Fergus and Fergus - [2007] FMCAfam 794

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FERGUS & FERGUS

[2007] FMCAfam 794

FAMILY LAW – Children – equal shared parental responsibility – equal time – children’s best interests – inability to communicate – relationships with siblings – substantial and significant time.

Family Law Act 1975, s.60CA, 60B, 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286
H and H (2003) FLC 93-168

Applicant:

MR FERGUS

Respondent:

MS FERGUS

File Number:

LNM2313 of 2004

Judgment of:

Roberts FM

Hearing dates:

4 & 5 April 2007

Date of Last Submission:

5 April 2007

Delivered at:

Devonport

Delivered on:

8 October 2007

REPRESENTATION

Counsel for the Applicant:

Mr T McGuire

Solicitors for the Applicant:

Temple-Smith Partners

Counsel for the Respondent:

Mr I Guest

Solicitors for the Respondent:

Ian Guest & Associates

ORDERS

That MR FERGUS (“the Father”) and MS FERGUS (“the Mother”) have equal shared parental responsibility for G born in 2001 and T born in 2004 (“the Children”).
That the children live with the Mother
That the children spend time with the Father as follows:
(a)during school terms as follows:
(i)each alternate weekend from after school on Friday (or after school on Thursday if the Friday is a public holiday) until the start of school on the following Tuesday with such to re-commence on the second Friday after the start of each school term; and
(ii)in each other week from after school on Friday until 7.00 p.m. on that day;
(b)during the Easter school breaks as follows:
(i)in odd numbered years from after school on the Thursday before Easter until 5.00 p.m. the following Wednesday;
(ii)in even numbered years from 5.00 p.m. on the Wednesday after Easter until the start of school at the end of the Easter school break;
(c)for the first week of the May/June school holidays from after school on the Friday that school ends until 5.00 p.m. on the Saturday eight days later;
(d)for the second week of the August/September school holidays from 5.00 p.m. on the second Saturday until the start of school on the day that school recommences;
(e)during the long summer school holidays as follows;
(i)in odd numbered years from after school at the start of the school holiday until 3.00 p.m. on Christmas Day and thereafter during that school holiday for each alternate period of seven days commencing at 5.00 p.m. on 1 January;
(ii)in even numbered years from 3.00 p.m. on Christmas Day until 5.00 p.m. on 1 January and thereafter during that school holiday for each alternate period of seven days commencing at 5.00 p.m. on 8 January;
(f)in the event that the children are spending time with the Father at the end of the long summer school holiday in accordance with paragraph (e) hereof, that period of spending time with him will end at the start of school at the beginning of Term 1 for that year;
(g)on Father’s Day from 10.00 a.m. until 5.00 p.m. if the children are not otherwise spending time with the Father;
(h)if the children are not otherwise spending time with the Father, on each of the children’s birthdays from 5.00 p.m. until 7.30 p.m. if such occurs on a weekday or from midday until 4.00 p.m. if such occurs on a weekend; and
(i)at such other times as may be agreed between the parties.
That if Mother’s Day occurs when the children are spending time with the Father in accordance with these Orders then that time with the Father shall end at 10.00 a.m. on Mother’s Day when the Father is to return the children to the Mother’s residence.
That if either of the children’s birthdays or either of their brothers’ birthdays fall on days when the children are spending time with the Father in accordance with these Orders that time with the Father shall be suspended from midday until 4.00 p.m. on any such day and the Father is to deliver the children to the Mother’s residence at midday on that day.
That for the purposes of these Orders when the Father is collecting the children at the end of a school day or returning them at the start of a school day the changeover is to occur at the school but in all other cases the Father is to collect the children from the Mother’s residence at the start of each period and return them to her residence at the end of each period.
That the Father and the Mother must each contact Relationships Australia at Launceston within fourteen days of today for the purpose of enrolling in and then completing the “Parents in Contact” program in Devonport or any similar program in Devonport considered to be suitable by the manager of Relationships Australia at Launceston.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DEVONPORT

LNM2313 of 2004

MR FERGUS

Applicant

And

MS FERGUS

Respondent

REASONS FOR JUDGMENT

The Issue

In this matter the Court must decide whether two young girls, G born in 2001 and T born in 2004, should spend equal time with their parents or whether they should spend predominantly more time with one parent than with the other.

Background

MR FERGUS (“the Father”) is aged 40 years and MS FERGUS (“the Mother”) is 29 years old.
They commenced living together in April 2001 when the Father was 33 and the Mother was 22 years old. At that time, the Mother had a son from another relationship, C, who was then aged 2 years.
G was born in 2001 and T was born in 2003. In December 2003 the parties married but they separated less than 12 months later in November 2004.
During their relationship, the Mother did not work in paid employment but was a full-time homemaker and parent. The Father had full time employment, in addition to working in an agricultural business in which he retains a majority interest.
The Mother has re-partnered. She and her new partner have a son (A) aged eighteen months.
Although the Father had commenced a new relationship a short time prior to the hearing, it was clear that that relationship had not reached a stage where it could be described as a “re-partnering”. He and the lady in question were quite sensibly allowing their relationship to develop slowly and cautiously.

Court History

The Father commenced proceedings in the Court on 22 December 2004. At that time he was seeking orders that the children live with each of their parents on a week and week about basis.
On 17 January 2005 the Mother filed a Response in which she sought orders that the children live with her and that the Father have contact with G for three days in “Week 1” and one day in “Week 2”, and with T for six hours per fortnight.
On 20 June 2005, orders were made setting the matter down for hearing in July 2005. However, for various reasons a hearing did not take place until April this year in Launceston.
On 23 February 2006 interim orders were made for the Father to have contact with the children each second weekend from 4.30 p.m. on Friday until 5.00 p.m. on Monday and each Wednesday from 4.30 p.m. until 7.00 p.m.
On 20 September 2006 further interim orders were made by consent which essentially continued the Orders of 23 February 2006 but also provided for the children to spend some additional time with the children in the September and Christmas school holidays.

Documents relied upon

At the hearing the Father relied upon his Amended Application and affidavits of himself, his father and the Mother’s father, all filed on 7 February 2007.
Although the Mother relied upon her original Response filed 17 January 2005, she set out the Orders she was seeking at trial in her affidavit filed 3 April 2007. She also relied upon her affidavits filed 17 and 19 January 2005, in addition to affidavits of her partner and a friend filed 3 April, 2007.

Legal principles to be applied

Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration[1].
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles which underlie those objects. It provides:
The objects of Part VII are to ensure that the best interests of children are met by:
·    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
·    protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·    ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·    ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·    children have the right to know and be cared for by both their parents; and
·    children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·    parents should agree about the future parenting of their children[3].
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence[4]. The court must also take into account those of the “additional considerations” that are relevant[5].
[4] Subsection 60CC(2)
[5] Subsection 60CC(3)
There has been some academic debate about the relative weight to be given to the “primary considerations” and the “additional considerations”. No doubt, that debate will continue. However, it is my view that each consideration, whether “primary” or “additional”, should be given the weight it deserves in the light of the facts of the particular case.
The court must apply a presumption that it is in the best interests of children for their parents to have “equal shared parental responsibility” unless there are reasonable grounds to believe that a parent has engaged in abuse of a child of that parent’s family or in family violence[6]. 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[7].
[6] Section 61da
[7] Subsection 61DA(4)
However, if that presumption is not applicable, it does not necessarily follow that the court will order that one parent will have sole parental responsibility. The court may make such parenting orders that it considers proper in the particular circumstances of the case.
If a parenting order is to provide that the parents are to have equal shared parental responsibility for the child, the court must:
·    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
·    consider whether the child spending equal time with each of the parents is reasonably practicable; and
·    if it is, consider making an order to provide for the child to spend equal time with each of the parents.[8]
[8] Subsection 65DAA(1)
However, if an order is to provide that the parents are to have equal shared parental responsibility but the court does not propose to order that the child is to spend equal time with each of the parents, then the court must consider whether it would be in the child’s best interests to spend “substantial and significant time” with each of the parents and whether that would be reasonably practicable.[9]
[9] See subsections 65DAA(2) and (3)
It is clear that the court must follow the legislative pathway that is now provided by the Act[10].
[10] See Goode & Goode (2006) FLC 93-286

The Father’s case

The Father wants the court to order that the children live with him and the Mother equally on a week and week about basis.
In my view, it was unfortunate that the Father chose to run what I would describe as a “negative campaign”. Indeed, I commented that his affidavit and that of his witness, the Mother’s own father, were more like affidavits to support a case for orders that the children live solely with the Father than orders for equal time. Although the Father’s counsel attempted to put a “positive spin” on his client’s case in his closing submissions, the negativity of the evidence put forward on behalf of the Father will have done very little to improve the relationship between the parents.
For example, the Father states in paragraph 4 of his affidavit that they were able to reach an agreement about how they would share time with the children during the last Christmas school holidays but that is the only paragraph that comes close to implying something positive about the Mother. It is followed over the next 13 pages by a litany of criticism of virtually every aspect of the Mother’s life. It suggests to me that the Father may not yet have come to terms with his feelings about the breakdown of their relationship.
Most of the Father’s criticisms of the Mother related either to the period when they were together or a period of approximately 12 months after their separation. Very little of his criticism related to the period of approximately 12 months prior to the hearing.
Essentially, the Father’s complaints about the Mother relate to his allegations that:
·     The Mother is immature for her age and associates with much younger people.
·     She drinks more than she should.
·     She combines alcohol with medication.
·     She exceeds prescribed dosages of medication.
·     She is not a good housekeeper.
·     She is not a good manager of money.
In fact, the Father’s criticisms of the Mother went well beyond those summarised in the paragraph above, but substantial portions of his affidavit were struck out.
In his affidavit, the Father indicated that his employers had agreed to him working flexible hours which would maintain his “quality time with the children” and also allow him to care for them when not at school. He attached copies of correspondence from him employer in support of that ascertain. The first is a letter dated 26 April 2005 which indicates that he would need to work a minimum of 48 hours over six days per fortnight with the intention that he should provide his employer “as close to full time working hours per week as is reasonably possible” given his family circumstances. The spread of those hours was to be agreed in advance and the final sentence of that letter stated:
As noted we will maintain regular contact to ensure that this revised working arrangement meets our collective needs as best it can, with the view that you return to normal working hours as soon as you are reasonably able.
The second letter from his employer stated that the commitment given in April 2005 was continued.
The Father’s evidence was that if the Court orders that the parties care for the children on a week and week about basis, he will work a full five day week during the week that the children are not with him and do his remaining day in the following week. He said that his employer would be happy for him to work between 10 a.m. and

2 p.m.
on that sixth day.
It was also the Father’s evidence that his agricultural enterprise had reached a stage that required minimum maintenance so that would not interfere to any great degree with his responsibilities as a parent.
I accept the Father’s evidence in relation to those matters and that, if I order that the children should live with each of their parents on a week and week about basis, the Father will be able to fit that in with his working hours. In any event, he would be able to utilise day carers of the assistance of his parents if any difficulty arose.
As was mentioned above, at the time of the hearing, the Father conceded that he had a girlfriend who had not been mentioned in his affidavit. However, his evidence was that he and she had not yet met the other’s children. They saw each other at times when neither of them had children in their care. (His girlfriend gave oral evidence the following day to confirm that.)
The Father conceded that he had not done any parent help at G’s school or been to any parent teacher interviews.
On those weekends that the children are with him, the Father generally takes them to see the Mother’s father.
During cross examination, the Father conceded that the Mother and C’s father now have a good relationship and are able to deal with issues regarding C quite well. In fact, he indicated that he envied that relationship.
He conceded that C got on well with G during the parties’ relationship and that T talks about A a lot.
The Father denied that there had been any domestic violence on his part towards the Mother. His affidavit somewhat unconvincingly stated that during an incident on 27 December 2004 the Mother “proceeded to hit herself twice with her right hand to the right side of her eye” and his recollection was that “she squashed her glasses against her face in doing so”. His account of that incident continues in an unconvincing manner but he says he was charged with assault. He was not convicted and from the evidence given orally, I conclude that the parties and police prosecutor were satisfied to let the matter rest on the basis that the parties had mutual restraint orders against each other.
There was a subsequent incident when the Father was remanded in custody for a period of seven days. However, that appears to be more the result of some features of the Tasmanian family violence legislation than the seriousness of the allegations against him. Again, no charges were proceeded with and it appears that both parties now accept that domestic violence is unlikely to be a factor in the future.
The Father’s witness, the Mother’s own father, was also critical of the Mother’s parenting capacity in his affidavit. His criticisms included allegations that:
·     She had left the children in parked cars for lengthy periods of time.
·     She had overused day carers and baby sitters for the children.
·     Another daughter of his (a half-sister of the Mother) had been spending nights at the Mother’s home staying in the lounge with her older boyfriend.
·     The Mother’s house was in an unhygienic state with dirty nappies and unwashed dishes.
·     That the Mother’s behaviour has been similar to that of her own mother.
It is apparent from the evidence of the Mother’s father that he still bears a grudge against the Mother’s mother and he appears to me to be visiting her perceived sins upon their daughter.
Similarly, he appears to be critical of another daughter’s mother because he believes she has allowed that daughter, as a young teenager, to stay with her boyfriend at the Mother’s home overnight.
I should say at this point that the Mother denies almost all of the damaging allegations made by her father and I generally prefer the evidence of the Mother. However, it does not surprise me that the relationship between the Mother and her father has broken down, given that he has taken sides with the Father and been particularly critical of her.
The Mother’s father refers to an incident in or about March or April 2005 when he went to the Mother’s home to visit her. He says that it was about midday and there had clearly been a party at the Mother’s home the previous evening. He says that he tried to wake the Mother but she was unconscious. He does not say that G or T were there, but he does say that C was there. He says that he now feels that he should have reported the incident to the Child Protection authorities but he did not do so. He left the Mother’s home and went to keep an appointment. He subsequently returned and was able to wake the Mother.

When he was cross-examined about that incident, he admitted that he had left the Mother’s home for approximately three hours before returning. I find that, given his occupation as a Youth Worker if he had the concerns that he claims about the Mother’s condition, it stretches credulity that he would leave her “unconscious” for a period of three hours to attend a doctor’s appointment. I therefore conclude that the Mother’s father has dramatically exaggerated that particular incident.
In my view, much of the Mother’s father’s affidavit consists of exaggeration. For example, he appears to be critical of the Mother’s parenting because T once had “cradle cap”. That is a very common dermatological condition of young babies.
It is because her father is prone to exaggeration that I generally prefer the Mother’s versions of event when their versions are in conflict.
The Father’s own father also gave evidence, both by affidavit and orally. I accept that his evidence was genuinely given, but it was not of great weight in relation to the matters that I have to decide.

The Mother’s case

The Mother’s proposal as set out in her trial affidavit can be summarised as follows:
a)That the children live with her.
b)That the children spend time with the Father as follows:
i)Each alternate weekend from the end of school on Friday until the end of school on the following Monday (extended by a day in the event of a long weekend);
ii)During the Easter school break in odd numbered years from after school on the Thursday until 5.00 p.m. on the following Wednesday;
iii)During the Easter school break in even numbered years from 5.00 p.m. on the Wednesday after Easter until the end of the Easter school break;
iv)For the first week of the May/June school holidays commencing after school on the Friday that school ends until 5.00 p.m. on the Saturday eight days later;
v)For the second week of the August/September school holidays from 5.00 p.m. on the second Saturday until the start of school;
vi)From 3.00 pm on Christmas day until 5.00 pm on Boxing Day;
vii)For seven nights commencing on 27 December and 21 January;
viii)On Father’s Day from 10.00 a.m. until 5.00 p.m. if the children are not otherwise spending time with the Father; and
ix)At such other times as may be agreed between the parties.
The Mothers proposal also included provisions for other special days such children’s birthdays and Mother’s Day.
The Mother also proposed that changeover occur at a particular milk bar in her home town. (However, none of the evidence from either party addressed that issue.)
Through her counsel, the mother agreed that the parties should have equal shared parental responsibility.
When she was cross-examined, the Mother also said that she proposed that the Father should have the children for an evening meal on the Fridays that the children would not otherwise be with him. She appeared to suggest that this was always intended by her and that it was a “misprint” that it had not been included in the written material that she relied upon. However, I gained the impression that she was “making policy on the run” when she realised that her proposal did not provide the father with that extra evening meal with the children per fortnight that he was already enjoying, albeit on Wednesdays.
Generally, the Mother was not nearly as negative about the Father as he was about her. Indeed, as long ago as 14 January 2005 she stated that she accepted that he possesses appropriate skills to care for the children.
In her earlier affidavits, particularly that filed on 17 January 2005, she countered the allegations that the Father made against her in relation to:
·     Socialising at the expense of her responsibilities for the children.
·     Her diagnosis with depression.
·     Her overuse of prescription drugs.
·     The use of day carers.
I generally accept her version of events in preference to the Father’s version.
In her trial affidavit she repeats that in approximately May 2005, in the presence of the friend who gave evidence on her behalf, G had indicated that the paternal grandmother had hurt her. She said that G had said to her friend:
Grandma hurts me. She puts a baby wipe over her finger and rubs me and her fingernail hurts me.
The Mother went on to say that her friend had asked G to show where her grandmother did it and she pointed towards her vagina. That evidence was also given by the Mother’s friend.
However, I note that this alleged incident does not appear to have been reported to, or investigated by the relevant Child Protection authorities. I therefore assume that the Mother accepts that, if such an incident occurred, it was not intended to be malicious or abusive. In my view, the reference to a “baby wipe” would appear to suggest that, if the event occurred, it was probably during a toileting exercise. Consequently, I see no reason to be concerned about it.
The main strength of the Mother’s case for resisting equal shared care is that it would result in a significant reduction in the time that G and T spend with their brothers C and A. She also expressed some concern about the Father’s ability to take enough time off work to look after the children, but I have dealt with that above.
In relation to the children’s sibling relationships, the Mother’s evidence was:
Both G and T have wonderful relationships with their older brother C and younger brother A. C being older is the typical big brother and dotes on his sisters. They seem to idolise him. Both girls also dote on A and all of them enjoy spending their time together.
She went on to say that if the Father’s proposal is accepted by the Court the effect would be that C would only spend eight days per month with his sisters. I understood that is because C also spends time in his father’s household each weekend when his father is not working. His work roster requires C’s father to work four week on and four weeks off.
Notwithstanding the Mother’s allegations of violence, it was her position as put through her counsel, that there should be equal shared parental responsibility. That position appears to be consistent with what she said in her affidavit sworn 14 January 2005:
It has always been my intention that the Applicant Father be actively involved with the care of the children and involved in important decisions regarding the children’s welfare.
The Mother’s partner is 21 years old and is employed as a plumber. He is younger than the mother, but I do not consider that to be of concern. In his closing submissions, counsel for the Father conceded that the Mother’s partner was responsible and mature in relation to some of the evidence that he gave.
I am satisfied from his evidence that he has good relationships with the children.

Equal Shared Parental Responsibility

Although the Mother sets out instances of domestic violence in her affidavit which she says occurred during or at the end of the parties’ relationship, it is very much to her credit that she instructed her counsel to seek an order for equal shared parental responsibility.
In my opinion, such an order is appropriate in this case, so section 65DAA(1) requires me to consider whether spending equal time with each of the parents would be in the best interests of the children.

Should there be equal time?

Federal Magistrate Ryan (as she then was) gave a very useful summary in H and H[11] of the factors that the court should consider in relation to equal time. Her Honour said at paragraphs 47 and 48:
[11] (2003) FLC 93-168
47. Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
· The parties' capacity to communicate on matters relevant to the child's welfare.
· The physical proximity of the two households.
· Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
· The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
· Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
· Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
· Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
· Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
· Whether or not the parties respect the other party as a parent.
· The child's wishes and the factors that influence those wishes.
· Where siblings live.
· The child's age.
48. This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s.65E nor s.68F(2). Each factor fits comfortably within s 68F(2).
The section 68F(2) that her Honour was referring to has been repealed. The matters set out in that former section 68F(2) are now incorporated, and expanded upon in section 60CC.
Of the matters listed by her Honour in H and H the dominant factor of concern in this case is the parties’ inability to communicate and I shall refer to that further below.
In order to determine whether equal time is in the best interests of the children, I must consider the matters set out in section 60CC.

Primary Considerations

The Benefit of having meaningful relationships with both parents

It is quite clear to me that both children currently are having meaningful relationships with both of their parents. The Father is seeing them on a regular basis and there is no doubt in my mind that the earlier Interim Orders have enabled him to develop meaningful relationships with both children.
As the children live primarily with their Mother, it is clear that they have meaningful relationships with her.

Protecting the children from harm from abuse neglect or family violence

I have dealt with what is the only allegation suggestive of abuse at paragraphs 62 t0 64 above. I conclude that no abuse occurred or was intended.
I have also referred to family violence above and, like the parents themselves, I am satisfied that there is minimal risk of any re-occurrence.

Relevant additional considerations

Children’s views

The children are not old enough for this to be a factor to which the Court would give any particular weight.

The Relationships of the children with the parents and other persons

I have already referred to the children’s good relationships with their parents and I do not need to say anything further.
It is clear that the children have very good relationships with their two brothers. In this regard, I accept the evidence of the Mother set out at paragraph 66 above. I am also satisfied that the children have good relationships with the Mother’s partner.
Further, I accept that the children have good relationships with their paternal grandparents.
The Father has continued the children’s relationships with the maternal grandfather, but it is clear that the relationship between the Mother and her father requires some extensive rebuilding. In my view, it is the Mother’s father who needs to make some significant moves in relation to that, and I venture to suggest that a sincere apology by him to the Mother would be a good first step. That way, he may have some chance of having relationships with her other two children as well.

The willingness and ability of the parents to facilitate and encourage the relationship with the other parent

I have no concerns about the Mother’s willingness to facilitate and encourage close and continuing relationships between the children and the Father. Indeed, her very early affidavit material indicated that willingness[12].
[12] See paragraph 68 above.
However, given the negativity in the affidavit material relied upon by the Father, I have some concerns about his willingness to promote the image of the Mother when the children are with him.

The likely effect of any change in the children’s circumstances

This consideration includes the likely effect on the children of any separation from a parent or other persons.
The Father’s proposal would result in the children spending considerably less time with their Mother, their siblings and the Mother’s partner. In my view, that would have a negative effect, particularly because the children are still quite young and they have good relationships with them all.

The parents’ capacities to provide for the children’s needs

I have no concerns about either parent’s capacity to provide for the children’s physical needs. However, given what I have said about the Father’s possible lack of willingness to promote the image of the Mother, I must have some doubts about his ability to provide for the children’s emotional needs.

The attitudes of the parents

This consideration includes not only the attitudes to the children but also to the responsibilities of parenthood as demonstrated by each parent. This is tied in with subsection (4) of section 60CC, which requires the Court to consider the extent to which each of the parents has fulfilled, or failed to fulfil, the responsibilities as a parent, and in particular the extent to which the parents have participated in making decisions about major long terms issues in relation to the children. In this regard, the Father has clearly allowed the Mother to make decisions in relation to schooling and he has not involved himself in that. However, I do not regard that as a major criticism of him because the children have been living predominately with the Mother and have spent more limited time with the Father.

The difficulties involved in sharing care equally

As I mentioned above in relation to the matters set out in H and H, there is a significant lack of communication between the parties. I fully accept the evidence of the Mother as set out in her affidavit:
One of the problems that (the Father) and I have had since our separation is that we have never been able to communicate with each other about the children, although I have tried either face to face or through a communication book and also through the people at the changeover centre. This lack of communication relates even to the smallest things such as the children taking medicine….
The lack of communication has a direct bearing upon the two questions posed by her Honour in H and H;
Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
In my view, as things currently stand, the lack of communication between the parties is such that they would not be able to address such issues on a continuing basis.

Conclusions

I have given careful consideration to this matter and I find that the main factors militating against the children spending equal time with the parents are:
a)the lack of communication between the parties; and
b)equal time would result in the children spending significantly less time with their siblings.
The lack of communication can be worked on and both parties expressed a willingness to try. However, in the case of the Father, I gained the impression that his stated willingness to communicate better with the Mother may well have been what he thought I wanted to hear rather than a statement of desire.
In my view, if the failure in communication between the parties is not the direct result of the Father’s negative attitude to the Mother, it has most certainly been exacerbated by it. However, I am hopeful that the hearing itself may have made him realise that his negativity has been a major contributing factor to the parties’ difficulties in the past.
Towards the end of his trial affidavit the Father said:
I am aware that there are community based courses that I believe that (the Mother) could benefit from as this may enable us to find a consistency between the two households. Without a Court Order I do not believe that (the Mother) will attend.
It was my impression that the Mother is probably more likely to attend such a community based course than the Father. However, I propose to order that both parties attend such a course because I believe that they will each benefit from attendance and improve their communication about the children. Those children can only benefit from that as well.
I am aware of the value of the “Parents in Contact” program conducted by Relationships Australia in Tasmania but I do not know whether that particular course is available on the North-West Coast of Tasmania. I will therefore Order that they attend that course or such other course that is considered suitable by the Manager of Relationships Australia, at Launceston because North-West Coast programs are organised from there. They will have to attend the course in Devonport..
Having said all that about the parties’ lack of communication, it is important for me to state that the question of separating the children from their brothers each second week throughout the year is of much greater concern. Their relationships are clearly very close and any significant reduction in the time that they spend together would not be in their best interests.
For these reasons, the children should continue to reside predominantly with their Mother.
During school terms the children should spend the time with the father that is now proposed by the mother, save that the weekends that they spend with him should end by him delivering them to school on Tuesday mornings (and not Monday mornings, which is really the effect of her proposal). That will give the Father a long weekend with them each fortnight and it will enable the father to get more involved in their schooling.
They should also spend approximately equal time with each parent during the Easter, May/June and August/September school holidays as proposed by the Mother.
The Mother’s proposal essentially provides that the children would only spend Christmas afternoon, Boxing Day and two other weeks during the long summer school holiday. However, I am of the view that they should spend more time with their Father than that. In this regard, the Mother clearly concedes that the Father is capable of looking after them for a week at a time during the other school holidays, so I cannot see why the parties should not have the children week and week about during those long summer school holidays as well. I will make orders that provide for that and a sharing of Christmas days on an alternate yearly basis.
Changeover should be at the school whenever the time with the Father starts or finishes at the start or finish of school. Until T is going to school, that will mean that the Mother will need to deliver her to the Father at G’s school when he is to collect them and collect T from him there when he is to return them.
When changeover cannot be at the school, I can see no reason why that should not be at the Mother’s residence. That is far more natural than at a milk bar or contact centre and both parties appear confident that there will be no further confrontations like that which occurred on 27 December 2004.
I will make Orders that provide for the matters referred to above. Those orders will provide for the children to spend substantial and significant time with the children within the meaning of that term as defined in sub-subsection 63DA(3) of the Act.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Roberts FM

Associate:

Date: