to me, on the balance of probabilities, that there will be a remote chance of disagreement. I give that factor considerable weight given that on the whole of the evidence, both parents would like the children to receive the best education possible and the father is not in dispute with the mother as to [X] attending [F] School for years 11 and 12. The mother’s evidence is to the effect, and I accept such evidence, that she has now told [Y] that he will not be returning to [P] School but is more likely to attend [S] School.
For reasons to which I have referred earlier in this judgment, the father is not opposed to the children attending these schools.
It is the father’s case that if the mother is unable to afford private school fees then the most likely appropriate schools are [M] School, a State selective High School, [H] School or [L] School. I have some degree of confidence that if the children are to attend State Schools both parents will be able to discuss which school is best equipped to meet the individual child’s needs and are therefore more likely to agree rather than disagree. If there is a disagreement than I will put in place orders to consult with a Family Dispute Resolution Practitioner.
Section 65 DAA
Section 65DAA is in the following terms:
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Consent orders
(6) If:(a) the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b) the order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child;the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7) To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Note: Section 60CA requires the best interests of the child to be the paramount consideration in a decision whether to make a particular parenting order.
I find on the whole of the evidence before me that this is not a case where it is in the best interests of either child to spend equal time with each of the parents or indeed, as the father seeks from after school on Monday until 5.00pm on Sunday.
My reasoning is that for reasons I have given earlier, the evidence establishes that both children are of an age and level of maturity to express a wish to which the Court can give weight and in the circumstances of this case ought give weight.
Further, the evidence of Ms D and her evaluation and recommendations were not displaced during the course of the hearing, save that I am not able to ignore the fact that [X] is now considerably older and Ms D qualified her recommendation in relation to [X]. Specifically, whilst Ms D considered it appropriate for [X] to have input into making arrangements to spend time with her father, largely in accordance with her wishes, it was nevertheless, as Ms D agreed, appropriate that she spend some core time with her father at the same time as [Y] so at to avoid the risk of her relationship with her father being disturbed.
The other matter to consider in relation to equal time is that the father is now engaged in regular employment involving shift work and on his evidence, for the greater part of the time, will not be available to directly care for the children in the morning at the time that they go to school. Whilst I am satisfied that he is able to put in place arrangements for his mother to look after the children, that is not necessarily preferable or ideal when the mother is available. That is not to criticise the father for his earnest wish to share equal time with the children nor indeed his mother but rather, to look at the practicalities.
Further, it is not a case where I find on the evidence that it is necessary for the children to spend more time with their father to enhance their relationship with him in their best interests. Both children already have a well established and fond and close relationship with their father.
Further, if I were to accede to the father’s wishes, it is likely that [X] will become resistant and refuse to spend such time with her father with the attendant risk that her relationship with her father will suffer with some consequent degree of resentment, perhaps on the part of both of them. That risk is not warranted and is to be avoided.
As to [Y], it is his clearly stated wish to spend more time with his father, but not as much as equal time. I give such expressed wish considerable weight, and find that alternate periods from after school Thursday until back to school Tuesday and broadly half school holidays are appropriate.
As to school holiday periods, it seems to me that is it appropriate for [X] to spend some fixed week periods of time with her father at the same time as [Y] but not as much as half every holiday period.
It seems to me that if [X] is required to spend two weeks of the Christmas school holiday period with her father at the same time as [Y], which flows from matters arising during submissions and will be in the second half of such holiday period, and [Y] is also required to spend such two week period that will enable the children to perhaps enjoy a holiday with their father away from Newcastle or enjoy time together pursuing activities locally.
The evidence establishes that the father has confidence in being able to secure leave from his employment over the Christmas period.
As to the other school holidays, it seems to me that [X] should be required to spend one week of the holidays with her father at the end of the second term but otherwise by arrangement with him during the school holidays at the end of the first and third terms.
In coming to this conclusion, I take into account in all probability, [X] will continue to prefer to mix with her peers, take up employment opportunities but also be devoting a very considerable amount of her time to studying during the last two years of high school as she prepares for the Higher School Certificate and perhaps tertiary education.
Final Conclusion
Having determined equal shared parental responsibility and the time to be spent with each parent for the reasons given above, there are some ancillary matters to be considered for determination, some of which resolved during the course of submissions.
As to Christmas, both parents agreed ultimately that the children spend time with their mother on Christmas Eve and Christmas Day and both spend time with their father from 10.00am Boxing Day, 26 December until 3.00pm on 28 December.
I propose to make orders that both children spend time together with their father for two weeks during the remainder of the Christmas school holidays as is agreed between the parents, but in the absence of agreement I will define the period broadly to conclude on the Saturday morning of the last weekend of the school holidays.
As to Easter, the mother proposed that [Y] spend time with the father, until the age of 16 years, from 8.00am on Good Friday until 8.00am on Easter Saturday in odd numbered years and from 8.00am on Easter Saturday until 3.00pm on Easter Sunday in even numbered years.
The father proposed that until each child attains the age of 16 years the children spend time with him from 9.00am on Good Friday until 9.00am on Easter Saturday each year thereafter with the mother for the balance of the Easter period.
Given that this issue is not the subject of any challenge by either parent or detailed evidence or submissions, and given that Easter falls within the school holiday period on more occasions than it falls outside school holidays, I do not propose to make any specific order for Easter. On the evidence before me, there is nothing to suggest that it is a religious occasion of significance for either parent or either child to warrant specific orders. Consequently, I decline to make any orders in respect of Easter.
The father sought an order in his outline of case document that he would like the children to accompany him to their Aunt’s wedding on the North Coast over the period Thursday 16 May to Wednesday 22 May 2013.
This was not the subject of any specific evidence or cross examination as to why such a period was required. I propose therefore to accommodate the father’s application and for this to be a weekend over which both children are to spend time with their father from after school on the Thursday, 16 May until the commencement of school on Monday 20 May. This event does not take place during school holidays and there is no reason advanced by the father to justify five days absence from school for either of the children.
There is no issue in relation to the children being with the mother on the Mother’s Day weekend and the father on the Father’s Day weekend and I will order accordingly.
As to the children’s birthdays, there are competing proposals with the father suggesting a period of five hours close to or during the week of each child’s birthday that [dates omitted] depending upon his work commitments and at a time agreed between the parents with the father to give a weeks prior notice to the mother as to his availability to facilitate the time. The father suggests that if the children are with him on their birthdays that they spend time with their mother from 12.00 noon until 5.00pm on both days if it is a non school day or from after school until 8.00pm if the birthday is a school day. In each case, the father is suggesting a period of five hours.
The mother’s proposal is a little different, essentially for the children to spend time with the other parent for three hours on a non school day from 12.00 noon until 3.00pm or on a school day from 3.00pm until 6.00pm.
Weighing the competing proposals, it seems to me and I find that the father’s proposal has a greater element of flexibility but more importantly provides a longer period of time to enjoy a birthday celebration or an outing together.
As to medical expenses, there was a consensus during submissions that each parent bear the costs of minor medical expenses for each child less than $50.00 including visits to a doctor, prescriptions, prescribed, over the counter medication and the like.
The agreement in relation to medical expenses over the amount of $50.00 is that such will be shared equally and with medical expenses to be defined to include dental and optometrist. I propose to make an order to define medical expenses to include those incurred for treatment by any doctor (general practitioner), specialist treating doctor, physician, surgeon, radiologist, psychologist, psychiatrist, dentist, dental surgeon, optician, optometrist and physiotherapist. I will define also the means of notifying the expense and the logistics of sharing the payment.
The father proposes that the parents agree in writing to all overseas travel with and for the children. In general terms, the mother does not oppose such an order but does oppose a restriction of time for travel as suggested by the father for a period of four weeks.
I propose to make a general order for each parent to give the other prior notice of any proposal to take either or both children overseas and for appropriate make up time.
For these reasons, I make the following orders.
I would like to think that the conclusion of these proceedings will give both parents a better understanding of the matters the Court is required to consider when parents are not able to agree and which I hope will in turn enable the parents to have a better understanding of the importance of them co-operating with each other about any individual issues which may arise, considering the various alternatives, discussing those alternatives with both being prepared to compromise, when necessary, to reach an agreement.
In my view, agreement between the parents as to any other matters will be a very significant gift for both parents to give their children. It is pertinent to remember that as the children told Ms R in October 2011 both were well aware of the acrimonious nature of the parental dispute and at times have been drawn into the conflict by way of being made (messenger). Whilst there is some suggestion on the evidence that the parents have tried harder to protect the children from their dispute they have a little way to go to be successful.
I have some confidence that with each being willing to do so, they will begin to better appreciate what their children need in the latter years of their childhood.
I certify that the preceding three hundred and eighty-nine (389) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate:
Date: 10 April 2013
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