Farnell & Farnell (No.2) - [2007] FMCAfam 482

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARNELL & FARNELL (No.2)

[2007] FMCAfam 482

FAMILY LAW – Children – best interests of children paramount - presumption of equal shared parental responsibility – primary and additional considerations – meaningful relationship with both parents – children’s views – relationships with parents and others – willingness to facilitate close and continuing relationship with other parent – parents’ attitudes.

Family Law Act 1975 (Cth) ss.60CA, 60B, 60CC, 60CG, 61DA, 65DAA

Goode and Goode (2006) FLC 93-286

Applicant:

MS FARNELL

Respondent:

MR FARNELL

File Number:

LNM 1059 of 2003

Judgment of:

Roberts FM

Hearing date:

7 March 2007

Date of Last Submission:

7 March 2007

Delivered at:

Hobart

Delivered on:

19 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr M Foster

Solicitors for the Applicant:

PWB Lawyers

Counsel for the Respondent:

Mr M Trezise

Solicitors for the Respondent:

Dobson Mitchell & Allport

ORDERS

That the Father MR FARNELL and the Mother MS FARNELL (“the parties”) have equal shared parental responsibility in relation to J born in 1997 and Z born in 2000 (“the children”).
That the children live with the Mother.
That the children spend time with and communicate with the Father as follows:-
(a)during school terms;
(i)each alternate weekend from Friday at the conclusion of school until Monday at the commencement of school (but if the Monday is a public holiday, until the commencement of school on the Tuesday) commencing in each school term on the second weekend of that term;
(ii)in each other week from Thursday after school until Friday at the commencement of school;
(b)for one-half of each May/June and August/September school holiday period as agreed between the parties but failing agreement from 4.30 p.m. on the middle day of such holiday period and concluding 4.30 p.m. on the last day of such holiday period and the calculation of the number of days is to include weekend days that fall between the last day of school in one term and the first day of school in the next term.
(c)in each Easter holiday period as follows:-
(i)in 2008 and each alternate year thereafter, from after school on the Thursday before Good Friday until 4.00 p.m. on the Saturday after Good Friday;
(ii)in 2009 and each alternate year thereafter, from 4.00 p.m. on Easter Saturday until 4.00 p.m. on Easter Monday.
(d)in each Christmas school holiday period as follows:-
(i)
for two separate periods of seven days as agreed between the parties but failing agreement to commence on

27 December and on 10 January; and
(ii)as and from the 24 January in each such holiday period;
(i)each alternate weekend from 4.00 p.m. on Friday until 10.00 a.m. on Monday; and
(ii)in each other week from Thursday at 4.00 p.m. until Friday at 10.00 a.m.;
(e)for Christmas Day in each year:-
(i)in 2007 and each alternate year thereafter, from 6.00 p.m. on Christmas Eve until 5.00 p.m. on Christmas Day;
(ii)in 2008 and each alternate year thereafter, from 2.30 p.m. on Christmas Day until 4.00 p.m. on Boxing Day.
(f)for the birthdays of each of the children:-
(i)in 2007 and each alternate year thereafter, from 4.00 p.m. on the birthday (or after school if falling on a school day) until 2.30 p.m. the following day (or the commencement of school if falling on a school day);
(ii)in 2008 and each alternate year thereafter, from 4.00 p.m. on the day preceding the birthday (or after school if falling on a school day) until 2.30 p.m. on the birthday (or the commencement of school if falling on a school day).
(g)by telephone at all reasonable times.
(h)such further or other time and communication as may be agreed between the parties.
That collection and return of the children take place at the children’s school(s) on school days, and at [X], Hobart on non-school days.
That this Order constitutes sufficient authority on behalf of the Father and the Mother for the principal and/or teachers of the school(s) attended by the children from time to time to fully inform the Father regarding the progress of the children at school, school attendance or any other matters affecting the children or either of them as the Father may request and (subject to the reasonable requirements of the school(s) attended by the children) the Father is at liberty to attend for school productions, sporting or extra-curricular activities to the extent that is consistent with normal parental involvement.
That the Father and the Mother must each inform the other as soon as practicable in the event that either of the children suffers a serious illness/injury while in his or her care together with the name or names of any medical practitioner(s) attending the relevant child.
That the Mother must not arrange social, sporting or extra-curricular activities for the children to occur during the times that the children are to be with the Father without first obtaining his agreement.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

LNM 1059 of 2003

MS FARNELL

Applicant

And

MR FARNELL

Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings are for parenting orders in relation to two boys - J born in 1997 and Z born in 2000 (“the children”).
J and Z are the children of the relationship between the Applicant

MS FARNELL (“the Mother”) and the Respondent MR FARNELL (“the Father”).
There were earlier proceedings which required resolution by this Court. On 3 February 2006 I delivered Judgment in relation to the parties’ dispute in relation to Child Support. I commented at that time that neither party appeared to be pursuing the applications in relation to parenting orders with much vigour. (The proceedings in relation to the children had been commenced by the Mother’s application filed in the Family Court of Australia on 21 February 2002.)
When the competing application came on for hearing on 7 March 2007, the Mother relied upon affidavits from herself and her parents. The Mother was cross-examined. However, her parents were not required for cross-examination, so their joint affidavit was admitted into evidence unchallenged.
The Father relied upon affidavits from himself and his new partner. The Father was cross-examined. His partner was not required for cross-examination, so her affidavit was also admitted into evidence unchallenged.
Two Family Reports dated 9 January 2003 and 20 September 2006 had been provided by a Family Consultant. Those Reports were admitted into evidence and the Family Consultant also gave oral evidence.

Background

The parties were married in early 1995. They separated in January 2002 and were divorced in early 2003. The two children named above are the children of the relationship.
Shortly prior to the parties’ separation, the Father had taken up a position with a retail store on the North West Coast of Tasmania. The Mother and the children had remained in Hobart and the Father travelled home each weekend to be with them.
In December 2003 the Father took up a position with a different retail store in Hobart. However, in August 2004 he purchased a franchise and he continues to be self-employed conducting that franchise.
The Mother is employed full-time as a bank officer.
For some time, the Father has been spending time with the children as follows:
a)each alternate weekend from 6.30 p.m. on Friday until 4.30 p.m. on Sunday;
b)for a week during each of the holidays at the end of the children’s first and second school terms; and
c)for a total of two weeks during the long summer school holiday.
Orders have been made in the Family Court of Australia and this court determining issues in relation to property settlement and child support. However, there are no parenting orders in relation to the children.
The child Z has some special needs and has been diagnosed as having “Global Development Delay”. The Mother says that “structure, consistency, intensity and praise are the key elements to his care that have been recommended by his specialists.” To his credit, the Father does not appear to dispute that. However, there is clearly a dispute between the parties as to how involved the Father should be in the structure and consistency of Z’s care.
Both children are attending an expensive private school in Hobart and I made some comments about that in my decision of 6 October 2005. I said:
I am of the opinion that, given the parties’ incomes and commitments, both school fees and Z’s special health costs cannot reasonably be afforded. In my view, it is clear that a child’s special health needs must be given a higher level of priority than the payment of expensive school fees.
It is clear from the evidence that the Mother does not like the Father having any involvement with the school, notwithstanding that he is currently paying the tuition fees for the older child. It is also clear from the evidence that the Mother had a sum exceeding $25,000 in trust for the children but she chose to spend that money in improvements to her house rather than put it towards the children’s education. By my calculation, those funds could have paid the children’s costs at the school for approximately two and a half years.
In those circumstances, it seems clear to me that if the Mother wishes the children to continue with their private school education, she should be responsible for the payment of the school fees.
The Mother has chosen to continue the children’s education at that private school. Although the Father would like to be able to collect the children from, and return them to the school, the Mother is clearly opposed to him doing that.

Issues

At the start of the hearing Counsel for the Father provided the court with a document setting out the orders that the Father would like the Court to make. Working from that document and by comparing it with the Orders sought by the Mother, a discussion between bench and bar established that, while there was general agreement between the parties on a number of matters, there were still some significant areas of disagreement. Broadly, the issues for the Court to determine in this matter are:
·whether the parents should have equal shared parental responsibility for the children or not;
·who should make decisions about the children’s extra-curricular activities; and
·how much time the children should spend with their father during school terms and during school holidays, and upon what terms.
In relation to the last of those, the dispute between the parties centred around:
·the length of time that the Father should spend with the children each second weekend;
·whether or not they should be collected from, and returned to school by their father;
·whether or not there should be additional time with their father in between each second weekend; and
·the timing and extent of the time that the children should spend with their father during school holidays.

Legal principles to be applied

Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). Section 60CA provides that the court must consider the best interests of the child as the paramount consideration.
Section 60B sets out the objects of Part VII of the Act and the principles which underlie those objects. It provides:
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).
In determining what is in a child’s best interests I must consider the matters set out in s.60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The court must also take into account those of the “additional considerations” set out in s.60CC(3) that are relevant.
There has been some academic debate about whether the “primary considerations” should be given more weight than the “additional considerations”. No doubt, that debate will continue. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.
Section 60CC(4) provides that the court must also consider the extent to which each parent has fulfilled his/her parenting responsibilities and has facilitated the other parent in fulfilling his/her parental responsibilities:
Section 60CG provides that the court must, to the extent that it is consistent with the child’s best interests being paramount, also ensure that any order that is made does not expose a person to an unacceptable risk of family violence.
Section 61da provides that the court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence. Sub-section (4) also provides that the presumption “may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child”.
However, if that presumption does not apply, it does not necessarily follow that sole parental responsibility will be ordered. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
Sub-section 65DAA(1) provides that if a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
If an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that would be reasonably practicable. See sub-sections 65DAA(2) and (3).

Discussion

The section 61DA presumption

As mentioned above, section 61DA provides that the court must apply a presumption that, unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence, it is in the best interests of children for their parents to have “equal shared parental responsibility”. However, that presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child.
Although child abuse and family violence play no part in this matter, and the Father wants an order for equal shared parental responsibility, the Mother is clearly opposed to such an order. In his closing submissions, her counsel said “the reason that we are suggesting there should not be equal shared parental responsibility is because it creates that extra responsibility to consult on education, which has been very much the mother’s area of involvement, and an area that the father has chosen not be involved in. The same applies with health and so to create that obligation for consultation which comes out of making the order for equal shared parental responsibility is only to pit the parties together one day possibly over some health issue or education issue that otherwise would always be properly attended to in the usual way; which is (the mother) telling (the father) what’s happening … and (the father) probably not taking very much interest …”
The presumption that the parties should have equal shared parental responsibility for the children must be applied unless the evidence satisfies the court that it would not be in the children’s best interests. Consequently, the court must now turn to a consideration of the section 60CC factors.

The section 60CC factors

The benefit of having a meaningful relationship with both parents

It is an interesting feature of this case that the children appear to have developed meaningful relationships with both parents, notwithstanding that communication between the parents is poor. Both parties clearly concede that their communication is poor although they have different explanations for the causes of that poor communication.
The Mother has clearly made conscious decisions not to communicate with the Father in relation to some decision making, particularly in relation to education and health issues. On the other hand, it is also clear that sometimes the Father has either said nothing to the Mother or he has said what he thought the Mother wanted to hear about his plans for the children’s weekend activities rather than saying what his plans really were. This has occurred on a number of occasions.
The author of the Family Reports (Ms Malakoff) said the following in her second report:
The communication between the parents remains extremely poor. The report of each parent indicates that (the father) has not been clear in his communication in an effort to placate (the mother). This creates confusion and misunderstanding between the parents. (The mother) seems to interpret (the father’s) requests to be involved in decisions about the children as undermining her role as the children’s primary carer. (He) largely agrees with (her) decisions about the children and it is regrettable that they have not been able to improve their parental alliance.
The fact that a meaningful relationship with the father has developed does not mean that that relationship could not be improved. In this regard, Ms Malakoff stated that “the children will benefit from having more exposure to the less structured family in the father’s household and from his involvement in a wider range of activities relating to their care. Those benefits will include the children forming a closer relationship with their father and developing a more balanced view about male and female roles.”

Ms Malakoff recommended that the children spend time with their father mid-week during school terms with him collecting them from, and returning them to school. The Mother clearly opposed the Father spending time with the children mid-week and any collection from, or return to the school.

The need to protect the child from abuse, neglect or family violence

The parties are to be congratulated that this is not one of the “primary considerations” that needs any consideration by the Court.

Any views expressed by the child

J was described by Ms Malakoff as “an articulate, insightful and friendly boy who is a credit to his parents”. She said that he demonstrated a great deal of care towards and understanding of his younger brother’s special needs during the brief time that they were seen together.
She said:
J outlined that he is comfortable with his current living arrangements including, “I’m really used (to) Pa picking me up from school”. J finds his mother’s home more spacious than his father’s home and finds it easier to occupy himself there than when he is spending time with his father.
J said it would be “pretty okay” if the arrangement stayed the same and “fairly okay” if he spent more time with his father. J explained that he had a slight preference that his visiting arrangements with his father stayed as they have been over the past two years and are currently. However, he said that he thought he would get used to spending time with his father during the school week after “a few days”, meaning the change happening on a few occasions. He was concerned that his mother will approve of any changes. He also expressed concerns that his “school clothes might get messy” at his father’s home.
Ms Malakoff said that Z presented as a happy boy who was keen to copy his older brother. Unfortunately, Ms Malakoff was not able to interview him on his own because he did not want to return to the room for that interview.
Ms Malakoff said:
Z has little understanding of the dispute between his parents. He will go along with whatever arrangements are made for his care. Z is not able to express any views in relation to his living arrangements.

The nature of the relationship of the child with parents and other persons

It is very clear that the children have very good relationships with the Mother and with her parents. On more than one occasion in his oral evidence the Father commented upon the good loving care that they receive from their mother.
The unchallenged evidence from the maternal grandparents is that they have been deeply involved with the care of the children since their births. In addition, they have spent “innumerable hours assisting with Z’s programs to optimise his development”.
Because the Mother works full-time, the paternal grandfather has been responsible for getting the children to school on a daily basis (sometimes accompanied by the Mother) in addition to collecting them after school daily.
As mentioned above, the Father has been able to develop close and meaningful relationships with the children.
The unchallenged evidence of the Husband’s partner is that the children get on well with her, and with two of her teenage children. Because the Husband’s partner was not required for cross-examination, I conclude that the Mother accepts that the children are comfortable in their relationships with her and her children.

The willingness and ability of each of the parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

I have no doubts about the Father’s willingness to facilitate a close and continuing relationship between the children and the Mother. In this regard, it is of some significance that the Father is not seeking orders that the children spend equal time with him. In relation to that, he told Ms Malakoff that although he would like to spend equal time with them, he felt that “this degree of change would be too burdensome for the children and (the mother)”.
I am not so confident about the Mother’s willingness to properly facilitate and encourage a close and continuing relationship between the children and the Father. In this regard, Ms Malakoff stated that the Mother’s diligence about the children’s care leaves her highly anxious that the Father will be neglectful in his care of them. She added that the Mother is very open to information that she believes supports her views.
Nevertheless, it is encouraging that the Mother has made the children available to spend time with the Father on a regular fortnightly basis during school terms and during the children’s school holidays, particularly because this has not required any court orders.
However, my concern is that the Mother will not go far enough. She does not really want the children to spend any additional time with the Father and she is clearly opposed to the Father attending at the school to collect or return them. This is in spite of the fact that Ms Malakoff’s second report states that there does not appear to be any reason why the Father should not be able to attend at the school apart from the Mother’s discomfort and logistical considerations.
In my view, the Mother completely overstates any logistical considerations. For example, in her oral evidence the Mother foresaw many difficulties in relation to the Father being able to park at the school for the purposes of collecting or returning the children. This was despite the fact that the Mother’s own father is able to park his car at the school twice per day during school terms. While the Father may often have a large trailer attached to his vehicle (associated with his gardening franchise), he is willing to park that elsewhere while collecting or returning the children, should that prove necessary.
The Mother could also see significant difficulties in the number of items that the children would need to take to school prior to being collected by the Father and when he returns them. However, it is my view that the Mother overstates that difficulty and it is to be noted that collection from, and return to school is a very common provision in orders made by courts in children’s matters. I venture to suggest that most schools are very used to assisting children in this regard.
It is these and other matters that cause me to conclude that the Mother generally overstates the logistical difficulties associated with the children spending more time with their father.
The Mother also expresses concerns that the Father will not provide the “structure, consistency, intensity and praise” that she says are key elements to Z’s care that have been recommended by his specialists resulting from the diagnosis of Global Development Delay. I do not share that concern and I am satisfied that the Father appreciates Z’s developmental difficulties, even if he inadvertently used the wrong terminology to describe the diagnosis.
Clearly, the Father has been put off being more involved in relation to Z’s specialist care by the Mother’s attitude to that involvement. In this regard, I was rather surprised by the letter dated 25 March 2003 that was sent by the Mother’s solicitors to the Father’s former solicitors. In part, that letter said:
On 24 March your client apparently presented without prior notice at Z’s development session at [X] Rehabilitation. He must have been aware that arriving without any prior notice to our client was inappropriate and insensitive
Please confirm that your client will not appear unannounced at events or appointments which our client arranges from time to time for the children.
If anything, that letter was insensitive and it is indicative of the Mother’s failure to facilitate the Father’s involvement in making decisions about major long-term issues in relation to Z. See subsection 60CC(4). Unfortunately, that letter caused the Father to back away from involvement with the Mother in Z’s treatment program.
The Father gave oral evidence of the type of assistance that he gives to Z in relation to his developmental difficulties. Those difficulties are both intellectual and physical but I am satisfied that the assistance given by the Father is benefiting Z. Naturally, it would be better if both parents could have equal access to the experts involved in Z’s care and if communication between the parties could be improved.

The likely effect of any changes

The Mother is of the view that additional time with their father during the week will be disruptive. However, Ms Malakoff was of the opinion that J is an intelligent boy who should readily adjust to some mid-week time with his father and that, while Z will not understand the changes, he should also adjust quickly to spending such additional time with his father. I am of the same opinion.
Ms Malakoff was also of the opinion that there did not appear to be any reason why the father could not collect the children from school apart from the Mother’s discomfort with that. Ms Malakoff suggested that the Father should have the responsibility of collecting the children from and returning them to school at least once per week and she put forward two options that would enable that to occur. They were:
·One night each alternate week (e.g. Thursday) and extending current alternate weekends to include collection from school on Friday afternoon and return on Monday morning; and
·One night mid-week (e.g. Thursday) with their father each week.
In my view, the second of those options could be a little disruptive, but the first option should benefit the children by increasing their time with their father while not being too disruptive to routine. I also note that that is what the Father is seeking.
I share Ms Malakoff’s confidence that there does not appear to be any reason why the Father should not be able to collect the children from their school and return them to the school. In this regard, the Mother also complains that Z in particular is tired when returned to her on Sundays after weekends with his father. That does not surprise me, given his age, but I note that if the Father is to deliver the children to school after a weekend or after a night during the “off week”, they should both have had a good night’s sleep in the Father’s home beforehand.

The capacity of the parents to provide for the child’s needs

Ms Malakoff reported that the Mother, with the assistance of her parents is very able to provide for the children’s physical, intellectual and emotional needs. One cannot help but agree with that and it is to the Father’s credit that has stated on more than one occasion that she is a good mother and she looks after the children well. Ms Malakoff stated that the Father was very complimentary about her devotion to the children and he acknowledged the significant role that the maternal grandparents have in their lives.
Ms Malakoff also stated that the Father has provided adequately for the children’s physical, intellectual and emotional needs when they have spent time with him, and that it seems likely he will continue to provide for those needs if they spend time with him mid-week on school days.
In my view, the Mother and the Father are both good parents and the major factor detracting from their ability to properly provide for their children’s needs is their apparent inability to communicate properly. Given the comments that I have made above in these Reasons, both parties must take some responsibility for that.

The parents’ attitudes to the child and the responsibilities of parenthood

In general, both parties are to be congratulated for being good parents in difficult circumstances. In this regard, I do not underestimate the difficulties for the whole family resulting from Z’s diagnosed condition.
While the Mother may feel that I have been overly critical of her in these Reasons for not involving that father in decision making, the Father’s attitude has also left something to be desired on occasions. For example, there was an occasion when he did not take J to a dancing audition even though he admitted that they had no other plans on that particular Sunday and it had distressed J that he was unable to attend the audition on that day. The Father clearly allowed his objections to the Mother arranging activities during his time with the children to override J’s wishes, and on that occasion he put his own interests above those of his son.
Having said that, however, I repeat that both parties are generally good parents and are above criticism in most of what they do for their children.

Conclusions

The first issue to be determined is whether or not the parties should have equal shared parental responsibility for the children. The Father is clearly in favour of an order in those terms, whereas the Mother is not.
At the start of his closing submissions, counsel for the Father suggested that the drafters of the 2006 amendments to the Family Law Act may have had just such a case as this in mind when the amendments were being drafted. As mentioned above, there are no allegations of child abuse or violence, so the presumption that it is in the best interests of the children for their parents to share equal parental responsibility must apply unless the evidence shows that it would not be in their best interests. Consequently, the Court needs to examine whether there is evidence sufficient to rebut the presumption.
The evidence that the parties’ communication is poor is relevant. It is clear that there has not been very good communication between the parties for some time. However, it is my view that it would completely undermine the intention of the 2006 amendments to the Act if courts simply adopt a view that, because parties have not communicated well in the past, there should be no obligation upon them to consult with each other in the future in relation to matters pertaining to their children’s welfare.
It was very clear from the cross-examination of the Mother that she is opposed to consulting with the Father in relation to a number of aspects of the children’s lives. For example:
·She is quite clearly opposed to consulting the Father in relation to current and any new extracurricular activities for the children.
·The evidence clearly suggests that she believes that she should be primarily responsible in relation to health matters.
·Even though she indicated that she was not opposed to the Father attending parent/teacher interviews and the like at the children’s school, I accept the Father’s evidence that he has not received proper information about those. As is set out at paragraph 14 above, I came to the conclusion on 6 October 2005 that the Mother did not like the Father having any involvement with the children’s school. Nothing in the evidence presented to me since has caused me to change that view.
In Goode and Goode (2006) FLC 93-286, their Honours Bryant CJ, Finn and Boland JJ said at paragraph 39:
Once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared parental responsibility, the major decisions for the long-term care and welfare of children must be made jointly, unless the Court otherwise provides.
It is clear to me that the parties’ communication would be improved if they each made a greater effort. On the one hand, the Mother needs to be more inclusive of the Father in relation to making decisions pertaining to the children’s welfare, and on the other, the Father needs to be more communicative in relation to his intentions with respect to the children’s activities. Equal shared parental responsibility, and the requirement to consult that goes with it, will require both parties to make those greater efforts to communicate effectively in the interests of their children.
In the circumstances, I am of the view that there should be an order providing for equal shared parental responsibility. That being so, certain consequences flow from that.
Firstly, the Court needs to consider whether the children should spend equal time with their parents. In this regard, the Father indicated to

Ms Malakoff that he would like to spend equal time with the children. However, he felt that such a change would be too burdensome for the children and for the Mother. It is therefore not surprising that

Ms Malakoff reported that he presented as a “caring parent who has insight into the impact of the dispute on the children”.
I agree with the Father that equal time would not be in the interests of the children. Consequently, I need to consider whether it would be in their interests for the children to spend substantial and significant time with their Father. Subsection 65DAA(3) defines “substantial and significant time” as including days that fall on weekends and holidays and days that do not. The time must also allow the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child.
In this matter, the Father is already spending time with the children at weekends and holidays. Ms Malakoff has recommended that the children spend time with their father time mid-week during school terms and that he be able to collect them from, and return them to school. That would fall within the definition of substantial and significant time and I consider that to be appropriate in this case.
The Father is seeking to have the children with him during the first half of each of the May/June and August/September school holidays. The mother is opposed to that in relation to the May/June holiday of three weeks duration and only wants them to be with him for the last week. Her reasons were that J takes part in the Hobart Eisteddfod during the first two weeks. The first week is generally devoted to rehearsals and competitions are in the second week. She also said that fathers are not allowed backstage.
I can see no reason why the father should not also be involved in those eisteddfods and there must be things that he can do without having to go backstage. I am therefore of the view that he should have the children with him in the second half of that holiday. That will enable the Mother to make the arrangements in the earlier days of the eisteddfod and the Father and Z can be involved in watching J compete. Naturally, the fact that the children are spending time with one parent will not prevent the other parent from attending, be it at dancing, soccer or any other activity.
For consistency and to avoid any confusion, the children should spend the second half of the holidays in May/June and August/September with their father. That will mean that they will probably spend the last weekend of those holidays with him, so the alternate weekends with him during the following school terms should start on the second weekend of the term.
In addition to seeking an order for equal shared parental responsibility, the Father is seeks an order that the Mother not arrange social or sporting or extra curricular activities for the children to occur during those times that the children are with him without the Father’s prior consultation and agreement. While one might consider that this would normally be included in “equal shared parental responsibility”, it is clear that this has been the cause of much of the friction between the parties.
The Mother sought an order that both parties take steps to ensure that:
·the children have consistent parenting and discipline;
·the parents fully support any homework and development programs in which either child is involved; and
·the children are able to participate in all of their usual extra-curricular activities.
On the face of it, that would appear to fit with equal shared parental responsibility. However, she made it clear that she wants to have the final say in relation to many of the children’s activities, even when they are with the Father. In this regard, her position is probably best summarised in the first paragraph of her trial affidavit in which she said:
I seek contact arrangements that will enable the children to spend regular time with their father…but which ensure their regular activities and the things that they enjoy can continue, and also that the structured support which my parents and I provide for Z’s development can continue, and that the arrangements are consistent with their best interests.

Having considered the matter, I am prepared to accede to the Father’s request for an order of the type referred to at paragraph 82 above, in addition to an order for equal shared parental responsibility. That should confirm to the Mother the importance of consultation in relation to such matters and, hopefully, avoid a source of future friction.
There was a minor difference between the parties in relation to the time on Christmas Eve at which the children should go to their father (only in odd numbered years). The father is seeking a handover at 2.30 p.m. but the Mother as a bank employee would not generally be able to manage that. I believe that I can take judicial notice of the fact that the pre-Christmas period is a very busy time for banks, so I consider that in those years the children should go to their father at 6.00 p.m. on Christmas Eve but they should stay with him until 5.00 pm on Christmas Day. The parties are in agreement about times for Christmas day in the even numbered years.
The father seeks a resumption of fortnightly weekends and Thursday nights during the long summer school holidays “as and from 24 January”. That is before the first school term begins but, apart from the time referred to in paragraph 87 above, he is only seeking two full weeks with the boys during those long holidays. In my view, what he seeks is appropriate.
I will make orders that take account of the matters referred to in these Reasons.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Roberts FM

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