Fante and Joyce (No.2) - [2012] FMCAfam 742

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FANTE & JOYCE (No.2)

[2012] FMCAfam 742

FAMILY LAW – Parenting – application by mother to vary time spent with father on weekends during school term – application previously dismissed and on appeal reinstated for hearing – amended application filed seeking orders in terms of original application and consolidation of previous orders – response seeking reconsideration of other parenting orders previously dismissed – relevance of child’s wishes to have more time with mother – consideration of family report and strong recommendations for variation – consideration of objects and principles of Act – consideration of evidence as applied to section 60CC(2) and (3) – variation of existing orders as to time to be spent with father on weekends.

Family Law Act 1975, ss.60B(1) and (2), 60CA, 60CC(2) and (3), 65DAA(3), 117

Rice and Asplund (1979) FLC 90-725

Applicant:

MS FANTE

Respondent:

MR JOYCE

File Number:

BRC 13170 of 2007

Judgment of:

Coker FM

Hearing dates:

9-10 July 2012

Date of Last Submission:

10 July 2012

Delivered at:

Brisbane

Delivered on:

11 July 2012

REPRESENTATION

Counsel for the Applicant:

Ms J.D. Hogan

Solicitors for the Applicant:

Murdoch Lawyers

Solicitors for the Respondent:

Charles Cooper Lawyers

ORDERS

All previous orders relating to the parenting of the child, X born (omitted) 2006, be discharged.
The Mother have sole parental responsibility for the child, X born (omitted) 2006, subject to the communication and notification of such decisions to the Father.
Notwithstanding the provisions of order (2):
(a)The Mother be responsible for the daily care, welfare and development of the child when the child is living with or spending time with her.
(b)The Father be responsible for the daily care and welfare of the child when the child is living with or spending time with him.
(c)The Mother have sole parental responsibility for the child in relation to the following matters:
(i)     a child’s education (both current and future);
(ii)    child’s religious and cultural upbringing;
(iii)     a child’s health;
(iv)   a child’s name.
The child live with the Mother.
The child spend time with the Father
(a)During the gazetted school term, on alternate weekends from after school Friday until 5.00pm Sunday or Monday, should the Monday be a public holiday, and
(b)During the gazetted school holidays, for one half of all gazetted school holiday periods, being the first half in odd numbered years and the second half in even numbered years.
For the purposes of defining the first and second half of gazetted school holiday periods, the following apply:
(a)The first half of a gazetted end of Term 1 or end of Term 2 or end of Term 3 school holiday period shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;
(b)The second half of a gazetted end of Term 1 or end of Term 2 or end of Term 3 school holiday period commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;
(c)The first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;
(d)The second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.
(e)During the gazetted school holidays the alternate weekend arrangement is to be suspended and upon its resumption the child is to spend time with the Father in the first weekend of the start of each school term and alternate weekends thereafter.
(f)In relation to Term 3 of 2012, the child is to spend the first weekend commencing 13 July 2012 with the Mother, and spend time with the Father on the weekend commencing 20 July 2012 and each alternate weekend thereafter.
Notwithstanding Order (5), that the child spend time with the Father each Father’s Day from 9.00am until 5.00pm and with the Mother each Mother’s Day from 9.00am until 5.00pm.
Notwithstanding Order (5), that if the child’s birthday falls on a school day, the Mother be at liberty to spend time with the child from 3 – 7pm in 2013 and each alternate year thereafter, and the Father be at liberty to spend time with the child from 3 – 7pm in 2014 and each alternate year thereafter.
Notwithstanding Order (5), in the event of the Mother and the Father being in their current localities (that is Brisbane and the Gold Coast respectively) or in the same city, over the Christmas period, the parent not having the child in their care have liberty to spend time with the child from 9.00am Christmas Eve until 9.00am Christmas Day.
If the Father is unavailable to spend time with the child, he shall advise the Mother in the first instance and provide her with the option of caring for the child.
That the Father be at liberty to communicate with the child by telephoning the Mother’s nominated contact number each alternate Sunday and each Tuesday evening (between the hours of 6.00pm and 7.00pm), with the Mother to encourage the child to participate in the call and to ensure the calls can be taken in a quiet and private environment.
That the Mother be at liberty to communicate with the child between on Sunday evenings when the Monday is a public holiday, between the hours of 6pm and 7pm, by telephoning the father’s mobile phone or nominated contact number, with the father to provide the phone to the child and encourage the child to participate in the call and to ensure the calls can be taken in a quiet and private environment.
That both the Mother and the Father be at liberty to communicate with the child on Tuesday and Sunday evenings during school holidays, between the hours of 6pm and 7pm, by telephoning the other parent’s mobile phone, with the parent caring for the child to provide the phone to the child and encourage the child to participate in the call and to ensure the calls can be taken in a quiet and private environment.
If the child expresses a wish to telephone the other parent at a reasonable time, that the parent with whom the child is with at that time is to assist the child to telephone the other parent.
That Sunday (or on a public holiday, Monday) changeovers take place at the (omitted) Hotel foyer.
For the purpose of changeovers on a Sunday (or Monday), the Mother use her best endeavours to arrange a nominee to facilitate the changeover on her behalf. If she cannot do so, the Father is to arrange a nominee to meet the Mother to facilitate the changeover on his behalf, and is not himself to be present at the changeover.
Both parents be noted as enrolling parents and emergency contacts at the child’s day-care, school and extracurricular activities.
The child’s day-care, school and other care providers are authorised to provide all information and documents about the child to both parents, including but not limited to the child’s progress, newsletters, reports, photographs and details of any school activities.
Save for as restrained by specific injunction in these orders, both parents are at liberty to discuss matters relating to the child with the child’s day-care, school, teachers, principal and other care provider.
That both parents be at liberty to attend any school activity in which the child are involved and for which parental participation is invited or encouraged by the school, and be at liberty to attend at any significant school sporting or school extracurricular activity or event, but otherwise not attend during periods when the child is not in their care pursuant to these Orders.
The parents notify each other within 24 hours of any change of email or contact telephone number (including mobile phone) and living circumstances including:
(a)The suburb in which they are residing;
(b)The type of premises in which they are residing and the suitability for the child; and
(c)The names of any other person living or staying for a period exceeding two nights at times X is present in the residence.
Each parent must give notice to the other as soon as reasonably and practicably possible of any inability to comply with these orders or any need to change arrangements for X pursuant to orders (5), (8), (9) and (10).
Each parent must advise the other of:
(a)Any significant illness, accident or injury suffered by the child;
(b)Any significant medical or dental treatment provided to the child;
(c)Any medication the child is to take whilst the child is in the other’s care including the dosage, the times it is to be administered and the duration of the course;
And this Order can be regarded as authority for the relevant doctor and hospital to provide relevant information about the child to either parent.
Save for the preceding orders when the parents are to communicate with each other by telephone for emergency or urgent situations, the parents must communicate with each other in relation to the child, by use of a communications book, to be exchanged at the time of changeovers.
Both parents refrain from acts of violence, harassment or intimidation against the other and any person responsible for the child’s care.
That the Father be restrained and an injunction issue restraining him from attending with/or presenting the child, X born (omitted) 2006, to any medical practitioner, allied health professional, or mental health professional for the purposes of assessment and/or investigation of an allegation that the child X has been abused or is at risk of being abused, except in instances of life threatening or other significant emergency.
That the Father be restrained and an injunction issue restraining him from taking the child to the police or Department of Communities (Child Safety Services) without the Mother’s written consent.
That the Father, and/or his servants or agents be restrained and an injunction issue restraining them from discussing, questioning or reporting bruises, bites, marks, or injuries with staff at the child’s school and before and after-school care.
That the Father be restrained and an injunction issue restraining him from denigrating the Mother, her family and associates in the presence of the child or from allowing the child to remain in the presence of any other person acting in such a way.
The Applicant Mother provide through her legal representatives written submissions in relation to costs within 21 days from today.
The Respondent Father file and serve any submissions in response within 14 days of receipt of the submissions on behalf of the Mother.
The issue of costs to be dealt with in chambers.

IT IS NOTED that publication of this judgment under the pseudonym Fante & Joyce (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 13170 of 2007

MS FANTE

Applicant

And

MR JOYCE

Respondent

REASONS FOR JUDGMENT

These proceedings relate to orders sought with regard to the child X. X was born on (omitted) 2006 and is therefore just recently turned six years of age. She is the child of a fairly brief relationship that existed between Ms Fante, whom I shall refer to as the mother, and Mr Joyce, whom I shall refer to as the father.
Unfortunately, post-separation, the arrangements in relation to parenting have been the subject of continued upheaval and no doubt difficulty for both of the parents. Orders were made by me in November of 2008, shortly after X turned two years of age in relation to her parenting. Subsequently there have been a considerable number of applications brought before the court in relation to various issues with regard to the child.
In October of 2011, a number of further orders were made by me in the hope of putting in place certainty, with respect to arrangements in relation to the future for this little girl, at least insofar as providing as settled and stable an arrangement as could possibly be put in place.
One issue remained live, however, and that related to the orders that had been made in 2008 which provided for the father to have the opportunity for two nights each week, to be spent with X. That arrangement came into effect because, firstly, she was only two years of age and it was important that the relationship between the child and the father be fostered and developed because that was in her best interest and secondly and perhaps more obviously, because it was an easy arrangement to put in place when the child was only two years of age.
There were no impediments such as the requirements with regard to attending school and the like. It was hoped by me and unfortunately it has not been a hope that has been realised, that the parents would be able to work together in relation to ensuring that X’s best interests had been able to be met. It was expected, again I think forlornly, on my part, that the hurt that each parent was experiencing as a result of the breakdown in their relationship would be able to be put to one side, or at least would ease, to the extent that they could work together to ensure that arrangements in relation to X were toward X’s best interests, rather than what each of their individual hopes or wishes might have been, in relation to the child.
That has not been the case and it is reflected in the fact that just prior to X starting prep school, the mother suggested that there should be a variation in relation to the orders, particularly with regard to the weekend time that would be spent by the father with X. The mother says, and it is perhaps an understandable position, that whilst X spends the majority of time with her, it is in fact a reflection of two different types of time.
The mother has the day-to-day responsibilities, obligations and requirements that arise with regard to X’s attendance at school. As she is getting older, those include attending to homework, getting the uniforms prepared, lunches done, etcetera, as well as, ensuring that she is off to bed at a proper time, so that she gets sufficient sleep. The mother’s perspective, understandably therefore, is to say that she has all of the drudgery, all the hard work associated with the parenting of the child and the father has, at least from the mother’s perspective, all of the good times, the weekends, the opportunities, as he sets out in his material, to go to (omitted), and various other activities that are open to him, because there is not the expectation of having the child ready for school.
From the father’s perspective, and again, it is an entirely understandable one, he says effectively, I have much less time than the mother with the child and therefore every minute to me is important and essential so that I can continue to foster and develop my relationship with the child.
The mother’s application for variation, therefore, in the latter part of 2010, was one that was the subject of dispute between the parties. The father sought to have the application dismissed and Leanne Turner FM made such an order in early 2011. It is not appropriate for me to make comment in relation to that decision, other than to say that it is perhaps understandable that every judicial officer has a different perspective in relation to what might or might not be the approach that they would take in relation to matters that come before them and of course, there is no hard and fast rule.
What is obvious, however, is that the mother, understandably again, was dissatisfied with the determination that the application should not proceed to consider a variation at a time when X was starting school and accordingly, an appeal was lodged and in February of 2012, a determination was made that the appeal would be successful and the issue of variation could at least proceed.
What flowed from that determination, however, was that on 15 May 2012, an amended initiating application was filed, which basically sought to entirely reconstitute the orders in relation to the parenting of X but only, I think, for the purpose of ensuring that one order would contain all of the arrangements in relation to X’s parenting.
What was specifically sought was an order which was reflective of that which was originally set out in the application in late 2010, which was that during the gazetted school terms, the father would spend time with X on alternate weekends from after school Friday until 5 pm Sunday or Monday, should the Monday be a public holiday. The additional orders simply reflected a compilation of those that were made in 2008 and also the various orders that were made in 2011, including particularly the injunctions that were put in place, with regard to various steps to be taken in relation to the matter.
Unforeseen as a possible consequence, I think, except of course from the father’s perspective, was the fact that having filed an amended application in which all of those issues were, at least on the face of it, raised as being live, the father on 25 May 2012 filed an amended response in which he sought specifically to reconsider various issues that had been the subject of the orders made in 2008 and 2011.
In particular, they could be broken down to three specific and distinct issues relating to parental responsibility, the place of changeover and further the father sought also the discharge of the various injunctions that had been put in place.
I have already ruled in relation to those particular aspects of the father’s amended response and was satisfied that, applying what is sometimes referred to as the rule in Rice & Asplund, the onus that falls upon any party seeking to reintroduce or reconsider the issues that have already been the subject of orders, the father must satisfy the court that there is at least a basis upon which a change could be considered as having occurred and thereafter to consider the various issues that arise.
I dismissed the matters that were raised, therefore, in the amended response and it left the determination before me to one particular issue, that which I have already referred to, the variation of the weekends to be spent by the father with the child, during the gazetted school terms.
Considerable evidence was called in relation to that matter and in particular, there was of course the consideration of the positions of both the mother and the father and cross-examination of both the mother and the father.
Also required in relation to the matter was the attendance of Ms L, the report writer who prepared a report initially in 2008 and was commissioned again to prepare a further report, which was dated 3 May 2012. Ms L also gave evidence orally in relation to these proceedings.
Two other witnesses were called on the part of the father but were not required for cross-examination. They were Ms S, a neighbour of the father, though it is not exactly clear from the material how close their relationship might be, noting as I did in paragraph 10, that Ms S says:
So far this year, during the weekends and school holidays, we all –
speaking of herself and her daughter Ms Z as well as the father and X -
have during the weekends and school holidays, gone to (omitted) and (omitted).
The paragraph then goes on:
Mr Joyce and I have also taken the girls away on holidays and on camping trip, which were great fun.
It is perhaps neither here nor there for me to consider that particular issue as to whether there might or might not be a more significant relationship between Ms S and the father, but what is clear is that Ms S has had significant opportunity to observe the father in his parenting. She was unchallenged in relation to the statements that she made in respect of her observations of the father with X and I have no difficulty whatsoever in accepting her evidence in that regard.

For example, at paragraph 22 of her affidavit, she says:
On every occasion that I am with Mr Joyce and X, I find that he is a truly wonderful father to X. I have never observed Mr Joyce raise his voice to X or smack her if she is misbehaving, which is not often in any event, from what I have seen. Mr Joyce simply reasons with X and explains why she has to stop doing a particular thing or why she must do something that he has asked her to do and she will then normally comply with his requests.
She says at paragraph 39 of her affidavit the following:
I find him to be a positive and loving father who clearly enjoys the time that he spends with X and that X in turn, from what I have seen, also immensely enjoys the time that she spends with her dad.
I would, even without those statements, have made such a finding in relation to this matter. I have absolutely no doubt as to the father’s love for the child and more particularly and perhaps significantly, X’s love for her father. The observations are appropriate and no doubt accurate insofar as what is seen, but they of course don’t cover the whole ambit of issues that arise, in relation to the parenting of children.
Before turning to such matters, I note also of course that the paternal grandmother, Ms M, has filed an affidavit in support of the father and his position in relation to this matter and it is clear again that the observations that she makes are of a close and loving relationship between the father and X and one that both enjoy very much. There were a number of comments, however, that need, I think, to be noted. Firstly at paragraph 3 of her affidavit, the deponent Ms M says:
I understand that X’s mother, the applicant in these proceedings, Ms Fante, has filed an amended initiating application on 15 May 2012 wherein she is seeking that orders be made to reduce the time that Mr Joyce spends with X during the gazetted school term so that he only sees X each alternate weekend.
It’s a statement which is understandable in light of the support that Ms M gives to the father in relation to this matter, but it is also indicative of the issue that really is at the very heart of these proceedings. The statement is one which is reflective of the wishes of the father, in relation to these proceedings.
He wants, as I have already commented, every opportunity to have as much time as possible with X. It is stated in the negative, if you like, in that there are suggestions that the mother wishes to reduce the time that the father spends with X and is suggested to be reflective of an intent on the part of the mother that the father only sees X each alternate weekend.
It does not recognise at all or appreciate the fact that there is an entirely different perspective that might be looked at, in relation to such proceedings as these which is that the mother does not seek to hurt the father or to in any way denigrate the father’s relationship with the child but rather seeks to give the child an opportunity to have as full and complete a relationship with her as she does with the father, reflecting of course, “the good times”, as I referred to them a little earlier in the proceedings.
Ms M, in her affidavit, speaks of many observations that she makes of the interactions between X and her father. She speaks of the issues around the household, the teaching that the father provides for the child, the beneficial nature of arrangements in relation to their conversation with each other. She speaks of them eating all meals together at the table, of using proper manners, knives and forks, all of which are very positive, and all of which I accept, without hesitation, are an accurate and correct reflection of the interaction and relationship that the father has with the child.
They are all positives, and I do not, in any way, suggest that the father’s love for the child and his capacity to parent the child, at least in so far as those various matters is concerned, is not accurately reflected in the statements of the various witnesses such as Ms M and Ms S. I accept their statements, so far as I can, in relation to the father without any hesitation and note that they are genuine and accurate reflections of what they observe, in relation to the child’s interaction with the father.
But there is also, of course, the other side of the coin. The mother describes in her material, at length, issues with regard to what she says are the wishes of the child, as well, no doubt, as the wishes of the mother, in relation to having some additional opportunities to spend time on weekends with X, so some of those good times, the visits to (omitted) and such other activities as might be undertaken by them can be participated in by her not just at holidays, but at times during the school term.
The mother details in her material a number of concerns that she has in relation to the child and says that they are, at least from her assessment, and to some extent it is supported by the professional opinion of Ms L, as reflective of the child’s wishes to have more time with her and reflective of the fact that, at least for the last 18 months or thereabouts since X started a more regulated attendance at school or prep, she has not had the opportunity during the 40 or so weeks each year that involve the school terms, of spending a weekend with her mother.
It is somewhat unusual, and of course, Ms L reflected upon that in the evidence that she gave in this matter, specifically when she spoke of the fact that it was unusual, in the extreme, for there to be a situation where the primary carer of the child and that is what is the situation here and what is proposed by the father to continue, is not able to spend some weekend time because of the orders that were made when very different circumstances existed, in relation to the proceedings.
The mother, as I say, reflects on various behaviours on the part of X which, at least she presumes, are in some way reflective of the fact that the child is not spending as much time with her. The father says, and again, I accept that this is perhaps an accurate statement, that he has not observed any such issues in relation to the child, but of course, that specific matter was commented on directly by Ms L in relation to the proceedings, and I accept categorically that what she says is an accurate reflection of what I think is occurring here.
In cross-examination by Mr Cooper on behalf of the father, Ms L was asked whether she had taken into consideration the different perspectives of the parents when she made a recommendation for there to be alternate weekends, during the school terms. Ms L indicated that she had taken the different perspectives of the parties into consideration, namely, that the mother thought that there were behaviours which were indicative of difficulties in the relationship that she had with the child, because of limited opportunities for weekends, whilst the father saw no such difficulties when the child was with him. Ms L said, quite succinctly:
“I know that’s the case. It’s a clear indication of what might be called separation anxiety. Children can hold themselves together when they’re away from the primary carer and then decompensate.”
She said, therefore, that she would expect that there would be difficulties in the mother’s household but that the father would not experience any of those particular difficulties because, in this particular instance, X would be enjoying the time that she has with her dad. She would not want to upset her dad or make him think that the time with him was not a positive experience, but deep down, there was a desire for her to have more time with her mother, including the alternate weekends.
She actually made comments to that effect to Ms L, and they are included in the report which was executed on 3 May 2012.
It is an unusual situation. It is a situation that, I have to be frank, I did not anticipate being a problem when, in 2008, orders were made in relation to this matter. I had hoped, as I indicated earlier in these reasons, that the hurt and the feelings of, no doubt, rejection and dismay that both parents felt at the breakdown of the relationship would ease and that they would work together, in relation to ensuring that X’s best interests were met.
Unfortunately, that has not changed, and if anything, the evidence would appear to indicate that the intractable stance from both sides, has remained and become even more entrenched and they have firmly retained and continue to hold the views, that what they propose in relation to X is in her best interests.
Of course, that is not reflective of X’s best interests. It is reflective of self-interest on the part of both parents, but unfortunately, I must say, I would think, more particularly on the part of the father.
The father’s view in relation to this matter was clear, he does not experience any problems in relation to his time being spent with X. He is able to enjoy his time with the child and she clearly enjoys her time with him, so let us not rock the boat. Let us not change the situation, even though every indicator would appear to be that X will be better placed and more well-rounded in her circumstances if it were the case that she were able to spend more time with her mother.
X seeks that in the exchanges that she has with Ms L, and which are noted in the report. However, interestingly, in the report at paragraphs 3.43 through 3.47, Ms L notes the following:
When offered the opportunity, at the end of the day and again on 26 April 2012, to elaborate on his concerns, issues regarding X in the mother’s care environment, he declined to comment. On the subject of X and the mother enjoying quality time together on some weekends during school terms, the father did not acknowledge this as important, rather, he commented that the mother could change her work arrangements to be more available during the school week.
He also noted the number of hours that the mother has with the subject child each week, which he believed to be sufficient, as compared to him having all the weekend hours with the subject child. The father conceded that he has not current plans to relocate to Brisbane, and that he is quite content with where he is living and the arrangements in place for him and X presently. He reiterated that there is no reason to change the current arrangements for X, other than to vary handovers as mentioned.
A more concerning series of statements I rarely have seen. It was interesting on a number of levels, but foremost was that the father suggested that the mother could change her work arrangements and goes on, obviously, to note with Ms L that he’s perfectly comfortable with the arrangements that exist in relation to him, sees no reason for any change, and that, if any change has to be made, it is to be made by the mother.
There is no suggestion of insight shown at all, on the part of the father, that the real issue here is the best interests of this little girl and the opportunities to provide for her. It is, unfortunately, a most self-centred approach that is taken in relation to the matter, particularly when it is noted that, some years ago and, as I understand it, on other occasions subsequent to 2008, the father has indicated that he might move to Brisbane. That’s noted by Ms L as a possibility which would give rise to greater opportunities for the father to be involved in other aspects of the child’s life, for example, more closely involved in school and activities of that nature. The father, however, seeks no change in relation to his arrangements, but suggests that the mother should make changes which should facilitate greater opportunities for her and X to spend time together during the week, but still no opportunities for weekend time. It is troubling, and it is, as I indicated before, at the very heart of the problems that arise in relation to this particular matter.
I do not intend to any further recite the concerns that might or might not arise in relation to each of the parents.
As I have indicated, in my assessment, they both are genuine in what they say is the situation within their households. They both accurately, I think, reflect what they see in X when she is with them. The mother sees a child calling out for more opportunity to spend time, particularly on weekends during the school term, with her primary carer. The father sees a little girl who is much adored by him and wishes to have every opportunity to spend as much time with her, and sees a child who does not complain about the time being spent with her father, but rather enjoys it and, perhaps unfortunately, takes out on her mother the difficulties that she is actually experiencing as a result of the limitations in time, that are able to be spent by her with her mother.
I was addressed at the conclusion of the hearing by Mr Cooper on behalf of the father, who specifically raised with me, though only briefly, the fact that there is a proper basis upon which it could be suggested that the rule in Rice & Asplund should be applied, in relation to this matter, in that there has been no substantial or significant change in circumstances.
In that respect, Mr Cooper quite properly referred me to the fact that the father remains in the same place, the same accommodation that he had when orders were made. The child is able to stay at the same room that she stayed in for some considerable number of years. She is able to see her grandmother and, no doubt, Ms S, her friends at the Gold Coast and participate in the various activities that have been in place for some years. The father continues in the same type of employment and with the same employer that he has been with for seven years.
The mother remains living at the same home, and while she has, in more recent times, changed employment for the purposes, she says, of having some opportunities for more interaction with X when in her care, the fact is that she remains involved in arts and cultural activities, and therefore, there has been no real or significant change in relation to the circumstances that exist for her.
On one level, the submission is absolutely correct, but on another, it falls, with respect, considerably short of the various considerations that the parties and, of course, a court must look at. There have been some very significant changes in relation to this little girl’s life. The first and most obvious of those is that, about 18 months or so ago, she started school, and starting school meant that what was previously able to be facilitated, in relation to two nights being spent with her dad each week was radically changed, in that there was only the weekends available, and therefore, if they were to be spent each week with the father, then there was no opportunity for her to spend time with the mother on those downtime periods that are available during weekends.
There are also, of course, a number of other changes, not the least of which is the fact that, at two, there was, perhaps, little that could be assessed in relation to X, other than that she loved her mother and her father very dearly, and it would be in her best interests to spend as much time as possible with both of parents, because a meaningful relationship with both of them was her right and entitlement, and the parents’ obligations to provide for her.
Of course, at six, she is starting, at least initially, to express her own views and feelings. The impression I get from reading the affidavits of the mother and of the maternal grandmother is that, on occasion, X very directly expresses her wishes and feelings in relation to various matters, and, perhaps not unexpectedly, on occasions when she does not get exactly what she wants when she wants, is very direct in telling whoever she sees as the perpetrator of her discomfort exactly what she thinks of them. She tells them, “I hate you,” “I don’t love you,” “I want to do something else,” “I want to be somewhere else.”
All of those are indicators of a number of things, not the least of which is that the child is developing a personality of her own, and is able, perhaps in childlike ways, but still able, to express her wishes. And, very clearly, her wishes in relation to this matter are that she have greater opportunities for time to be spent with her mother, including time during weekends on the school term.
I am satisfied, obviously, that there is, therefore, a substantial and significant change in circumstances with regard to this little girl and to the effectiveness of orders that were made in November of 2008, such that the rule in Rice & Asplund, at least insofar as it applies to the specific issue of time to be spent on weekends, is certainly achieved, and it is a matter that should and could properly be the subject of reconsideration by this Court.
What, then, is required, obviously, is for me to consider various statutory guidelines that are available in relation to the proceedings. Perhaps unnecessarily in my assessment, I need to give some consideration to the provisions of section 65DAA of the Family Law Act. It requires, in circumstances of equal shared parental responsibility, for there to be consideration of equal time or substantial and significant time. There are not orders here for equal shared parental responsibility, but at least in one manner, the contents of section 65DAA are relevant. That arises pursuant to the provisions of subsection (3), which is in these terms:
For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if: (a) the time the child spends with the parent includes both: (i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends and holidays; and (b) the time the child spends with the parent allows the parent to be involved in: (i) the child’s daily routine; and (ii) occasions and events that are of particular significance to the child; and (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In other words, what the definition of substantial and significant time does is provide, hopefully, a wide opportunity for there to be every sort of activity and every sort of time available to the child with each of the parents. Not just holidays, not just school time, not just weekends, but a mixture of all of those, and that is what the mother seeks in the orders that she proposes with regard to variation of weekends, and it is what is recommended and suggested by Ms L as being appropriate, in relation to arrangements with regard to X.
There is, of course, a downside for the father. It would mean less opportunities for weekends to be spent by him with X, but, quite clearly, there are alternatives that are available. I would indicate, for example, that if the father were in closer proximity, if the father were not required to work, as I understand his current timetable on a Sunday evening, then there would be opportunities, as suggested by Ms L, for him to have X spend time with him on a Sunday evening, returning her to school on Monday, meeting with teachers at the beginning of the school week, talking about various activities that had gone on, and therefore immersing himself more fully in X’s life, and, of course, giving X a greater opportunity to have her father involved in those issues which are also significant for her, the start of the school week, and matters of that nature.
As I say, while section 65DAA is not necessarily required to be considered by me in relation to this one particular issue, the definition of substantial and significant time is, indeed, a considerable assistance in respect of the determination of this matter.
Obviously I am aware of and mindful of the objects and the principles of the Act which are stated in section 60B, subsections (1) and (2). They are in these terms:
60B(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Quite obviously, ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, is exactly what is hoped to be achieved by the definition of substantial and significant time. Both of these parents love this little girl dearly, and both of these parents want every opportunity for X to achieve all that she can.
The greatest indicators here of her being given that opportunity, are to allow her to have the chance to spend all of those different types of times that arise in a child’s life and a parent’s life, to be experienced with both of her parents. At the present time, that is simply not available to her, pursuant to the orders that are in existence.
I am obviously aware also of the various considerations that arise in respect of a determination of what is in a child’s best interests, and therefore making orders that reflect that. Section 60CC is headed, “How a Court Determines What is in a Child’s Best Interests”, and it, of course, is, at least in my assessment, reflective of those objects and principles which are set out in section 60B.
The primary considerations are twofold, the obvious consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents, and, balanced against that, the need to ensure that the child is protected from physical and psychological harm, as a result of being subjected to or exposed to abuse, neglect, or family violence.
Obviously here, there are different perspectives that the mother and the father have, in relation to issues with regard to the child. But what is clear is that the real and overriding consideration is the child’s opportunity and right to a meaningful relationship with both of the child’s parents, and if a meaningful relationship means that there is the opportunity to be involved in all of those types of activities and times that are referred to in section 65DAA(3), then there needs to be some variation in respect of the orders that currently sit in relation to the child.
The additional considerations are obviously a catch all of the very many matters that might, in different cases, arise with regard to a child and a decision as to what is in that child’s best interests. I do not intend to go through at length the various issues there, because here I am dealing with one specific matter, that is, the time that X spends with each of her parents, particularly during the school terms, and addressing specifically, the weekends during school terms.
Obviously, however, when one considers the additional considerations, section 60CC(3)(a) is relevant, in that it requires the Court to give consideration to any views expressed by the child, and factors such as the child’s maturity or level of understanding that the court thinks might be relevant to the weight it should give to the child’s views.
X is only six. Her views are not maturely considered, but they are nonetheless an expression of what this child, perhaps in a most childlike way, wishes to see happen. She wants, she tells Ms L, “fairness”. She wants to spend weekends with mummy as well as weekends with daddy.
No doubt if the query went further, she would also want daddy to have the opportunity to be more closely involved in some of her school activities than is able to occur at the present time. But that is not one of the issues that’s before me, but, for what it is worth, and I unfortunately do not have a great deal of hope that it could be achieved, but if, in fact, the father were to see a change in his circumstances such that he was able, for example, to spend more time with X during the school week, then I would hope that, for the child’s sake, there could be some adjustments made by agreement in relation to the matter. But that is something for another day, and it may be something for another determination, though I hope not.
What is clear, however, is that X does seek some changes in relation to the current arrangements, because she does not have that opportunity for time to be spent with her primary carer during the weekends of any school term.
Obviously the relationship that X has with both of her parents is a significant matter. She has a close attachment to both her mother and her father. She loves them dearly, as they love her. The reports that have been prepared over time, and, of course, most recently, the report by Ms L, notes that she is a very well-adjusted little girl.
She moved comfortably and without any difficulty between opportunities to spend time with her father and opportunities to spend time with her mother. No doubt she also moves comfortably amongst the extended families on both sides, and it is clear from the affidavits of both the maternal grandmother and the paternal grandmother that there is a closeness there, and the relationships that X has are very positive. But they can be improved, at least partially, by allowing there to be that full opportunity for experience and time to be spent with each parent.
It was emphasised to me, and it is a relevant consideration, that section 60CC(3)(d), requiring a consideration of the effect on the child of any change to circumstances needs to be looked at.
On the part of the father, to use the vernacular, it was suggested, “It isn’t broken. You don’t need to fix it. It’s working well.” From the father’s perspective, he sees a child who is enjoying arrangements which ensure that she has weekends with her father and weeks with her mother, as well as sharing school holidays.
But, of course, that is, understandably, only one side of the coin. The father sees what he says exists, but the mother reflects very differently upon what she says are the consequences for X, as a result of not spending, or at least having the opportunity to spend some weekends with her mother.
Whilst there may be some difficulties for the child, for example, during the last 18 months or thereabouts, having spent every weekend during the school terms with her father, and alternate weekends would be a change, she reflects, in discussions with Ms L, upon the fact that, “Daddy picks me up from school every Friday,” and if there is a change, that would not be the case, and there may be, at least in passing, some opportunity for confusion on the part of the child.
But there must be, when one looks at the effect of changes on a child, a consideration of not only the negatives, but also the positives. Here, there are very great positives that are reflected in the fact that there would be those opportunities for other more pleasant activities to be spent by the mother with the child than simply those which arise on a Sunday evening, or perhaps during the week on some evenings, when the mother has more opportunity for time to be spent with X.
I would think there would be some effects upon the child, change affects us all but when I am asked to consider both the negatives and the positives, in this instance, I am far more inclined to the view that there would be far greater positives for this little girl in having the opportunity to spend weekends with her mother, than would be any negatives that might arise from some degree of confusion or reduction in time with the father.
Obviously there are other considerations to be looked at in relation to the matter, but clearly, in the past, there have been lengthy recitations by me and others about issues with regard to the capacities of each of the parents to provide for the needs of the child, including the emotional and intellectual needs, as well as the appropriate attitude to the child and the responsibilities of parenthood that are demonstrated by each of the parents.
There can no doubt be criticisms of each of the parents. If we lived in a perfect world, there would not be criticisms of any of us, but none of us are without fault, particularly when it comes to the parenting of our children, and none of us can say that we could not do better. What is clear, however, is that this one issue relates to what is in the best interest of this little girl.
Section 60CA of the Family Law Act is, of course, always the starting point. It is only two lines and yet I am sure many a rainforest has been cut down in trying to determine exactly what it means. Section 60CA says:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60B provides guidance. Section 60CC, particularly subsections (2) and (3) provide pointers to what matters have to be looked at, but in the end, there is an exercise of the discretion on the part of any judicial officer to determine what, in their assessment, is in the best interests of the child. On this one particular issue, it is clear in my assessment that this little girl would benefit from opportunities to spend weekends during the school terms with the mother and I intend to make an order which is generally reflective of the orders that are proposed by the mother, in relation to this matter.
What I do, however, intend to do is to slightly alter the arrangements in relation to the matter in that I note that at order (5), the order proposes that the first half and second half of the school terms are detailed and to include an additional order which is simply to note that during the gazetted school holidays, the alternate weekend arrangement is to be suspended and that upon its resumption, the first weekend of each school term is to be the first weekend to be spent with the father.
What it means is that if there is an even number of weeks in the term, then each of the parents will have one half of the weekends but if there is an odd number, it is only a small recompense but it would mean that the father would have one additional weekend which, of course, would be appropriate when one considers that there would be a reduction overall from what currently exists in relation to arrangements with regard to time to be spent by the father with the child.
Before concluding these reasons, I am asked also on the part of the mother to make an order, which is set out in order (30), which is to the effect that the father is to pay to the mother one half of costs of the family report prepared by the family consultant, Ms L, and it was also noted in submissions in relation to the point, that there should also be one half of the costs of Ms L attending court, as she did yesterday, for the purposes of oral evidence.
Obviously such orders are to be considered in light of those matters which arise pursuant to the provisions of section 117 of the Family Law Act. Section 117 understandably, I think, commences from the perspective of each party being responsible for their own costs in relation to proceedings under the provisions of the Family Law Act.
Of course, for every rule there is an exception and subsection (2) specifically provides that if the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to various considerations, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
In this matter, I was specifically asked to make an order with regard to an updated report being prepared by Ms L. That request came from the mother. It was, as I recall, opposed by the father and one of the bases upon which it was opposed, was specifically, the further costs that would be incurred by him and being a reflection, he said, of his impecunious financial circumstances, such that any imposition in relation to the preparation of a further report would be of significant detriment to him.
That is one of the factors that must be considered if any order is to be looked at in relation to costs, be they in respect of this type of application for a specific matter or, more generally, the costs of and incidental to proceedings.
The father’s circumstances are not strong. I was advised and accept that he currently is indebted to his legal representatives for a sum in excess of $200,000. It is a tragedy, not only for the parties, and I expect that the mother also has incurred very significant legal fees, but, of course, for this little girl, that if those huge amounts of moneys have been expended, then in the end, opportunities for different ways to spend the money have been lost, because of the expense associated with these proceedings.
Obviously the mother has taken on the responsibility for the payment of the costs. She indicated that she had family support in respect of the proceedings generally but, just as clearly and perhaps understandably, her family’s position was to indicate that they would not be facilitating the payment of expenses which were of joint benefit to the father. Unfortunately that has clearly been a situation that has arisen in relation to the preparation of the family report in respect of this matter and the mother has, no doubt, therefore had to either put together the funds necessary to pay Ms L’s expenses or, perhaps, borrow the funds from some other source and then has the responsibilities for their repayment.
It was, however, a specific request on the part of the mother, that an addendum report be prepared and whilst I fully appreciate and understand that that was sought for the purposes of eliciting clear independent evidence as to the best interests and wishes of X, it was an expense that was instigated at the request of the mother.
I am not satisfied, therefore, that it is appropriate, insofar as the report by Ms L is concerned, for me to make an order in relation to the payment of the fees associated with the preparation of Ms L’s report and her attendance before the court yesterday. I intend to make no order, therefore, with regard to the father being required to pay one half of the costs of Ms L’s report.
Additionally, however, there is an order in the following terms also sought which is that the father pay the mother’s costs of and incidental to this application. In that regard, I have not received submissions in relation to the matter and understandably that was not pursued at the time of addresses with regard to the proceedings because, of course, no one, in the end, had a final idea of what the orders of the court might be, in relation to the proceedings.
However, the orders have now been made and insofar as the question of costs of either party in relation to the proceedings now before the court are concerned, I intend simply to direct that the applicant mother provide through her legal representatives, written submissions within 21 days of today and that the respondent father file and serve any submissions on his part, including those in response to any made by the mother, within 14 days of receipt of those submissions on the part of the mother. And further that unless otherwise requested specifically to do so, I will deal with the issue of costs in chambers at a time following the passing of that time.
ORDERS DELIVERED
In that respect might I ask that the legal representatives for the mother be so kind as to email those orders to my associate, so that the orders can be prepared in relation to this matter subject to the variation that I have referred to.
RECORDED : NOT TRANSCRIBED
Could I note I have opened Ms L’s report at dot point 4 – you were very close, Ms Hogan. Ms L says:
On the basis of the available information at this time that this matter be resolved by way of variation to the existing court orders for X’s time with both parents such that:
4. In the event that the father relocates to live in Brisbane, he also have X overnight on the Sunday (or Monday, if a public holiday night) during alternate weeks with handovers at school.
I must say that that was what I anticipated, in relation to the comments that I made in respect of the matter. Whilst it remains a situation where the father is not living in the locality of Brisbane, it was clear that the mother did express concerns about the exigencies and difficulties that might arise in relation to travel, particularly between the Gold Coast and Brisbane on a Monday morning. If that were to occur, there could be breakdowns, accidents, goodness knows what on the highway and that it could have effects in that regard. It would also mean significant travel earlier in the morning, in relation to the matter.
Whilst I do not wish to suggest further proceedings in relation to the matter, it is the last thing in the world I would suggest, the matter has been dealt with on the basis of one particular view in relation to the proceedings. It is, in my view, inappropriate now to seek to “move the goal posts” in relation to the proceedings and I would not make any order with regard to a return on Monday morning or time to be spent on a Thursday, other than to say it certainly can be raised and if it can be facilitated in an appropriate manner, then it is appropriate to occur but I would not make any such order in relation to the matter.
Otherwise, I would also indicate that, in light of the concession made by the father and it is an appropriate one, notwithstanding that the first weekend after school is to be the commencement, I will note that that is to not occur in term 3, 2012, but that rather, the mother’s time with X on weekends is to be the first weekend, commencing Friday , 13 July 2012 and the father’s weekend with X is to commence on Friday 20 July 2012 and in alternate weeks thereafter and then from term 4 the arrangement is in place otherwise with regard to the matter.

I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 3 August 2012