Etherington & Ferrier
[2022] FedCFamC2F 1369
Federal Circuit and Family Court of Australia
(DIVISION 2)
Etherington & Ferrier [2022] FedCFamC2F 1369
File number(s): MLC 795 of 2022 Judgment of: JUDGE BLAKE Date of judgment: 13 October 2022 Catchwords: FAMILY LAW – father seeks orders for equal time with the children – mother proposes substantial and significant time – no issue as to whether either proposal is reasonably practicable – matter to be determined by reference to children’s best interests - best interests are that children live with mother and spend 5 nights per fortnight with the father Legislation: Family law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DAA(1), 61DAA(3), 61DAA(4), 65DAA(6) Division: Division 2 Family Law Number of paragraphs: 33 Date of hearing: 5 October 2022 Place: Melbourne Counsel for the Applicant: Mr Pavone Solicitor for the Applicant: Power and Bennett Advocate for the Respondent: In Person Solicitor for the Respondent: None ORDERS
MLC 795 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ETHERINGTON
Applicant
AND: MR FERRIER
Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
13 October 2022
THE COURT ORDERS THAT:
1.The parties share equal parental responsibility of the children X born in 2017 and Y born in 2017 (‘the children’).
2.The children live with the Applicant Mother.
3.The children spend time and communicate with the Respondent Father as follows:
(a)In week one and each alternate week, from the conclusion of school on Friday (or 3.30pm if it is a non-school day) until the commencement of school on Monday (or 8.30am if it is a non-school day);
(b)In week two and each alternate week, from the conclusion of school on Wednesday (or 3.30pm if it is a non- school day) until the commencement of school on Friday (or 8.30am if it is a non-school day);
(c)By telephone or video to the Applicant Mother's phone on each Tuesday at 6.00pm when not in the Respondent Father's care for a minimum of 15 minutes, with the Applicant Mother to ensure that her phone is charged and the children are available to speak with the Respondent Father and they are afforded privacy during the conversation; and
(d)At all other times by written agreement between the parties.
4.The children will spend the following special occasions and holidays with the Respondent Father:
(a)At Easter 2023 and each alternate year thereafter from 5pm on Easter Saturday until 5pm on Easter Monday;
(b)At Easter 2024 and each alternate year thereafter from 3.30pm (or conclusion of school if a school day) on Holy Thursday until 5pm on Easter Saturday;
(c)On Father's Day weekend, from the conclusion of school on Friday (or 3.30pm if a non-school day) until the commencement of school on Monday (or 8.30am if a non-school day);
(d)In 2022 and each alternate year thereafter, for the second week of each school term holiday commencing at 5pm on the midpoint of the holiday until 5pm on the final Sunday of the holiday;
(e)In 2023 and each alternate year thereafter, for the first week of each school term holiday commencing at the conclusion of school until 5pm on the midpoint of the holiday;
(f)In 2022/2023 and each alternate long Summer holidays thereafter, for the first half of the holidays inclusive of Christmas commencing at the conclusion of school until 5pm on the midpoint of the holidays;
(g)In 2023/2024 and each alternate long Summer holidays thereafter, for the second half of the holidays commencing at 5pm on the midpoint of the holidays until 5pm on the final Sunday of the holidays;
(h)Unless otherwise spending time with the Respondent Father, on each child's birthday from 3.30pm (or conclusion of school if a school day) until 7pm with both children in attendance; and
(i)At other times by agreement in writing between the parties.
5.The children will spend the following special occasions and holidays with the Applicant Mother:
(a)At Easter 2023 and each alternate year thereafter from 3.30pm (or conclusion of school if a school day) on Holy Thursday until 5pm on Easter Saturday;
(b)At Easter 2024 and each alternate year thereafter from 5pm Easter Saturday until 5pm on Easter Monday;
(c)On the Mother's Day weekend, from the conclusion of school on Friday (or 3.30pm if a non-school day) until the commencement of school on Monday (or 8.30am if a non-school day);
(d)In 2022 and each alternate year thereafter, for the first week of each school term holiday commencing at the conclusion of school until 5pm on the midpoint of the holiday;
(e)In 2023 and each alternate year thereafter, for the second week of each school term holiday, commencing at 5pm on the midpoint of the holiday until the commencement of school;
(f)In 2022/2023 and each alternate long Summer holidays thereafter, for the second half of the holidays, commencing at 5pm on the midpoint of the holidays until the commencement of school;
(g)In 2023/2024 and each alternate long Summer holidays thereafter, for the first half of the holidays inclusive of Christmas, commencing at the conclusion of school until 5pm on the midpoint of the holidays;
(h)Unless otherwise spending time with the Applicant Mother:
(i)on each child's birthday from 3.30pm until 7pm with both children in attendance;
(ii)by telephone/facetime or similar electronic calls to the Respondent Father's phone on each Thursday at 6pm for a minimum of 15 minutes and the Respondent Father to ensure his phone is operational, that the children are available to take the call, and they are afforded privacy during the call; and
(i)At other times by agreement in writing between the parties.
6.Changeover is to occur at the children's school at either commencement or conclusion of school and otherwise at the residences of the respective parties, with the Applicant Mother delivering the children to the Respondent Father's home at the commencement of his time with the children and the Respondent Father delivering the children to the Applicant Mother's home at the conclusion of his time with the children.
7.Each party agrees to provide child-appropriate and safe accommodation and facilities for the children whilst in their care.
8.Each party agrees to facilitate telephone/facetime or similar electronic calls to the other party at all reasonable times upon reasonable request by either of the children.
9.Each party agrees to deliver the children to and collect them from their extra-curricular and sporting activities during their time with the children.
10.Each party is at liberty to provide a copy of sealed Final Parenting Orders to any educational or medical facility the children may attend.
11.Each party is to advise the other party immediately in the event that either of the children suffer any serious illness or injury whilst in their care with details of any medical practitioner or allied health professional attended by the children and to authorise any medical practitioner or allied health professional treating either of the children to communicate with the other party in respect of their medical conditions and requirements with each party at liberty to obtain information and reports from such medical practitioner and allied health professionals.
12.Each party is to advise the other at changeover of any medication being taken by either of the children and to provide the other party with the medication and prescriptions if available.
13.The children will attend B School unless otherwise agreed in writing between the parties.
14.Each party is to authorise staff at any school or sporting body either of the children may attend to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent/teacher interviews and functions, and any other necessary information relating to them, to both parties and both parties be permitted to directly liaise with any such school or sporting body at which the children may attend.
15.Each party is at liberty to attend all school activities including school concerts, school plays, excursions, parent interviews and the like, normally attended by parents.
16.Each party shall provide to the other up to date information concerning residential addresses, telephone numbers, and electronic addresses within 24 hours of any change.
17.Each party agrees to communicate with each other in a civil and child-focussed manner.
18.Each party agrees to be in substantial attendance when they spend time with the children.
19.That within six (6) months of the date of these Orders:
(a)The parties will each complete a recommended parenting program, such as Circle of Security, Tuning into Kids, or the like, and provide a certificate of completion to the other party;
(b)The parties will each complete a certified Post-Separation Parenting program and provide certificate of completion to the other party;
(c)The Respondent Father will complete a certified Men's Behaviour Change program and provide evidence of completion to the Applicant Mother.
20.Each party agrees not to:
(a)abuse, insult, belittle, rebuke, or otherwise denigrate the other party, or any member of their family or household in the presence or hearing of the children or permit any other person to do so;
(b)physically discipline the children;
(c)expose the children to physical or verbal family violence;
(d)pass messages through the children;
(e)involve or expose the children to any discussion in relation to a dispute between the parties; and
(f)encourage or support the children calling or referring to any person other than the Applicant Mother by the name "mum" or similar, or to any person other than the Respondent Father by the name "dad" or similar.
AND THE COURT NOTES:
A.Orders 1, 2, 3(c), 3(d) and 4 to 20 were by the consent of both parties. Orders 3(a) and (b) were contested.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Etherington & Ferrier has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This matter concerns the parenting arrangements for X and B both born in 2017 (‘the children’). The sole issue for determination is whether the children should spend five nights per fortnight with their Father (Mother’s position) or whether the children should spend seven nights per fortnight with their Father (Father’s position).
For the reasons that follow, I have decided the children should spend five nights per fortnight with the Father.
background
The Mother is aged 34 years. The Father is aged 59 years. They met in 2015, were married in 2019, and separated finally in April 2021.
In around April 2021, the parties implemented a week about care arrangement for the children. This arrangement ceased in around late January 2022 when the children commenced school at B School. The arrangement ceased following a dispute between the parents as to which school the children were to be enrolled in, with the Father withdrawing his agreement to the children attending B School, and instead insisting that the children attend C School. As a result of that dispute, the children ceased seeing their Father.
The children recommenced spending time with the Father following Orders made by the Court on 2 March 2022. Those Orders provided, inter alia, for the children to live with the Mother and spend time with the Father from the conclusion of school on Friday until the commencement of school on Monday in week one, and for the children to spend time with the Father from the conclusion of school on Thursday to the commencement of school on Friday in the alternate week.
The Mother currently lives in Town D which is close to B School. The Father lives and works in Town C which is approximately 120 km away, but also rents a property in Town E which is close to B School.
Each parent acknowledges that the other is a loving and capable parent. The parents recently attended a parent teacher interview together. Neither party suggested that there were particular difficulties in the communications between the parties.
the law
The Family Law Act 1975 (Cth) (‘Act’) sets out the matters that the Court must have regard to in making a parenting order. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, a Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out those matters that the Court must have regard to in ascertaining what is in the children’s best interests. The primary considerations in relation to what is in the children’s best interests are set out in section 60CC(2) of the Act. Subsection (2)(a) provides that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents. Subsection (2)(b) provides that a primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. By subsection (2A), the Court is to give greater weight to the consideration set out in subsection (2)(b). Section 60CC(3) sets out the additional considerations that a Court must have regard to in considering what is in the child’s best interests.
Section 61DA of the Act contains a presumption in parenting matters that parental responsibility is to be equally shared.
Of significance in this case is section 65DAA(1) of the Act. Where parental responsibility is shared, section 65DAA(1) of the Act requires a Court to consider whether the children are able to spend equal time with each parent. If the Court is of the view that the children ought not spend equal time with each parent, the Court is required to consider whether the children can spend substantial and significant time with the non-resident parent.
It is appropriate to record that in this matter, neither party submitted that an order providing for equal time with each parent, or for substantial and significant time with each parent, was not reasonably practicable as contemplated by section 65DAA(6). Accordingly, the issue presently before the Court is whether an order for equal time with each parent, or an order for substantial and significant time with the non-resident parent, is in the best interests of the children.
the position of the parties
The Mother seeks an order that the Father spend five nights per fortnight with the children. She says that such an order is consistent with the recommendations of the single expert (Ms F). The Mother points out that the Father did not cross-examine Ms F and that Ms F’s view is therefore unchallenged. The Mother also submits that the children are settled under the current arrangements, they are young and need stability and a base, and have told Ms F that they like the current arrangement. Finally, the Mother submitted that the children have a close relationship with her parents who live on the property with her and that given the state of the Father’s relationship with his Mother, the children’s interactions with her parents are the only interactions they are likely to have with any grandparent.
The Father seeks an order that the children spend time with each parent on a week about basis. He was firm in his view that the Mother’s proposal to increase his time with the children to five nights per fortnight was not substantial or significant time. He submitted that there was no good reason why time should not be equal, given that parental responsibility is to be shared. He further submitted that his residence at Town E has appropriate bedding and space for each child and that it is best for the children that they spend equal time with him and the Mother.
evidence
The Mother relied on her trial affidavit filed 6 September 2022, her case outline dated 29 September 2022 (and the documents referred to in that outline) and the Family Report of Ms F dated 23 August 2022 (‘Report’). Neither the Mother nor Ms F were cross-examined by the Father. The Father relied on his trial affidavit filed 29 September 2022. The Father was cross examined by Counsel for the Mother.
The affidavits of both parties go into some detail about the history of the parties relationship and the history of the disputes between them. Much of this is not particularly relevant to the present issue. Having reviewed the affidavits, and heard short submissions from each party, I turn now to deal with those issues that are relevant to the issue before me.
A dispute between the parties arose in late 2021/early 2022 as to which Primary School the children were to attend. The Father admits that there was an agreement for the children to attend B School and that he reneged on that agreement. Instead, the Father proposed that the children attend Town C School. The Father was cross examined about this proposal. He acknowledged under cross examination that his proposal would have involved the children travelling from their home in Town D to Town C School on the days or weeks the children resided with their Mother. He acknowledged under cross examination that if the children were living with their Mother on a week about basis, they would be travelling approximately 1200km a week to school and that Mother (who faced a round trip to drop off and collect the children) would face travelling approximately 2400km per week.
Under cross examination, the Father acknowledged the proposal was not child focussed. That was an appropriate admission. It could never be in a child’s best interest to spend that amount of time travelling to Primary School in their first year. It is also difficult to see how it could be in the children’s best interest to place the Mother, who under the Father’s proposal, would be an equal carer, in the position of having to travel such distances to drop and pick up the children from school. While the Father is to be credited with acknowledging now that the proposal was not child focussed, the fact the proposal was made and pursued reflects poorly on the Father’s capacity to adequately consider the needs of the children at a physical, emotional and intellectual level.
There are then the Father’s comments about the Mother. The Father told Ms F that he did not have any current concerns in relation to the maternal care of children. Under cross examination, he confirmed that he did not have any concerns about the Mother. In his affidavit, however, the Father makes various assertions about the Mother. He deposes, for example, that the Mother has experienced mental health issues. He also deposes that she used to take illicit substances and is associating with known users (I understand this to a reference to users of illicit substances). The Father has not produced any evidence to corroborate these very serious allegations. I am concerned, having considered the Father’s evidence as a whole, that he is not as supportive of the Mother as he claims to be. There is some risk that the Father may seek to denigrate or undermine the Mother when the children are in his care, given the statements he has made about the Mother to date.
A similar observation can be made about the Father’s support of the children’s relationship with their maternal grandparents. In an email placed before the Court dated 26 January 2022, the Father stated that he didn’t want children growing up in the ‘Etherington family environment that is based on lies, deceit and is morally, ethically and emotionally deficient. The main antagonist (and financier) of this matter is unfortunately so delusional as to think he has the power to control people’s lives and tell them how they should live and what they should say (it works well for his daughters though)’. Cross examined about this, the Father said that he did not have a difficulty with the maternal grandparents. It is difficult to believe that evidence, however, given the venom with which his views are expressed in the email (even allowing for the fact that he was upset at what was occurring time). There is some risk that the Father may seek to denigrate or undermine the maternal grandparents when the children are in his care.
A key plank of the Father’s case was his belief that the time being proposed by the Mother was not substantial and significant time. In cross examination, the Father was taken to section 65DAA(3) of the Act and each of its limbs. The Father accepted that the Mother’s proposal satisfied each limb of subsection (3). In doing so, the Father is taken to have admitted that what the Mother is proposing is substantial and significant time as defined by the Act. In re-examination, I explained to the Father subsection (4) and informed him I was not limited by the matters contained within subsection (3). I invited him to provide me with other reasons why he thought the Mother’s proposal did not constitute substantial and significant time. The Father said that he believed significant and substantial time to be 7 nights per fortnight or more. There is then the evidence provided by Ms F in the Report. The Father elected not to cross examine Ms F in relation to her report. I therefore accept the content of the Report and give it weight. Of particular relevance to the present dispute, in her report, Ms F states as follows:
(a)both parties acknowledged that the children benefit and enjoy time in the care of each parent and have settled into Prep and the current parenting arrangements (paragraph 34 and 39 of the Report);
(b)the children expressed their willingness to spend time in each parental home location with a general acceptance of the current parenting arrangements. The children did not express a preference to change their current living arrangements (paragraph 39 of the Report);
(c)the children are likely to have experienced parental unhappiness, stress and upset both pre-and post-separation, this including exposure to preferred parenting arrangements such as 50/50 care (paragraph 40 of the Report);
(d)it is considered that in general, the current parenting arrangements are working for the twins given their particular ages and family experiences (paragraph 40 of the Report);
(e)successful shared care arrangements are dependent upon workable parental communication that does not reflect parental conflict or critical views of the other parent, these issues reflected in this matter (paragraph 40 of the Report).
consideration
As I have stated above, the resolution of this dispute rests on an examination of what is in the best interests of the children. I now turn to consider that issue in the context of the issue in dispute.
The Act requires the Court to consider giving to each parent equal time with the children where parental responsibility is to be shared. The Act also requires the Court to weigh as a primary consideration, the benefit to the child of having a meaningful relationship with both parents. Given these matters, I have given close attention to the Father’s submission. There is little doubt that he is of the view that being able to care for the children on an equal time basis will assist to promote a meaningful relationship between the children and him.
I accept the length of time a parent spends with a child is one factor that might contribute to or promote a more meaningful relationship between them. It is not, however, the only factor. Other factors are also relevant, including whether the parent is involved with the child on school days, whether time is spent with the child at extra-curricular activities, and whether time is spent with the child on holidays, weekends or significant occasions. The quality of time can, in certain circumstances, be just as important, or more important, than the length of time spent.
In this matter, it is appropriate for me to give weight to the Father’s desire for equal time. Given the children love their Father, it may be that an increase in his time will promote a meaningful relationship. There are two matters to consider, however, in relation to this. First, it is to be observed that the Mother’s proposal meets the definition of substantial and significant time in section 65DAA(3) of the Act. Under her proposal, the Father will have the opportunity to spend time with the children in all the circumstances I have described in the previous paragraph. Accordingly, the Mother’s proposal should also be regarded as a proposal that promotes a meaningful relationship between the children and their father. Second, as Ms F notes, the children are settled given their ages and they have experienced stress and upset, including during exposure to a shared care arrangement.
Ms F recorded the views of the children as noted above. I give little weight to the views of the children given their ages.
There is little doubt that in this matter, the children enjoy a loving relationship with each parent. The nature of the relationship that the children enjoy with each parent is a strong one.
Both parents are capable parents and have the capacity to provide for the physical needs of the children. Both parents have generally demonstrated a responsible attitude toward parenting save for one matter which I now come to. As I have noted above, the Father proposed that his children attend Town C School. While to his credit, he has since resiled from that position, at the time he made that proposal it was a serious one. That proposal would have placed an intolerable travel burden on both the Mother and the children. In no way could the proposal be seen as being in the children’s best interests. Having regard to the nature and circumstances of the proposal made by the Father, I regard the Father as either having less insight into the needs of the children than the Mother, or perhaps, displaying a tendency at times of stress to promote his own interests over those of the children. A Father appropriately attuned to his children would not have seriously pursued the proposal this Father pursued.
I have also commented earlier on the Father’s attitude to the Mother and his attitude to the maternal grandparents. The attitude displayed by the Father once again causes me to form the view that he has less insight than the Mother into the emotional needs of the children.
There is then the effect of any change in circumstances or care arrangements on the children. The Father’s proposal, if granted, would be a significant change for the children from the current arrangement. On this issue, I place significant weight on the observations of Ms F, that the children have adjusted and settled into their family and school situation. I also place significant weight on Ms F’s opinion that ‘in general the current parenting arrangements are working for the twins given their particular ages and family experiences’. In my view, there is some risk that what appears to be a currently happy and tranquil experience for the children will be upended if I were to adjust their parenting arrangements in the manner proposed by the Father. Acceding to the proposal of the Father will not only significantly reduce the time the children have with their Mother, but it will also would reduce the time they have with their maternal grandparents, given they live on the property with them.
Cases such as this one are always difficult. Under the Mother’s proposal, the Father will enjoy substantial and significant time with the children as contemplated by the Act. On one view, there is not a great deal of difference between a Father spending substantial and significant time with his children, or spending equal time with his children, particularly in circumstances where no issue arises in relation to the reasonable practicality of spend time occurring as contemplated by section 65DAA(5). As a result of what I have set out above, and because the Act requires me to consider an order for equal time, I have given the Father’s proposal the most serious consideration.
Regrettably for the Father, however, in this case, I have concluded that it is in the children’s best interests to make Orders in the terms sought by the Mother. These children are settled after a period of significant upheaval. They are young. There are some aspects of the Father’s conduct and behaviour that caused me to doubt his capacity to remain child focused in all instances. While I accept the Father is loving and wants to see his children, observing him in the witness box and assessing his evidence as a whole, the Father has a tendency at times to insist upon his rights as a parent, rather than always approaching an issue from what is in the best interests of the children. Moreover, the single expert who was not challenged by the Father has stated that current parenting arrangements are working and they could continue to work with the Father enjoying an additional overnight. The Mother’s proposal provides the Father with substantial and significant time, and it is a proposal that will promote a meaningful relationship between the Father and the children.
For all of the above reasons, I will make Orders in the terms sought in the Mother’s Amended Initiating Application filed 6 September 2022. I regard them as being in the best interests of children. I will place a notation to the Orders that indicates which Orders were made by consent and which were contested. I note that the Mother elected not to press her application for costs and I therefore decline to make any costs order.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 13 October 2022
0
0
0