Elsworth and Downes

[2014] FCCA 478

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELSWORTH & DOWNES [2014] FCCA 478

Catchwords:
FAMILY LAW – Parenting orders – how equal shared time is to be arranged.

Legislation:

Family Law Act 1975, ss.62G(2), 60B, 60CA, 65AA, 60CC, 61DA, p.VII

Collu & Rinaldo [2010] FamCAFC 53
Sigley & Evor(2011) 44 Fam LR 439

Applicant: MR ELSWORTH

Respondent: MS DOWNES

File Number: DGC 3701 of 2011

Judgment of: Judge Jones

Hearing date: 5 March 2014

Date of Last Submission: 5 March 2014

Delivered at: Melbourne

Delivered on: 8 April 2014

REPRESENTATION

Counsel for the Applicant: Mr Lovering

Solicitors for the Applicant: Perry Weston Lawyers

Respondent Appearing In Person

ORDERS

1. That from the Sunday preceding the commencement of the third school term 2014, all previous parenting orders be discharged.

2. That the Father and Mother have equal shared parental responsibility for the children of the relationship X born (omitted) 1999, Y born (omitted) 2000 and Z born (omitted) 2003 ("the children").

3. That:

   (a)The children live with the Father and Mother on a week about basis with changeovers to occur at 6.00pm on Sunday evening, with the party whose time with the children is finished to drop off the children to home of the other parent at that time;

   (b)That, the children shall spend the first week of the third term, with the mother and, thereafter, on alternate weekly cycle; and

   (c)Until the end of the 2014 school year, the children shall spend time with the parent with whom they are not spending the week with on Wednesday from after school to 7.30pm.

4. That the Mother's time with the children be suspended as follows:

   (a)Should Father's Day fall on a day when the children are living with the Mother, the children shall be returned to the Father's care at 5.00pm on the preceding Saturday night.

   (b)Should any of the children's birthdays or the Father's birthday fall on days when the children are otherwise not living with the Father, the children will spend time with the Father for two hours by agreement if such day falls on a school day or four hours by agreement or from 4.00pm until 8.00pm in the absence of agreement should same fall on a non-school day.

   (c)From 6.00pm on Christmas Eve until 3.00pm on Christmas Day in 2013 and each alternate year thereafter and from 3.00pm on Christmas Day until 3.00pm on Boxing Day in 2014 and each alternate year thereafter should such days fall on days when the children are not otherwise living with the Father.

   (d)For one half of the Christmas school holidays in each year by agreement or in the absence of agreement, for the second half of such holidays from 5.00pm on middle day of such holidays until the commencement of school on the first day of term.

5. That the Father's time with the children be suspended as follows:

   (a)Should Mother's Day fall on a day when the children are living with the Father, the children shall be returned to the Mother's care at 5.00pm on the preceding Saturday night.

   (b)Should any of the children's birthdays or the Mother's birthday fall on days when the children are otherwise not living with the Mother, the children will spend time with the Mother for two hours by agreement if such day falls on a school day or four hours by agreement or from 4.00pm until 8.00pm in the absence of agreement should same fall on a non-school day. 

   (c)From 3.00pm on Christmas Day until 3.00pm on Boxing Day in 2013 and each alternate year thereafter and from 6.00pm Christmas Eve until 3.00pm Christmas Day in 2014 and each alternate year thereafter.

   (d)For the first half of the Christmas school holidays in each year by agreement or in the absence of agreement, for the second half of such holidays from 5.00pm on middle day of such holidays until the commencement of school on the first day of term.

6. That the children be at liberty to telephone either parent at any reasonable time and that either parent be free to telephone the children at any reasonable time.

7. That the alternate weekly cycle of live with arrangements be suspended during the Christmas school holiday period and recommence according to the previous cycle at the commencement of the first school term in the New Year.

8. That the Father, the Mother, their agents and friends be restrained from denigrating each other or the other parent's family and friends in the children's presence or hearing or allowing another person to do so.

9. The Father and Mother are hereby restrained from changing the children's schools or enrolling the children in secondary school without written permission of the other parent. Failing agreement on choice of school, the children will be enrolled in the nearest public secondary school to the attended primary school.

10. That both the Father and Mother notify the other parent forthwith in the event that any of the children suffers injury or illness whilst in their care that requires medical treatment.

11. That both parties at all times keep the other party informed of their residential address, landline and mobile telephone numbers.

12. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 3701 of 2011

MR ELSWORTH

Applicant

And

MS DOWNES

Respondent

REASONS FOR JUDGMENT

Introduction

1. This decision concerns disputed parenting arrangements between Mr Elsworth born (omitted) 1971 (“the father”) and Ms Downes born (omitted) 1966 (“the mother”) regarding the children of the relationship:

   a)X, born (omitted) 1999 (“X”);

   b)Y, born (omitted) 2000 (“Y”); and

   c)Z, born (omitted) 2003 (“Z”).

2. The issue in dispute is a narrow one as the parents have spent equal time with the children pursuant to final consent Orders made 8 March 2007 and do not wish to disturb this.

3. The dispute relates to the arrangement of the equal time spent by each parent with the children.

4. The final Orders made on 8 March 2007 provided that the children spend time with the father, during school term, every alternate weekend from Friday after school to the following Wednesday before school and in the other week, from Monday after school to Wednesday before school. School holidays are shared.

5. The father wishes to change this to a week about arrangement, and the mother wishes to continue with the present arrangements which have been in place since 2007.

Background

1. The father was born (omitted) 1971, and is presently 42 years of age.

2. The mother was born (omitted) 1966 and is presently 46 years of age.

3. The parties commenced cohabitation in or around October 1990, they were married on (omitted) 1996 and separated on 24 February 2006.

4. Both parents are employed by (employer omitted). The father is a (occupation omitted) and works full time, whilst the mother works as a (occupation omitted) in the (employer omitted) in the city.

5. The mother works part time on Monday and Tuesday from 7:00 am to 5:30 pm. The mother has worked in this position for some 10 years, although her hours on the Monday and Tuesday have increased over that time.

6. X has been diagnosed with mild Autism Spectrum Disorder.

7. The parents dispute the medical condition of Z.

8. The father states, based on the diagnosis of Dr F, Paediatrician, whom both X and Z have attended over the period 2003 to around 2013, although sporadically, that Z has Asperger syndrome. The mother states that Z has traits that are consistent with Asperger syndrome. Both parents agree that X, in particular, and Z have special needs.

9. As noted earlier final parenting Orders were made by consent on 8 March 2007. Pursuant to these Orders the parents have equal shared parental responsibility for the children, spend equal time with the children and in a flexible way spend shared time over the school holidays with the children. The evidence discloses that the parents both cooperate and effectively communicate (through text messages and emails) in relation to the interests of the children. For example, they adopt a flexible approach in relation to time spent with the children during school holidays to enable the other parent to travel with the children.

10. The father lives with his wife, Ms Elsworth, together with Ms Elsworth’s two children, A (born (omitted) 2003) (“A”) and B (born (omitted) 2006) (“B”). The father and Ms Elsworth live in a six bedroom house and each of the children of the blended family have their own bedroom. The mother lives in a four bedroom house and each of the children have their own bedroom.

Parenting proposals and Court proceedings.

1. The father filed an initiating application on 16 August 2013. The effect of the proposed orders sought is to alter the current arrangement to a week about arrangement with changeovers to occur at 5:00pm on the Sunday evening. The mother seeks orders that the father’s application be dismissed and the parenting Orders made on 8 March 2007 remain in full force and effect. In her affidavit filed 17 February 2014 she deposed that if the Court were to order the week about arrangement then the changeover should be on Monday morning at school drop off time, or Monday evening at 7:00pm where Monday fell on a public holiday. She further sought that there be no change in the present arrangements until the father, Ms Elsworth, X, Y, Z and Ms Elsworth’s children attend family therapy as recommended by the Family Consultant, Ms J in her Family Report.

2. Interim Orders were made on 24 August 2013. The parties and the children, including Ms Elsworth’s children, were ordered to attend, pursuant to section 62G(2) of the Family Law Act 1975 (“the Act”), attend upon a Family Consultant for the purposes of the preparation of a Family Report. A Family Report was prepared by Ms J on 1 December 2013 and released to the parties.

Evidence

1. The applicant relies upon the following:

   a)His initiating application filed 16 August 2013;

   b)The affidavit of the applicant filed 16 August 2013; and

   c)The Family Report of Ms J dated 1 December 2013.

2. The father gave evidence and was cross examined.

3. The mother relies on the following:

   a)Her response filed 23 September 2013 and affidavit filed 17 September 2013;

   b)Affidavit of Ms A filed 23 September 2013;

   c)Affidavit of the mother filed 17 February 2014; and

   d)Family Report prepared by Ms J dated 1 December 2013.

4. The mother gave evidence and was cross examined.

5. Ms J gave evidence and was cross examined.

6. I should observe that, notwithstanding the dispute between the parties regarding parenting arrangements, both conducted themselves in a dignified way and gave their evidence in a direct and considered manner. For this they should be congratulated.

7. The father says that he is seeking week about time arrangement because he believes that, given the level of schooling X and Y have reached, this would provide them with greater capacity to meet the demands of homework, enable both parents to plan for the demands of school and extracurricular activities and avoid the disruption that occurs with the current arrangements with the changeovers during the school week. He says he is looking to the children’s future and believes the next few years will be critical for them and hence would like to establish this routine now. He feels that the mother’s opposition to changing the way in which the parents spend equal time with the children is more about her wishing to retain an arrangement that has suited her. He believes there is scope under the relevant enterprise bargaining agreement for the mother to alter her working pattern. With respect to the mother’s proposal, if the Court ordered a week about arrangement, that changeover occur at school (instead of Sunday evening), the father stated that he was opposed to this as he felt it was preferable for the children to have Sunday night with the parent with whom the children were to spend the week to enable them to plan and get ready for the school week ahead.

8. In response to cross examination by the mother he stated that he agreed that change of routine is difficult for children who are Autistic or suffer from Asperger’s syndrome and that the children have been in the same routine with respect to parenting arrangements since 2007. He was aware of some but not all of the activities the children engaged in on Wednesday to Friday when they were with their mother. He was not aware that X was looking for part-time work. He was aware of the mother’s work hours and did not dispute that this meant that on Monday and Tuesday she left her home at around 5.55am and returned around 6.15pm to 6.30pm. He was not aware there had been reports of stalking in the (omitted) area.

9. The father stated he did not support the Family Consultant’s suggestion of a Wednesday evening spent by the children with the parent with whom they were not residing in the alternate week. This was because it would involve a disruption in the children’s care arrangements mid-week, which he was trying to avoid by the week about proposal.

10. The mother says that the current arrangements have been in place since 8 March 2007 and have worked well and provided the children with a consistent routine which is particularly important for children with Autism Spectrum Disorder. She says that changing the routine would cause the children unnecessary stress and anxiety and not be in their best interests. She maintains that X and Y are managing to meet their respective homework schedules under the current arrangement. She says that she is unable to change her work arrangements and has only recently been asked to renew her agreement to work on Monday and Tuesday each week. She said the children would come back to an empty house on Monday and Tuesday as she could not afford to pay for more care. She is concerned that the father is presently unable to meet his commitments to spend time with the children and this would worsen if the arrangement changed. She is concerned that he would not be able to sustain the activities the children are engaged in given he works full time and his roster schedule. She believes that a change in the current arrangement would reduce the quality of the time she has with the children as she would no longer spend Wednesday to Thursday each week with them engaging in various social and child focused activities.

11. In her affidavit the mother deposed that the father only sought to change the current arrangement after he partnered with Ms Elsworth. However, she did not press this point in her cross examination of the father.

12. In cross examination the mother said that she had no issue with the father’s parenting capacity, nor Ms Elsworth, except for some incidents such as the splashing of red wine on Y (see below). She agreed that, as a teenager, Y was testing her boundaries, had a mind of her own and needed to be reined in. She conceded that, if the Court were to order a week about arrangement, the children will deal with it. She said that she had not approached her Manager to ask if her hours of work could be changed. She did not believe they could change as all positions were filled (including the Wednesday to Friday position) except for the last advertisement for a full time position which her child care commitments did not permit her to take. She conceded that under the enterprise agreement a part time employee can hold two positions and that there was provision for flexibility where an employee cared for children with disabilities.

13. The mother stated she did not support the Family Consultant’s suggestion of a Wednesday evening spent by the children with the parent with whom they were not residing in the alternate week.

Family Report

1. The Family Consultant interviewed both parents and each of the children of the relationship. She further observed the interaction of the children with the father, Ms Elsworth and the children’s step brother and sister. She also observed the interaction of X, Y and Z with their mother.

2. Given the submission of both parents it is appropriate to extract the record by Ms J of the view of each of the children regarding their father’s proposed changes to the current arrangements.

3. Ms J stated at [34] to [36], [38], [45] to [47], [58] to [60]:

   “34.X was asked how he would feel if the current arrangements continue and he said, “Be a little bit happy ‘cos I kind of like the way things are now. It means I don’t have to wait a whole week to see the other parent.”

   35.X was asked how he would feel if it is decided that they live week about and he said, “I wouldn’t be upset but kind of disappointed it had to change. I’d probably settle in time but it would be hard staying one week away from the other parent.”

   36.When X was asked if there was anything he would like to tell the Judge he said, “I have already said it. I’m okay with it turning into week on/week off. But I would prefer it how it is now.”

   38.When the purpose of the interview was explained to Y she said, “I would definitely like the way it is.”

   45.Y was asked how she would feel if it is decided the current arrangements continue and she said, “Happy happy I’d be more than happy.”

   46.When Y was asked how she would feel if it is decided that they live week about she said, “I wouldn’t like it. It feels like I have been there for too long on holidays. I’d prefer like it is now. The only reason dad told me it’s not good is because of the rules and Ms Elsworth getting mad at Z ‘coz she was still doing mum’s rules.”

   47.When Y was asked if there was anything further she would like to tell the Judge she said, “Not really.”

   58.Z was asked how she would feel if it is decided that the current arrangements continue and she said, “Good. ‘Coz we’ve done it since I was five. Half of my life and I don’t want to stop that straightaway.”

   59.When Z was asked how she would feel if it is decided they live week about she said, “Not good ‘coz I’ve done it (meaning the current arrangement) for half my life and this year I’ve just got used to it. And I’m not going to be used to it for quite a bit (meaning if it changes to week about).”

   60.When Z was asked if there is anything further she would like to tell the Judge she said, “To not change it.””

4. In her evaluation, Ms J first dealt with issues arising from the interviews with the children in relation to the blended family at the father house. She stated that from her observation as to the interactions between Ms Elsworth and the children as well as with the step brother and sister there were no concerns. However, she identified some concerns arising from the interviews with the children in relation to their feelings towards Ms Elsworth. These included:

   a)The absence of photographs of X, Y and Z in the father’s house;

   b)The fact that the children felt they were treated differently to their step siblings whilst they were staying at their father’s house; and

   c)The fact the children heard the father and Ms Elsworth arguing at night.

5. Ms J pointed out that it is hard and ongoing work blending families, but that the father and Ms Elsworth needed to be mindful of these issues and that they should attend some relationship counselling to resolve any issue they have and they could obtain information from Stepfamilies Australia to help them with strategies to help the children feel comfortable and accepted by Ms Elsworth (at [66] to [67]).

6. In his evidence, the father stated that he found the issues identified and the suggestions made in the Family Report in relation to their blended family very helpful. He stated that he and Ms Elsworth had seen a relationship counsellor in the latter half of 2013 three of four times and he believed that this had assisted him and Ms Elsworth in managing the blended family. He stated that the issue of photographs had been addressed. He acknowledged that there had been conflict between Y and Ms Elsworth but believed that this had considerably settled following a cathartic event which occurred at a camping trip the blended family had taken in January 2014.

1. In her affidavit filed 17 February 2014, the mother deposes that Ms Elsworth had thrown wine over Y. Mr Elsworth stated that on the day in question Y had been making unpleasant comments regarding Ms Elsworth to her friends, was overheard by the younger children who then reported this to Ms Elsworth. In the evening Ms Elsworth went to where Y was sitting to discuss this with her. Mr Elsworth stated that he approached them at about the time Ms Elsworth stated throwing her hands in the air, “Well if you don’t like me I’ll go” at which point the wine in the glass Ms Elsworth was holding splashed in the air and on top of Y and himself. He stated he discussed the issues with Y and then with Y and Ms Elsworth. Following this incident he believes the relationship between Y and Ms Elsworth has been cooperative and good.

2. In relation to the proposed changes to the times at which the children live with each parent, Ms J stated at [68], [71] to [73]:

   “68.Ms Downes prefers the current arrangement as the children are not in her care on the days she works (apart from the Monday morning). It is my view that to some extent Ms Downes has influenced the children to favour the current arrangements whether it is best for the children or not. Ms Downes genuinely believed that the current arrangements are best for the children. At the current time in my view the arrangements are disruptive for the children each week but given how the children feel about Ms Elsworth they are more likely to show their preference to be the same as Ms Downes.

   71.X’s preference was for the arrangements to stay the way they currently are but he also felt that if they changed then he would probably settle in time. X’s main priority would be not to go for a week without seeing the other parent. X is fourteen and is mature enough to express his feelings but as he has mild autism X does not have the maturity expected of a fourteen year old. It is my view that X should be listened to for his sense of well-being about himself as he would be otherwise upset and not understand why he was not listened to.

   72.Y is mature enough for her age to be listened to with some weight placed on her view. At the same time there is no doubt that Y’s view has been influenced not just by Ms Downes but also as a result of feeling hurt about not being treated equally by Ms Elsworth with Mr Elsworth not specifically standing up for her. In addition, Y does not like the written schedule at Mr Elsworth’s home. While Y appeared to feel uncomfortable and upset about some issues at Mr Elsworth’s home overall it is my view that Y would not change the shared care arrangement they have now, that she does not want the time to be less with Mr Elsworth so that is positive. It is my view that if some issues at Mr Elsworth’s home could be resolved then Y would manage if it changed to a week about arrangement. In addition, it is my view that the week about arrangement may be best for Y in regard to her schooling.

   73.Z said that she is used to the current arrangement and she would not like a change. Z is ten and while she is a happy, sweet child she would not be overly mature for her age other factors need to be taken into account.”

3. In relation to the dispute about the proposed arrangements Ms J stated at [70] and [75] to [76]:

   “70.It is my view that Mr Elsworth and Ms Downes have the capacity to meet the children’s intellectual and emotional needs as best they can particularly with X suffering autism and Z attending the paediatrician Dr F for assessment as she has some traits that Dr F referred to as being within a range of Asperger’s Traits. Ms Downes is not of the view that Z suffers Asperger’s Syndrome which is now known as a form of Autism. I note that Dr F expressed a view that it would be best for the children to have a clear routine with fewer changes back and forth between the parents. It is my view that given the phone report with Ms M from Y’s school it does appear that Y may manage better if she lived week about so then each parent is able to follow the homework Y has on a weekly basis.

   75.In regard to shared care it is my view that a week about arrangement allows the children to live in a very defined structured routine without mid week changes. Now that X, Y and Z are all older they should be able to emotionally manage a week about arrangement being away from each parent for a week. Over the next few years as X and Y become older they will have other interests away from home so it would be easier for them to work out their arrangements if they lived in a week about arrangement. At the current time it is surprising that X, Y still feel that they may miss their other parent it they do not see them week about. It is my view there is a very workable option so that the children could live week about but on Wednesday they could have dinner with the parent they are not living with in that week. This way the children would have a very organised arrangement easy to follow but it would provide them with a little time during the week with the other parent so this should alleviate concerns about changing the arrangements.

   76.If the week about arrangement is followed then there could be a risk that Ms Downes, X, Y and Z blame Ms Elsworth for such change as it is Ms Downes’s belief that it is Ms Elsworth who has pushed Mr Elsworth in this direction. Ms Downes would need to be careful and not discuss this with the children as it would only cause resentment and further anger directed toward Ms Elsworth. Ms Downes’s preference is for the current arrangements to continue as she works on the days when the children are not with her but Mr Elsworth does not have this benefit as he works full-time. It is my view that while it is of benefit to the children to have Ms Downes available to them full-time when they are with her this may not be reason enough for the current arrangements to continue but with a week about arrangement, Ms Downes would still be able to conite her Wednesday, Thursday and Friday routines with the children each alternate week. There needs to be a weighing up of what may benefit the children in terms of their overall well-being. Firstly there should be a routine that is easy to follow and will suit the children’s needs as they become older and in my view this would be a week about arrangement with the children having dinner on Wednesday evening with the parent they are not living with that week. This means that the children do not have to go one week without seeing their other parent. Secondly, the children need to feel comfortable and accepted in both homes so for this to work better for the children it is my view that Mr Elsworth, Ms Elsworth and the five children should attend some family therapy to assist them to resolve the issues they have. Of Course for A and B to be involved they should request permission from their father. It is my view that X, Y and Z would emotionally manage such a change and would soon settle into the routine without being anxious particularly as they would not have to wait a week without seeing their other parent.”

4. The mother disputed the recommendations of Ms J on the basis that some factual foundations that Ms J appeared to rely on in her Report were wrong. Firstly, the mother was critical of the reliance by Ms J on the assessment and views of Dr F in relation to X and Z arguing that Dr F had only heard the father’s side. The mother, however, conceded in cross examination that she did not attempt to attend on Dr F herself to provide her side of the story. Secondly, the mother took issue with the Ms J’s record of her conversation with Ms M, the Vice Principal of the (omitted) Junior School Y attends. Ms J recorded in her Report that Ms M informed her during a telephone interview, “…that Y who did well in maths in Semester one with a distinction has failed maths this semester, that she has a poor attitude and is often completing homework late." (at [48]) Ms J referred to her notes and confirmed that she had indeed been told this by Ms M.

5. The mother took Ms J to Y’s end of year 2013 school report,[1] specifically the page setting out Y’s results and attainments in maths. The Report disclosed that Y was within the band of the standard expected under the ‘AusVELS Rating’. Also, the Overall Grade for Y is recorded as “Good”. Task three of the assessment tasks records Y's Semester exam as “unsatisfactory”. Ms J agreed that the results recorded in the AusVELS Rating disclose that Y was well within the appropriate band for attainment. It is not clear whether the mother disputed the record of the information provided by Ms M, that Y has a poor attitude and is often completing homework late, however, I note that in the second school term report for maths, Y’s work habits are described as “Needing improvement for effort and completion of work” and that in the text prepared by the teacher she identifies poor preparation for exams, inadequate time spent on revision and preparation. Ms J stated that her view as to the appropriate parenting arrangement was not changed by the fact that it appeared that Ms M may have been mistaken in the information she conveyed as to the maths exam.

   [1] Annexure D-04 of the mother’s affidavit filed 17 February 2014,

6. The mother also took issue with the absence of any reference in the text of Ms J’s report to the matters deposed by Ms A. Finally, the mother took issue with the following sentence in the report at [7], “…There is a lot of disruption and difficulty in each week. The children have to do 4 change overs and it generally takes them a few days to get settled…”.

7. The relevance of this was that it had been earlier accepted between the parties in evidence that there were 3 change overs in the first week and one in the second week. Ms J responded that the sentences to which she had been directed were simply a record of what Mr Elsworth told her. She further stated that understanding the change overs in the first and second week, she would nevertheless not change the recommendations that she made.

8. Ms J stated that in her recommendation she was looking to the future for the children as they are now attending or will shortly be in secondary school. She had formed the opinion that, given their ages and now differing interests which would be increasingly away from home, it would be easier for them to have in place a week about arrangement and that it was preferable for the changes to be made sooner than later. In her experience as children move up school year levels, homework tends to be set for a week, rather than for a day or even two days. A week about arrangement is more suited to the changed homework demands.

9. As to family therapy she stated it was encouraging that the father and Ms Elsworth had attended family counselling. Further, if they had taken into account the issues she had raised in her Family Report and made changes, then this was positive.

10. Ms J stated that she did not see the proposed Wednesday evening time with the other parent as a changeover but rather she suggested the parties consider it to meet the expressed concerns of the children that they would not see the other parent for a week under the week about arrangement.

11. The mother denies that she has influenced the children in their views. When asked what was the basis for her opinion that the mother had influenced the children’s views Ms J responded that, based on her experience, she formed that view having regard to how the children answered her questions and the fact that the answers were all similar to Ms Downes’ view. Ms J noted that, although X stated he preferred no change, he did say he felt he could settle if the routine was changed to a week about one.

Applicable Law

1. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Act.

2. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s.60B of the Act.

3. 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 (s.60CA and s.65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.

4. Informed by the objects expressed in s.60B(1) and the principles underlying those objects in s.60B(2) (and where relevant s.60B(3)), the Court is required to undertake a consideration of and make findings about each of the “best interests” considerations set out in s.60CC having regard to the respective proposals. In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out: Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010) at [355] cited with approval in Sigley & Evor(2011) 44 Fam LR 439 at [142].

5. Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

6. Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.

7. Sub-section 61DA(4) provides to the effect that 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.

8. 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 first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s.65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s.65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

Section 60CC – Best Interests

1. I now proceed to deal with the primary and additional considerations which I consider relevant to the disposition of the matters in dispute.

Meaningful relationship with parents: s.60CC(2)(a); nature of relationship of children with parents or other person: s.60CC(3)(b)

1. There are no issues of family violence, consequently the relevant primary consideration is the benefit to the children of having a meaningful relationship with both parents. 

2. There is no dispute that both parents have a meaningful relationship with each of their children and that by their co-operation with each other have taken appropriate and active steps to encourage the children to have a meaningful relationship with the other parent. The mother argues that the quality of the children’s relationship with her will diminish if a week about arrangement is put into place as she will no longer be able to engage in the activities with the children that occur each Wednesday and Thursday under the current arrangement. The father maintains that the quality of the relationship of the children and parents will improve as there will be less disruption over each week in their time with the children.

3. Having observed the parents and taking into account the evidence I am satisfied that whatever arrangements apply to give effect to equal shared parenting into the future, the parents  will continue to take appropriate and active steps to encourage the children to have a meaningful relationship with the other parent. I appreciate the mother is upset about the possibility that she would lose the regular time she has had each Wednesday and Thursday which she has clearly used to provide activities for the children and social interactions. However, the loss of the Wednesday and Thursday in each alternate week is in the Court’s opinion, not likely to adversely affect the quality of the mother’s relationship with her children.

4. Ms J observed that there is a warm and close relationship between the children and each parent. She also observed that no concerns arose out her observations of the interaction of X, Y and Z with Ms Elsworth and her two children. Ms J did, however, identify issues for X, Y and Z in relation to their feelings toward Ms Elsworth (see [34] above). I accept the father’s evidence that he and Ms Elsworth considered the issues raised by Ms J and took steps to address the issues. The father’s evidence is that he and Ms Elsworth attended family counselling to assist them in managing the blended family and they are to be commended for this. I accept the father’s evidence that the difficulties in the relationship between Y and Ms Elsworth came to a head in January this year and that he, Y and Ms Elsworth were able to discuss the underlying issues and achieve a resolution which has served to place the relationship with Y and Ms Elsworth on a sound footing.

Views of the children: s.60CC(3)(a); Maturity and relevant characteristics of children: s.60CC(3)(g)

1. The views expressed by the children to Ms J during the interview were consistently that they preferred or wanted things to stay as they were. X stated, however, that he was “OK” with it turning into a week around arrangement.

2. The mother says the children have spoken for themselves and made it plain in their interviews with the Family Consultant that they do not want a change to the present arrangement. She says the children, especially X and Y, are mature enough to have their views given weight by the Court.

3. Ms J observed that that the children’s views have to some extent been influenced by the mother. She observed that given the difficulties the children experienced in the blended family with Ms Elsworth at their father’s house, they were more likely to favour the mother’s position. She opined that were the issues identified by her (such as the children’s sense of not being treated equally with their step siblings) addressed then they could better manage any change. Her opinion was that Z was not of sufficient maturity.

4. X and Y’s views should be given weight in deciding what are in the best interests of the children. However, there are of course other factors which the Court must consider. I note that X stated he would be “OK” with a change. This is significant as his special needs are clearly relevant in determining this issue.

5. The other factor is the influence of Y’s friction with Ms Elsworth on her views. The fact that the father and Ms Elsworth have attended family counselling augers well for the future. I have accepted the father’s evidence that in the last few months Y’s relationship with Ms Elsworth has improved. Ms J recommended that the father, Ms Elsworth, X, Y, A and B attend family therapy to resolve issues in the blended family. The mother argues that if a week about arrangement is determined by the Court to be in the children’s best interests, it should not come into effect until the father, Ms Elsworth, X, Y, A and B have attended family therapy. Accepting the father and Ms Elsworth have already attended family counselling, it may well be of assistance if the father and Ms Elsworth take steps to engage in such therapy recognising of course that in order for this to be successful consent would be required from A and B’s father as well as from the children’s mother.

6. I am satisfied that Y’s friction with Ms Elsworth has largely been resolved, that the father and Ms Elsworth have taken appropriate steps to address the issues the children identified in the blended family. Consequently, I am satisfied that notwithstanding the children’s preference, they will manage any change and come to accept it.

Participation by parents in decisions about long term issues and spending time with and communicating with children: s.60CC(3)(c); Capacity of parents to meet children’s needs: s.60CC(3)(f); Attitudes to children and Responsibility to Parenthood: s.60CC(3)(i)

1. There is no dispute that both parents have participated in decisions regarding long term issues affecting their children, have spent the time they have had under the consent orders made in 2007 with their children. There is no doubt that both parents have the capacity to meet their children’s emotional and intellectual needs. Further, both parents have behaved in a child focused way in relation to their responsibilities as a parent notwithstanding any issues they may have between themselves. It is clear that both parents have provided their children with a safe and secure environment in which they can enjoy their childhood and transition to teenage life.

Likely Effect of Changes in Children’s Circumstances: s.60CC(3)(d)

1. This is a matter which is one that the Court has given great weight to. The mother says that there will be a deleterious impact on the children emotionally and, as a consequence, their performance at school. She relies on the fact that the arrangement has been longstanding, the views of the children that they prefer the current arrangement. She also maintains that the adjustment for X will be particularly hard as children who suffer Autism Spectrum Disorder require stability and find change difficult to manage. This argument, however, works both ways as the changeovers especially during one week of the two week cycle likewise involve changes over a week which arguably are difficult to manage.

2. I have earlier dealt with the effect of the impact of the difficulties the children have had in their father’s house on their views of change and, hence, the effect of the father’s proposed changes on them (see [61] to [67]).

3. It is relevant that X and Y are now in secondary school and Z is soon to follow. I accept Ms J’s opinion, this being undisputed, that the scheduling of school homework as children move through secondary school shifts to longer periods of time. The demands of VCE on the children will be better managed by greater stability at each parent’s residence over the course of the week. I accept that all children are presently doing well at school, although there seems some organisational issue for Y. However, as Ms J points out the changes she recommends are about the future for the children as they move into their final stages of schooling. Arrangements which reflected the best needs of children may not necessarily do so at subsequent stages of their development. Ms J’s view that as children move through secondary school they increasingly develop interests outside the home was not challenged. Ms J has further observed that it is important that the changes for the future are put into place now to enable, particularly the older children, to adapt in readiness for the last stages of their school life.

4. Ms J proposed, as a means of addressing concerns that the children may miss seeing the other parent during the week in a week about arrangement, that the children have an evening meal with the other parent on Wednesdays. She points out that this would not involve the disruption of a changeover but may assist the children manage the change in the arrangement. Both parents are not in favour of this. However, it may be a useful arrangement to have in place in the short term to assist the transition to a week about arrangement, if the Court decided that this was in the best interests of the children.

5. I am satisfied that the children would adjust to a change to a week about arrangement and that such a change will better reflect their needs and interests at this stage of their development. I am confident that both parents, given their attitude to and responsibility they have taken to parenting, will ensure that any transition is supported and managed in their children’s best interests.

Practical Difficulty and Expense in Time Spent and Communication with Parents: s.60CC(3)(e)

1. The father and mother’s residences are very close by and near all the children’s schools.

2. The mother deposes that because of the father’s shift arrangements and overtime she is concerned about the amount of support the children will receive in his house. The father was not cross examined on this point. Further, as the parents already share time with the children, this issue is one which does not bear on the proposal for the way in which the shared time is to be arranged.

3. The mother says a week about arrangement will entail greater cost for her as she will have to make child care arrangements. No doubt additional care arrangements will involve greater cost. However the mother did not provide probative evidence of the additional costs in the context of her financial circumstances.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings: s.60CC(3)(l).

1. The Court is obliged to give consideration as to whether it would be preferable to make the order which would be least likely to lead to the institution of further proceedings relating to the children.  It is a two-step process: first, it is a matter of identifying whether there is an order that will be more likely to make further proceedings unnecessary or unlikely. If such an order can be identified, then it is a matter of determining whether it would be preferable to make such an order.  The second step involves an assessment of the benefits to the children from no longer having parents who are engaged in litigation with each other with the resulting reduction in stress within the respective households as compared to an advantage that may result from the Court’s ongoing involvement in the parenting arrangements.

Any other relevant fact or circumstance: s.60CC(3)(m)

1. Given the narrow issue in dispute, there are no other facts or circumstances which the Court considers relevant in this matter.

Parental Responsibility

1. There is no dispute that the parties should share equal parental responsibility for the children and that the children should spend equal time with the parents. The parties, as I have already made clear, have demonstrated a capacity to effectively communicate and consult in relation to their children’s issues. Further they live close by to each other and their children’s schools.  I am satisfied that the presumption of equal shared parental responsibility should continue to apply and that equal shared time is in the children’s best interests and reasonably practicable. The issue in dispute is how the equal shared time should be arranged.

Submissions of Parties

1. The father submits that the views of the children are equivocal in that they state they don’t want change yet state they will manage. In these circumstances their views are not a strong factor in the Court’s consideration of the children’s best interests. He further submits that the mother’s working arrangements should not be given significant weight as it is apparent the mother has not attempted to contact her Manager to ascertain if she can change her hours of work. Also, under the relevant enterprise agreement there are provisions for employees to work two part-time jobs and for flexibility where a parent is responsible for a child or children with disabilities. He submits that the mother’s reasons for opposing the change to a week about shared arrangement are not child focused.

2. The father submits that going into secondary school, it is in the best interest of all children to have the stability and consistency of changeover each week and not to have four changes in eight days. In his final submissions the father stated, having heard the family consultant’s evidence regarding the purpose of her suggestion for time on Wednesday with the other parent, he would go with it if the Court considered it was in the child’s best interests.

3. The mother submits that it is not in the children’s best interest to change the arrangement which has been in place since 2007 and which has worked well for them and with which they are comfortable. She submits that taking into account X’s special needs a change in the arrangements could be damaging. She submits that because the father works shift work he does not have the capacity to take the children to the activities she now takes them to.

4. The mother submits the children have made their views plain and the Court should give these views significant weight. She submits there is no evidence of compelling circumstances to warrant a change to the Orders made by consent in 2007.

Consideration

1. I am satisfied that, having considered the evidence against the relevant considerations under s.60CC, it is in the best interests of the children that the parents spend their time with the children on a week about basis. It will enable a settled and stable routine over a period of a week for the children to enjoy. It is true that the mother will not spend each Wednesday and Thursday with the children as she has done so. However, the benefits to the children, given their age and stage of schooling outweighs this consideration.

2. I am conscious of the fact that regard should be had to the adjustments the children will experience in the early period of the new parenting arrangement. Accordingly, the change in parenting arrangement will come into effect at the commencement of their school’s third term or second semester. This will also provide the mother with time to make necessary arrangements in relation to child care or to her work schedule. Furthermore, I will also provide that until the end of the 2014 school year, the children shall spend time with the parent with whom they do not reside in that week from after school to 7.30pm. This will enable the children to make their adjustment to an arrangement whereby they spend one weekend away for a parent.

3. I have considered the question of family therapy. I am of the opinion that it would be helpful to all the extended family at the father’s house to engage in family therapy and would be in the best interests of the children. However, as the consent of the father of the children, B and A would be required, I will not make such an order as it would not be helpful for such therapy to take place without these children of the extended family involved. At most I will recommend to the father that he and Ms Elsworth take all reasonable steps to engage with both their children in such therapy.

4. As to the question of when changeover should take place on a week about arrangement, I am satisfied that it is in the best interest of the children that this take place on a Sunday evening as it will provide the time necessary to settle in their home for that week and enable both parents to plan and organise with them for school the next week.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Jones

Associate: 

Date:  8 April 2014