Dyson and Dyson
[2007] FMCAfam 1225
•23 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DYSON & DYSON | [2007] FMCAfam 1225 |
| FAMILY LAW – Equal shared parental responsibility – best interests of the child. |
| Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61C, 61DA, 65D, 65DAA |
| B v B (Re Jurisdiction) [2003] FamCA 105; (2003) FLC ¶93-136; (2003) 172 FLR 286; (2003) 31 Fam LR 7 Godfrey & Sanders [2007] FamCA 102; (2007) 208 FLR 287 Goode v Goode [2006] FamCA 1346; (2006) 206 FLR 212; (2006) 36 Fam LR 422; (2006) FLC ¶93-286 H v W[1995] FamCA 30; (1995) 126 FLR 159; (1995) 18 Fam LR 788; (1995) FLC ¶92-598 R & R: Children’s Wishes [2000] FamCA 43; (2000) FLC ¶93-000; (2000) 155 FLR 29; (2000) 25 Fam LR 712 U v U [2002] HCA 36; (2002) 211 CLR 238; (2002) 191 ALR 289; (2002) 76 ALJR 1416; (2002) 23(15) Leg Rep 19; (2002) 29 Fam LR 74; (2002) FLC ¶93-112 |
| Applicant: | MR DYSON |
| Respondent: | MS DYSON |
| File number: | MLM 9843 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing dates: | 13 – 15 November 2007 |
| Date of last submission: | 15 November 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 23 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.J. Spicer |
| Solicitor for the Applicant: | Lucas & Marshman |
| Counsel for the Respondent: | Mr Pavone |
| Solicitor for the Respondent: | Power & Bennett Lawyers |
| Counsel for Independent Children's Lawyer | Mr Curtain |
| Solicitor for Independent Children's Lawyer | Sarah Lia |
ORDERS
The husband and the wife have equal shared parental responsibility of the children of the marriage, [X] born in 2000, [Y], born in 2001 and [Z], born in 2003 (“the children”).
Unless otherwise agreed in writing:
(a)The children live with the wife, provided that from the commencement of the 2008 school year the wife and children are living in [H].
(b)The children spend time with the husband as follows:
(i)from after school on Thursday until the commencement of school on Monday each alternate weekend;
(ii)from after school on Thursday until the commencement of school on Friday each week;
(iii)one half of the school term holidays by agreement and failing agreement the second half thereof save and except as to Easter which shall alternate each year with the children being with the Wife in Easter 2008 and each alternate year thereafter;
(iv)for time as agreed on Christmas, Father's Day and the birthdays of the father and children;
(v)for one half of the annual Christmas vacation by agreement;
(vi)at other times by agreement.
(c)The children communicate daily with the husband by way of a telephone call, such call being instigated by the husband no later than 7.15pm.
(d)When the children are spending time with the husband, the wife be permitted to communicate daily with the children by way of a telephone cal being instigated by the wife no later than 7.15pm.
(e)The children attend Primary School at [H] from 2008 onwards.
(f)When the children are in the care of either parent and that parent is unable to care for the children for a period exceeding 3 hours, the other parent be given the first opportunity to care for the children.
That the father not drink to excess when the children are in his care, and that ‘excess’ be defined as exceeding the legal BAC limit for driving a motor vehicle.
The usual notations with respect to ss.65DA and 62B of the Family Law Act.
IT IS NOTED that publication of this judgment under the pseudonym Dyson & Dyson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 9843 of 2006
| MR DYSON |
Applicant
And
| MS DYSON |
Respondent
REASONS FOR JUDGMENT
In this case the parties are unable to resolve the care arrangements for their three children. They have resolved their property dispute and it need not be dealt with in this decision.
HISTORY OF THE PROCEEDINGS
The wife was born in 1962 and the husband in 1963. The husband is from a farming family. He purchased the farm that he lives on with his brother in 1988. The parties married in 1996 and lived in town until they moved to a house on the farm. The wife was working as a [healthcare professional] and continued to do so at various times during the marriage.
The parties have three children: [X], born in 2000, [Y], born in 2001 and [Z], born in 2003. The wife was the primary carer, working part-time at various times during the relationship.
The parties separated on 19 January 2006 following which the wife moved to [R], a town some distance south of the farm and a distance south of where the wife's mother lives. She stayed there for five months and moved further south in June 2006 to purchase a house at [C]. The [C] residence is around 250 kilometres south or slightly south-west from the farm property. She commenced worked part-time in [M], a town approximately 64 kilometres distance to the east from [C]. The husband has been seeing the children each second weekend and during half of the school holidays.
The proceedings were commenced in November 2006. The trial in the matter came on in the last circuit at Ballarat and after some evidence there were agreements between the parties that the wife would move back to [H], around 75 kilometres from the farm, and the matter was adjourned with some hope that the matter would be resolved entirely between the parties. It was not able to be so resolved and the conclusion of the hearing took place in the November 2007 circuit.
As a result of the need for a decision to enable school enrolment to be finalised this judgment is being delivered orally soon after the circuit in the style of an ex tempore judgment.
THE PROPOSALS OF THE PARTIES
The husband's proposal is for equal time, weekabout. To achieve this the children would have to attend the [U] school which is a school in a small town halfway to the farm from [H]. The town has around 1000 people and the children would have to travel there by bus each day whether travelling from [H] or from the farm. As the youngest child is not yet at school a weekabout arrangement cannot start until 2008 when the youngest child commences school. It is therefore the husband's case that the weekabout arrangement commence not next year, but in the following year.
The wife's proposal is for the children to attend school in [H] at a Catholic school that she has chosen. She proposes that they have time with the husband as often as is practicable and has formulated this as Thursday to Monday each alternate weekend. She is open to the husband having time with the children during the week and there seems to be no dispute about school holidays, nor even the need for the court to make specific orders about special days such as Christmas and birthdays, as the parties can work out those details as between themselves.
The independent children's lawyer made a submission supporting the proposal of the father.
The significant differences on a practical level in the two proposals relate firstly to travel. On the father's proposal the children would have to travel one half hour approximately each way, each day, to and from school. When they are travelling from their father's to the school he would have to drive them to the local bus stop from the farm. When travelling from their mother's, she would walk up and meet them at the bus which is only a few minutes walk from the house that she is proposing to move to at [H].
The second practical difference in the arrangements is related, in effect, to whether or not the mother remains the primary carer dealing with the minutia of the children's day-to-day arrangements and life or whether that role becomes equally shared as between the parties.
I note at this point that my view is that both are mature and caring parents who will make whatever orders the court decides upon work for the benefit of the children. It is important to note that the parties have not needed orders from the court to deal with special days or other of the minor details of the arrangements that are in place as between them for the arrangements for the children.
THE APPLICABLE LAW
The court has a general power to make children's orders: section 65D of the Family Law Act. This power is subject to the effects of a variety of provisions in Part VII of the act. In exercising the power to make a children's order under section 65D of the Act a number of steps are necessary:
(a)The context of the provisions provided by the objects and principles set out in section 60B should be born in mind.
(b)The best interests of the child, or in this case children, are the paramount consideration. Section 60CA provides that the best interests of the children are determined having regard to the primary and additional considerations set out in section 60CC.
(c)Whilst the best interests of the children are the paramount consideration, it is not the only consideration. For example, the risk of family violence to others is also a relevant consideration (as set out in s.60CG) and the right to freedom of movement is another such further consideration (see generally B v B (Re Jurisdiction) [2003] FamCA 105; (2003) FLC ¶93-136; (2003) 172 FLR 286; (2003) 31 Fam LR 7 and U v U [2002] HCA 36; (2002) 211 CLR 238; (2002) 191 ALR 289; (2002) 76 ALJR 1416; (2002) 23(15) Leg Rep 19; (2002) 29 Fam LR 74; (2002) FLC ¶93-112).
(d)In determining what orders are appropriate the starting point is a consideration of parental responsibility. Each parent has parental responsibility for their child, even if they have no court orders: s.61C. There is a presumption that it is in the best interests of a child that there be an order for equal shared parental responsibility in parenting cases unless there are reasonable grounds to believe that a parent has engaged in abuse or family violence: s.61DA. This presumption is able to be rebutted if, on the facts of the particular case, it is not in the best interests of the child, or children, for there to be equal shared parental responsibility. Even if the presumption does not apply, it may nonetheless be in the children's best interests for there to be an order for equal shared parental responsibility.
(e)If there is an order for equal shared parental responsibility, the court must consider ordering that the child spend equal time with the parents, and if not equal time, then substantial and significant time (see section 65DAA). In Goode v Goode [2006] FamCA 1346; (2006) 206 FLR 212; (2006) 36 Fam LR 422; (2006) FLC ¶93-286 the Full Court said that:
[64] The wording of the section suggests a consideration tending to a result, or the need to consider positively the making of an order, if the conditions [of] ... best interests of the child, and ... reasonable practicability, are met.
THE EVIDENCE
The husband is a farmer who works hard on a farming property in Victoria. In the past it appears clear that he has been content for the wife to manage the day-to-day arrangements for the children, particularly when they were together. Their roles were characterised by him working on the farm and she carrying out the role of carer for the children and, from time to time, working part-time.
Whilst the husband was softly spoken and relatively relaxed in the witness box, he at times appeared quite contrary during cross-examination, often not answering directly or giving explanations that were not directly on point. Nonetheless, I have no doubt that he deeply loves his children and wants what is best for them. He is, in my view, deeply committed to the children having a farming upbringing which would include significant time on the farm and engaging in farming activities and activities centred around a farming lifestyle. He would like to see them immersed in the country lifestyle, both with his extended family, friends of the family, and other farmers in the district. It seems, at least at this stage, that this strikes a chord with [X], who has expressed views that show that he greatly enjoys the time that he has on the farm with his father.
Issues were raised in the case about the extent to which the father may have engaged in drinking at a time when the parties were both together on the property. The father denies that he drinks excessively and does not admit that he has any alcohol problems.
It appears to me, when stepping back and looking at the evidence as a whole, that it is more likely that as the marriage became more difficult between them, moving towards the point when it broke down, that he spent less time around the wife and more time with his brother and others on the farm, often including having a few beers after work. This, over time, also resulted in him often returning to the farmhouse after the children had gone to bed.
In any event, he has offered his undertaking, which the wife accepts, that he would not drink to excess, and I record in my judgment that I take the view that this was offered to ensure that this did not become an issue for the trial, rather than being seen as any particular admission.
Central to the case is the capacity of each of the parties to parent on a day-to-day basis. I have little doubt that the father is a capable man who, with time and application, could manage most tasks that anyone would set for him, whether they be farm-related or child-related.
However, he also has a farm to run. His sister has recently moved back to the farm, although it is not entirely clear yet exactly what her role and conditions on the farm will be. It is clear that a primary motivation for her moving back was to assist the husband on the farm and provide him with some backup to assist him to be available to care for the children. At this stage no specific time frame has been set about when it is expected the sister will stay on the farm, whether it is permanent and what her wages might be or what her other financial arrangements might be with respect to an interest in the farm if she is not to be paid standard wages.
Whilst the future is unclear with respect to the husband’s sister, I am satisfied that at the very least she and the husband are motivated by good intentions to ensure that there is time available for him to parent the children.
There was considerable cross-examination about the ability of the husband to generate an income from the farm. His tax returns show a number of years of nil incomes and he expressed the view that he and his brother worked towards trying to have a nil taxable income, no doubt for tax minimisation purposes. However, he stated that he had an endless supply of funds, referring to the fact that their borrowing limits have an upper drawing limit of around $2 million and they are nowhere near this upper limit.
On the material it appears to me that there is no question that he would have the capacity to provide appropriately for the children, whether they be in shared care or in the care arrangements suggested by the mother and whether that provision would be by way of child support or provision of direct assistance or running a household.
I remain unclear about the capacity of the farm to provide either appropriate income or other financial recompense to the sister in the context of the case.
When asked about his past involvement with the children, he at one point gave three examples which I record as they are somewhat instructive. He referred to time with the sheep on the farm, farming activities and spending time with him and his brother. None of these activities appeared to be particularly child focused as opposed to being child-inclusive in including the children in the farm life.
I do not make this comment to be critical of the father, as clearly it is important to include the children in an age-appropriate way in farm life and farm activities, but there is also a need for the children to have activities entirely focused upon them rather than simply activities including them in farm life.
The father was critical of the mother for enrolling the youngest child in the kindergarten in [H] without consultation with him. It appears to me that he is right to be critical about the lack of consultation, although the mother's explanation was that there were limited places available, given how late it was in the year and she took what place she could get.
Significantly the father does not appear to have made any inquiries, either at [H] or [U], as to what kindergarten places may be offered or available for the youngest child and how they may fit in with the care arrangements that he proposes.
With respect to the children's extracurricular activities, it appeared that the father had not explored these issues, particularly noting that there would be issues around bus times and travel to and from [U] and also that [U] is a town of only around a thousand people (although with a large catchment area) and therefore there are real questions as to what extracurricular activities may be offered in [U] itself.
The father assumed that there would be a scout troop there that would offer Cubs or Joeys and that that would run for one half hour, one evening a week. It does not appear that he has made any specific inquiries about this.
The second child, [Y], wishes to undertake dance lessons. For a child of her age and gender this is quite a common request. The father does not appear to have made any inquiries as to what is on offer, either in [U] or [H], such as the types of dance lessons that are on offer, where they are offered or the times.
[X] appears to be a child with interests in sport and again, there were no details of what sporting teams or associations were available in [U] or indeed, as he progresses through primary school, what his school sports' teams do about training and matches, if indeed there are school sports' teams in the school at [U]. The father was able to say that there was an adult side in [U], but that does not appear to me to assist a great deal in focusing on the minutia of day-to-day arrangements that best meet the needs of the three young children.
There is a desire for [Y] to learn the piano. Although the father had not spoken to the piano teacher, he did contend that a relative has a child that is learning and did not mention that at this time it seems there is not a piano at the farm. Presumably the latter difficulty could be easily overcome as the father has access to financial resources and could purchase one if needed.
In cross-examination the father said that he had attended the school swimming carnival and a working bee but that he had not had an opportunity to do homework with the children.
He explained the [U] option as being a bus ride of around 30 minutes each way for the children, regardless of which household that they would be in and a short drive from the bus stop to the farm when staying at this household. This seems to me to result in around 10 hours' travel per fortnight for the children on buses and clearly would have some impact upon their after-school activities and their after-school peer groups. The father said that he would travel to [H] for extracurricular activities and it appears to me that on any option there is a certain inevitability about extracurricular activities being in [H], as at this stage at the very least there is no evidence that any extra curricular activities can actually be undertaken at [U].
It therefore seems to me that one ought to consider that at least a couple of times per week between three children they are likely to need to be in [H] in the afternoon or evenings for extracurricular activities which will require them to travel in the opposite direction of their father, on his proposal, during the weeks that they are living with him for half an hour before travelling back to the father's which is a one-hour trip in the evening.
If the children are at [H], it is agreed that they will be around five minutes from their school and would probably walk under the supervision of their mother. They would, however, be one hour from the farm and the wife's proposal would result in four hours' driving per fortnight Thursday night, Friday morning, Friday night and Monday morning. If the wife's proposal were extended such that the father had the children overnight on the off week, then it may be as much as six hours per fortnight; still somewhat less than the 10 hours per fortnight that would be the result of the shared care arrangement. If one factors in the further travel from the farm to [H] for extra curricular activities, then potentially there is another couple of hours per fortnight of travel for the children.
It seems clear that, knowing that the trial was proceeding, the issues were largely centred on whether the children would go to school in [H] or [U] as an integral part of the difference in care arrangements. However, there still has not been significant focus on the details of the day-to-day arrangements for the children to create a very clear picture of exactly what would be entailed in the children's day-to-day lives in the different care arrangements.
It was also important to note the husband's view about a couple of aspects of flexibility of the care arrangements. He saw the attempts by the mother to put forward a variety of options in the time leading up to the trial as indicative of a negative aspect of the mother’s case, rather than seeing any positive aspect in it of her looking for various options that may meet the children's and her needs and could possibly meet the father's hopes.
In a similar vein when it was put to him that orders may be made for each party to give the other the first option to care for the children if they are unable to look after themselves (presumably only in cases where the period was greater than a few hours) his answer remained noncommittal stating that that was "an option that could be proposed".
The mother's evidence showed that she was heavily focused upon the children. Unfortunately, she moved further away from the father than seemed to be necessary and added a great deal of travel distance between the father and the children (around two and a half hours in the car). This was unlikely to be of benefit to the children given their strong relationship with the father and the farm.
However, the children continue to maintain a very good relationship with the father despite this distance, which shows that the mother has not been poisoning the relationship with the father or attempting to undermine it.
It was put to the mother that she considered herself a superior parent which she denied, although it was clear from the tenor of her evidence that the difference she did focus upon was that she was heavily focused upon the day-to-day arrangements for the children and the primary carer/nurturing parent role in the lives of the children to date and was concerned that the father would not, as her counsel put it "step up to the mark" on those day-to-day details. She admitted that she did not discuss kindergarten with the father and that her move to [C] did not put her particularly close to her own family. It seems that her relationship with her own family, whilst cordial is not as close as the father and his extended family. She pointed out that she had to travel by bus to school and this was something she hated about travelling to and from school when she was younger.
It was clear, however, that she had looked into the [U] option and that the father had really not focused on the [H] option as a realistic option as it did not fit the shared care arrangement. The mother expressed her concerns about travel time, the importance of a stable home base (no doubt focused in part upon the age of the children and her primary carer role), the benefits to the children of being able to walk to school, the ease for the children in maintaining a social network as young children if the children are living very close to the school and the facilities that a town such as [H] can offer. Although [H] is not a large town, it is certainly far greater in size than [U].
She mentioned that the children will be attending a Catholic school at [H]. The parties are Catholics, although in the scheme of the case it does not appear to me that for either party the association of the school with the church is a particularly important factor.
She readily agreed to the proposition that should she be unable to care for the children, the father should have the first option to do so. She explained about the extracurricular activities that she was exploring based upon the desires of the children. She had identified that there were two scout troops in [H] and therefore two possible scout troops that the child [X] could attend for Cubs and the preferred one she saw as running from 7.00 to 8.30 pm at [H]. She had made some inquiries about jazz ballet dance lessons for [Y], which are on offer from 4.00 to 4.30 and some inquiries about basketball that was available as well as Little Athletics.
She said that when on the farm she had not worked solely for her own benefit and had applied her earnings to the family, the family food budget and expenditure on children and the like. It appears to me that her working was an important part of her social interaction, given that she was living on a farm some distance from major centres and that the income generated from that job was not spent on her own needs or discretionary expenditure, but largely applied to the benefit of the children and the household.
The family report writer, Ms Winsome Thomas, wrote a report when the relocation question was still an issue. The family report writer said in her report that she recommended a weekabout arrangement immediately. The report writer recanted from this position when giving evidence and suggested that one would not commence a weekabout arrangement until all the children were in primary school (which matched the father's new proposal).
One of the comments she made in her report (at paragraph 43), which suggested that the mother had not brought the children with her denying the family report writer the opportunity to see the mother with the children, was somewhat misleading. The circumstances that arose were that the family report writer found that it was late in the day and did not wish to travel down to [C] from other country towns and asked the wife to travel up to see her. Having regard to circumstances that took place, it would be inappropriate for there to be any criticism of the wife about denying the family report writer the opportunity to see her with the children: that circumstance was generated by the conduct of the family report writer.
When cross-examined about how she approached the report, the report writer said that she approached it on the basis that she should be looking for anything to rebut equal shared time. This appears to have been based on a misunderstanding of how the more recent amendments to the Family Law Act are meant to operate. It is hard not to conclude that the shadow of the law (or at least the politics around the recent changes to the law) have coloured the approach of the family report writer such that it became an amalgam of a misconception of the law and social sciences, blurring and confusing her role. While she was giving evidence I asked her for her opinion, if she were able to put aside the law, however, when reflecting upon that part of her evidence I am not satisfied that she was able to disentangle this amalgam of perception of the law and social sciences in such a way to make the evidence in that regard useful.
The report writer also made reference to recent research which she said underpinned the amendments, but there were no specific references. Similarly, I did not find that particularly helpful.
The report writer's observations on specific matters are nonetheless of assistance. She identified that for young children being able to walk a short distance to school is an ideal situation. She identified that in high school sometimes children would prefer to be on the bus, as it gives them more free time with their peers to pursue their social interactions. However, she tempered this by the proposition that it must be balanced against other things that the children may miss out on if they are in a situation where they can walk quickly and easily to school but have limited time with another parent.
She saw the proposal of equal shared time about bonding with the farm life, although noting that the children are unlikely to lose their bond with the father because the father will nonetheless work on maintaining that bond with them. She thought that the benefits of an integral involvement in farming life outweighed the overall difficulties that the children would confront and that the only real risk for the children would be if conflict between the parents were not able to be removed or they would have many future changes of schooling. She was firm that the school they were enrolled in now should be considered a permanent enrolment so that further changes do not take place.
During the course of her evidence she accepted that there is a risk of the father not being able to step into the primary carer or nurturing role that the mother has undertaken to date and it appeared to me that she had not really turned her mind to this particular question when conducting her report. Her observations of the children show that [X] misses having time with his father. He is not pleased at having to do so much of the travel and he has expressed a preference for weekabout arrangements. [X] had also wondered about whether someone would ever come over to play, which seems to be in the context of whether he would get back to a situation where he would be able to have friends around after school for play dates. The other two children were clearly at ease with the father, although really too young to provide any clear views that are of great assistance.
The children all appear to have significant and meaningful relationships with the father. The family report writer did not explore in depth the mother's move or the reasons for it, focusing rather upon the importance of the children having regular time with the father and, in her view, the better position of the children living nearby.
The report writer casts the mother as restrictive of the father, but did not really explore the historical roles of the parties with caring for the children in the context of the children's age, nor the extent to which the father may not yet have even moved to the role of dealing with the day-to-day arrangements for the children.
The father's sister gave evidence and was cross-examined. She presented well. She has no present ties. She does not have a partner or children and has moved back to the farm to provide assistance.
There were other witnesses who were not cross-examined who generally support my views that both parties in this case are able to provide good quality parenting for the children.
BEST INTERESTS OF THE CHILDREN - PRIMARY CONSIDERATIONS
(a) The benefit to the children of having a meaningful relationship with both parents.
There is no doubt in this case that already the children have a meaningful relationship with both parents. There's no question that this has been able to be maintained despite the distance, no doubt through the hard work of the father in doing much travel, and the mother in not undermining or destroying that relationship that the children have with the father. The exact ambit of this consideration or factor in the context of a case such as this is difficult. Some academic writers have suggested that meaningful relationships relate to authoritative parenting which involves the parents taking direct responsibility for day-to-day activities for the children, whether that be dressing them in the morning and getting them off to school or extracurricular activities or the like.
In Godfrey & Sanders [2007] FamCA 102 at [36]; (2007) 208 FLR 287 Kay, J said ‘…what the legislation aspires to promote is a meaningful relationship not an optimal relationship’. The plain words indicate a relationship that has meaning in the children's lives. It appears to me that in different cases this will require slightly different focuses in order to determine what, for the children, gives these relationships meaning by considering the children's ages, activities, connection and personalities.
It appears to me that on either proposal in this case a meaningful relationship will continue between the children and both of the parents.
(b) The need to protect the child.
In this case there does not appear to me to be matters of significance that relate to the need to protect the child from physical or psychological harm. The simple realities of the case are that if there were only one of these parents available to care for the children, there would be no question that they would receive a good quality upbringing with that parent. Even the differences in travel on the two scenarios are not such as to warrant any finding about potential psychological harm, but relate to the finer distinctions of the best interests of children who are fortunate enough to have two parents who love them deeply and are able to provide for them. I do not find that this consideration is a helpful one in the context of this case.
ADDITIONAL CONSIDERATIONS
(a) Any views expressed by the child.
It is well accepted ‘that the wishes of children are important. Proper and realistic weight should be attached to any wishes expressed by children’ (see H v W [1995] FamCA 30; (1995) 126 FLR 159; (1995) 18 Fam LR 788; (1995) FLC ¶92-598 at 81,944). More recently the Act has been amended to replace the word ‘wishes’ with ‘views’ to allow for a decision to be made in consultation with the child without the child having to make a decision or express a wish as to which parent he or she is to live with or spend time with (see the Explanatory Memorandum). However, consideration of a child's views does not exclude consideration of a child's wishes. In order to properly consider a child's views the Full Court in R & R: Children’s Wishes [2000] FamCA 43; (2000) FLC ¶93-000; (2000) 155 FLR 29; (2000) 25 Fam LR 712, explained:
[42] … the court will attach varying degrees of weight to a child's stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the court in its parens patriae jurisdiction established that view.
…
[54] … There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
In this case I find that I ought to place weight upon [X]'s view about travel and his perception that he, as a child, ought not to be burdened by the bulk of the travel in maintaining his relationships. This seems to me to be an entirely appropriate consideration for a child of this age and that he should not, nor should his siblings, be overly burdened by the practicalities of making transport arrangements for their relationships to be maintained if that can be reasonably avoided.
The major travel problems are now overcome because the wife is moving back to [H]. Nonetheless, there are travel issues, depending upon the arrangements that are put in place. The differences between the two arrangements result in the difference in travel time for the children which I take into account.
The potential for extracurricular activities which are likely, given the socioeconomic background of the children, is most likely to play out in more travel time around ensuring that the children are able to be at [H] at appropriate times.
I have considered carefully the comments by [X] about weekabout arrangements and note in particular his age. I am aware of the reality that children in younger age brackets often equate quantitative equality with fairness because they are not mature enough to appreciate the qualitative consequences and differences in arrangements. Often in cases where the children are well bonded to both parents they are desperate to see both parents receive fair outcomes and, at times, they even put the parents’ needs before their own. In this regard I do not place significant weight upon this view by [X] beyond the point that he clearly wants to have plentiful and good quality time with both of his parents.
The younger two children made no similar comment.
(b) The nature of the relationship of the child with the parents and others.
The children have good relationships, not only with their parents, but clearly with their extended family. The husband's brother is close and no doubt the children are close to him.
The nature of the children's relationship with the mother and father are likely to be qualitatively different simply due to the different roles that they have undertaken with the children to date. The mother has been the primary carer dealing with their day-to-day needs and the minutia of their day-to-day life. The father has been instrumental in providing a role model of the working parent and slowly introducing them into the world of adults, work, farms, and the bush. As they get older his role will become increasingly important in carrying out those tasks, particularly if the children show a particular love or interest in the farm or the farming lifestyle.
I note that the relationship between the mother and her extended family is not so close as that between the father and his extended family, but it remains cordial, if not good.
[X] misses his friends from his first school, however, none of the options that are realistic in this case would see him going back to that school or the particular peer group that was available at that school. He will, I have no doubt, make other friends at whichever school he attends, although it seems likely to me that fostering those relationships outside of school hours will be easier in the [H] schooling proposal than the [U] schooling proposal, at least while the children are quite young.
(c) The willingness and ability of the child's parents to facilitate a close and continuing relationship between the child and the other parent.
In considering this factor I must take into account the extent to which each of the child's parents has fulfilled or failed to fulfil his or her responsibilities as a parent under s.60CC(4).
The quality of the relationship between the children and both parents shows that neither have set out to poison or undermine the relationship with the other parent or extended family. It does not appear to me that the mother met the children's best interests in moving to [C] so far away from the father, but this must be tempered by the fact that contact did take place and it does not seem to have undermined the close bond that the children have with the father.
This part of the case was not explored by the family report writer, nor well articulated by any of the evidence. On the material that is available, it appears that the move was driven largely by the mother's emotional reaction to the breakdown and her desire, as a result of that, to want to get away from the small community in which she had been living and to return to a town where she had fond memories. To some extent this is supported by the evidence of the emotional pressures in Ms Hill's affidavit.
To his credit the father was not racing off to Court at the first opportunity, but did bring proceedings when the parties were not able to reach any negotiated agreement about this difficult question. It appears in this regard that he was respectful of the mother's role and the need for both parties to find their feet again after the breakdown of the relationship. The father, however, does not appear to have done any detailed planning about next year or the following year in exploring the day-to-day arrangements for the children.
Into the future I am satisfied that the parties will both remain committed to the children and it appears to me that it is likely that the mother will continue to attend to the day-to-day issues and that to some extent the father will acquiesce to her doing so. As the children develop and grow older, particularly if any of them have preferences or leanings towards the farm life, the input and time with the father will no doubt grow.
(d) The likely effect of any changes on the children's circumstances, including the likely effect on the child of any separation from either parent or others.
The effect in this case on the difference between the two proposals is really a difference between seven days a fortnight or four to five days per fortnight, potentially with some evening time. It does not appear to me that this will significantly affect any of the relationships between the children and the father, however, it will have at least some impact upon them.
I am satisfied that one of the other likely effects of the father's proposal compared to the mother’s is:
a)an increase in travel time for the children. Some difficulties relating to the practicalities of extracurricular activities, both formal and informal (in the sense of the children's friends visiting after school); and
b)some impact upon the parents with respect to the amount of travel that they will have to undertake to make the circumstances work.
There is the potential for a more significant impact on the father's proposal if he is not able to move into the same style of nurturing primary carer role as the mother to take up that part of the parenting which he has not in the past undertaken to a great degree.
(e) Any practical difficulties and expenses.
It appears to me that the practical issues all relate to travel time, availability of extracurricular activities and resources for the children.
On the evidence the children have a one-hour trip between houses.
If they travel to school at [U] it is a 30-minute bus ride either way and if they are on the farm, a short drive to the bus stop. There is no evidence before me of other children in the particular year groups that live nearby to the farm, live in [U] or live in [H]. There is no evidence before me of any extracurricular activities available to the children in [U] or what after school activities may be associated with the school, if any. There is no evidence before me of any inquiries or planning about those day-to-day details which have so many parents in similar socio-economic groups driving around everyday after school after their children facilitating such activities.
On the [H] option the evidence is that it is a five-minute walk to school. The extracurricular activities that may be engaged in by the children are all readily available nearby; that school peers are likely to live nearby; that it would, however, result in a one-hour drive to travel to the father's house. On both proposals when the children are at the father's house they will have a lengthy drive back to [H] if they are participating in activities in the [H] area.
The father has said that if need be he will meet the costs of the bus fares for the children to travel to [U] given the difference in the resources of the parties.
(f) The capacity of the parents and others to provide for the needs of the children.
On a general level it is clear that both parents are capable of providing for the day-to-day needs of the children.
I have outlined above the differences in the roles that the parents have undertaken to date and the difference in the level of planning and inquiries that each have undertaken with respect to activities and minutia of the children's lives. This is reflective of the historical differences in the roles that the parents have taken when they were together.
It does not seem to me that it could be said that it would ever be beyond the father's capacity to take up a more primary carer style role, but on the material he has not yet done so or moved to that point. He has, however, made arrangements for his sister to come to the farm and is hopeful that that, coupled with changing farming practices, will give him more time to be available. However, on the evidence before me I am not comfortable that the father would be able to make that change and maintain it.
When considering the matter on the balance of probabilities, I am still left doubtful as to whether the father could make that change and maintain that change for a lengthy period as would be required while the children are so young and if there were to be shared care. It seems to me to be likely that if there are tasks calling out to be done on the farm that he would be the type of farmer who would have difficulty not getting out and getting things done and making sure that everything was working to the best of his ability. These are admirable qualities in a general sense, but may take him away from time with the children after school and in the evenings when they are at this young age.
(g) The maturity, sex, lifestyle and background of the children and the children's parents et cetera.
The children are young and clearly dependent upon the mother who has been their primary carer to date. There does not appear to be any attachment problems, which enables the children to readily go to their father and spend time with others. This is clearly a credit to both of the parties, particularly the mother, that her close ties with the children have led to them being confident young children who are able to spend time away from her.
It is not clear to me what the children's preferences may be in a few years' time or certainly by the end of primary school and this will probably, in large part, depend upon whether they develop leanings towards the farm and the country lifestyle or leanings towards a town or city lifestyle. At this stage it appears that [X] has a strong interest in the farm, as is described by the report writer, although it is not entirely clear whether that is the farm per se or also the strong bond that he has built with his father and the enjoyment he no doubt gets from spending time with his father undertaking productive tasks and activities.
I note that the eldest child was bussing to school in [D] when the parents were together and so an arrangement where they travel by bus, such as to [U], is not outside the norm for their background as children of a farming family living on a farm before separation.
I also note that the farming culture that the family is imbued with has seen the father heavily involved in constructive community activities, often in a leadership role or strongly supportive role, which provides outstanding role modelling for the children as they grow older.
(h) If the children are Aboriginal or Torres Strait Islander.
In this case there is no suggestion that this factor is relevant.
The attitude to the child and the responsibilities of parenthood.
In considering this factor I must take into account the extent to which the parties have fulfilled or failed to fulfil their responsibilities as parents. The parents clearly get on with the day-to-day tasks that are needed to best provide for the children. The father has travelled great distances to maintain his relationship with them. Neither have poisoned the children against the other or seems to have attempted to do so.
The mother has been detailed and focused upon the day-to-day needs of the children as a primary carer for their younger years. The father has been strong in his involvement as a provider on the farm and strong in maintaining his connections with the family.
Both are focused on the children's needs, but attach different weight to the different aspects of the children's needs and have undertaken different parts of the tasks.
If one looks at the case through the children's eyes, one sees the time with both parents is crucial to them and that an ease of undertaking arrangements for this time to be facilitated is something that they desire. No doubt they also desire to undertake children's activities with their parents, as well as to receive the support and nurturing care that they have become used to in the way in which they have been brought up in this particular family to date.
(j) & (k) Family Violence
In this case there is nothing that assists me under this heading.
Whether it would be preferable to make orders that would be least likely lead to the institution of further proceedings.
It does not appear to me that any order I make is more or less likely to lead to further proceedings in this case. It strikes me that there are real possibilities that by the time the children are reaching high school age they will have developed in themselves clearer preferences about the types of lifestyle that they prefer and the choices that they wish to make which will reflect in their desire to spend more time on the farm or more time in [H].
It appears that the parties are going to have to look at these issues as they develop and be careful to be responsive to the needs of the particular children as their individual personalities develop.
It does not appear that there are other facts or circumstances relevant under s.60CC(m).
OTHER CONSIDERATIONS
There is not, it seems to me, a risk of family violence in this case. The relocation issue is no longer a matter that I must deal with.
When looking at the past I temper my considerations of the negativity of the mother's move as a result of the distance it placed between the father and the children by taking into account the mother's need to have some space to overcome a separation. However, there is little evidence on this and it is not a factor that provides me with any great assistance in the outcome of the case.
PARENTAL RESPONSIBILITY
In this case there is no argument that there should be equal shared parental responsibility for the children. Both parents are capable people with much to offer their children.
PARENTING TIME
When deciding upon orders for parenting time, further specific requirements are set out in the Act if orders are to be made providing for equal shared parental responsibility for the children. Section 65DAA requires consideration of whether the children should spend equal time and, if not, equal substantial and significant time with each of the parents if it would be in the best interests of the children and reasonably practicable.
In order to determine whether such orders are reasonably practicable s.65DAA(5) lists a number of factors that the court must take into account:
a)How far apart the parents live from each other.
I have set out above the driving time to cover the distance of around 75 kilometres between the households. I have set out the options for schooling, size of the towns, that there is buses available, both from the father's area and from [H], although I note that there is only one bus each way each day and I have set out above the availability of extracurricular activities, at least on the evidence before me.
b)The parents’ current and future capacity to implement an arrangement for the children spending equal time or substantial and significant time with each of the parents.
I find that the parents have a clear capacity to put in place whatever arrangements are necessary to make orders that I make today workable as between them. It appears likely to me that these parents are able to put aside their own needs sufficiently to move on and make whatever orders I make today as workable as possible so as to provide the best possible outcomes for their children even if they disagree with the particular orders that I make today.
The real issue about capacity is more about whether or not the father will be able to move into the primary carer role to the extent necessary for a weekabout arrangement or whether it would be more appropriate for the mother to maintain that role with substantial and significant time with the father as set out above. I am not satisfied on the balance of probabilities that the father has yet moved to that level of focus and I have concerns as to whether he would be able to maintain that into the future.
With substantial and significant time the important aspects of the father's role to date around activities with the children and around the farm will still be maintained. The importance of this role and the aspect it has to proper parenting of the children cannot be understated. It seems to me that the parents, to their credit, recognise this in the proposals that are put forward.
c)The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement.
The parents have arranged many things, for example, Christmas this year. The father has, even since separation, acquiesced to some extent to the mother about day-to-day details of the children, which appears to me to reflect the role splitting that they had in the past, and his ability to put aside disputes between the parents in favour of a functional demarcation about decision-making on a day-to-day basis for the care of the children.
It appears to me that as the children develop and move into a period where they will be making more of their own desires and preferences known about which sphere of endeavour they want to spend more time in, this will present the parents with some issues, but it is likely that as the children's views become clearer the parents will be responsive to them.
I have little doubt that the children will benefit from the particular skills of both parents as they grow older. Just as the mother's primary carer role and skills have been particular important for the young lives of the children, the father's social roles and role modelling will be particular important as they enter their teenage years.
d)The impact of an arrangement of this kind would have on the children.
Predicting the future is always a very challenging task. In this case it is made more challenging because it is agreed by all that for the forthcoming year a weekabout arrangement is not practically able to be put in place in any event. I am therefore looking at the likely or possible impact upon the parenting of the children, both positive and negative, into the future not only for the [U] school option for next year, but the care arrangements in 2009.
I have expressed above my concerns about the risk that the roles that the parents have been undertaking will continue and that the father may not move into the role the mother has been undertaking for the weeks that the children are with him. I also am concerned about the impact that this may have upon the children's activities, that is, if they are on the weekabout arrangement and attending school in [U] and that this may be seen in time by the younger children as forcing them to continue to effectively facilitate the time by the travelling and school arrangements eating into other activities they would otherwise be doing.
This is not a case where it seems to me a weekabout arrangement is needed to enable the father to maintain the level of relationship with the children that he has now, as long as he has regular time with the children. It is a case where travel time is important to [X] and clearly would be important to any young children. I have outlined above the differences in the travel time arrangements and the potential impacts upon extracurricular activities.
It appears to me that if the father also sees the children on a Thursday night on the off week or alternative days, depending upon what best suits the children and the parties, there is even further flexibility that if travel is disruptive to the children or they are not coping well with it, that that can be changed by agreement to after school until bed time to avoid further trips back and forth out to the farm. This level of flexibility is more likely to be available where the children have a home base that they are living at for most of the school weeks in comparison to an arrangement where they are effectively locked into the travel and weekabout between households.
It does not appear to me that there are other matters that are of significance that I have not referred to above.
CONCLUSIONS
When I stand back and look at this case against the general background of family law cases that come before the courts, it is clear that both proposals offer the potential for good quality parenting for the children. What is required is consideration of the distinctions between the two proposals in order to identify what is going to best meet the needs of these particular children, given their particular circumstances and upbringing to date. I must do this in the context of section 65DAA as explained in Goode v Goode. I have considered carefully the proposals for shared care and for substantial and significant care.
Having regard to all of the material and considerations in the Act I find that the orders I propose to make, (substantial and significant time with the father, largely in accordance with the amended response but including a Thursday night in the alternate week), are in the best interests of the children in the context of this particular case and are the appropriate orders under the Act at this time. Clearly, in a case such as this, once the children mature and the parents develop in their roles to meet their children's needs, variations may well be called for to ensure that the best interests of each of the children are still met by whatever arrangements are in place in the future.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 23 September 2008
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