Ford and Pelly
[2010] FMCAfam 228
•27 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FORD & PELLY | [2010] FMCAfam 228 |
| FAMILY LAW – Equal shared parental responsibility – equal time or substantial and significant time – Family Report – meaningful relationship – neglect – parental responsibility – Part VII, Family Law Act 1975 – s.60CC primary and additional considerations. |
| Family Law Act 1975, ss.60CA, 60CC, 61B, 61DA, 62B, 64B, 65DA, 65DAA Federal Magistrates Court Rules 2001, r.21.15 |
| In the Marriage of Hall (1979) 29 ALR 545; (1979) 5 Fam LR 609; (1979) FLC 90-713 In the Marriage of Harris (1977) 29 FLR 285; (1977) Fam LN No 33; (1977) FLC 90-276 In the Marriage of Wood (1976) 11 ALR 657; (1976) 27 FLR 1; (1976) 2 Fam LR 11,182; (1976) FLC 90-098 Lindell & Ranteri [2010] FamCA 52 |
| Applicant: | MS FORD |
| Respondent: | MR PELLY |
| File Number: | WOC 534 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 25 August 2009 |
| Date of Last Submission: | 17 December 2009 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr Steward |
| Solicitors for the Applicant: | R & M Legal Solicitors & Attorneys |
| Counsel for the Respondent: | Mr Alexander |
| Solicitors for the Respondent: | Verekers Lawyers |
ORDERS
All previous parenting orders be discharged.
The parties, MS FORD (“the mother”) and MR PELLY (“the father”), have equal shared parental responsibility for their children, [X] born [in] 1998 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 2004 (“[Z]”) (collectively “the children”).
With effect from the end of the second term of the 2010 school year (Friday, 2 July 2010), and subject to paragraph 4 herein in respect of [Z] only, the children live with each of the parties on a shared basis, namely ‘week about’ from the end of school on Friday (or 3.30pm if not a school day) until the commencement of school the following Friday (or 9.00am if not a school day), with the children to live with the mother in the first such week and with the father in the second week and rotating weekly thereafter. For the avoidance of doubt this arrangement continues throughout mid-year school holiday periods (“mid-year holidays”) but be suspended during part of the annual end-of-year summer school holidays (“the summer holidays”), at which time the arrangements set out in paragraph 8 herein shall apply.
Failing agreement between the parties to the contrary and subject to paragraph 3 herein, during all school terms (but not during mid-year holidays or the summer holidays), [Z] shall spend time from the end of school Monday (or 3.30pm if not a school day) until commencement of school Wednesday (or 9.00am if not a school day) with the party that she would not otherwise be living with (“the specified period”). For the avoidance of doubt, this special arrangement means that [Z] spends the specified period with the mother during the time she would be living with the father, and spends the specified period with the father during the time she would be living with the mother. This special arrangement for [Z] shall cease at such time as agreed between the parties and failing agreement on 14 December 2011.
If the children would ordinarily be in the care of the father on Mother’s Day, then the husband’s time be suspended from 10.00am until 6.00pm on Mother’s Day and the children spend that time with the mother.
If the children would ordinarily be in the care of the mother on Father’s Day, then the mother’s time be suspended from 10.00am until 6.00pm on Father’s Day and the children spend that time with the father.
The party who would not otherwise have the children living with him/her on the occasion of each of the children’s birthdays, spend time with the children on those birthdays as follows:
(a)if a non-school day, in default of agreement from 10.00am to 6.00pm; and
(b)if a school day, in default of agreement from 3.30pm until 7.30pm
with the children to remain in the care of the party who would otherwise have the children residing with him/her for the remainder of the children’s birthdays.
During the summer holidays the arrangements provided for in paragraphs 3 and 4 herein be suspended as follows:
(a)subject to paragraph 8(e), the children live with mother for two weeks on and from the last day of school in 2010 (Friday, 17 December 2010) and for two weeks on and from the last day of school in each alternate year thereafter;
(b)
subject to paragraph 8(e), the children live with the father for two weeks on and from the last day of school in 2011 (Tuesday,
20 December 2011) and for two weeks on and from the last day of school in each alternate year thereafter;
(c)subject to paragraph 8(f) the children live with the father for two weeks on and from the date two weeks immediately after the last day of school in 2010 (Friday, 31 December 2010) and for two weeks on and from the date two weeks immediately after the last day of school in each alternate year thereafter;
(d)subject to paragraph 8(f), the children live with the mother for two weeks on and from the date two weeks immediately after the last day of school in 2011 (Tuesday, 3 January 2012) and for two weeks on and from the date two weeks immediately after the last day of school in each alternate year thereafter;
(e)the arrangements provided for in paragraphs 8(a) and 8(b) herein be suspended from 10.00am until 6:00pm on 25 December in each year to enable the children to spend time with the party that they are not living with on that day as a consequence of these orders; and
(f)in the event that the last day of school in any year (such as 2011) does not occur on a Friday, then the period applicable to the party whom the children are living with pursuant to paragraphs 8(b) and 8(d) herein shall be extended to the next Friday to enable the ‘week about’ arrangements in paragraph 3 to recommence.
On school days, all changeovers occur at the children’s school(s) and on non-school days, all changeovers occur at a place as agreed between the parties or, failing agreement, at the home of the party that the children have been living with in the preceding week.
The parent with whom the children are residing at any particular times do all things required to facilitate the children communicating with the other parent by telephone and / or internet technology at all reasonable times and, failing agreement as to when such communication takes place, each day between 7.00pm and 7.30pm.
Each party facilitate the children’s reasonable requests to telephone, SMS or email the other party should either child wish to communicate with the other party at times other than those provided for in paragraph 10 herein.
Each party provide the other party with all relevant telephone numbers and email addresses within 24 hours of the date of these orders and within 24 hours of any change to any or all of those details.
Both parties by themselves, their servants and agents be and are hereby restrained from denigrating or disparaging the other party to or within the hearing or presence of the children.
Each party be permitted to attend the children’s school, sporting and extra-curricular functions irrespective of whether they occur when the children are residing with them.
Each party keep the other party informed about all of the children’s activities and their health, education and general development by the use of a communications book (or electronic equivalent) and inform the other parent as soon as is reasonably practicable (and no later than 3 hours after becoming aware) of any medical or health emergency involving the children or either of them.
Each party keep the other party informed about their respective residential addresses and particulars of others who may reside with the children and inform the other party within 24 hours of any change to any or all of those details.
Each party irrevocably authorise the children’s school(s) and treating medical and dental practitioner(s) to disclose to the other parent all and any information reasonably requested of such school(s) and medical and dental practitioner(s) in relation to the children.
Neither party smoke cigarettes in the presence of any or all of the children and both parties ensure that no other person smokes cigarettes whilst in the presence of any of the children whilst any or all of the children are living with them.
Neither party consume alcohol within 12 hours before living with, or spending time with, any of the children and neither party consume alcohol whilst any of the children are in their care if that consumption results in a blood alcohol content exceeding 0.05 percent.
Each party refrain from using corporal punishment on any or all of the children.
Pursuant to section 13C of the Family Law Act 1975 the parties:
(a)attend and complete, as soon as practicable, a post separation parenting program (“the Program”) at an organisation as agreed or, failing agreement, at Relationships Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)if applicable, pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other party or the other party’s solicitor
and the Court notes that the purpose of this order is to assist the parties to develop the ability to communicate with each other directly.
All extant applications be otherwise dismissed.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A.The current parenting arrangements will continue until the end of the second term of the 2010 school year (Friday, 2 July 2010).
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Ford & Pelly is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 534 of 2008
| MS FORD |
Applicant
And
| MR PELLY |
Respondent
REASONS FOR JUDGMENT
Introduction
This case involves an application by MS FORD (“the mother”) for various parenting orders in relation to [X] born [in] 1998 (“[X]”), [Y] born [in] 1999 (“[Y]”) and [Z] born [in] 2004 (“[Z]”) (collectively “the children”).
This application is opposed by MR PELLY (“the father”) who is seeking different parenting orders. Since the parties separated in September 2007, the children have lived in a shared parenting arrangement spending eight days with the mother in the first week one and six days with the father in the second week, with changeovers occurring on Sunday morning.[1]
[1] Family Report, 15 July 2009, paragraph 4.
The matter initially came before Altobelli FM on 22 October 2008, where His Honour made orders, inter alia, for the parties to attend a child dispute conference[2] and for the father to file responding material.
[2] Pursuant to s.11F of the Family Law Act1975.
The matter returned for mention before His Honour on 12 December 2008 where his Honour made a further order for a child dispute conference, with such future conference to be reportable. A notation to the orders of that day indicated that “the existing parenting arrangements” (referred to above) were to continue. The matter was adjourned to the call-over on 4 February 2009.
Pursuant to the orders, a child dispute conference took place on
12 January 2009, with Family Consultant Maree Keating preparing a memorandum following the interviews.
At the call-over the matter was adjourned to 2 March 2009 for mention. At this mention Brewster FM subsequently adjourned the proceedings for further mention on 23 March 2009.
On 23 March 2009 the matter returned to Court before Brewster FM and on this occasion His Honour made orders for the preparation of a Family Report and adjourned the matter for hearing in the circuit commencing 24 August 2009.
The matter came before me for final hearing in Wollongong on
25 August 2009. Both parties were legally represented at the hearing with Mr Steward of Counsel appearing for the mother and
Mr Alexander of Counsel appearing for the father.
The matter was not concluded on 25 August 2009 and was adjourned part heard to 17 December 2009. On that occasion judgment was reserved and several orders were made by consent.
These orders required each party:
· to keep the other informed of all specified matters and any matters relevant to the welfare of the children;
· adhere to a standard non-denigration order;
· refrain, and ensure any other person refrain, from smoking cigarettes in the presence of the children whilst any of the children were in that party’s care;
· refrain from consuming alcohol within 12 hours before spending time with any of the children, and from consuming alcohol while any of the children were in that party’s care if that consumption would result in a blood alcohol content exceeding 0.05 percent; and
· refrain from using corporal punishment on any of the children.
A notation to the orders of 17 December 2009 outlined that the “current parenting arrangements will continue until judgment is delivered”.
Proposals
In her Initiating Application filed on 5 June 2008, the mother seeks orders for the children to live with her and for her to have sole parental responsibility for them. The mother seeks orders that:
· the father spend time with the children:
“(a)every second weekend from Friday after school at 3.15pm to Sunday afternoon at 3.15pm;
(b)that the father collect the children from school on Friday afternoon and return the children to the mother’s home on Sunday afternoon;
(c) that the children spend each second Thursday afternoon with the father from 3.15pm after school and return to the mother’s home by 8pm Thursday evening;
(d) that the children spend each second Monday afternoon with the father from 3.15pm after school and return to the mother’s home by 8pm on Monday evening.”
· the father have telephone contact with the children between 7.00pm and 7.30pm on weeknights;
· the mother have telephone contact with the children between 7.00pm and 7.30pm on weekends;
· each party notify the other of any illness or injury of the children;
· include a non-denigration order; and
· restrict the father from consuming alcohol prior to him collecting the children or returning them to the mother’s home.
In his Response filed 12 December 2008, the father proposes an order allowing the parties to have equal shared parental responsibility for the children. In regards to the live with, spend time and communication arrangements, the father proposes:
“2. That the children are to live with the father from 3pm Friday until 3pm Friday, seven days thereafter and each alternate week thereafter.
3.That the children are to live with the mother from 3pm Friday until 3pm seven days thereafter on the alternate week with the mother.
…
11.That each parent consider the wishes of the children in determining the time they spend with each parent.
12.That either party may telephone the children whilst they are not living with them on any day up until 8.30 pm.”
The father seeks orders for reciprocal notification of matters relevant to the children’s welfare (including matters specified), non-denigration and restrictions on both parties smoking cigarettes in the presence of the children and consuming alcohol prior to spending time with the children, or whilst the children are in their respective care. The father also seeks an order for the mother to cease and refrain from using corporal punishment on the children.
Background
The mother was born [in] 1970 and at the time of the final hearing was 39 years old. The father was born [in] 1949 and was 60 years old at the time the final hearing concluded.
The parties commenced cohabitation in October 1993. As previously stated, the parties separated in September 2007.[3]
[3] Affidavit of the mother sworn 24 August 2009 and filed 25 August 2009, paragraph 4.
Neither party has re-partnered since separation. The father has two children from a previous marriage, [D] born [in] 1970 and [K] born [in] 1973.
The three children of the relationship, namely [X], [Y] and [Z], were aged 11, 9 and 5 years respectively at the time of the final hearing.
The mother is in good health. The father states that his health is good “except for my industrial deafness”.[4] The mother states that she believes the father has “a lot of old and niggling injuries”.[5]
[4] Affidavit of the father re-sworn and riled 25 August 2009, paragraph 21.
[5] Affidavit of the mother sworn 24 August 2009 and filed 25 August 2009, paragraph 50.
At the time of the hearing the mother was engaged in full-time duties as a [omitted].
The father receives a New Start allowance along with Family Payment benefits. Following the completion of further training he proposes to work in the “week that I don’t have the children”.[6] During cross-examination the husband stated that he would be soon commencing work [in the agricultural industry].[7].[8]
[6] Affidavit of the father re-sworn and filed 25 August 2009, paragraph 22.
[7] Transcript, 17 December 2009, page 65, lines 31-38.
[8] Ibid.
Issues
To summarise, the following issues in dispute at the hearing were:
· whether the presumption of equal shared responsibility should apply or whether the mother (as she seeks) should have sole parental responsibility for the children;
· whether the children should primarily live with the wife (as she seeks) or remain living in an equal time arrangement (as the father seeks); and
· assuming the children are primarily living with the mother, the amount of time the children should spend with their father.
Family Report
In accordance with the orders made on 23 March 2009, a family report dated 15 July 2009 was prepared by Family Consultant Maree Keating (“Ms Keating”).
Ms Keating conducted her interviews for the report on 7 July 2009. She outlines the relevant background to the dispute, the current parenting arrangements, applications and proposals of the parties and the issues in dispute in paragraphs 1-9.
Ms Keating details her interviews with the parties in paragraphs 10-15:
“10. Ms Ford (aged 38 years) and Mr Pelly (aged 59 years) each present as child focussed parents who each have an insightful understanding of each of their children’s needs and strengths. They are each aware of their different approaches to parenting the children and are able to identify those aspects of the other’s parenting which cause them concern..
11. Ms Ford demonstrated an insightful approach to exploring her own parenting in terms of questioning whether or not she might be considered by others to be ‘a bit overprotective’. She perceives that Mr Pelly has a more relaxed and unstructured approach to parenting, particularly as this relates to rough play between the boys and his attention to the children’s personal appearance (clothes and hair). She also believes that he fails to enforce appropriate boundaries for the children and sometimes fails to take steps to ensure their safety ie boating without having life jackets on.
12. Ms Ford felt, and continues to feel, that she was ‘bullied’ into the current arrangements by her adult step-daughter, at the time of the parental separation. Her primary reasons for not supporting a continuation of the current parenting arrangement, or increasing the children’s time with their father so that they live in an equal time parenting arrangement, are based on what she experiences as the children’s, particularly [X] and [Y]’s, behaviour when they return to her care. She described them as being aggressive towards each other, rude and generally unsettled. She believes that some of the boys’ behaviours mirrors that of their father whom she experienced as bullying her and undermining her sense of self-worth. Ms Ford acknowledges that the children would ‘be upset’ should their time with their father decrease but believes that they would adjust in time.
13. Mr Pelly believes that the children will benefit from having a full weekend with each parent (Friday to Monday) and also believes that such a change will reduce the possibility of any confrontation between himself and Ms Ford as such changeovers would occur at the school.
14. Both parents agree that there is limited communication between them and each accuse the other of communicating, at changeover times, in an aggressive and argumentative manner.
15. Ms Ford preferred that no joint interview occur, however, she was encouraged to sit with Mr Pelly for a feedback session regarding the children’s views and my assessment of their needs, Her distress at hearing that both the boys wished to spend a whole weekend with their father and to live in an equal time arrangement reflected her lack of support for the arrangement and no doubt, in part, challenged her belief that, should the children’s time with their father decrease, they would adjust. The limited communication between the parents (prior to the children joining them — see paragraph 28) indicated that their communication style is argumentative and focused on past issues. Mr Pelly said that he believes their communication needs to improve and that he would be prepared to ‘work on it’. It is not known whether or not Ms Ford would be prepared to be involved in a process aimed at improving the parental communication.”
Ms Keating details her interviews with the children in paragraphs 16-26. Ms Keating states that the children present as “a close sibling group” with the boys acting in a supportive and protective manner towards their sister and aware of the reasons why they were being interviewed.[9]
[9] Family Report dated 15 July 2009, paragraph 16.
In respect of [X], Ms Keating states in paragraphs 17-20:
“17. [X] described school, and his friendships there, in positive terms and said that he spends time with his friends at weekends no matter which parent he is with. He said he is looking forward to going to High School in 2010 and believes the transition will be relatively easy as he will attend the same school as his nephew, [name omitted].
18. [X] is assessed as experiencing close and loving relationships with each parent, albeit that he experiences them as parenting differently. It seems, from [X]’s perspective, that he gains from his parents different personalities and thus the different opportunities he has with each of them. For [[X]] the primary difference between his parents is his perception that his mother is ‘over-protective’ of him. He, however, consistent with his developmental stage demonstrated some insight into this.
19. According to [X] he feels upset when his mother talks about his father in a negative and disrespectful manner. He was adamant that his father does not refer to his mother in these ways.
20. [X]’s wish is to be able to spend a full weekend with each parent and to live in an equal time arrangement should his parents not agree to this, or if the Court does not support it, [X] said he would ‘probably just go to’ his father’s if there was to be a decrease in the time he was able to spend with him.”
In respect of [Y], Ms Keating states in paragraphs 21-23:
“21. [Y] described school in positive terms. His comments regarding each parent indicate that his most significant experience of each of them is as loving and nurturing parents both to him and his siblings.
22. [Y]’s wish is to live in an equal time parenting arrangement and to ‘have more responsible parents’. In exploring this comment it transpired that [Y] hopes that his parents will ‘be able to talk to each other and resolve this’ i.e. the parenting arrangements. Should he spend less time with his father than is currently the case [Y] said he ‘would be upset [but] I could not fix it or talk to Mum about it’. He understands that his mother does not support any of the children spending additional time with their father and said that as he ‘loves them both’, he feels unable to talk to his mother about his wish to spend more time with his father.
23.Like [X], [Y] also commented on his mother speaking negatively about their father and said that these comments result in him feeling ‘angry’ towards his mother.”
In respect of both [X] and [Y], Ms Keating states in paragraph 24:
“24. Both [X] and [Y] made comments indicating that their mother has not shielded them from her negative feelings about the amount of time they spend with their father. Both said that she is sad and misses them, although they also each said that they know that their father also misses them when they are with their mother. However in this latter case it seems that both [X] and [Y] believe that their father is the better able to cope with these feelings than their mother.”
In respect of [Z], Ms Keating states in paragraphs 25-28:
“25. [Z]’s comments about her parents are indicative of a child who is very aware of the tensions between them. She said they are not friends...they don’t like each other [and] Mum says she is scared of Dad’. In relation to this later comment [Z] added ‘but I’m not’. She then wondered why her mother might be ‘scared’ of her father but did not have an answer. She seemed perplexed by this response of her mother to her father, particularly as it does not resonate with her own responses to her father.
26. [Z] said that she misses the parent she is not spending time with. Her wish is for her parents to be friends.”
Ms Keating then goes on to state in paragraph 27 while no formal observations were conducted of the children with each of the parties, she did observe during the interview process that the children and the parties were “sitting together within the child area of the waiting room” and that they “presented as an affectionate and relaxed group”. In paragraph 28 she states:
“28. When the children joined their parents, at the end of the parents’ feedback/joint interview, they were affectionate to them. [Z] sought out her father and the boys sat close to their mother. The parents’ interaction, in the presence of the children, was appropriate and the group all sought to alleviate [Z]’s slightly sulky affect in a good natured manner and supportive manner.”
Ms Keating provides her evaluation in paragraphs 29-38. In summary she states that:
· while the children’s young ages, and the parties’ poor parental communication, would not normally support a recommendation favouring an equal time parenting arrangement, the children appear settled into the current parenting arrangement and all appear to be progressing well emotionally and academically, and have a good sibling relationship;
· [X] and [Y] both want to spend additional time with their father and [Z] has expressed a view that she misses the parent that she is not otherwise spending time with;
· significant weight ought to be given to [X]’s wishes given his age and circumstances;
· [Y]’s wishes are assessed as being appropriate “and he is likely to accept whatever arrangement his parents are able to agree to, provided it also allows him to spend a full-weekend with each of them”;[10]
· [Z]’s comments and age “indicate that she is likely to be continuing to experience strong primary attachments to each parent and thus it is likely that, in terms of her emotional development and maturity, she ought not to be away from either parent for periods of seven days at this stage”;[11]
· the parties will benefit from obtaining professional assistance in order to develop strategies for more positive communication to enable any re-assessment of the parenting arrangements to take account of the children’s changing developmental needs;
· the father’s proposal is the more appropriate because it supports an arrangement which has been in place for some time and which the children are used to.
· the mother’s proposal is ‘puzzling’ given her understanding that the children would be distressed by a reduction in their time with their father and it is likely that her proposal reflects “her wish to limit what she perceives as being the father’s negative influence on the children and her wish to limit her communicate [sic] with him”;[12]
· it is important for the children’s ongoing positive emotional development that each party try to shield the children from their own emotional reactions to the parenting arrangements; and
· given that the parties have been able to date to make appropriate decisions for their children, they ought to continue to share parental responsibility.
[10] Family Report dated 15 July 2009, paragraph 33.
[11] Ibid, paragraph 34.
[12] Ibid, paragraph 36.
Finally, Ms Keating provides the following recommendations in paragraphs 39-43:
“39. It is recommended that the parents have equal shared parental responsibility for the children.
40. It is recommended that either of the following options is appropriate:
• the current arrangement of an eight day: six day split continue, except, that within this split, the children spend a full weekend (from the end of school on Friday to the commencement of school on Monday) with each parent
or
• the children live in an equal time parenting arrangement with the changeover occurring at the end of school on Friday.
41. It is recommended that the parents ensure that [Z]’s time with each of them is tailored to meet her current developmental needs and reviewed as she matures.
42. It is recommended that the parents ensure that each child has one-on-one time with each of them from time to time.
43. It is recommended that the parents seek professional assistance from a community based agency in their local area ([omitted]) in order to develop appropriate communication strategies and to provide the children with positive support for the future parenting arrangements.”
Evidence
Both parties provided the Court with affidavit and oral evidence. With a view to resolving their dispute, the parties asked the Court to allow the family consultant, Ms Keating, to give her evidence first. The Court agreed.
Ms Keating’s evidence
Ms Keating gave evidence and was cross-examined by Counsel for the respective parties on 25 August 2009. Following her evidence I gave the parties an opportunity to have some discussions but they were unable to resolve their dispute or narrow down the issues for determination by the Court any further.
Under cross-examination from Mr Steward for the mother, Ms Keating reiterated her view that communication between the parties is very poor but stated that this was “once the children are removed from the equation”.[13] Ms Keating’s observations of the parties while together in the presence of the children were that the parties were relaxed and child-focussed.[14] Nevertheless she reiterated that the parties could benefit from some professional assistance in relation to their co-parenting of the children.[15]
[13] Transcript, 25 August 2009, page 10, lines 2-4.
[14] Ibid, lines 7-11.
[15] Ibid, lines 11-13.
While Ms Keating acknowledged under cross-examination by
Mr Steward that her family report was simply a “snapshot”, and that the parties were being observed in a formal setting, she maintained that the session afforded her an opportunity to observe how the parties respond under stress and that in itself provides a “real indication of parenting”.[16]
[16] Ibid, lines 19-21.
Ms Keating was also questioned by Mr Steward as to whether there was any risk that the children may have indicated their desire for an equal time parenting arrangement in an attempt to please both their parents and not choose between them? Ms Keating responded:
“I think that I have sufficient experience to work out when a child is trying to please both their parents … particularly the boys have an understanding of how mum and dad parent them differently … they’ve got an understanding about what the limits are and the boundaries are ..”[17]
[17] Ibid, lines 39-47.
Mr Steward also asked Ms Keating that, given that there is no “follow-up” in respect of the family reports she prepared, what evidence she had that the predictions she made in her reports turned “out to be truth?”[18] Ms Keating responded:
“I’ve been working with the court since 1991, we get feedback, it’s also based on research, based on some longitudinal studies … For some parents, I might hear from them 12, 18 months later. They will send a card at Christmas time and say, look, you know, this is happening. Sometimes you do a report 12, 18 months, two years, four years later, and unfortunately some of those predictions that I’ve made in the report have actually come to fruition ... in a both positive and negative sense.”[19]
Mr Steward then asked Ms Keating:
“So what you are saying is there has never been a proper outcome study on predictions that you have made to determine and test their accuracy?”
To which Ms Keating replied:
“… there’s never been a proper outcome study from that perspective on reports done by me or any of my colleagues. Because - this is possibly not the right place to say this, but one of the difficulties with doing research in this area is the ethical dilemma about opening up what is usually a very painful process for these families again at a later stage.” [20]
[18] Ibid, page 12, lines 1-2.
[19] Ibid, lines 2-12.
[20] Ibid, lines 14-20.
Ms Keating then confirmed she relies on the research she mentioned due to the impracticalities of testing the accuracy of her predictions.
Later, Mr Steward cross-examined Ms Keating at some length in respect of the children’s academic performance. Ms Keating confirmed that while she did not sight any school reports, she based her evaluation (i.e. that the children were progressing well academically) from her notes of her interviews with the parties and the children themselves.[21]
[21] Ibid, page 16, lines 5-36.
Mr Steward also cross-examined Ms Keating at some length in relation to the children’s views and the report writer being ‘puzzled’ by the mother’s proposal in light of the children’s expressed views.[22]
[22] Ibid, page 21, lines 45-47.
Ms Keating responded:
“Well, I am puzzled. I still am puzzled that if a parent has - the children will be upset about this reduction in time, then I don’t understand why they would be wanting it ... of course, as a parent, one can support one’s children to accept what one wants for them, but in these situations I am puzzled by a parent who is able to so openly acknowledge that the children will be upset by a reduction of the time with their father, but they would still seek that.”[23]
Mr Steward then asked Ms Keating:
“But the additional inference is open, is it not, that she is a parent, as you agree, that shows in making her initial comment, that she has good insight, as to assisting children to make adjustments over time?”
“‑‑‑Yes.”
[23] Ibid, page 22, lines 1-8.
“And is it not also a possibility that an inference can be drawn that a recognition of adjustments needing to be made over time is that the overall best interests of the child need to be considered both in the long term and the short term?”
“‑‑‑Absolutely.”
“So your puzzlement as to her insight as to the children’s distress might be abated somewhat if you entertained all those other inferences?”
“‑‑‑Yes, probably.”[24]
[24] Ibid, lines 10-19.
Ms Keating was also cross-examined by Mr Alexander for the father. The report writer confirmed that her “bottom line” recommendation in relation to the children was that, in any fortnightly period, they should spend a full weekend (Friday until Monday) with each of the parties.[25] Ms Keating also confirmed that [X] and [Y]’s expressed views, such as those favouring a defined equal time arrangement, would fall within this recommendation.[26] Moreover, a Friday changeover would most likely best facilitate any defined equal time arrangement.[27]
[25] Ibid, lines 30-35.
[26] Ibid, lines 36-41.
[27] Ibid, line 42-44.
In relation to [Z], Mr Alexander asked Ms Keating:
“In relation to [Z], one of … the proposals that I am instructed to make … is that [Z], on the Monday and the Tuesday night in each week, would live with the parents with whom the boys were not then living. The effect of it would be that in any fortnightly period she would spend 10 nights in the company of her siblings, and two nights in the exclusive company of her mother and two nights in the exclusive company of her father, would also mean that there would be a maximum of three nights in between any period when she saw either of her parents, or stayed with them overnight. Is that the type of arrangement that you had in mind in relation to [Z]?”
“‑‑‑I think it’s always difficult with these sorts of arrangements when you’ve got the age range. Sometimes parents, when they’ve trialled something, have reported to me that a child going back to the other parent for one night has alleviated the child’s - well, not level of distress, but has made the child feel more comfortable, and so I think it’s very much about what works - what the parents believe will work for this child. But the other thing is, you also need to factor in, I believe, a reduction in the interaction between the parents, and that could be achieved because, of course, [Z]’s at school, so the boys go home and [Z] goes home with her mum, and they don’t have to have that interaction with each other.”
“Right. So I take it from that that, again, the idea of, in a fortnightly period, having four blocks of time in relation to [Z] might seem appropriate?”
“‑‑‑Yes.”
“But that whether it was necessary for that to be a minimum of two nights, or perhaps even just a minimum of one night, might be a matter that the parents could negotiate?”
“‑‑‑Yes, I believe that’s a matter the parents would have to decide. Well, it would be preferable if they could make that decision.”
“And again, that seems to lend itself to an arrangement where a maximum of about three nights would occur before [Z] - given that she sees her mother at school, I suppose, then we are talking about seeing the father. But a maximum of about three nights seems appropriate?”
“‑‑‑Yes, I think so.”[28]
[28] Ibid, page 22, lines 46-47 and page 23, lines 1-31.
Ms Keating was also asked by Mr Alexander about the different parenting styles of the parties and she agreed that the mother’s style was “more protective” than the father who has a “less structured” approach to parenting.[29] The report writer also agreed that while there were both benefits and detriments to the children experiencing these different parenting styles, she had formed the view:
“… that the boys, in particular, valued the different approaches and I think it’s in my report that [X] made a comment about mum being a bit protective, but children actually often value that, in terms of, you know, “I’m glad parent A is like that, because it means that they do love me, but I really like it at the other parent’s, because I can do that, but I know that parent still loves me as well.” So for him, I guess – well, for the children, with these very – with quite different parenting styles, it’s like they’re able to find their way through this, in terms of there might be a middle way of doing it and it might lead them to actually, as they move into adolescence, be better able to make decisions, put in boundaries for themselves, be informed by – well, you know, “Mum would think, ‘No, this is not so good.’ Dad would say, ‘Well, that’s okay, but just be careful.’” So they might find a middle way rather than a child who has a very protective parent either not challenging themselves to take on new things or being a bit of a daredevil, because they are just pushing against the protection so much. I don’t imagine that would be the case with these children.”[30]
[29] Ibid, page 23, lines 33-35.
[30] Ibid, page 23, lines 38-47 and page 24, lines 1-5.
In response to a proposition from Mr Alexander, Ms Keating agreed that there was optimism that the parties could co-operate in the future in regard to their children and moreover there was no alignment by the children with one parent against the other.[31] Ms Keating went on to comment that the parties’ separation in this case had not been lengthy and that in most cases, but not all cases, the relationship between the parents does improve over time.[32] She also commented that the father “believed that once all this was resolved that they might be able to develop a better parenting relationship”.[33]
[31] Ibid, page 26, lines 20-21.
[32] Ibid, lines 26-27.
[33] Ibid, lines 28-29.
In relation to her recommendation for therapeutic intervention, Ms Keating confirmed that although she did not have a particular program in mind, the parties could be referred to an agency like Relationships Australia for an intake assessment, and then that relevant agency could determine what programme might assist the parties.[34] That having been said, the report writer stated that a program relating to communication strategies might be beneficial.[35]
[34] Ibid, lines 32-37.
[35] Ibid, lines 37-38.
I also asked Ms Keating to elaborate on recommendations for [Z], and in particular, how long any individualised arrangements might be necessary:
“… there’s a sibling group … if she was an only child movement then you need to review this … probably every 12 months to see how it’s going, but she has this relationship. There are three siblings and she’s more likely to adjust to a gradual increase of longer periods away from each parent more quickly, because of the sibling relationship, than a single child. However, there is also the gender split and that’s not all that significant, but because of the ages of the boys, they’re going to be off doing very different things from those things that [Z] is probably going to want to do. So all those factors need to be taken into account, but I would think probably by the time she was maybe midway through year 2 that she would be fine for the full time the boys were there, but she may not be, because she is the youngest child and there is quite a gap between [Z] and the next child and it might be difficult for her for a longer period of time and that’s why it is important for the parents to be able to communicate, because these arrangements will need to be reviewed on a regular basis.”[36]
[36] Ibid, page 27, lines 37-46 and page 28, lines 1-2.
I also asked Ms Keating whether the parties might benefit from some structure to aid their communication, perhaps through the use of the communication book:
“I think if a communication book is used just about upcoming parent issues, the children’s activities and they’re very clear about that then that’s something that would work. I usually recommend that parents don’t make arrangements for children to attend any sporting event or be involved in any extracurricular activity unless they first consult the other parent, because both parents need to be committed to ensure that the children get to these events. If a child has a birthday party to go to but it’s a time where they’re with parent B rather than parent A then it should be parent B who makes a decision about whether or not they’re going, and so that information needs to be provided in a timely manner and, children being children, you often get the birthday invitation eight days before the birthday. So there needs to be a mechanism, whether it’s by email or texting or not putting the children in the middle, but the children having an understanding that, “I have got a birthday invitation or a sleepover invitation and mum or dad saying, ‘Oh, you are with the other parent, so you need to phone that parent now and ask if you can do that activity.’”[37]
[37] Ibid, page 28, lines 6-20.
The Full Court of the Family Court’s decision of In the Marriage of Hall (1979) 29 ALR 545; (1979) 5 Fam LR 609; (1979) FLC 90-713; contains an authoritative statement about how reports such as the one written by Ms Keating should be treated in proceedings such as this case:
“In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities: In the Marriage of Wood (1976) 11 ALR 657; (1976) 27 FLR 1; (1976) 2 Fam LR 11,182; (1976) FLC 90-098; In the Marriage of Harris (1977) 29 FLR 285; (1977) Fam LN No 33; (1977) FLC 90-276.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.”
(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[38]
[38] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-615; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).
Applicant mother’s evidence
The following documents were relied upon by the mother:
· her Initiating Application filed 5 June 2008;
· her affidavit sworn on 25 March 2008 and filed on 5 June 2008 (“her first affidavit”); and
· her affidavit sworn on 24 August 2009 and filed on 25 August 2009 (“her trial affidavit”).
In addition the mother gave oral evidence, and was cross-examined by Counsel for the father, on 17 December 2009. She presented as an intelligent and capable person and despite her clear love and affection for her children, not all her responses were child-focussed.
Respondent father’s evidence
In support of his response, the father relied upon the following documents:
· his Response filed 12 December 2008;
· his affidavit sworn 2 December 2008 and filed 12 December 2008 (“his first affidavit”); and
· his affidavit re-sworn and filed on 25 August 2009 (“his trial affidavit”).
In addition the father gave oral evidence, and was cross-examined by Counsel for the mother, on 17 December 2009. The father presented as a polite witness, taking time to answer questions put to him. He appeared genuinely concerned for the children’s welfare and clearly wanted a resolution of the on-going family law dispute he has had with the mother.
Law
The Court is asked to make specific parenting orders in relation to these proceedings. More specifically, the Court is asked to determine whether the children should primarily live with the mother or alternatively, whether the children should live on an equal time basis with both parties. In addition, the mother is seeking an order that she have sole parental responsibility for the children.
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Parenting orders are defined in s.64B of the Act. Parenting orders deal with where the children are to live, the time the children spend with another person or otherwise allocate parental responsibility in relation to children.
Section 60CA of the Act makes it clear that for the purposes of making a parenting order the Court must regard the best interests of the children as the paramount consideration. What is considered to be in the best interests of children in parenting disputes necessarily depends on the particular circumstances in each case. In each case different circumstances require different resolutions. That having been said, to determine the best interests of the children, the Court must consider the primary and secondary considerations under s.60CC of the Act. I will consider these specific provisions in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child or children. That order may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child or children.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. This not only includes those duties and responsibilities relating to such matters as health and education, but also, as stated in the recent case of Lindell & Ranteri [2010] FamCA 52, “the general direction in life that is so important for children in teenage years”.[39]
[39] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
The relevant s.4 definition as to what the law expects of parents in relation to this decision-making states:
“major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act incorporates a presumption the Court is required to consider when making a parenting order. The Court must presume that it is in the best interests of the children for their parents to have equal shared parental responsibility.
Section 61DA(2) makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of the children or family violence.
In addition, under s.61DA(4), the presumption may be rebutted if its application could be contrary to the children’s best interests, those interests being determined by reference to the matters in s.60CC of the Act in light of the evidence. As stated, I will canvass matters in s.60CC shortly. If the presumption is not applied or is rebutted then the Court must still make an order which is in the best interests of the children (again taking into account the considerations in s.60CC of the Act).
As indicated, there is a dispute between the parties that each should have equal shared parental responsibility for the children. The father (and the family consultant[40]) supports an outcome favouring equal shared parental responsibility whereas the mother is seeking sole parental responsibility for the children.
[40] Family Report, 15 July 2009, paragraph 39.
In his closing address, Mr Steward for the mother confirmed that despite his client’s knowledge and understanding of the evidence presented and the presumption favouring equal shared parental responsibility, she was also “aware that we have some deal of work to do, perhaps, to convince your Honour about that proposal” (i.e. for sole parental responsibility).[41]
[41] Transcript, 17 December 2009, page 74, lines 16-23.
Equal time or substantial and significant time
If the presumption applies, then the Court is required under s.65DAA of the Act to consider whether the children’s best interests would be served by making an order that they spend equal time,[42] or alternatively substantial and significant time,[43] with each of their parents. Either outcome requires the Court to consider whether the children spending equal time (or substantial and significant time in lieu) with each of the parents would be in the “best interests of the child” and is “reasonably practicable” given the circumstances.
[42] Section 65 DAA(1).
[43] Section 65 DAA(2).
As previously discussed, despite the long-standing parenting arrangements interim orders providing for an (essentially) equal time arrangement, the mother is seeking an order that the children live primarily with her and spend time with the father two nights per fortnight and additionally after school until evening two days per fortnight.
It is note worthy that s.65DAA(3) of the Act stipulates that children will only be taken to spend “substantial and significant time” with a parent 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.”
In considering the reasonable practicality issue, s.65DAA(5) requires the Court to 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.”
In this case, both parties propose that the other parent spend significant time with the children on days that include weeknights, although the mother proposes no overnight time during school terms except on alternate weekend. Moreover, as both parties reside in the [omitted] area, the distance between their current homes is less than 10 minutes by car which is reasonably proximate.
As stated previously, the Court is under an obligation to make parenting orders that it determines are in the children’s best interests. As previously stated, the issues that arise for this purpose are the primary and secondary considerations that the Court must take into account under s.60CC of the Act. The Court will now turn to consideration of the factors in subsections (2), (3) and (4) of s.60CC of the Act in the context of this case.
Primary considerations: s.60CC(2)
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
It is clear from the evidence of the parties that both accept the need for the children to have a meaningful relationship with the other parent, however they differ on how this can be achieved. It is also clear from the evidence of Ms Keating, that any outcome should not jeopardise the children’s wellbeing including their ongoing and long term relationships with both parties.
There is an issue in this case that any reduction in the time the children currently spend with the father (which will occur if the mother’s application is successful) would have a significant impact on the children’s relationship with him.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Save one issue raised by the mother and discussed in the following paragraph, this “primary consideration” is not relevant to the current dispute.
In her case the mother raised an issue about the obvious risks associated with father supplying [X] with a “blade knife”[44] and two recent incidents where [X] cut himself with the knife and allegedly threatened [Y] with it.
[44] Affidavit of the mother sworn 24 August 2009 and filed 25 August 2009, paragraph 30; see also Transcript, 17 December 2009, page 20, lines 22-47.
Under cross-examination, the father confirmed that he had provided [X] with a “pen knife” that incorporated a 5 cm blade.[45] The father also confirmed that [X] had indeed cut himself with the knife and that there had been an altercation between the boys.[46] The father stated that his motivation for giving [X] the pen knife included the bush land location of his home and his own recollections of being given a pen knife by his father at approximately [X]’s age.[47] He also stated that he had considered that [X] had “reached a certain level of maturity” to carry such a knife but had cause to reconsider his view because of [X]’s actions and that he had confiscated the knife from [X] following each of these incidents.[48] The father also stated that [X] was informed he could only carry the knife on the father’s property and not elsewhere and that it had been provided to enable [X] to do the type of things that children (in the father’s view) would do with a pen knife including “whittling timber, cutting rope, just cutting into trees, putting initials in trees”.[49]
[45] Transcript, 17 December 2009, page 50, lines 39-47.
[46] Ibid, page 51 line 6 and see generally pages 58-65.
[47] Ibid, page 51, lines 22-29.
[48] Ibid, page 51, lines 24-29.
[49] Ibid, page 51, lines 34-36.
Overall while the mother had cause to be concerned about the father supplying [X] with a pen knife, I am satisfied that the father’s motives were genuine and did not unduly expose [X] and the other children to any harm. That having been said, the father should have discussed the provision of the pen knife, and the incidents that arose, with the mother and it is clear that the poor communication between the parties was a contributing factor in his failure to do so. It is a matter that the parents could have discussed at arms length via a communication book.
As to the father’s handling of the recent incident between [X] and [Y], I agree with the following comments made by Mr Alexander during his final submissions to the Court:
“I simply say in relation to the most recent knife incident, I think the father put that incident in proper perspective. Inevitably, things like, “I will kill you,” depend on a context, they depend on a knowledge of the children and no doubt the father was right in his observations to that, to the extent that we can see [X] and [Y] seem to have a very close and fruitful relationship.”[50]
[50] Ibid, page 83, lines 14-19.
Additional considerations: s.60CC(3)
Section 60CC(3)(a): any views expressed by the child and any other 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
The views expressed by each of the children provide the key to unlocking future arrangements between the parties. The evidence from Ms Keating was quite clear that both [X] and [Y] want to spend additional time with their father and [Z] has expressed a view that she misses the parent that she is not otherwise spending time with.
Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …
There is no doubt that both parties love their children. In addition there are no concerns about the nature of the relationship of the children with each of the parties.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent
While both parties argue that they have individually been willing to encourage a closer relationship between the children and the other party, they make criticisms of each other in this regard. That having been said, Ms Keating was of the opinion that there were examples of the parties' co-operation and her observation of the children in the company of both parties was positive.[51]
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation …
[51] Family Report, 15 July 2009, paragraph 28.
There will be a significant change to the children’s circumstances if the orders sought by the mother are made. It would reduce the time the children currently spend with the father from six nights per fortnight to just two nights per fortnight. In contrast, the proposed orders sought by the father would simply increase the time the children currently spend with him by one night per fortnight.
Ms Keating was of the view that any changes to [Z]’s future circumstances needed particular management and annual review at least until the child is “maybe midway through year 2”.[52] By the conclusion of the final hearing the parties were in apparent agreement about this.
[52] Transcript, 25 August 2009, page 27, line 43.
Although the Court was not provided with a proposed Minute of Order that would reflect any special arrangements for [Z], Counsel did indicate to the Court that should the present arrangements continue, or should there be an equal time arrangement, then (using the words of
Mr Alexander):
“The proposal is essentially then that, in that person’s week, the Monday and the Tuesday might be nights on which [Z] spends time independently from the boys at the other household.”[53]
Section 60CC(3)(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
[53] Transcript, 17 December 2009, page 75, lines 33-36.
I am satisfied that there are no relevant difficulties and expenses related to the children.
Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide to the needs of the child, including emotional and intellectual needs
I am satisfied that both parties have the capacity to provide for the children’s needs and generally demonstrated a positive attitude to the responsibilities of being a parent.
Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
There are no specific matters here that assist the Court.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Despite both parties being involved in the children’s parenting throughout their lives, each party questions the other’s parenting ability.
I have formed a view that the parties would benefit from undertaking a post-separation parenting course to better understand the responsibilities of parenthood.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
I am satisfied there was no relevant family violence in the present dispute.
Section 60CC(3)(k): any family violence order that applies to the child or member of the child's family …
No evidence was provided by either party as to any past or current family violence orders.
Section 60CC(3)(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
While the Court proposes that any order made be subject to any agreement between the parties that benefits the children, it is clear that the parties will require specific Court orders to assist them in their future parenting.
The Court is confident that once these parenting proceedings are resolved there is little likelihood in any further proceedings being likely in the immediate future. That having been said, the Court believes the parties would be assisted by a Court order that would require the parents to resolve any future difficulties with the assistance of a Family Dispute Resolution Practitioner.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
There is no other fact or circumstance that the Court thinks is relevant in the present dispute.
The Court is also required under s.60CC(4) to consider the “extent to which each parent has fulfilled, or failed to fulfil, his or her responsibilities as a parent”. In this case both the wife and the father have been actively involved in the children’s lives and, despite this particular disagreement, the evidence suggests they have been generally able to make the necessary major long-term decisions in relation to the children.
Conclusion
The parties should continue to have equal shared parental responsibility for the children.
The Court is satisfied that an equal time parenting arrangement (i.e. week about) would be in the children’s best interests and is reasonably practicable. To enable the children and the parties to prepare for this change, and failing agreement between the parties as to the contrary, the Court proposes that the equal time arrangement commence at the end of school on the last day of Term 2 this year (i.e. Friday, 2 July 2010). Subject again to agreement between the parties to the contrary, this equal time arrangement would continue through school terms and school term holidays with all changeovers being at school on Fridays.
In the event that any Friday is not a school day, then changeovers shall occur at a place as agreed between the parties and failing agreement the children shall be collected from the home of the party that the children have been living with in that preceding week.
The Court agrees that special arrangements are needed for [Z] until she completes year two in 2011. Consequently during school terms (but not during school term holidays or the annual summer school holiday period), and failing agreement between the parties to the contrary, [Z] shall spend time from after school (or 3.30pm if not a school day) Monday until commencement of school Wednesday (or 9.00am if not a school day) with the party that she would not otherwise be living with. In other words, she will spend that period with the mother during the time she would be living with the father, and she will spend that period with the father during the time she would be living with the mother. Unless the parties agree to the contrary, I do not consider that such a special arrangement for [Z] will be practicable during the mid-year school holidays or the end-of year annual summer school holiday period (“the summer holidays”) as it would prevent either party making their own special ‘holiday’ arrangements with the children during those non-school week periods.
In relation to the summer holidays, the Court is satisfied that it would be in children’s best interests to also live in an equal time arrangement with each party but for a longer period than week about. Failing agreement between the parties as to the contrary, and assuming the school year ends on a Friday,[54] the Court proposes that:
· the children live with the mother for the first two-week period of the summer holidays commencing as from the last day of the last term in 2010 and each alternate year thereafter and with the father for the first two week period of the summer holidays commencing as from the last day of the last term in 2011 and each alternate year thereafter; and
· the children live with the father for the second two-week period of the summer holidays commencing two weeks after the last day of the last term in 2010 and each alternate year thereafter and with the mother for the second two week period of the summer holidays commencing two weeks after the last day of the last term in 2011 and each alternate year thereafter.
Thereafter, in each year the Friday ‘week about’ arrangement will continue until the end of the next school year. There will need to be a minor time adjustment in any year where the school year does not finish on a Friday (such as 2011). In this event, the second two week period of the summer holidays will be adjusted to end on the next Friday (to enable the usual ‘week about’ living arrangement to recommence.
[54] According to the NSW Department of Education and Training, for public schools the school year ends on a Friday in each school year between 2010-2015, except in 2011 when it ends on Tuesday 22 December: see >
Apart from providing an order that the children should spend time with each of the parties at all times as agreed by the parties, the orders should also include some specified special day arrangements in the event that the parties cannot agree. The children should, if possible, spend time with both parties on each of the children’s birthdays. In addition, the children should spend time with the mother on ‘Mother’s Day’ and with the father on ‘Father’s Day’. Moreover, the children should spend some time with the party that they are not otherwise living with on Christmas Day and by agreement any other special days.
The orders should also provide for:
· the children to be able to communicate, by telephone or internet technology if available, with the party that they are not otherwise living with at all reasonable times and failing agreement, each night between 7.00pm and 7.30pm;
· obligations on both parties to keep each other informed about the children’s activities, health, education and development (preferably through the use of a communication book);
· not to denigrate each other in the children’s presence; and
· a requirement that both parties participate in family dispute resolution in the event that they are unable to reach agreement relating to the children’s long term care, welfare and development.
There will be final orders and notations of the Court to reflect this decision.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Monahan FM.
Deputy Associate Jason Tozer
Date: 25 May 2010
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