Fenn and Hamblyn
[2012] FMCAfam 1331
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FENN & HAMBLYN | [2012] FMCAfam 1331 |
| FAMILY LAW – Parenting – spends time and communicates with issue – where father is an (omitted) working on a rotating shift basis – chronic high conflict and communication issues – where there are concerns about mother’s willingness to facilitate relationship. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Fenn & Hamblyn (2011) FMCAfam 850 MRR v GR [2010] HCA 4 |
| Applicant: | MS FENN |
| Respondent: | MR HAMBLYN |
| File Number: | SYC 2356 of 2011 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 30 & 31 October 2012 |
| Date of Last Submission: | 31 October 2012 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dura |
| Solicitors for the Applicant: | Pearson Family Lawyers |
| Counsel for the Respondent: | Mr Campton |
| Solicitors for the Respondent: | Hunt & Hunt Lawyers |
ORDERS
The following definitions for the purpose of these Orders:
(a)"Mother" means Ms Fenn, born on (omitted) 1971;
(b)"Father" means Mr Hamblyn, born on (omitted) 1968;
(c)"parents" means the Mother and the Father;
(d)"parties" means the Mother and the Father;
(e)"X" means X, born on (omitted) 2003;
(f)"Y" means Y born on (omitted) 2008; and
(g)"Children" means X and Y.
PARENTING ORDER:
The parents shall have equal shared parental responsibility for the children.
The Father shall provide the Mother with an unedited copy of his roster and within 10 hours of receipt of any changes to the roster.
For the purpose of these Orders the Father shall provide to the Mother 14 days’ notice of any leave granted to him and/or to be taken by him from his employment if the Father intends to use any part of such leave for the purposes of spending time with the children.
The children shall live with the Mother and spend time with the Father for 3 consecutive days in each week when the Father is not (omitted) in accordance with his roster referred to in Order 2 and otherwise subject to the conditions set out below.
(a)The precise dates that the Father is to spend with the children pursuant to these orders shall be as agreed between the parties and failing agreement as nominated by the Father.
(b)The Father is to nominate the dates that he proposes to spend time with the children within 72 hours of receiving his roster.
(c)If the Father’s roster permits him to spend time with the children on 2 weekends in the period covered by his roster then he may nominate such (but no more than 2) weekends, and his time commences from after school (or pre-school) on the Friday and concludes before school (or pre-school) on the Monday.
(d)If the Father’s roster does not permit him to spend 2 weekends in the period covered by his roster, and in any event as regards non-weekend time, the father may nominate additional periods of 3 consecutive days in every week from the conclusion of school (or pre-school) on the first day to the commencement of school (or pre-school) on the third day.
(i)Notation: The intent of these orders is that where the father’s roster allows he would have within 4 weeks 4 periods of 3 days and 2 nights with the children consisting of no more than 2 weekends. Thus the father might have 1 weekend and 3 mid-week periods of time, or no weekends and 4 mid-week periods of time, within the parameters of his 4 week roster. Unless the parents agreed, however, the father could not have more than 2 weekends within a 4 week roster.
(e)The Father is deemed not to be (omitted) for the purposes of these orders if he is able to be physically present to care for the children within 6 hours of either the commencement or conclusion of his time provided that he has made satisfactory alternate arrangements for the collection, return and care of the children by one of his parents.
(f)Where collection or return is at the children’s school (or pre-school as the case may be) but the children are not at school (or pre-school) on the relevant day or days, then in the case of Y he is to be delivered to the school attended by X, and otherwise to the home of the Mother.
In relation to the Father’s time with the Children during school holidays, and provided he is not (omitted), the Father to spend time with the children as follows.
(a)During the forthcoming 2012-2013 school holidays for three (3) non-consecutive periods of 5 nights/6 days commencing at 12 noon on Day 1 and concluding at 12 noon on Day 6.
(b)During the mid-year 2013 school holidays for one period of 6 nights/7 days commencing from 12 noon on Day 1 and concluding at 12 noon on Day 7.
(c)During the 2013-2014 and 2014-2015 school holidays for 3 non-consecutive periods of 7 nights/8 days commencing at 12 noon on Day 1 and concluding at 12 noon on Day 8.
(d)For all mid-year school holidays from 2014, for half the school holidays.
(e)From the 2015-2016 school holidays, for half the school holidays.
(f)During school holidays the order for the Father to spend time with the children in Order 4 above does not apply, save for the machinery provisions contained in 4(a), (b), (e) and (f).
The Father to spend time with the children on special occasions provided he is personally available as follows:
(a)on Christmas Day, from 11.00 am until 5.00 pm and on the basis the children shall spend from 9 am Christmas Eve to 11 am Christmas Day with the Mother;
(b)from 10 am to 5.00 pm on the Father's birthday;
(c)from 10 am to 5.00 pm on Father's Day;
(d)if the children's birthday falls on a week day and the children are otherwise spending time with the Mother on that day, from 3.00 pm until 5.00 pm; and
(e)if the children's birthday falls on a weekend and the children are otherwise spending time with the Mother, from 9 am to 1:00 pm; and
the Father shall collect and deliver the children to the Mother.
The children shall spend time with the Mother on special occasions as follows:
(a)from 10.00 am on until 5.00 pm on the Mother's birthday;
(b)from 10.00 am on until 5.00 pm on Mother's Day;
(c)if the children's birthday falls on a week day and the children are otherwise spending time with the Father on that day, from 3.00 pm until 5.00 pm; and
(d)if the children's birthday falls on a weekend and the children are otherwise spending time with the Father from 9.00 noon until 1.00 pm; and
The Mother shall collect and deliver the children to the Father.
Each of the parties are permitted to travel with the children either interstate or overseas subject to the following provisions:
(a)Advance 28 days’ written notice must be provided to the other party of any plans for travel;
(b)Copy of travel itinerary and if available copy of flight tickets for the children must be provided to the other party in advance at least 28 days prior to such travel;
(c)Full particulars of addresses and contact telephone numbers for the children at the destinations must be also provided to the other party in writing at least 28 days prior to such travel; and
(d)Upon receipt of the above information, the party with possession of the children’s passports must forthwith provide the passports to the travelling party or both parties are to do all acts and things necessary to apply for or renew passports for the children and the travelling party is to return the children’s passports as soon as practicable after return from such travel.
Each of the parties has responsibility for making the day to day decisions for the children during periods when they are living or staying with him or her.
Each party shall:
(a)notify the other party as soon as possible and in any event within 1 hour of any serious injury or illness suffered by the children whilst in the care of that party;
(b)notify the other party not less than 7 days before changing that party's address of such change;
(c)notify the other party within 24 hours of changing that party's telephone number of such change;
(d)notify the other party and keep the other party notified of a telephone number where the children may be contacted in the event of an emergency;
(e)notify the other party of the name, address and telephone number of the children's treating doctor and authorise that doctor in writing to release to the other party particulars of the children's health or treatment at any time requested by other party;
(f)within 7 days of the date of the making of these Orders supply to the other party an authority to the school attended by the children authorising the other party to obtain from the school particulars of the children's welfare and progress at the school, details of upcoming functions or activities and any other information disseminated by the school to parents of children attending the school;
(g)be responsible for ensuring the children attend all school activities that arise on a day to day basis when they are in their care;
(h)provide to the other party a telephone number and address of the place(s) where the children will be staying with that party during holiday periods;
(i)ensure the children maintain regular communication with the children's paternal and maternal grandparents;
(j)ensure that the children do not watch, play or interact with games that are not recommended for their age group; and
(k)be at liberty to call the other parent when the children are in the other parent's care between 5:00pm and 5:30 pm each evening;
The Mother shall retain the children's passports but make them available to the father for travel permitted by these orders.
Within 56 days of these orders the parties must do all things necessary to enrol in, and thereafter complete, the program of educational instruction recommended by Dr B at paragraph 69 of his report dated 2 November 2011. The Father must, within 56 days of these orders, do all things necessary to enrol in, and thereafter complete, the program recommended by Dr B at paragraph 70 of his report. In each case the parties are authorised to provide a copy of Dr B’s report to the program provider.
IT IS NOTED that publication of this judgment under the pseudonym Fenn & Hamblyn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2356 of 2011
| MS FENN |
Applicant
And
| MR HAMBLYN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, X, born (omitted) 2003 who is nine years old, and Y, born (omitted) 2008, who is four years old. The children’s mother, who is the applicant, and father, who is the respondent, are unable to agree about how much time they should be spending with their father. This case is about establishing what is in their best interests in that regard.
Background
The mother is 41 years old, is a (occupation omitted), and lives in (omitted). The father is 44 years old, is a (omitted) and lives in (omitted). The nature of the father’s employment as a (omitted) is a complicating feature in this case because he works according to a roster that is, for all practical purposes, imposed on him and in respect of which he has very little say.
For the entire period of the parents’ relationship and for all of the children’s lives, life has been conducted in accordance with, and in the shadow of, the father’s roster. It was a fact of life for this family. I made certain observations about this reality for the family at paragraphs 17 and 18 of the reasons for judgment I delivered on 11 August 2011 when various interim matters came before me. I reproduce those paragraphs below to record that this important issue was not only acknowledged, but highlighted over a year before the final hearing but, as will be seen below, the mother struggled to accept this reality.
The father is a (omitted) who works according to a roster that covers a four-week period and in respect of which he gets one week’s notice. The Father asserts, and it is not disputed, that he gets about nine days off each 28 days. I have tried as hard as I can to read and interpret the Father’s roster, to no avail. I would have thought it was in his interest to communicate that information to me in a way that I can understand. Paragraphs 84 to 89 of his affidavit is the best evidence I therefore, have about his work hours and days. He seeks three-day blocks as elected by him based on his roster. Based on his own evidence, this means he would be having the children not more than three times in a 28-day roster period. I note that one of the issues in this case is the capacity of children to cope with this sort of absence from their mother.
The mother’s proposal, I must say, seems almost destined to fail. Whilst nominally referring to the Father’s roster, it is fixed to weekends and Wednesdays, irrespective of whether the Father is (omitted) or not. On the mother’s proposal the children would not know from month to month whether, when and how often they would be seeing their father.
The father commenced working with (omitted) in 1994, and the Mother commenced employment as a (omitted) in 1992. They started living together at 1998 and married in 2000. X was born in 2003 and by 2005 his mother had returned to work part time, two days per week. In 2008, Y was born. Also in 2008, the father completed his (omitted) training attaining the status of (omitted) with (omitted).
In September 2010, the parties separated, whilst continuing to occupy the same residence in (omitted) School. In December 2010, the mother and children moved out of the home to live with her parents, where she continues to live. Before the home was eventually sold, there were a number of ugly and unfortunate incidents between the parents including an AVO proceeding which resulted in an interim, but not a final order.
On 6 July 2011, I made interim orders for the father to spend time with the children for approximately two nights every week. Then, on 11 August 2011, following an interim hearing held on 8 August, I made further orders providing for the father to spend block time with the children during his leave in August, and thereafter for up to three consecutive days in every week, based on his roster. The reasons for judgment were published as 2011 FMCAfam 850. The father’s time with the children since then has proceeded, more or less, in accordance with these orders.
What is abundantly clear from all of the evidence in this case, indeed it is a feature that exudes from the written and oral evidence, is that the parents have a very poor relationship which is marked by acrimony, distrust, and chronic inability to communicate. Notwithstanding this, but with much judicial encouragement and the expert assistance of their respective legal advisers, the parents were able to resolve financial matters after the commencement of this hearing, so that the focus became purely on parenting issues.
The parents’ proposals
The father’s proposal was contained in his further amended response filed 12 October 2012. The precise orders sought by him are reproduced in Schedule A to these reasons (noting that orders 4 and 5 were not pressed). The effect of the father’s proposal was that the children live with him for three consecutive nights every week commencing from 9 am, or the start of school or preschool on the first day, and ending at 9 am or the start of school or preschool on the fourth day, on dates selected by him on a four weekly basis.
In addition he sought orders for half of all school holidays, if he is granted leave by his employer, and on such dates as elected by him. The practical effect of the father’s proposal was that he have a shared care arrangement for three consecutive nights each week, to work in with his roster.
So far as the mother’s proposal is concerned, it became quite a challenge for the court to understand the mother’s proposal on day one of the hearing, 30 October. The mother’s proposal was based on a minute of final order provided by her counsel. By day two, 31 October, an amended minute was provided, which became known as version 2. At 11.55 am on day two, a further amended minute was provided dealing with school term time, and this document became known as version 3. During submissions a consolidated minute of order became available, and the parenting orders part of that are reproduced in Schedule B to these reasons.
The evolution of the mother’s proposal in relation to the children’s time with their father was a source of much frustration, not just to the father, but to the court as well. The mother’s cross-examination was adjourned twice to enable her to reconsider her proposal which, with respect to the mother and those who advised her, seemed to blissfully ignore the observations made by me at paragraphs 17 and 18 of the reasons for judgment published on 11 August 2011. There is no doubt that the hearing of this case proceeded into a third day, on 9 November, as a direct result of the time lost during the hearing whilst the mother reconsidered, and reformulated, her proposals.
In any event, rather than try to describe the mother’s proposal for the father’s time during school term, it will simply be reproduced below:-
4.1 That upon the Father ceasing to live with the Paternal Grandparents and provided that the Father lives within a 25km radius of the school attended by the children, the Father shall spend time with the children as follows:
4.1.1 In the event that the Father’s 4-weekly work roster permits the Father to spend at least 2 weekend periods with the children:
4.1.1.1 from the conclusion of school Friday, or 3pm in the event of a non-school day to the commencement of school Monday, or 9am on a non-school day on not more than 2 weekends during the roster period; and
4.1.1.2 from the conclusion of school to the commencement of school the following day on 2 occasions during the weeks the Father is not spending weekend time with the children.
4.1.2 In the event that the Father’s 4-weekly work roster does not permit the Father to spend more than 2 weekends period with the children:
4.1.2.1 for 3 consecutive days in every week from the conclusion of school on the first day to the commencement of school on the last day and in the event of a non-school day at 3pm.
4.1.3 That the dates the Father is to spend with the children pursuant to the above Orders shall be as agreed between the parties and failing agreement as nominated by the Mother.
4.1.4 For the purposes of Order 4.1.2.1 above, the Father shall cause Y to be delivered to the school attended by X for collection at the conclusion of his period of time.
The evidence
Both parents swore affidavits and both were cross-examined. The mother’s brother, Mr Fenn, provided an affidavit and he was cross-examined. Dr B, a consultant clinical psychologist, provided a regulation 7 family report, the contents of which will be discussed below. He too was cross-examined.
As will be seen below, the court accepts the evidence of Dr B. In relation to the father’s evidence, he is a reliable historian and whilst there are certainly issues about the father that will be discussed in the context of assessing considerations under section 60CC, the court, nonetheless, had no concerns about his evidence.
Regrettably, the same cannot be said for the mother’s evidence. For reasons that will be explained below in the relevant context, the court found the mother to be an unreliable historian. The court found the explanation she gave for some of her actions to be far-fetched. She repeatedly demonstrated in cross-examination that she had not properly thought through her own proposal. She was unresponsive at times. She was incapable of making concessions in relation to her own behaviour which were plainly open on the evidence and which would have been appropriate and sensible. As will be seen, whereas the father showed occasional glimpses of insight, the mother showed none.
The evidence given by the mother’s brother, Mr Fenn, did not assist me in deciding this case.
The applicable law will be set out and these reasons will then deal with the evidence of Dr B as a discrete issue, followed by an assessment of the evidence of both parents by reference to the section 60CC considerations.
Applicable Law
The relevant applicable law pre-dates the most recent amendments to Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s. 60B:
60B Objects of Part and principles underlying it
(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.
(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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(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.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) 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 or 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.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary School considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(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." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
Evidence of Dr B
The report of Dr B is dated 2 November 2011. The report follows a familiar format, including interview observations of the children with both their parents, the administration of standardised psychometric assessments and review of documentation.
Dr B identified that one of the issues was the mother’s difficulty in having to accept the demands of the father’s variable work roster. From her perspective, this raised issues for the children (lack of stability and consistency) as well as personal issues for her (feeling like she was being controlled by him). Other important concerns from the mother’s perspective related to changeovers, that the children were being left unattended, communication difficulties with the father, and concerns about the children coping with lengthier absences from her.
Dr B noted the mother’s desire that contact arrangements “be jointly decided”. Of course, what became plainly evident to Dr B, and to the court, was the total inability of these parents to agree to anything.
Dr B noted that the father’s concern was being forced into accepting increasingly smaller amounts of time with the children in exchange for the flexibility of fitting in with his variable rostering. He too expressed frustration about communication difficulties as well as the unhelpful role of the maternal grandmother.
At paragraph 36 of his report Dr B records that:
While Ms Fenn appeared to be initially cautious in agreeing to the possibility of equal parenting responsibility, she seemed to relax when the idea was further elaborated on. She also indicated that she would be amenable to Mr Hamblyn spending significant time with the children, but believed this should not occur in large blocks of time due to Y’s age and her continued concerns about Mr Hamblyn’s ability to adequately meet the physical and emotional needs of both children. Ms Fenn reported in her affidavit material that Y had become increasingly clingy since the separation and that X was defiant, inattentive, and anxious.
In relation to the father, Dr B records at paragraph 40 of his report:
Mr Hamblyn reported a willingness to reduce his current contact with the children to two consecutive days, with one overnight stay. He noted that he was willing to maintain this reduced contact schedule for twelve to eighteen months following the institution of any orders to allow the children to adjust and to minimise disruption to their routine. He also acknowledged that this may be more appropriate for Y at his current age, in addition to providing for more flexibility within Mr Hamblyn’s work schedule.
At paragraph 42 Dr B records the father’s acknowledgment that the mother “is a capable mother.” Dr B was able to observe the children in their interactions with each other and their parents. He records that X had a clear recollection of the conflict occurring between his mother and father before separation. The inescapable fact was that “clearly, X is aware of his parents continued conflict.” X described that both his parents as “angry” at times.
Dr B records the following in relation to the children’s interaction with their father:
55. X and Y were observed with their father, Mr Hamblyn. At this point, the children had been at the offices for approximately three hours and Y was becoming tired. Mr Hamblyn placed Y on his lap and continued to discuss the matter. Y haltingly said ‘Dad, I wanna... see Mum’. After not receiving an immediate response from his father, Y clambered off Mr Hamblyn’s lap and made his way to X who was sitting at a desk in the corner completing a questionnaire. Y became teary and said again ‘I wanna see Mum’. X gently reassured his brother, kindly touching his face. Y began crying more loudly at this point and returned to his father who now softly asked what he wanted. Mr Hamblyn appeared uncomfortable and indicated, in a questioning manner to the clinician, that it may be best to return Y to Ms Fenn who was in a nearby room. Mr Hamblyn was assured that this was ‘his time’ with the children and instructed to deal with Y’s behaviour in whatever manner he considered most appropriate. At this point, Mr Hamblyn told Y that they would ‘go to mummy’. Y immediately stopped crying as Mr Hamblyn took him to Ms Fenn.
56. While Y’s behaviour was likely a reaction to the strange environment and unfamiliar adults, in addition to being tired, Mr Hamblyn did little to reassure Y before returning him to his mother and did not immediately employ any strategies to improve Y’s mood. He did speak to him gently and kindly throughout the exchange and it is noted that this behaviour did occur in the context of a formalised assessment, where Mr Hamblyn may have felt overwhelmed by his perception of the competing demands of the situation.
57. After completing the questionnaire, X sat on the floor near his father and ate a sandwich and cut vegetables. He replied to his father comfortably but tended to provide short answers with little elaboration. When asked what he liked to do with his father, X responded ‘playing’. With encouragement he included ‘jumping on the trampoline’ and ‘playing 3DS’. When the clinician attempted to encourage conversation by noting a comment X had made about the design of his bedroom, Mr Hamblyn cautiously noted that there had been some changes to X’s bedroom since he had last stayed. X eyed Mr Hamblyn warily as he said this, though did not seek further elaboration, looking somewhat resigned.
Dr B’s evaluation is contained at paragraph 61 and 62:
Clearly, there remains a significant level of antipathy and bitterness between Ms Fenn and Mr Hamblyn. Unfortunately, Mr Hamblyn’s proposal entails the need for open and accommodating channels of communication on the part of both parties – which at a personal level he appears intent on not aspiring to. While Ms Fenn and Mr Hamblyn both reported attempts to communicate with the other party, each correspondingly reported that frequently these attempts have been thwarted by the other’s lack of responses, instructions to discuss the matters exclusively through legal representatives, or through unhelpful replies. This has only served to compound the existing bitterness and further exacerbated problems, with each party becoming suspicious of the other’s motives. Both parties will not only need to exert considerable effort to ensure that communication remains open in the future, but will also have to trust the good intentions of the other party if this arrangement is to be successfully instituted. Furthermore, both parties will need to be both flexible and accommodating, in contrast to previous arrangements.
While some of Ms Fenn’s assertions regarding Mr Hamblyn’s behaviour are concerning, such as Mr Hamblyn allegedly leaving Y at home unattended, neither party reported serious misgivings about the other party’s ability to provide a safe and protective environment, or to physically care for the children on a day to day basis. Most concerns raised by both parties regarded the obstructive and unhelpful behaviour of the other party which could, at times, result in uncertainty and inconsistency for the children, as well as exposing them to a conflicted, tense and unhappy home environments during these times.
Dr B recommended that equal shared parental responsibility be confirmed. Indeed, that is the order that the court made and the court declined to grant leave to the mother to amend her application to seek an order for sole parental responsibility. The brief ex tempore reasons given on this issue referred to the lateness of the mother’s change of position, the potential prejudice to the father, and the overwhelming evidence pointing towards the appropriateness of equal shared parental responsibility.
Dr B rejected equal time which “would not be a practical solution for this family.” His primary reason was that it was impractical having regard to the father’s roster. It should be noted, however, that whereas the father’s proposal was not equal time at the time he was interviewed by Dr B, at the hearing the father’s proposal was, arguably, almost equal time. In relation to substantial and significant time Dr B noted that both parents seemed to be open to this possibility and considered it in the children’s best interests for their to be regular and significant contact. However, what Dr B considered to be the “caveats” required by both parents points to some of the inherent difficulties in this case. For example, he noted that the father was willing to reduce time in return for flexibility to fit in with his roster whereas, by contrast, that the mother wanted to implement a more regular and stable pattern of contact.
Further caveats involved the desire for equitable sharing of weekends. At paragraphs 67 and 68 Dr B reports:
It appears it would currently be in the best interests of the children that they remain living with Ms Fenn and spending significant and substantial time with Mr Hamblyn as indicated in his application – being two days with one night sleepover.
It may be of benefit for the Court to consider including in the Orders that each parent is to spend a minimum of one in four weekends with the children in each 28 day period, with a preference toward an equal division of weekends where possible.
Finally, Dr B’s recommendations are found at paragraphs 69 to 71:
In addition to the above, I strongly suggest that both Mr Hamblyn and Ms Fenn are directed to attend, participate in, and successfully complete a 6-8 session (minimum) parenting after separation program such as ‘Parenting After Separation – Focus on Kids’ or ‘Keeping kids in mind – Parenting after Separation’. Taking into account Mr Hamblyn’s variable employment roster, he may need to negotiate with the training provider the opportunity to complete his training course over a number of courses, such that he can achieve the requisite number of sessions (but across a number of programs). Given the involvement of the maternal and paternal grandmothers in the children’s lives together with allegations from the other side regarding their participation in the separation conflict, I would also strongly recommend both grandmothers complete a similar program so as to understand the impact of the conflict upon the children.
After observing Mr Hamblyn’s discomfort and difficulty in providing reassurance to Y at a point when he became distressed, I would also strongly recommend he consider participating in a ‘emotionally attuned parenting program’ which are offered by (omitted) Area Health service and (omitted) Area health Services.
Taking into account the variable nature of Mr Hamblyn’s employment and to maximise the likelihood of both parties being able to arrive at joint decisions relating to the contact arrangements it may be necessary for the parties to engage in monthly or bi-monthly mediation for the sole purpose of deciding these arrangements. This may be particularly useful if the parties continue to engage in conflict surrounding the timing of these arrangements.
Dr B was cross-examined. He acknowledged that his report was almost a year old by the time of the hearing. Nonetheless, he had the opportunity to consider the further evidence filed on behalf of the parent and expressed the view, quite correctly the court considers, that nothing in the later material suggests any substantial change in the parents’ relationship with each other, or the children’s relationship with the parents. He remained of the view that his recommendation of significant and substantial time with the father, manifested as two days and one night weekly was still best for the children, provided it could be maintained consistently.
As for the father’s proposal at the hearing for more time Dr B expressed surprise as to the extent of the shift in his position, pointing once again to the importance of the father’s roster in making such an arrangement work, but in any event expressing concern that a move to almost shared care was highly problematic in a case such as this where there was a high level of conflict, as well as developmental concerns arising out of Y only being four years old. Dr B emphasised that shared care arrangements might work for parents in an amiable relationship, but was unlikely to work in a case where there was not only high conflict, but the conflict had consolidated over time.
Indeed, the ongoing conflict between the parents was an obvious concern to Dr B, particularly noting that each parent was both intelligent and articulate but nonetheless seemed unable to approach the conflict between them in a more constructive manner. He emphasised in his evidence the profound potential impacts on the children in the long term if the parents are unable to manage their conflict. He suggested that the court simply keep ordering the parents back to parental education such as parenting after separation courses until it started having an impact on them.
Turning to one of the key issues in this case, ie, reconciling the father’s need for flexibility with contact having regard to his roster, as against the mother’s preference for stability in relationship, Dr B observed that this could only be achieved if there was positive communication as opposed to a quasi-obsessional foci on problems. Dr B thought that the father’s desire for some flexibility in the parenting arrangements was reasonable, and expressed the view, based on his experience, that there were many, many shift workers who entered into parenting arrangements that were made workable.
When asked to comment on the mother’s proposal (ie, version 3) Dr B thought that it was only minimally substantial and significant time, and in any event its success would depend upon the frequency with which the father spent time with the children. The obvious concern is that on the mother’s proposal, and indeed the court notes, even on the father’s proposal, if in reality the father spent time with the children variably and rarely, it could not possibly be best for the children.
Turning to developmental issues related to Y, Dr B thought that a prolonged absence from the mother, as his primary attachment figure, was problematic. However this was moderated by the fact that Y’s time with his father would be in the presence of his older brother X. Dr B would support three days away from his mother at four years, four days at five years, and five days at six years, though he also expressed the view that the court “might take bigger steps” given that both boys would be spending time with their father at the same time.
When cross-examined by counsel for the father Dr B agreed that as he had not seen the children for almost 12 months it would be reasonable to expect that they had progressed in a developmental sense since he had seen them. Dr B again emphasised the conflictual nature of the parents’ relationship and their inability to have improved this in the last 12 months and gave numerous examples from the evidence which, in the court’s opinion, unequivocally supports his opinion.
The court accepts Dr B’s evidence almost without reservation. The major caveat here is that Dr B may not have been conscious of what is clearly a theme of the father’s case at the hearing, and that is that the mother has either consciously or unconsciously, passively or actively, failed to support the children’s relationship with the father.
That concern, which as it turns out is in fact established by the evidence, was not a concern in Dr B’s mind. This is a consideration that the court will need to carefully recognise in the formulation of orders that are in the best interests of these children. Another caveat is that the court considers Dr B’s recommendation of on-going mediation to be quite impractical on the facts of this case.
Meaningful relationship
The children enjoy meaningful relationships with both parents and the court is satisfied that this will be sustained on either proposal advanced by the parents, though to different degrees. Both parents seem to recognise, in their own way, the importance of the children having a meaningful relationship with each other. For all practical purposes, this consideration is not determinative in this case.
Protecting the children from harm
The only harm that these children are exposed to does not fall within the statutory definition of abuse, neglect or family violence. The harm they are exposed to is nonetheless both potent and insidious. The harm in question is exposure to the parent’s conflict, a conflict which manifested itself almost until the last words were spoken on their behalf, in this case. Dr B has warned the parents about the potential impact on the children of their inability to constructively manage their conflict. The court has warned the parents in similar terms. All the court can do is to formulate orders which minimise the opportunities for parental conflict, but experience indicates that this is a Sisyphean task.
Dr B recommends that the parents undertake further education about the potential impact on the children of conflict and this is an order the court will make as it is undoubtedly in the best interests of these children.
The children’s views
To the extent that either parent has suggested that the children have expressed a view which is supportive of their proposal, either expressly or implicitly, I place no weight on it. The family report prepared by Dr B makes it possible for the court to conclude that the children desire a relationship with both parents. The only other relevant view, the importance of which cannot be understated, was poignantly expressed by X and is reported at paragraph 49 of Dr B’s report:
Given three wishes, X reported that he would wish for his parents to –
· ‘stop separating’,
· ‘both of them to stop fighting’ and
· ‘for my Dad to let Mum get on the (omitted) again’.
Clearly, X is aware of his parents continued conflict.
X, who is only eight years old, demonstrates remarkable insight. When he said to Dr B, and therefore to his parents “stop separating” one can imagine that perhaps in his young mind he may have noticed the difference between his parents and the parents of other children, and concluded in a child-like way that whereas other parents, indeed probably most parents, have dealt with the separation process, for some reason his parents continue to struggle with it. One wonders whether X’s admonition to his parents to “stop separating” was an admonition to them to “move on”. X’s powerful and equally poignant desire for his parents to “get on the (omitted) again” may, perhaps, be interpreted as a yearning in his young mind for his parents to manage the reality of his father’s (omitted) schedule after separation in the same way as they managed it before separation. Children sometimes say the most profound things, and demonstrate remarkable insights, when given the opportunity to express their views. The tragedy in this case is that X expressed his views a year ago, and both his parents have not heard.
Nature of Relationships
All of the evidence before the Court indicates that the children have a good relationship with both parents, and indeed the extended family. Clearly, the nature of the relationships as between the children and parents is different, no doubt reflective of the much greater time that the mother has been able to spend with them, and the challenges presented by the father’s work. At paragraph 70 of his report, Dr B recommended that the father participate in a program to assist him with his emotional attunement to the children’s needs. The Court will make this order but observes that it might have been better for the children if the father had voluntarily taken on board and implemented this proposal before the hearing. As will be seen, however, the father does not enjoy an exclusive franchise on lack of insight.
Willingness and ability to facilitate and encourage a close and continuing relationship
It is a major platform of the father’s case that the mother has, whether advertently or inadvertently, and whether directly or indirectly failed to encourage the children’s relationship with him not just in terms of specific acts and omissions prior to the hearing, but through her very conduct of the litigation. As it turns out, and based on the evidence discussed below, the Court accepts the father’s contention in this regard.
The father’s first concern arises out of the proposals that the mother advances to the Court, after due consideration, and with access to highly skilled and experienced legal advice, about orders that are in the best interests of the children. The first manifestation of this was when the Mother sought leave to amend her application to seek sole parental responsibility without prior notice to the father, totally inconsistent with every stated position that she had adopted on this issue since the litigation had commenced, and in circumstances where the Court observed that there was no evidence whatsoever that would justify the rebuttal or negation of the statutory presumption.
The second manifestation of this is reflected in the mother’s constantly changing position about the orders that she sought. In her further amended application filed 22 July 2011, her proposal was that the father spend time with the children each week from Saturday at 9 am until Sunday at 11 am. The mother must be deemed to have an intimate working knowledge of the father’s (omitted) roster, which she acknowledged in cross-examination, though not in so many words. Based on the father’s roster (which was in evidence), and looking at a fairly typical month, on the mother’s proposal at that time the father would enjoy time with the children twice a month on a good month, once a month on a not so good month, and never every few months.
Based on the minute of order that the mother sought as tendered by her counsel at the commencement of her case, provided the father lived within 25 kilometres of the school attended by the children during school term, he would have the children for one night during week 1 between Tuesday after school to Thursday morning, and for two nights in week 2 between Saturday, 9 am to Monday, 9 am. In theory, this provided the Father with six nights in every four-week period, though it ignored the reality, a fact well known to the mother, that the Father lived beyond 25 kilometres of the school attended by the children.
Moreover, and again as the Mother well knew due to her familiarity with the father’s roster, he had no way of controlling whether he would be available on the nights stipulated by the Mother. Thus, for example, having regard to the Father’s roster, on the mother’s proposal at this point in the proceedings there would be some months when the father would have only three nights to spend time with the children.
When invited to reconsider her proposal during the course of cross-examination, through her counsel she submitted an amended minute of order. This moderated the requirement for the father to live 25 kilometres of the school by stipulating that this would only arise after he ceased to live with his parents. It also increased the range of days in week 2 when the father could enjoy two nights with the children by commencing it from after school on Friday instead of Saturday. Of course, the proposal failed to address the fundamental problem with the mother’s proposal that had been identified and clearly put to her in cross-examination, ie, that her proposal paid no regard to the reality of the father’s roster.
The final version of the mother’s proposal was articulated at 11.55 am on 31 October, the second day of hearing, in a document that became known informally as “version 3”. This is the version of orders that has been set out at paragraph 9 of these reasons. It is an attempt to confront the reality of the father’s roster whilst at the same time seeking to ensure that the father did not have weekends more than twice during a four-week roster period. Counsel for the father made closing submissions to the effect that the practical effect of even the most recent iteration of the mother’s proposal was, in fact, to reduce the time the children are spending with their father, compared to the interim order made on 11 August 2011. All that can be said in this regard is that the submission is at least partially accurate in that it all depends on the father’s roster. Thus, in some months it could, in fact, be true that the father would spend less time with his children as compared to the current order.
The other common feature of each of the mother’s proposals is that in terms of additional time, which might of course be necessitated by the irregularity of the father’s roster, in the event that the parents could not agree, she was empowered to make a nomination of dates. This, of course, is the reverse dynamic to the interim orders made by the Court on 11 August 2011.
Does the above lend support to the father’s contention that it manifests a lack of willingness on the mother’s part to facilitate and encourage a close and continuing relationship between the children and himself? Regrettably, it does. This family lived under the Father’s (omitted) roster for all of the children’s lives, and for the entire marriage. The Court finds the mother was intimately aware of how the roster operated. The mother contends that each of her proposals was motivated by the dual desire to facilitate the children’s relationship with the father but also to provide stability and predictability for them. What is abundantly clear from all the evidence is that the mother’s desire for stability and predictability was valued by her far more than the children’s relationship with their father.
It was indeed difficult to understand the mother’s intransigence about accommodating the father’s roster in all the proposals that she advanced to the Court except for version 3, which one suspects was the product of her counsel’s intervention more than the mother’s own creativity and sensitivity to the issue. It is hard to know what to make of this. Is it a case that the mother had simply not thought her proposals through? That is unlikely given that she is an intelligent, articulate woman. She had access to excellent representation. Regrettably, the most likely reality is that the mother’s proposals to the Court were consistent with an unwillingness to support the children’s relationship with their father through spending time with him, or a willingness to do so only on terms that she closely controlled.
However, the evidence goes further. In the course of this litigation, the mother has been trenchantly critical of the father with barely a whisper of praise, but pages and pages of criticism in her affidavit. One can only assume that this was a conscious strategy adopted by her, possibly with the benefit of advice. Thus, for example, paragraph 103 of the mother’s affidavit sworn 23 October 2012 appears under the heading “Mr Hamblyn's conduct” and commences:
Mr Hamblyn has continued to be hostile and aggressive to me. It is very difficult for us to co-parent. By way of example: …
At paragraph 103(c), the mother deposes:
In September 2011, X and I were having a conversation about his (omitted) lessons. X said to me: “You know Dada always forgets. He won’t bring my uniform.”
In the context in which this evidence appears, the inescapable conclusion is that the mother was referring to this incident as a criticism of the father and as an example of the difficulty in co-parenting. The problem for the mother is that in cross-examination she acknowledged that the father’s actions were probably a mistake and that in fact she told X something to the effect that the father had “maybe forgotten” to bring his uniform. That she said this to X is neither referred to in her affidavit, nor in the diary which supposedly assisted her recollection of this event for the purposes of preparing her affidavit. In these circumstances it is indeed difficult to understand why this event was portrayed as critical of the father, and as an example of hostility, aggression or poor co-parenting.
Another example is at sub-paragraph (m) of paragraph 103 where the mother deposes to X saying to her:
A mystery person broke into our house. I wish he would take his mask off and I finally see who it is.
She deposes to X having trouble sleeping for several months after this discussion. In cross-examination she initially denied that X’s comment had anything to do with the father, notwithstanding the obvious context of paragraph 103. She then agreed that she was suggesting that the father was the “mystery person” but then also admitted that X did not say that. When asked whether she sought to reassure X that the father was not the mystery person she said she did – even though the reassurance is not deposed to. She was then cross-examined about whether she in fact put the idea in X’s mind that the father was the “mystery person”. Her denials of this were unconvincing as, indeed, was most of her evidence on this issue. The court is left with the impression that the mother’s motivation for including this material was simply to portray the father in a bad way, even though the circumstances do not permit this. Again questions are raised in the court’s mind about the mother’s commitment to the children’s relationship with their father.
There are other examples from the mother’s evidence and cross-examination that similarly raise issues about her commitment, as well as reflect poorly on her attitudes about parenting. There was her cross-examination about paragraphs 101-103 of the father’s affidavit where he asserts he tried to accommodate a change in the mother’s circumstances but which she resolutely refused. In cross-examination her explanation revealed a preoccupation with her own interests over that of the children. The cross-examination about the correspondence being the annexure “N” to the father’s affidavit again reflects very poorly on her. What she was asserting was plainly illogical and lacked any child focus.
The final example I will draw from the evidence is paragraph 78 of the mother’s evidence where she is critical of the father for not assisting X with his assignments and homework. There can be no doubt that the mother was attempting to blame the father exclusively for the problems she deposed to, despite her tepid denial. She eventually conceded that in fact X was in her care for three times as much as in his father’s care and that ultimately they were both responsible for the issue. Notwithstanding this admission, her affidavit was accusatory, inflammatory and in any event nowhere acknowledges her own culpability.
It is not necessary to refer to each and every example in the evidence where a reasonable inference may be drawn and is in fact drawn, that the facts asserted by the mother in criticism of the father in fact only demonstrate her own poor attitude and lack of commitment to furthering the children’s relationship with their father.
This is a finding and consideration that Dr B was not sufficiently aware of in the formulation of this recommendations.
Likely effect of change on the children
Change will be a reality in the lives of X and Y for many years to come. They will go through developmental changes. The physical and emotional circumstances of their parents will change and this will necessarily effect them. It will be almost impossible, on the facts of this case, to craft a parenting plan that does not provide for quite constant change in their routines insofar as this involves their time with the father, given the harsh realities of his (omitted) roster. Another reality is that they have lived and grown with many of these changes all of their lives to date. Section 60CC(3)(d) focuses on likely effect of change in terms of relationships and separation in each case having regard to the competing proposals.
The father’s proposal presents the prospect for the most change in the lives of the children as they would be spending more time with him, and away from their mother. This is a concern for the mother, particularly as regards Y who is currently only 4 years old. Dr B was clearly alive to this issue of change for the boys and the potential impact on their relationships. He seemed, quite correctly the court believes, to link the issue of the parental conflict to the boys’ capacity to cope with change, suggesting that the former was an obstacle or inhibition to the latter, through these were not the words he used. Whilst on the one hand Dr B felt quite strongly that equal shared care, or nearly equal shared care, was contra-indicated because of the parental conflict, he nonetheless believed that at age 4 Y could cope with 3 day blocks away from his mother in school holidays, 4 days at age 5, and 5 days at age 6. Indeed he expressly acknowledged the supportive context of an older sibling who might help sustain for Y longer absences from his mother.
The father’s proposal amounts to 3 days and 3 nights weekly, as well as half the school holidays. Dealing with the school holidays first, the father’s proposal is problematic and presents too much change for the children, especially for Y. A much more nuanced approach is called for. Dealing with school term time, based on Dr B’s evidence both boys could sustain the proposal from a developmental perspective, but the issue remains, as indicated by Dr B, whether it is in their best interests having regard to the parental conflict.
Practical difficulty and expense
Elements of practical difficulty permeate this case but cannot be allowed to get in the way of the boys’ relationship with their father. The father’s (omitted) roster is an organisational challenge that this family dealt with satisfactorily before separation, but then struggled with after separation. Whilst the mother would like to prioritise predictability and certainty of routine for the boys, thus enhancing their stability, this court questions whether her desire masks a deeper discontent with the circumstances of the end of the marriage, a prioritisation of her own needs rather than the children’s, and a willingness to do and say things that have the effect of not facilitating the boys’ relationship with their father. Any issues of practical difficulty and expense are therefore manageable.
Parental capacity
Both parents have deficits that are referred to in these reasons, most of which derive from their intense negative feelings towards each other, and acrimony. None of these deficits fall into the category of a lack of capacity to provide for the children. Indeed the evidence suggests both parents operate very effectively in their individual capacity as parents to the children. Dysfunction only arises when there is need to communicate or cooperate.
Parental attitudes
In these reasons so far I have been quite critical of the mother, particularly her poor attitude about encouraging the children’s relationship with the father, and also because I felt she prioritised her needs above the children’s needs. She showed little insight about these issues, even when confronted about them in cross-examination. She was clearly out of touch as regards the difficulties created by the parents’ mutual inability to communicate and often naively expressed the view that they could reach agreement when there was no history of doing so. Moreover her proposal involves her assigning dates for the father to spend time with the children, but implicit in this is an acceptance by the court that she would be benevolent, generous, flexible and child-focussed. Regrettably the evidence before the court does not lead to such an acceptance.
That is not to say, however, that the father does not have his own attitudinal issues. He was at times an active participant in the conflict. He was an equal partner to the communication problems existing between them. There were many examples in the evidence where he could have acted more sensitively towards the mother, and with greater insight into how the children might be affected. And yet the most significant difference between the parents is that in cross-examination the father demonstrated a flexibility and insight that was quite absent from the mother’s evidence. He conceded that his proposal for nearly equal time was problematic in view of Dr B’s evidence. He conceded that he could have done things differently in the past. When confronted with examples of poor co-parenting on his part he was open and accepting eg. once saying that this was “a large error on my part”. He appropriately moderated the orders he was seeking eg. by not pressing for an order excluding the maternal grandmother from attending change-over, by agreeing that short holiday periods would have to be divided into smaller block periods and by accepting that his own availability to care for the children was a relevant consideration in school holiday arrangements. There was a reasonableness about the father’s evidence, and clear examples of insight and emerging insight, that was not apparent in the mother’s evidence. His only agenda seemed to be to spend as much time with the children as his (omitted) roster allowed, with some regard to their developmental needs, whereas the mother’s agenda was by no means so clear. At the end of the day the evidence leads the court to conclude that the father can be trusted more than the mother to make the more child-focussed decision. This is a particularly important issue in a case where the father’s roster necessitates that one parent be able to nominate dates. The unreasonableness and arbitrary exercise of this privilege can be moderated by orders that aim to equitably distribute opportunities for the children to spend weekends with their parents. The court acknowledges that this is one aim of the mother’s orders but, for the reasons articulated, the mother cannot be trusted with the power to nominate dates.
Family violence
To the extent that the parental conflict spilled over into family violence it was of low potency, there was no pattern to it, and the evidence suggests both parents were actively participants in it. Neither parent sought to make this an issue in this case – quite properly so.
Avoiding further proceedings
One would have thought that the extraordinary cost of these proceedings ($200,000+) to the parties, and a relatively modest asset pool, might mitigate against the risk of future proceedings. Nonetheless these parents have a propensity for conflict which makes future proceedings a possibility. There is the risk of an appeal against the orders the court proposes to make, a risk which is difficult to manage other than by assiduously applying the law to the facts of this case and exercising discretion in a reasonable child-focussed way within those parameters. If the court makes orders as proposed by the mother there is a high risk of further litigation including contravention applications, variation applications etc. For the reasons previously articulated, the mother cannot be trusted to exercise the discretion she arrogates to herself in order 4.1.3 of her consolidated minute. This is quite apart from the fundamental unworkability of the mother’s proposal having regard to the realities of the father’s roster. As for the father’s proposal, there are still risks of further litigation, but these are assessed as not as great.
Parental responsibility
There is no evidence before the court to rebut or negate the statutory presumption of equal shared parental responsibility. The mother’s last minute attempt to seek leave to amend her long-standing application so that she could seek sole parental responsibility was another example of lack of child focus and insight. The mere fact that there is high conflict and poor communication does not mean that it is not in the best interests of the children for parental responsibility to be shared. In any event, and for reasons articulated above, the court does not trust the mother to exercise sole parental responsibility in a child-focussed manner.
Equal time
The court is required to consider whether equal time is in the children’s best interests and is reasonably practicable. The court is satisfied that the father’s proposal is very close to equal time. Having regard to all of the evidence in this case the court finds that equal time is neither in the children’s best interests, nor is it reasonably practicable. Dr B expressed concerns about equal time. Even the father conceded the difficulty in this regard. The court finds that equal time is not reasonably practicable because:
a)The parents do not have the capacity now, and are not likely to develop in the future, the capacity to implement such an arrangement: s.65DAA(5)(b);
b)The parents do not have the capacity now, and are not likely to develop in the future, the capacity to communicate with each other and resolve difficulties that might arise in implementing equal time: s.65DAA(5)(c);
c)The father’s (omitted) roster would mean that the children would not know from month to month which days of the week they would be with their father, and this would have an adverse impact on them: s.65DAA(5)(d).
Substantial and significant time
The court is required to consider substantial and significant time. From a definitional perspective the current interim orders, the mother’s proposal, and even the father’s proposal probably meet this requirement, subject to the vagaries of the father’s roster. It must be recognised that the differences between equal time and substantial and significant time is often only a matter of hours or a night or two each week and thus the reasons for rejecting equal time might equally apply to substantial and significant time. At one level that is true, but reduced time generally means reduced risk for the children to suffer adverse impacts from parental conflict, and poor communication, and makes for more manageable and sustainable opportunities for relationship development. Thus the court finds that substantial and significant time is both in the children’s best interests and is reasonably practicable. The precise formulation of the order is a matter to be discerned below.
Formulation of orders
A number of specific findings can be made about some of the contentious but perhaps less important orders sought by each parent, before considering the more significant issues.
In relation to the father’s roster the mother seeks an order in terms of order 2 of her consolidated minute whereas the father’s proposed order in this regard is order 2(b) in his Further Amended Response. That something as simple as this should cause conflict in this case is as disappointing as it is unsurprising. The court prefers the mother’s formulation as it is more prescriptive and thus, hopefully, less susceptible to problems. The mother also seeks order 3 in relation to the father giving notice of leave he takes. This is neither unreasonable nor onerous on the father as it does not appear to the court that he has much flexibility in his roster.
The mother prefaces her proposals for contact on the basis that the father lives within 25 kilometres of the children’s school. He does not do so at the moment. Her intent is to minimise unnecessary travel for the children. The court is confident the father is aware of this issue and indeed gave evidence that he would not live far from the children. There is no need for such a requirement.
The mother proposes at order 4.13 that (subject to the specifics at 4.1 and 4.2) contact with the father be as agreed and failing agreement as nominated by her. By contrast the father proposes at order 2(c) that he elect dates. For reasons previously articulated the father will have the election in this regard.
In relation to school holidays the mother proposes at order 4.3 that for all mid-year school holidays it be 3 nights each week in 2012, 2013 and 2014 but that in the latter year there also be a period of up to one week coinciding with the father’s annual leave. From 2015 she proposes it simply be half of each school holiday period mid-year. For the summer holidays she proposes 1 week from 2013 (order 4.4). The father’s proposal is at order 1(b) and is for half of all school holidays “if the father is granted leave”. A number of issues arise.
The father proposes, the mother desires, and the court accepts that school holiday contact must coincide with the father’s leave. It is, regrettably, necessary to spell out what this means in this case. The definition adopted by the father in his evidence was that he was on leave “when he was not (omitted)”. Given the nature of his (omitted) roster the court can understand why he has adopted such a pragmatic definition. It is appropriate on the facts of this case. During school holiday periods, therefore, he is on leave either when his roster indicates that he is not (omitted) and therefore able to care for the children for all or part of the times prescribed by these orders. Moreover the intent of the orders the court will make is that the mere fact that the father may not be available to personally collect the children at the commencement of his time, because his roster overlaps his contact by up to six hours, does not mean he is not available to spend time with the children. There is nothing about the grandparents on either side that disentitles them from assisting in the care of the children for relatively short periods of time. The evidence suggests this is already happening in the mother’s household especially when she is at work.
In evidence the father conceded that, at least in the near future, the children’s time with him should be in blocks rather than, for example, half of the summer holidays. The mother concedes (through the orders that she seeks) that from the 2013 summer holidays the children can be away from her for a one week block. By December 2013 Y will be 5 years old. The court accepts, therefore, that she is confident that Y can cope with a one week absence from her by age 5. This is actually less conservative than the view adopted by Dr B, though he did accept that the sibling relationship probably strengthened Y’s resilience in terms of time away from his mother.
Having regard to all of these matters, and provided the father is on leave (as defined above) during the relevant holiday periods, the court is satisfied that it is in the best interests of the children for them to spend time with their father during school holidays as follows:
a)For the forthcoming 2012-2013 summer holidays for up to 3 periods of 5 consecutive nights and days, or for as many nights and days within each block as may be available to the father having regard to his leave and roster; and
b)For the mid-year school holidays in 2013 for one period of up to 6 consecutive nights and days, or for as many nights and days within each block as may be available to the father having regard to his leave and roster; and
c)For the 2013-2014 and 2014-2015 summer holidays for up to 3 periods of 7 consecutive nights and days, or for as many nights and days within each block as may be available to the father having regard to his leave and roster; and
d)For all mid-year school holidays from 2014, for half the said school holidays, subject to the father’s leave and roster;
e)From the 2015-2016 summer holidays, for half the school holidays, subject to the father’s leave and roster.
The court records that it did consider, but declined, to make separate orders for X and Y to reflect their different developmental stages, favouring the benefits to both of spending time with their father together.
In relation to special occasions the mother proposes orders 5 and 6 and the father makes no separate proposal. The court will make orders broadly in terms of the mother’s proposal whilst clarifying that the father must not be (omitted) on the designated occasions.
The mother seeks in order 7 that the paternal grandmother be excluded from attendance at change-overs. The father does not press for his order 4 that the maternal grandparents not be present at change-overs. The court declines to make the order proposed by the mother. Based on all the evidence, and the findings made about the mother, there is no ground for the exclusion and in any event the children have a good relationship with both grandparents. The mother will just have to cope with any personal feelings she may have about the paternal grandmother, and ensure those feelings are not manifested in any way before the children. The court reaches the same conclusion as regards the restriction sought by the mother in order 8.
Orders 9 and 10 of the mother’s consolidated order, and order 7 of the father’s, deals with travel with the children. There is no basis for the mother’s orders having regard to the orders made for the children to spend time with the father. The fact is that the father is (omitted) and his children will probably enjoy opportunities to travel both within and outside of Australia that will be the envy of many of the children’s friends. To stipulate that the children must be on confirmed seating implies that the father, as (omitted), would be careless about the safety and comfort of his own children. There is no such evidence before the court. However the mother’s proposed order 12, dealing with retention of the passports, is not necessarily inconsistent with the father’s order 7, and the court will thus make order 12 of the mother’s and order 7 of the father’s orders.
Order 3 proposed by the father contemplates an equal time parenting arrangement should he change his employment or no longer works according to a roster. For the time being equal time is not appropriate. Should the father’s circumstances change the best parenting order for the children will be considered afresh at that time.
Order 8 proposed by the father is an unnecessary embellishment of the statutory order for equal shared parental responsibility and the court thus declines to make it in those terms. An order for equal shared parental responsibility will be made.
Order 10 is inappropriate and impracticable on the facts of this case. Such an order could only be implemented for parents who can communicate with each other and have some trust for each other.
The most contentious issue is the father’s mid-term time with the children. The focus here is on time. The mother’s proposal is, ideally, “at least” 2 weekends each month, and 2 other mid-week overnights each month. If, however, the father can’t have “more than” 2 weekends each month, then it would be weekly periods consisting of 3 consecutive days including 2 nights. The father’s proposal is for 3 consecutive nights/4 consecutive days weekly. The Family Report recommends 2 days/1 night weekly. The Report also recommends that where possible changeovers be effected at school/pre-school, presumably to reduce opportunities for parental conflict. The current interim order provides for 3 consecutive days/2nights weekly.
For reasons previously alluded to, I do not accept that the father’s proposal is in the best interests of the children. It is not developmentally sensitive to Y’s needs. It is not reasonably practicable due to the parents’ inability to communicate, and inability to implement what is in reality nearly equal time. Dr B was clearly concerned about such a proposal.
Dr B’s proposal in the Family Report does not, in my opinion, consider the concerns that I have about the mother’s willingness and capacity to encourage the children’s relationship with their father. To the extent that the mother’s proposal suggests blocks of mid-term time consisting of 3 days/2 nights, on the facts of this case, that will be the template that has the best chance of working for these children. It is as reasonably practicable as it can foreseeably be on the facts of this case. It is substantial and significant time, or as much as it can be in a case where the father’s roster will determine how, exactly, the order is implemented.
The orders that the court makes attempts to deal equitably with weekend and mid-week time. The orders also implement the recommendations as made by Dr B for the parents to attend courses to assist them with parenting.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 11 December 2012
SCHEDULE A
The Father’s Proposed Parenting Orders
The children namely X born (omitted) 2003 and Y born (omitted) 2008 ("the children") live with the respondent father during the following periods:
(a)For 3 consecutive nights every week commencing from 9am or start of school or preschool on the first day and ending at 9am or start of school or preschool on the fourth day on dates elected by the father on a 4-weekly basis;
(b)One half of all school holiday periods as published by the NSW Department of Education & Communities if the father is granted leave by his employer and on such dates as elected by him;
(c) Other periods as agreed between the parties.
For the purposes of Order 1 above:
(a)Changeovers shall occur at school or preschool attended by the children during school terms; and during school holidays the respondent father shall collect the children at the commencement of his time with them and the applicant mother shall collect the children at the conclusion of their time with the father.
(b)The respondent father shall provide to the applicant mother a copy of his work roster on a 4-weekly basis or as issued by his employer;
(c)The respondent father shall provide to the applicant mother written notice of the dates elected by him.
In the event that the respondent father changes employment in the future and/or no longer works according to a roster, then Orders 1 and 2 are to be varied such that the children shall live with the parties on an equal time basis as follows:
(a)Every alternate week with the father subject to changeovers occurring on Mondays at the school or preschool attended by each of the children;
(b)One half of all school holiday periods as published by the NSW Department of Education & Communities being the first half in odd-numbered years with the father and the second half in even-numbered years with the father;
(c) Further periods with the father as agreed between the parties; and
(d) Otherwise the children are to live with the mother during all other times.
The applicant mother shall do all acts and things necessary to ensure that neither of her parents is present within sight or hearing of the respondent father during changeovers subject to Order 2 above.
The parties shall do all acts and things including signing such documents as may be necessary to enrol the child Y born (omitted) 2008 to attend preschool at (omitted) for 4 days a week in 2013 and to attend Year 1 at (omitted) Primary School in 2014.
Each of the parties must forthwith provide to the other party any original document or record relating to the children including the children's medical records and passports subject to the following Order 7 provided that such document or record is to be returned to the originating party within 14 days thereafter or as soon as practicable.
Each of the parties are permitted to travel with the children either interstate or overseas subject to the following provisions:
(a)Advance 28 days' written notice must be provided to the other party of any plans for travel;
(b)Copy of travel itinerary and if available copy of flight tickets for the children must be provided to the other party in advance at least 28 days prior to such travel;
(c)Full particulars of addresses and contact telephone numbers for the children at the destinations must be also provided to the other party in writing at least 28 days prior to such travel; and
(d)Upon receipt of the above information, the party with possession of the children's passports must forthwith provide the passports to the travelling party or both parties are to do all acts and things necessary to apply for or renew passports for the children and the travelling party is to return the children's passports as soon as practicable after return from such travel.
THE COURT NOTES that in the event either party does not give his or her consent to any travel proposed by the other party then that party is at liberty to make an application to a Court to seek an order restraining the other party from travelling with the children.
The parties have shared equal parental responsibility for the children and each of the parties must consult the other parent before making decisions in relation to the long term care, welfare and development of the children such as enrolling either of the children into a school and making appointments with medical practitioners or health professionals and the parties shall endeavour to make such decisions jointly after discussion and consent from each of the parties.
Each of the parties has responsibility for making the day to day decisions for the children during periods when they are living with him or her such as food, clothing and arranging for babysitting.
10. In the event that either party is unable to care for the children for any period longer than 5 hours whilst the children are in his or her care, then that party shall notify the other party and provide the opportunity for the other party to care for the children during such periods.
SCHEDULE B
The Mother’s Proposed Parenting Orders
The Mother shall have sole parental responsibility for the children.
The Father shall provide the Mother with an unedited copy of his roster and any changes to his roster within 24 hours of receiving the roster and within 10 hours of receipt of any changes to the roster.
For the purpose of these Orders the Father shall provide to the Mother 14 days’ notice of any leave granted to him and/or to be taken by him from his employment.
The children shall live with the Mother and spend time with the Father when he is present in Sydney as follows:
4.1That upon the Father ceasing to live with the Paternal Grandparents and provided that the Father lives within a 25km radius of the school attended by the children, the Father shall spend time with the children as follows:
4.1.1In the event that the Father’s 4-weekly work roster permits the Father to spend at least 2 weekend periods with the children:
4.1.1.1from the conclusion of school Friday, or 3pm in the event of a non-school day to the commencement of school Monday, or 9am on a non-school day on not more than 2 weekends during the roster period; and
4.1.1.2from the conclusion of school to the commencement of school the following day on 2 occasions during the weeks the Father is not spending weekend time with the children.
4.1.2In the event that the Father’s 4-weekly work roster does not permit the Father to spend more than 2 weekends period with the children:
4.1.2.1for 3 consecutive days in every week from the conclusion of school on the first day to the commencement of school on the last day and in the event of a non-school day at 3pm.
4.1.3That the dates the Father is to spend with the children pursuant to the above Orders shall be as agreed between the parties and failing agreement as nominated by the Mother.
4.1.4For the purposes of Order 4.1.2.1 above, the Father shall cause Y to be delivered to the school attended by X for collection at the conclusion of his period of time.
4.2For the purpose of Order 4.1 the Father:
4.2.1shall collect the children from school on a weekday and deliver the children to school on a weekday or the Mother's parents at 9:00 am if the children are not at school; and
4.2.2shall collect the children from the Mother on a weekend day (Saturday or Sunday) no earlier than 9.00 am and deliver the children to school or the Mother's parents at 9:00 am if they are not at school.
4.3During all school holiday periods other than the Summer School holidays and on the proviso the Father is not working as follows:
4.3.1In 2012 for 3 nights each week,;
4.3.2In 2013 for 3 nights each week.
4.3.3In 2014 for 3 nights each week and in addition to any period of time the Father shall spend with the children during the school holidays, during any one period of annual leave taken by the Father for one week.
4.3.4In 2015 and each year thereafter for half of each holiday period and in the event the parties cannot agree for the second half of each holiday period.
4.4In each Summer School period commencing in 2013 for 1 week as agreed by the parties.
4.5For the purpose of Orders 4.3 and 4.4 the Father shall collect the children from the Mother and the Mother shall collect the children from the Father.
The children shall spend time with the Father on special occasions if he is present in Sydney as follows:
5.1on Christmas Day, from 11.00 am until 5.00 pm and on the basis the children shall spend from 9 am Christmas Eve to 11 am Christmas Day with the Mother.
5.2from 10 am to 5.00 pm on the Father's birthday;
5.3from 10 am to 5.00 pm on Father's Day;
5.4if the children's birthday falls on a week day and the children are otherwise spending time with the Mother on that day, from 3.00 pm until 5.00 pm; and
5.5if the children's birthday falls on a weekend and the children are otherwise spending time with the Mother, from 9 am to 1:00 pm, and
the Father shall collect and deliver the children to the Mother.
The children shall spend time with the Mother on special occasions as follows:
6.1from 10.00 am on until 5.00 pm on the Mother's birthday;
6.2from 10.00 am on until 5.00 pm on Mother's Day;
6.3if the children's birthday falls on a week day and the children are otherwise spending time with the Father on that day, from 3.00 pm until 5.00 pm; and
6.4if the children's birthday falls on a weekend and the children are otherwise spending time with the Father from 9.00 noon until 1.00 pm, and
the Mother shall collect and deliver the children to the Father.
The Father shall do all acts and things necessary to ensure that the Father’s mother is not present within sight or hearing of the Mother during changeovers for the purpose of these Orders.
The Father shall do all acts and things necessary to ensure that the Father’s parents do not transport the children in a motor vehicle driven by them.
The Father shall be restrained from:
9.1taking the children Interstate until Y is 6 years of age and such travel must be on confirmed seating and the Father and the children shall sit together;
9.2taking the children overseas unless the travel is agreed by the parties in writing, on confirmed seating and the Father and the children are sitting together.
The Father shall provide to the Mother14 days' notice of interstate travel and 28 days' notice of overseas travel is given and a copy of the flight and accommodation booking is provided to the Mother.
Each party shall:
11.1notify the other party as soon as possible and in any event within 1 hour of any serious injury or illness suffered by the children whilst in the care of that party;
11.2notify the other party not less than 7 days before changing that party's address of such change;
11.3notify the other party within 24 hours of changing that party's telephone number of such change;
11.4notify the other party and keep the other party notified of a telephone number where the children may be contacted in the event of an emergency;
11.5notify the other party of the name, address and telephone number of the children's treating doctor and authorise that doctor in writing to release to the other party particulars of the children's health or treatment at any time requested by other party;
11.6within 7 days of the date of the making of these Orders supply to the other party an authority to the school attended by the children authorising the other party to obtain from the school particulars of the children's welfare and progress at the school, details of upcoming functions or activities and any other information disseminated by the school to parents of children attending the school;
11.7be responsible for ensuring the children attend all school activities that arise on a day to day basis when they are in their care;
11.8provide to the other party a telephone number and address of the place(s) where the children will be staying with that party during holiday periods;
11.9ensure the children maintain regular communication with the children's paternal and maternal grandparents;
11.10ensure that the children do not watch, play or interact with games that are not recommended for their age group; and
11.11be at liberty to call the other parent when the children are in the other parent's care between 5:00pm and 5:30 pm each evening;
The Mother shall retain the children's passports.
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