Escott and Lowe

FAMILY COURT OF AUSTRALIA

ESCOTT & LOWE

[2007] FamCA 307

FAMILY LAW - CHILDREN – Consideration of “equal time” and “substantial and significant time” – s65DAA – Best interests of a child.

Family Law Act 1975 (Cth)

B and B, Family Law Reform Act 1995 (1997) FLC 92-755

APPLICANT:

Mr Escott

RESPONDENT:

Ms Lowe

FILE NUMBER:

SYF

3200

2004

DATE DELIVERED:

3 April 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATES:

27, 28 & 29 September 2006 (Written submissions)

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr S Stewart

SOLICITOR FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Ms M Cleary

SOLICITOR FOR THE RESPONDENT:

Marks, Griffiths & Bova

INDEPENDENT CHILDREN’S LAWYER:

Ms E Karagiannis

Orders

That the husband and wife have equal shared parental responsibility for the two children of the marriage, a son born in March 1998 and a daughter born in May 2000 (“the two children”) AND the parties shall note the obligations created by this Order and the parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexure A.
That each party have the responsibility for the two children’s day to day care welfare and development throughout such periods that the two children are in his or her care respectively.
That the two children live with the wife subject to Order 4.
That the two children spend periods of time with the husband as follows:
During school term
(a)From the conclusion of school on the first Friday of each school term until the commencement of school on the following Monday and thereafter on alternate weekends.
(b)In other weeks from the conclusion of school on Thursday until 9.00am on Saturday.
PROVIDED THAT the husband:
(c)personally collects the two children from school other than for reasons of illness or as otherwise agreed between the parties;
(d)ensures the two children attend all extra-curricular and sporting activities and be transported by him to and from such activities with the assistance of either of the paternal grandparents should the two children be required to be at different venues at the same time;
(e)ensures the two children are appropriately clothed and that all their clothes brought with them are promptly returned to the wife in a clean state;
(f)promptly pay an equal proportion of the expenses in relation to all extra-curricular and sporting activities of each of the two children as well as an equal proportion of all health related expenses.
During school holidays
(g)For half of each school holiday period after the conclusion of each school term except for the last school term as agreed between the parties or failing agreement the first half in each even numbered year and the second half in each odd numbered year PROVIDED THAT in relation to the second half of a school holiday period the husband shall ensure that the two children are returned to the care of the wife no later than 9.00am on the last Saturday of such school holiday period prior to the commencement of the next school term unless otherwise agreed between them.
Other occasions
(h)On Father’s Day each year from 6.00pm on the Saturday immediately preceding Father’s Day until before school on the following Monday in the event that the two children would otherwise not be spending time with the father pursuant to these Orders.
(i)For two hours on each of the birthdays of the two children and the husband’s birthday as agreed between the parties or failing agreement from 5.00pm to 7.00pm if the two children would otherwise not be spending time with the husband pursuant to these Orders.
(j)From 2.30pm on 25 December 2007 until 5.30pm on 26 December 2007 and thereafter in alternate years.
(k)From 5.30pm on 24 December 2008 until 2.30pm on 25 December 2008 and thereafter in alternate years.
(l)For such alternative or further periods as may be agreed upon between the parties from time to time.
That the periods of time that are spent by the two children with the husband shall be suspended each Mother’s Day when the two children shall be with her from 6.00pm on the Saturday immediately preceding Mother’s Day until before school on the following Monday unless they would otherwise be living with her pursuant to these Orders.
That in the event that the two children are to spend a period of time with the husband pursuant to these Orders on a day which is the wife’s birthday then he shall ensure the two children are returned to the wife for a period of two (2) hours as agreed between them or failing agreement from 5.00pm to 7.00pm.
That unless otherwise provided pursuant to these Orders change-over for the purpose of the two children moving from one party to the other for the purpose of them spending periods of time with the husband or living with the wife shall take place at McDonald’s Restaurant B or such other place as agreed upon between the parties.
That the parties shall ensure the two children may contact the party with whom they are not then living at any reasonable time whether during school term or school holiday periods and each of the parties shall facilitate and encourage such telephone communication and allow it to take place without interruption PROVIDED THAT should the two children or either of them be in the care of either of the paternal grandparents then the husband shall make the paternal grandparents aware of this Order and obtain their commitment to enable reasonable telephone communication to take place between the two children or either of them with the wife.
That each of the parties shall promptly inform the other of any serious injury or illness suffered by the two children or either of them whilst in that party’s care and inform the other party of the name, address and telephone number of the relevant medical practitioner or hospital.
That the wife shall promptly authorise and request the Principal of all schools attended by the two children to furnish to the husband at his request and expense if necessary copies of all school reports, notices and correspondence in relation to the academic progress of each of the two children, school events, sport and extra-curricular activities.
That the application of the independent children’s lawyer for an order that the parties contribute to the costs of legal representation of the two children in these proceedings be stood over for submissions on a date and time to be fixed.
That the parties enrol in and complete an appropriate course to improve communication between them and in that regard they or their legal representatives shall consult the Manager Child Dispute Services of the Sydney Registry of this Court for the purpose of obtaining information in relation to such course on or before 10 April 2007.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number: SYF3200 of 2004

ESCOTT

Applicant

And

LOWE

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant in these proceedings, Mr Escott (who for convenience I shall refer to as “the husband”) sought parenting orders in relation to the two children of the parties and orders for property settlement. The latter orders included superannuation splitting orders.
The husband’s application was subsequently further amended, unopposed at the commencement of the hearing, in accordance with Exhibit 4. In substance, it provided for equal shared parental responsibility; equal shared parenting regime of alternate weeks of the two children living with the parties during school term; half school holiday periods and other specified occasions.
The husband sought an order that he pay to the wife the sum of $108,020.00 by way of settlement of property and that upon payment the wife transfer to him her right title and interest in the property situate at E (“the former matrimonial home”).
Apart from the superannuation splitting order to which I have referred, orders were also sought by the husband in relation to items of personalty.
The respondent, Ms Lowe (who for convenience I shall refer to as “the wife”) had sought property settlement orders in accordance with her Amended Response filed 5 November 2004. At the commencement of the hearing, the wife was granted leave unopposed to seek parenting orders in accordance with Exhibit 3.
As was made clear by counsel for the wife at the commencement of the hearing, there is no issue that an order should be made reflecting the presumption of equal shared parental responsibility in accordance with the provisions of s61DA(1).
By letter dated 10 January 2007 signed by the solicitors for the parties and amended “Agreed Schedule of Assets and Liabilities” was sent to my Associate and was received into evidence by me and marked Exhibit 12.
Exhibit 12 raised an issue as to whether or not the value of the husband’s retirement benefit was included as a component in the valuation of his superannuation benefits.
The wife’s assertion is that the husband’s retirement benefit was not “fully accounted for in the valuation” of the husband’s superannuation.
As the written submissions on behalf of the husband did not deal with that matter, I have afforded the solicitors for the parties an opportunity to make oral submissions immediately judgment is given and parenting orders made on 3 April 2007. That will then enable me to give judgment in the property settlement proceedings later this week.
Consequently, this judgment only determines the issues in the parenting proceedings between the parties.

Historical background

The following are brief relevant historical matters.
The parties cohabited for a period of approximately six years and four months which commenced on their marriage that took place in December 1996 and concluded when they finally separated in March 2003.
The marriage was dissolved by decree nisi made in August 2004 which became absolute in September 2004.
The husband is 34 years of age and employed by X Company as a planner.
The wife is 31 years of age and engaged in home duties.
The two children of the parties’ relationship are:
(m)A son, 9 years of age (8 years at the time of the hearing) born in March 1998.
(n)A daughter, 6 years of age born in May 2000.
The two children attend H School.
The two children have primarily lived with the wife since the parties separated.
In 1998 the parties together with the paternal grandparents purchased the former matrimonial home for $349,000.00. The parties hold a 56% interest in the title to the former matrimonial home as joint tenants. The paternal grandparents hold their interest of 44% as joint tenants. The parties and the paternal grandparents’ respective interests are held as tenants-in-common.
In March 2003, being the date of separation of the parties the wife together with the two children ceased to reside in the former matrimonial home and have primarily lived in rented premises since that time. The former matrimonial home has remained occupied by the husband.
In May 2003 in the Local Court M, proceedings for an apprehended violence order against the husband for protection of the wife were dismissed in the circumstances where the wife did not appear to give evidence.
In July 2003 in the Local Court M, an apprehended violence order was made against the maternal grandfather for the protection of the wife and implicitly the two children (there being an absence of precise evidence) for a period of two years.
On 16 November 2004 in the Local Court Family Matters, interim parenting orders were made by consent which in substance provided for the parties to jointly have the responsibility for the care of the two children; each of them to have sole responsibility for daily care of the two children when they were with him or her respectively; the two children to reside with the wife except for specified weekend periods, Father’s Day and half school holiday periods when the husband was to have time to be spent with the two children.
On 4 May 2005 the children’s representative was appointed (now described as the “independent children’s lawyer”).
On 27 March 2006, interim parenting orders were made by consent which provided for variation of the orders made on 16 November 2004. The effect of the variation of the orders was to provide for the two children to live with the husband during school term for alternate weekends commencing from after school on Friday to the commencement of school on the following Monday.

Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the child and the principles that underlie those Objects. In substance, they include the benefit to the child of his/her parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}
The principles underlying those Objects, in summary, include:
(a)a child having the right to know and be cared for by both parents;
(b)a child having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their child;
(d)the imperative for parties to agree about future parenting of a child; and
(e)the child’s right to enjoy their culture including with others who share that culture.
It should be noted that s 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to a child continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order. It has been my experience in practice at the Bar and since I have been on the Bench that at times, one or more parties to parenting proceedings lose sight of the exception to the principles underlying the Objects, to which I have referred, in the course of becoming focused and at times fixated upon one or more of those Objects as provided in the legislation.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the children, the subject of these proceedings.[2]
[2] B and B, ibid

Relevant matters pursuant to section 60cc

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[3] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[3] Section 60CC(1)
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[4]
[4] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”.
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Views expressed by the two children and other relevant factors

Each of the parties gave evidence of views that each of the two children have expressed regarding the periods of time desired to be spent with each of the parties.
The evidence of the husband is that the two children, and in particular the son have expressed by words and action the desire to spend equal time with each party on a week about basis. The husband repeated those views to the child expert, Dr V (“the child expert”).
In contrast, the evidence of the wife was that the two children expressed contentment with the arrangements whereby the two children spend periods of time with the husband in accordance with the orders made on 27 March 2006, namely alternate weekends commencing from after school on Friday to the commencement of school on the following Monday during each school term.
In her first report, being Exhibit 1 the child expert referred to the son expressing the view of staying one week with each of the parties. No view is recorded as having been expressed by the daughter.
In the child expert’s second report dated 15 September 2006, being Exhibit 2 having been prepared 10 months later than Exhibit 1, the son informed the child expert that he was now spending more time with the husband and that the experience was a good one. In response to a question by the child expert, the son expressed the view that he spend alternate weeks with each of the parties on the basis that it was “fair”.
The daughter expressed the view that there should be alternate periods of six days with each of the parties “because it is fair”. The daughter also stated that she felt “a bit sad on the long holidays” as she did not see the other parent for “a long time”.
During the course of her oral evidence, the child expert explained that children of the ages of the parties’ two children have different conceptions of time and that one week alternating between parents is a “more adult concept”. The child expert’s emphasis was that the quality of time should be focussed upon as a child of a young age does not appreciate all the aspects of a week-about arrangement. I infer from that evidence that the child expert was alluding to the intangible factors of:
(a)the relationship with each parent,
(b)time and care with a parent being missed,
(c)adjustment to different parenting styles and routines which each parent may provide and which may contrast with each other.
The child expert also opined that a child may express a view to one parent or the other so as not to hurt the feelings of that particular parent, the underlying issue being that the views so expressed may not represent the genuine view or feelings of that young child at the time.

I accept the evidence of the child expert, to which I have referred, as well as generally unless otherwise indicated. I was impressed by the thoughtful and sensitive evidence provided by the child expert in Exhibits 1 and 2 as well as during the course of her oral evidence.
I also accept the evidence of each of the parties in relation to this particular matter, namely the views expressed by each of the two children.
As a consequence, I find the views expressed by each of the two children to the parties markedly differ in relation to the period of time sought to be spent with each of the parties.
I further find that the two children have each expressed the view to the child expert of a desire to spend equal time with the parties on a week-about basis. However, that finding must be seen in the context of the evidence of the child expert that the concept of equal time, including the detail that it represents so far as the relationship with each parent, changes in routine, and adjustment to different parenting styles were not necessarily comprehended in full by each of the two children given their young ages and lack of maturity.

The nature of the relationship of the two children with each of the parties and other persons

There is no issue that each of the two children has a loving relationship with each of the parties and is closely attached to each of them.
There is also no issue that the two children have a fond relationship with members of the extended family of each of the parties.
That of course excludes the maternal grandfather. In that regard, I refer to the apprehended violence order made in July 2003 and the unchallenged evidence of the wife, which I accept, that her relationship with the maternal grandfather has completely broken down and that neither of the two children will be brought into his company again.

The willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the two children and the other party

There have been difficulties in relation to this matter principally due to the poor level of communication between the parties.
I accept the evidence of the child expert that this problem has been mainly caused by a combination of:
(a)distrust;
(b)allegations by the wife of the husband’s abusive conduct towards her during the period of cohabitation;
(c)the wife’s lack of confidence in the husband’s ability to provide appropriate care for the two children;
(d)the wife’s lack of appropriate consultation or furnishing of information to the husband in relation to the two children’s change of schools and other matters;
(e)the wife’s resentment of the husband’s lack of financial contribution to certain child related expenses over and above the child support assessment;
(f)and last but far from least the husband’s alleged inflexibility which resulted in the two children not spending any time with the wife on Christmas Day 2005.
It appears to have been common ground that during 2006 the relationship between the parties improved, especially after the two children had become well settled in the routine of periods of time spent with each of the parties pursuant to the interim parenting orders made by consent on 27 March 2006.
Nonetheless, as the child expert emphasised, a substantial improvement is still desirable in the quality of the communication between the parties. In that regard, there was a recommendation that the parties participate in an appropriate program for that purpose.
Due to the continued level of distrust between the parties, perhaps due in part to these proceedings, they each appeared to have a certain rigidity or inflexibility in their approach to facilitating the appropriate relationship between the two children and other party.
So far as the husband is concerned, the events of Christmas Day 2005 show an inflexibility and lack of insight into the needs of the two children, apart from a recognition of the significance of Christmas Day to each of the parties given their history of active participation in church activities and their Christian faith.
The husband’s apparent reliance on court orders as the basis for refusing the two children spending any time with the wife on that particular Christmas Day demonstrates his limitations to which I have referred.
So far as the wife is concerned, I find that she has demonstrated a lack of appropriate consultation and provision of child related information to the husband on a timely basis which has had the effect of marginalising him at times so far as his involvement with the two children is concerned. That has been shown by the wife’s provision of information to the husband after the event so far as change of schools and lack of keeping him informed with reasonable notice of medical appointments for the daughter, as opposed to passing on to him the relevant information with little time for him to adjust his work commitments so that he could be with the child at the appropriate medical appointments.
However, it must be recognised there is a lack of complaint by either party in relation to the smooth implementation of the periods of time that the two children were required to spend with each party pursuant to the interim parenting orders made 26 March 2006.

The likely effect of any changes in the two children’s circumstances including the likely effect on their separation from the parties or any other person with whom they have been living

This matter must be considered in the context of each of the parties proposals.
In Exhibit 1 the child expert records that the husband’s proposal was that the two children be in his care for “no less than alternate weekends, on special occasions and for one-half of school holidays”. The husband also proposed that there be “mid-week overnight contact”. The husband needed flexibility to coincide with his work commitments.
In Exhibit 2, the husband’s proposals markedly changed in that he sought that the two children spend alternate weeks with each party implicitly during school term.
There is no issue that there is a loving relationship between the two children and each of the parties. I accept the evidence that the two children enjoy being with the husband. As previously referred to, there is no issue that the periods of time spent by the two children with the husband pursuant to the interim parenting orders made 26 March 2006 has been a positive one so far as an established routine is concerned.
Consequently, the likely effect of any changes in the circumstances of the two children in accordance with the husband’s proposals are likely to be positive so far as the personal relationship between the two children and the husband is concerned.
The husband has given evidence, which I accept, of the change in his work commitments whereby on week days he would leave his home at 7.30am in order to start work at 8.00am. The husband proposes that he takes the two children to the home of the paternal grandparents who would care for them prior to school and the paternal grandfather would then take them to school.
The husband’s daily work commitments would finish at 3.00pm and implicitly he would be available to care for the two children from 3.30pm. The two children finish school at 3.00pm or shortly thereafter. The husband proposes to collect the two children from school or arrange for the paternal grandfather or paternal aunt to collect them.
The paternal grandfather gave evidence. I find that he is sincere in his proposals to provide assistance to the husband with the care of the two children including, if necessary, caring for them both prior and subsequent to school as well as taking them to and/or from school. The paternal grandfather is retired.
The paternal grandmother who is a school teacher also gave evidence of her willingness to assist and I accept her evidence. There is an acceptable travel time between the homes of the husband and the paternal grandparents and the school.
A further likely effect of changes in the circumstances of the two children is their separation from the wife who has been their primary carer since the parties separated, the two children then being 5 and 2 years of age respectively. That is obviously a significant matter which will require major adjustment for the two children especially having regard to their young ages.
The wife for her part, proposes that the current routine of periods of time spent by the two children with each of the parties not be altered, except that the two children may spend time with the husband overnight from the conclusion of school on Friday to Saturday morning in the week in which the weekend period of time which they would otherwise spend with him does not occur.
The wife expresses a number of concerns in her evidence, which if accepted, demonstrate a likely adverse effect on the two children of changes to the periods of time that they live with each of the parties as proposed by the husband.
The evidence of the wife in that regard, is that the two children are frequently tired and unsettled following the weekend periods spent with the husband and that it takes up to three days approximately for them to readjust to the routine that is followed for them in her home including overcoming the problems referred to. I accept the evidence of the wife and make findings accordingly as from my observation of her, she appeared to be a sincere and truthful witness in this regard who was genuinely concerned about the possible major change to the stability and routine of the two children which both parties accept has been beneficial for them since the orders that were made by consent on 26 March 2006.
In addition, there are other matters to take into account.
The evidence of the child expert, which I accept, is that equal periods of time which the two children may spend with the parties is enhanced when parties are able to communicate in an open and constructive way, and arrangements are able to be made to meet children’s needs and activities, as well as sharing financial costs involved in child rearing.
In these proceedings, the quality of communication between the parties still needs to substantially progress. There is no history of real flexibility in arrangements between the parties so far as periods of time that may be spent with one or the other, each has shown a certain rigidity of approach, the husband’s insensitive attitude as displayed on Christmas Day 2005, and his apparent inability to appreciate that arrangements may be made on a basis that is child-focussed for the benefit of the two children even if not the subject of a court order.
The evidence of the wife, which I accept, is that the husband has not had a positive attitude to sport for the son where it involved not only his possible contribution to the competition enrolment fee, but also the activity of the game or training interfering with “his time”. The husband belatedly acknowledged in his oral evidence that the child might well gain enjoyment from the husband attending that activity and seeing him participate.
The probabilities are the husband will be reliant upon the paternal grandparents for assistance in the care of the two children particularly before school, even allowing for the new work hours that he has arranged with his employer.
Unfortunately, communication between the paternal grandparents and the wife is virtually non-existent. The paternal grandfather has a negative attitude to the wife and holds her responsible for the breakdown of the marriage. That does not auger well for good and constructive communication between the paternal grandfather and the wife which may be necessary from time to time due to a variety of circumstances that may affect the two children whilst they are in his care.
Accordingly, I find that a likely effect of changes in the circumstances of the two children including separation from the wife due to major changes to their living arrangements will represent a mixture of positive aspects so far as the personal relationship between the two children and the husband, but also difficulties of communication and attitudes as well as parenting style. Those matters earlier described, are likely to be significant difficulties for the two children should they commence to live with each party on a week about basis during school term.

Practical difficulty and expense of the two children spending time with and communicating with a parent and the effect on their right to maintain personal relations and direct contact with both parents on a regular basis

No issue arises in relation to this matter. However, there is an unknown factor in view of the wife’s proposal to possibly purchase a home in the general H area.

The capacity of each of the parties and any other person to provide for the needs of the two children including emotional and intellectual needs

There is no evidence of substance to suggest that either of the parties lacks the capacity to provide for the physical and intellectual needs of the two children.
So far as the emotional needs of the two children, I have made previous findings in relation to matters of inflexibility and the passing of information between the parties on matters affecting the two children.
Those matters have indirect implications for the two children in that the resulting conflict between the parties has created or potentially may create strain and tension for the two children which can hardly be beneficial for them emotionally.

The maturity, sex, lifestyle and background of the two children

The two children a son and a daughter are 8 and 6 years of age respectively.
They appear to have the maturity commensurate with their ages.
They are making satisfactory progress at school.

The parental attitude of each of the parties

Each of the parties has a devoted parental attitude to the two children. Unfortunately, some limitations apply as a result of my findings in respect of inflexibility and lack of appropriate consultation between them.
In addition, the husband has not been as financially responsive to the needs of the two children as would have been appropriate. I have also made findings in that regard.

Family violence and family violence orders

Relevant family violence orders are those to which earlier reference has been made.
Each of the parties has made allegations of violent behaviour by the other towards the two children, especially physical chastisement so far as the son is concerned.
I accept the evidence of the parties that each used a wooden spoon for disciplinary purposes in accordance with what seems to have been misguided advice and that such a method of discipline is no longer used.
Other allegations of physical abuse by the husband and violent and abusive conduct by him towards the wife during the period of cohabitation were not explored in cross-examination in any significant length. I am not in a position to make findings in relation to those matters which satisfies the civil onus of proof.

The preference to make an order least likely to lead to the institution of further proceedings in relation to the two children

Realistically, this matter does not arise for consideration as it was not an issue that arose from the case brought by each of the parties. Indeed, no submissions were made.

Any other relevant fact or circumstance

This matter does not arise nor was it the subject of submissions.

Conclusion

As had been made clear by counsel for the parties, each of the parties supported the application of the presumption of equal shared parental responsibility as set out in s61DA(1).
“Equal shared parental responsibility” is a different legal concept from “equal shared time”.
Section 65DAA(1) requires that I must consider whether equal time is in the best interests of the two children and is reasonably practicable. Should there be a positive finding in relation to the latter issue, then I am required to consider making an order which provides for the two children to spend equal time with each of the parties.
In the event that I do not propose to make an order that the two children spend equal time with each of the parties, then I am required to consider whether the two children spending “substantial and significant time” with each of the parties is in the best interests of the two children pursuant to s65DAA(2). I am also required to consider whether the spending of substantial and significant time with each of the parties is reasonably practicable and if so to consider making an order which provides for the two children to spend substantial and significant time with each of the parties.
Section 65DAA(3) makes it clear that “substantial and significant time” with a party only arises if the child in question spends time with the particular party which includes those days that fall on weekends and holidays as well as such days that do not fall on those periods and which allows the particular party to be involved in the daily routine of each of the two children and “occasions and events that are of particular significance” to each of them as well as “special significance” to the particular parent with whom the time may be spent.
Section 65DAA(4) makes it clear that I can also consider other relevant matters for the purpose of determining whether the time that a child spends with a party would be substantial and significant.
Section 65DAA(5) sets out the matters that I must have regard to for the purpose of determining “reasonable practicality”. They include the distance between the homes of each of the parties; their respective current and future capacity to implement an arrangement for the two children to spend equal time or substantial and significant time with each of the parties; the parties’ current and future capacity to communicate with each other and to resolve difficulties that may arise in implementation of the arrangement or equal time or substantial and significant time and the impact of such an arrangement on each of the two children as well as any other relevant matter.
The matters to which I have referred for the purpose of the requirement to consider “equal time” or “substantial and significant time” earlier described are nonetheless subject to the statutory obligation for the purpose of making a parenting order, which may reflect any period of time, the following words of the statutory amendments to the Act enacted by the Federal Parliament which came into effect on 1 July 2006 “the court will regard the best interests of the child as the paramount consideration”.[5]
[5] Section 65DAA(1) – note 1; s60CA.
The proposals of the husband are that the two children live with the parties during school term in alternate weeks commencing from after school on Monday; half school holiday periods; alternate Christmas days; and appropriate periods on other special occasions such as Father’s Day, Mother’s Day and birthdays of the two children and each of the parties.
The proposal of the wife is that the two children primarily live with her and spend periods of time with the husband being during school term each alternate weekend from after school Friday until before school Monday; each other week from after school Friday until 7.30am the next morning; half school holiday periods; alternate portions of Christmas Day and Boxing Day; and other particular occasions as specified by the husband, although the precision is different.
I have determined that it is in the best interests of the two children that they not spend equal time with each of the parties, but rather during school term they primarily live with the wife and spend substantial and significant time with the husband for the following reasons.
I have concluded that whilst there are factors which positively point to an order for equal time to be made on a week about basis, I am not satisfied that it is reasonably practicable to do so having regard to all of the matters I am required to take into account pursuant to s65DAA(5).

Positive features of reasonable practicality include the distance that the parties live from each other which does not pose any significant practical problem. The wife has the current and future capacity to implement an arrangement for the two children to spend equal time with each of the parties. So far as the husband is concerned, I am satisfied that he has the same capacities due to the arrangements he has made with his employer for shorter hours during the week that the two children spend with him combined with the ready assistance that can be provided by the paternal grandparents, especially the paternal grandfather for their care and transport to school and if necessary after school.
Those positive matters to which I have referred, must be balanced against significant adverse features.
The parties’ capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement for equal time requires substantial improvement as appeared to have been implicitly, if not expressly, recognised by the each of them in the course of giving oral evidence. In that regard, I take into account that during last year the communication between the parties had improved. However, I accept the evidence of the child expert as appears in Exhibit 2 that:
“there still appears to be a considerable level of distrust between them which in part seems to be fuelled by the outstanding property and financial matters. This is interfering with their capacity to communicate openly and to make decisions that are child-focused.”
In that regard, I accept the parties do recognise that improved communication needs to be addressed as would seem implicit due to neither of them seeking to rebut the presumption of equal shared parental responsibility.
However, the evidence does not permit me to be satisfied that communication between the parties will markedly improve in the foreseeable future. Bland assertions of “hope” and preparedness to take part in an appropriate post-litigation counselling program are easily made.
The evidence does not allow me to be satisfied on the balance of probabilities that the parties will actually achieve willing and marked improvement in the quality of their communication in the near future.
In that regard, I note the husband’s evidence that whilst he recognised that an appropriate course could be beneficial and that he claimed to have made enquiries in that regard, he was unable to find an appropriate course. I do not accept the husband’s evidence, as he could surely have found such a course if he had a sincere commitment to do so due to the assistance that no doubt would have been provided to him by the child expert and/or the Manager Child Dispute Services in the Sydney Registry of the Family Court of Australia as well as the assistance his legal representatives could have provided.
The evidence of the wife also shows shortcomings in that regard.
I also accept the evidence of the wife regarding the two children being tired and unsettled for periods of up to two or three days following periods of time they have spent with the husband, even though generally the arrangement of periods of time the two children have spent with each of the parties pursuant to the orders made on 27 March 2005 have been beneficial to them.
I also accept the evidence of the wife that the husband has not been proactive in seeking information from her in respect of possible change of school and sport arrangements. Indeed, the husband has shown a marked disinclination to recognise and be supportive both by his presence and meeting the appropriate cost on an equal basis for their son to be engaged in soccer, acquisition of sports gear, contribution to certain medical expenses, and last but far from least a rather mean approach to even declining to spend $10.00 for a pullover for his son.
The husband has had an unfortunate attitude whereby time is considered to be focused upon the provision of it for him, rather than taking a child-focused approach of recognising that time made available is for a child’s best interests and his relationship with that parent may bring beneficial results in that relationship. The husband needs to appreciate that he is being supportive of a child if he actively participates and encourages a child in sport activities, rather than taking the view that those activities eat into “his time”
All of those matters referred above, come very much to the fore should the two children spend either equal time with each party or substantial and significant time with the husband which includes a number of week days as well as weekends.
By contrast, the wife has shown by her actions that she is fully responsive to the needs and reasonable requirements of the two children ranging from not only investigation of appropriate schools and after school activities for the two children including sport, but being prepared to meet all the costs involved without financial contribution by the husband, notwithstanding child support assessment that he has been paying. It should have been recognised by the husband that certain expenses of the type to which I have referred, not to mention irregular medical expenses for the two children such as the daughter, need his active financial support in addition to the child support assessment.
I have also taken into account the role that the paternal grandparents, especially the paternal grandfather will play by way of assistance to the husband in the care of the two children on school days including transport to school. That is very commendable and to the two children’s benefit so far as their relationship with the paternal grandparents. However, exigencies can arise which would require there to be appropriate communication between the paternal grandparents with the wife.
Unfortunately, communication between them is virtually non-existent and the paternal grandfather has a negative and judgmental attitude towards the wife as revealed in his oral evidence when he stated he blamed her, implicitly solely, for the marriage breakdown. The paternal grandfather was also critical of the wife for not returning to employment after the birth of the two children. It does not seem to have occurred to the paternal grandfather that he may not have been privy to all personal aspects of the relationship between the parties and their individual emotional states, particularly in the period of the deterioration of the marriage.
I also take into account that the two children are in a settled and stable routine of periods of time spent with each of the parties due to the implementation of the orders made 27 March 2006.
I have not given any weight to the expression of views by each of the two children. My reasons are that I accept the evidence of the child expert that given their young ages and consequent lack of maturity, they have a different conception of time compared to an adult and may not fully appreciate an adult concept such as a week with each parent.
As the child expert emphasised in her oral evidence, the question of more time with the husband needs an emphasis upon the quality of that time. In addition, as the child expert asserted a balance has to be struck in the best interests of the two children between more time with the husband against maintaining the stability and routine for the two children with which they have become accustomed to their benefit since the implementation of the orders made 27 March 2006.
I have concluded that it is in the best interests of the two children to strike a balance to which I have referred above by making orders which provide that during school term the two children spend substantial and significant time with the husband that will include from Friday after school to the commencement of school on Monday on each alternate weekend starting on the weekend at the conclusion of the first week in each school term; and from Thursday after school until 9.00am on the following Saturday in the week in which weekend periods of time do not occur. The order giving effect will be on terms which require the husband to do the following, namely that he:
(a)personally collects the two children from school other than for reasons of illness or as otherwise agreed between the parties;
(b)ensures the two children attend all extra-curricular and sporting activities and be transported by him to and from such activities with the assistance of either of the paternal grandparents should the two children be required to be at different venues at the same time;
(c)ensures the two children are appropriately clothed and that all their clothes brought with them are promptly returned to the mother in a clean state;
(d)promptly pay an equal proportion of the expenses in relation to all extra-curricular and sporting activities of each of the two children as well as an equal proportion of all health related expenses.
It is inevitable that the reasonable needs and activities of the two children will change from time to time as they grow older. That will require co-operation between the parties with flexibility, sensitivity and common-sense. I will make an appropriate order to enable them to change arrangements for the care of the two children by agreement between them whether it be for substituted or further or lesser periods of time that the two children spend with each of them.
I will also make an order requiring the parties to enrol and complete a suitable program to improve the quality of communication between them and accept guidance in that regard from the Manager Child Dispute Services, Sydney Registry of the Family Court of Australia.
So far as periods of school holidays are concerned, I will make orders as sought by the wife which provides for half of the school holiday periods to be spent with each of the parties other than during the December/January school holiday period which will be in fortnightly blocks. That is a reflection of the young ages of the two children and acceptance of the evidence that the daughter in particular may miss being with the other parent for substantial periods. This area of care of the two children is one which could also be approached with flexibility and sensitivity having regard to the feelings of the two children and their ability to cope with either shorter or longer periods in the future.
The order to which I previously referred in paragraph 127 will enable the parties to make different arrangements by agreement from time to time.
There was no issue between the parties regarding opportunity for the two children to spend particular occasions with each of them such as Father’s Day, Mother’s Day and on birthdays. Appropriate orders will be made.
I have also determined that Christmas Day and Boxing Day will be shared between the parties and the two children. Due to the spiritual value that each of the parties attributes to Christmas Day, it seems to me only reasonable that the two children should spend part of that day with each parent. The particular period will alternate on an annual basis.

I certify that the preceding one hundred and thirty two (132) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate:

Dated: 3 April 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ESCOTT & LOWE

[2007] FamCA 307

3 April 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness