G and A
[2008] FCWA 8
•18 JANUARY 2008
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: G and A [2008] FCWA 8
CORAM: MARTIN J
HEARD: 11 DECEMBER 2007
DELIVERED : 18 JANUARY 2008
FILE NO/S: PT 2391 of 2001
BETWEEN: G
Applicant/Father
AND
A
Respondent/Mother
Catchwords:
FAMILY LAW - children - parental responsibility - with whom a child lives - child's views - separation of siblings
Legislation:
Family Court Act 1997 - s 66, s 66A, s 66C, s 70A and s 89AA
Category: Not Reportable
Representation:
Counsel:
Applicant: Mr Rodda
Respondent: Mr Redman
Solicitors:
Applicant: O'Sullivan Davies
Respondent: Gibson & Gibson
Case(s) referred to in judgment(s):
Nil
1The issues for determination were the parties’ respective applications for parenting orders. The applicant father’s application was first filed on 28 November 2005. The respondent mother responded on 13 December 2005.
2At trial, the orders sought by the father were contained in a minute handed up in court on the day of trial. The orders sought by the mother were contained in a minute attached to her trial affidavit sworn 13 September 2007.
3The principal issues to be determined were:
1.Whether the parties should have equal shared parental responsibility for their three children, or whether the mother should have sole parental responsibility.
2.Whether the parties’ youngest child, a boy aged 11 years, should continue to live primarily with his mother and spend time with his father on alternate weekends from Friday afternoon to Sunday afternoon, and on each Tuesday night as proposed by his mother, or whether he should live with both his parents on a week about basis.
4While it was agreed, in principle, that the youngest child should spend approximately half school holidays with each parent, orders were necessary as to the precise division of the holidays.
5There are some other differences between the orders sought by the parties which were not addressed at any length at trial, if at all. At the conclusion of the trial, I indicated that I would formulate proposed orders in relation to all issues, but was prepared to then hear further brief submissions.
Background
6The father is 52 years old and a [sales consultant], involved in the provision of [industrial appliances]. The mother is 45 years old and is an [officer], working with a [women’s agency]. The parties commenced cohabitation in 1991/1992. There are three children of the relationship, [Patricia], born [in] February 1992 (15 years), [Shaun] born [in] March 1994 (13 years) and [Charles] born [in] June 1996 (aged 11 years). The parties separated in early 2001.
7The father has not re‑partnered, but the mother has been married to [Mr R], a writer, since June 2002. The mother and [Mr R] separated in October 2007, and he has moved to the Eastern States.
8The mother commenced proceedings in this Court in April 2001, and, on 21 May 2001, it was ordered that the children reside with the mother and she have sole responsibility for their day to day and long term care, welfare and development. The father did not attend the hearing, but wrote to the Court the next day saying he had been unable to attend. There was no suggestion he then took any further action.
9The children initially spent time with the father every second weekend from Saturday morning until Monday morning, on alternate Tuesdays from after school until Wednesday morning and for one half of the school holidays. On the mother’s initiative, the Tuesday night contact ceased after a few months, and weekend contact commenced from Friday evening, rather than the Saturday morning, which had usually been the case.
10The parties attended some counselling at the Family Court in May 2002 (the mother saying it was no accident this was the month prior to her wedding), but otherwise there were no further proceedings between the parties until 2005. [The father]’s evidence is that there was a change in 2003, when he commenced returning the children on Sunday evening, rather than Monday morning.
11The mother’s position, in May 2005, was that she became concerned because the father was inappropriately discussing matters with the children and she wrote to him seeking that he attend an anger management, and a parenting course, before his contact continue. She also raised a number of other concerns with him. The usual contact arrangements ceased, although the father had some very limited contact with the children at their weekend sporting activities and school assemblies.
12Nothing appears to have been done by either party to address the problems raised. The father’s explanation that he took some advice about court action, but thought he would not get very far, being a man, and he had concerns about the expensive process, I, not surprisingly, did not regard as a satisfactory reason for not seeking appropriate contact with his children.
13The father said there had been other ongoing problems between the parties, particularly over the issue of child support, the father falling some $25,000 into arrears.
14Matters came to a head on 13 November 2005, when [Charles], although he had seen his father at a sporting activity that morning, after getting annoyed when requested to do something by his mother, ran away from his mother’s home in the afternoon, across [a busy main street], and went to his father’s home. [The father] did not inform [the mother] where [Charles] was, but she rang, and then attended, the father’s home, and there was a violent incident between the parties. The mother left the home, and not long afterwards, [Charles] accompanied his grandmother back to his mother’s home.
15As a result, the mother obtained an interim restraining order against the father, and the father was eventually charged with assault. The child [Shaun] provided a statement to police, in the company of his grandmother, but at the trial of the assault charge on 29 June 2006, the mother was not prepared to have [Shaun] give evidence against the father. The charge was dismissed with costs. The mother suggested the father should have pleaded guilty so [Shaun] was not placed under pressure, but the father did not accept he should.
16It is not in dispute that the parties actively involved [Charles] in the physical confrontation, as both were trying to pull him away. Both parties are partly to blame for what occurred.
17The father recommenced proceedings in this Court on 28 November 2005, at which time he sought the children live with the parties on a week about basis. The mother again claims this was no accident as child support enforcement proceedings were pending, and the father had foreshadowed a departure application to the child support authorities, perhaps to fend this off. It was obviously not reasonable to seek week about time with [Patricia] when he had hardly been seeing her for some time by mutual arrangement.
18On 22 December 2005 it was ordered by consent, and without admission, until further order of the Court, that the parties be restrained by injunction from:
•denigrating the other party in the presence of the children;
•discussing or allowing any other person to discuss the Court proceedings in the presence of the children save for informing them of the residence and contact arrangements.
19Both parties were to attend a Mums and Dads Forever programme and the father was to attend an anger management course. His evidence was that he has since done so. I am not sure if the mother has attended the former course.
20An order was made for a court counsellor to prepare a report in relation to the children’s perceptions and wishes. Until further order, the father was to have contact with the children as agreed between the parties in writing having regard to the children’s wishes.
21The father did not see the children over the Christmas period, the mother wanting the children to have their wishes canvassed first.
22On 12 January 2006, the Family Consultant, [Mr B], delivered an oral report to the Court. [Mr B] spoke to all the children. [Patricia] described her relationship in her family as good, rating her mother very highly. She said that she is very close to her, regarding her as a caring, organised and involved parent who worries and focuses on the children and what is best for them. As to her father, she said she was not as close to him at that time because she had not seen him regularly and she preferred to offer no further opinion. She felt the difference between the parents is that the mother tries to avoid conflict, and her father confronts conflict. She had a good relationship with her brothers. Her wishes in relation to the parenting arrangements were that she chose to see her father when she wished, simply because this was the way it has been for some time.
23[Patricia] had (and still has) very extensive sporting commitments, particularly with [swimming], so said she found it easier to have contact with her father in winter, rather than summer. [Patricia] described the parental conflict as being high, and wished that her parents had an improved relationship with each other.
24[Shaun] said the problem was that his parents were not able to co‑operate together and they have different parenting rules and styles. Ideally, he would like a 50/50 shared arrangement but he regarded it as not being a reality, and as being highly unlikely to work because his parents argued too much and are both very stubborn people. He had found the separation really hard but felt he had adjusted quite well. He disliked his parents arguing but has learned to suppress or manage his sadness with the help of a counsellor. He wanted to see his father on a regular basis of alternate weekends, holiday arrangements and special days.
25[Charles] described his family relationship as good, rating his mother at 87 percent and his father as being 71 percent. He said that he would like his dad to “just slow a bit” on the questions about where he wished to live, or any question about his mother or the court circumstances. He referred to getting on well with [Shaun], and said he was closest to [Shaun] in the family.
26He also referred to an ideal improvement as being his parents to get on better somehow. He believes his mother had tried to do this but his father could try more. His first preference would be for week‑about time with his father but he did not think this would happen because his parents would not agree that it would happen. His second preference would be to revert to the arrangement of alternate weekends and half school holidays, but he wanted to be guaranteed his father could get him to his sporting arrangements.
27On 12 January 2006, orders were made by consent, until further order, that the parties have sole responsibility for the day to day care, welfare and development of the children when they were residing with each of their parents. The father’s contact with [Patricia] was to be as agreed between the parties and subject to [Patricia]’s wishes. As to the father’s contact with [Shaun] and [Charles], the father was to have the children for the first week of the school holidays, for a few hours on the children’s birthdays, and on Father’s Day.
28It was further ordered, not by consent, the applicant have contact with [Shaun] and [Charles] from 4.30 pm Friday until 7.00 pm Sunday. To facilitate the contact, the father was to collect and return the children from the mother’s home at the commencement and conclusion of contact, or from their sports training venue as notified by the mother as the case may be. Additional orders were made as to the parenting arrangements.
29In March 2006, the proceedings were included in the Defended List. It was ordered that a further Family Report be prepared. This report was prepared by a different court counsellor, [Ms C], and published on 29 June 2006, which was the same day the assault charge was heard. [Ms C]’s summary, at p 15 of her report onwards said:
“What is apparent from the interviews is that the children have a relatively good relationship with both parents. The father may need to be aware of potentially alienating each of the children if they suspect that they are not being treated equally. Unfortunately this can not be said about the relationship between the mother and father. There appears to be a great deal of underlying hostility by the father towards the mother and this may be partly due to the assault charges pending in relation to a Violence Restraining Order.
It is noted that [Patricia] has indicated that contact with the father be in accordance with her wishes. [Shaun] has indicated that he would prefer that the status quo be maintained with respect to the contact and that it be in accordance with his wishes. [Charles] has suggested that he would prefer a shared residency regime where he could see his parents where he could have relatively equal time with both parents.
Given that [Patricia] appeared to engage well and had a relatively good relationship with the father it seems that the father should consider ways that he may be able to develop a better contact relationship with her. One way to do this would be to suggest spending one on one time with [Patricia]. This may include phoning to speak to her more frequently, inviting her out for short time frames (1-2 hours) for an activity such as shopping. Although it may appear frustrating for the father if [Patricia] declines his offers, it will at least provide an opportunity for [Patricia] to have an opportunity to spend time with the father.
The father may also consider spending one on one time with each of the children which I suspect may assist in developing a closer relationship with each of the children. [Shaun] appears clear as to his reasons for wanting the contact to be in accordance with his wishes. He highlights that he has a range of commitments and appears focused on wanting to achieve well in those things he undertakes to do.
[Charles]'s preference for a shared care regime is noted but must not be viewed in isolation. In this instance it is important to consider the emotional adaptability of the child to such a regime. [Charles]'s presentation and comments made by the mother and siblings indicate that such a regime may present some challenges for [Charles]. Additionally it is important to consider the impact that this change would have on [Shaun] and [Patricia]. [Shaun] and [Patricia] have both articulated that they do not consider a shared residency regime to be the best option for either themselves or [Charles] for a number of reasons. If [Charles] was to undertake a joint residency regime [Shaun] and [Patricia] have indicated that this would impact on their lives also. There is some concern as to how this might impact on the sibling relationship and how the children would manage the separation anxiety and loss. [Charles] also indicates that he is not certain how he would manage if his brother and sister were not with him.
[Charles] presents as an emotionally sensitive child and this can be partially confirmed through comments from family members. Additionally the strong reaction he has to his mother's disciplining strategies might confirm his sensitivity. [Charles] seems very much impacted by what he views as harsh discipline by the mother, yet [Patricia] and [Shaun] give a different view of their mother's disciplining strategy. There seems to be a level of idolising of the father by [Charles] and this may be because he feels closest to his father and misses him.
In order to honour [Charles]'s wishes, consideration could be given to increasing the time that the child spends with the father. I would suspect that if the child saw the father weekly that this may reduce some of the anxiety the child experiences being separated from him. It may be more appropriate to introduce a contact regime where [Charles] spends time with his father one or at the most possibly two nights every week in addition to the alternate weekend contact. With any change, a phase in period should apply (i.e. one night for a period of three months and then second night for a period of three months). Should the child express a wish to return to the mother this must also be taken seriously due to the emotional sensitivity that exists for this child and the close relationship he has with the mother.
Additionally there is obvious lack of communication and underlying conflict within the co-parenting relationship. This is overall not a good predictor for a shared care regime. There is some concern as to how this regime might further potentially increase conflict between the mother and the father and what impact this would have on each of the children.
30The proceedings were included in a review of the defended list in June 2006, and adjourned to a conference before a Registrar. At the procedural conference, on 1 August 2006, the parties reached agreement as to some variations to the interim consent orders. It had been agreed that the defined contact orders be discharged in relation to the child [Shaun], who was to spend time with his father during school term in accordance with his wishes. [Charles] was to spend every Tuesday night, from 4.00 pm until Wednesday morning when school commenced, with his father, with this to be suspended during school holidays. Some other parenting orders were also made. These issues had largely been agreed at a counselling session with Counsellor [Ms C] following distribution of the report.
31On 12 December 2006, it was ordered, by consent, that [Shaun] and [Charles] spend time with their father for a total of 26 days over the December 2006/January 2007 school holidays, spread over three periods. The arrangements for [Shaun] and [Patricia] were to be in accord with their wishes and the mother was to encourage [Shaun] to spend time with his father.
32In late 2006, [Shaun] applied for specialist programmes through [the hlcoal high school and a specialist school] and decided to attend the Academic Extension Programme at [ a specialist school] from February 2007. [Shaun] was enrolled without the father being consulted.
33In April 2007, [Shaun] ceased spending time with the father after a disagreement between them when the father disciplined [Shaun] for “playing up” while being babysat by the father’s niece, and spent only one night with his father from April 2007. However, [Shaun] had, in the last few days prior to trial, spent a weekend with his father, and it is to be hoped that the situation is improving, and weekend and holiday contact will occur, as clearly it is in [Shaun]’s best interests.
34At trial, it was said that [Patricia] was having telephone contact with her father but very little personal contact other than occasionally seeing him at sporting events. She appears to have an incredibly busy life, and is attending a special [arts programme] at [the local high school].
35[Charles] was continuing to see his father at alternate weekends and on Tuesday nights. It was not in dispute that [Charles] should spend half school holidays with his father.
36At the conclusion of the trial, on 11 December 2007, I made orders for [Charles] to spend time with his father over the summer school holidays as follows:
…
(a)from 4:30 pm Friday, 14 December 2007 until 4:30 pm Friday, 21 December 2007;
(b)from 3:00 pm Christmas Day until 6:00 pm Boxing Day; and
(c)from 9:00 am Wednesday, 2 January 2008 until 4:30 pm Thursday, 17 January 2008.
•The applicant’s weekend contact recommence on the first weekend after the conclusion of the summer holidays.
Relevant factors
37Section 66 of the Family Court Act 1997 provides:
(1)The objects of this Part are to ensure that the best interests of children are met by -
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests) -
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
38Section 66A provides, in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
39Pursuant to s 70A:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in -
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
40Section 66C provides that in determining what is in the child’s best interests, the Court must consider the matters set out in sub-sections (2) and (3). The primary considerations are:
(i)the benefit to the child of having a meaningful relationship with both the child’s parents;
41It was not in dispute that it was to the benefit of all the children to have a meaningful relationship with both their parents.
42The father’s position is that the mother has tried to reduce his involvement with the children, and that [Charles]’s relationship with his father could be improved and strengthened if [Charles] was allowed to spend more time with him in accord with his wishes. He may become increasingly resentful if his wishes are blocked.
43The mother’s position is that, to the extent that [Patricia] does not have a meaningful relationship with her father, it is as a result of the father’s own actions. Generally, she says that the father has not been as committed to the children as he could have been, and this is reflected in his relationship with them.
(2)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
44There is no doubt that the children have been exposed to family violence in November 2005. They have certainly been exposed to significant conflict between their parents over the years, and this is reflected in the reports of the interviews with them with the court counsellor/consultants.
45While the parents appear to accept that it is not in the interests of the children to be exposed to conflict between their parents, there is still some conflict between them. It is clear that the father retains a level of anger against the mother which to some extent relates to the child support and financial issues. While the mother would deny she has ever acted inappropriately, both parties bear some responsibility for the present situation.
46The additional considerations are:
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views;
47I have already referred at some length to the children’s views as expressed to the Family Consultants. The parties accept that the views of [Patricia] and [Shaun] should be respected, and that the time these children spend with their father should be in accord with their wishes.
48As to [Charles], while he has previously expressed views that he would like to live with each parent on an equal basis, he was then used to spending time with his father with [Shaun] as well. He has now had several months where he has not been in [Shaun]’ company while with his father, but it has not been suggested that he has not enjoyed spending this time with his father.
49I have some concerns about [Charles]’s appreciation of other relevant issues, including the impact of being separated from his siblings, and mother, for very significant periods of time, and the practical implications of living in two separate homes. There is also a possible perception of material benefits with his father.
50The father’s position is that [Charles] has expressed a clear commitment and long term wish to live in a shared arrangement between his mother and father.
51The mother’s position was that there is a danger that wishes expressed by [Charles] are expressed because of a desire to please his father, and because of his view of himself as closest to his father and a sense of the obligation that that creates.
(b)the nature of the relationship of the children with:
(i)each of the children’s parents; and
(ii)any other persons (including a grandparent or other relative of the child);
52I have already referred to [Mr B]’s and [Ms C]’s reports, which referred, at length, to the children’s relationship with their parents.
53It is clear that [Patricia] has a much closer relationship with her mother than with her father. It seems no reasonable attempt has been made to address the lack of regular contact with her father. Hopefully, matters will improve as she grows older. It is very unfortunate that the father would attend her sporting events and not make himself known to her, when one of the problems in their relationship is that she thinks her father is not very interested in her. [Shaun] has usually had a good relationship with both his parents, but his relationship with his father has had its difficulties in the last few months. Hopefully, it is now improving.
54[Charles] has a good relationship with both his parents, although the mother says he places his emotional relationship with her on a slightly higher level than that with his father. The mother’s position was that the children’s relationship with each other would be put under strain by equal shared residence as a result of [Charles]’s special treatment by his father, and his absence from his siblings.
55The children appeared to have had a good relationship with the mother’s husband, [Mr R], but the couple have now separated. Presumably, all involved would have been upset at the time.
56As to grandparents and other family members, the father appears to have a good relationship with his sister, but apparently he does not get on well with his other two siblings. His parents are deceased.
57The children have a very good relationship with their maternal grandparents and see them regularly. The mother has had extensive assistance from her parents, for example, in practical arrangements for the transporting of the children, and they have been involved in many of the children’s school and sporting activities. They deserve considerable credit for this.
(c)the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent;
58The father says he has always promoted and encouraged the relationship between [Charles] and the mother. The father maintains that, at times, the mother has been restrictive and limiting of [Charles]’s relationship with his father.
59The mother says she has consistently tried to encourage a relationship between the children and the father, and recognises the emotional needs of the children. She says the father has sought to undermine her relationship with the children by calling on them to criticise her, and denigrating her in relation to court proceedings and child support matters. I accept this probably did occur to some extent. The mother regards herself as the more committed parent in every respect.
60My concern is that while the mother may well have been justified in taking action in April 2005, she had an obligation to promote the children’s relationship with their father, and if there were problems, to address them, rather than cease contact for months. Her position was she told the father what he could do, but he did not do it. I have already referred to the father’s also unsatisfactory explanation. Unfortunately, then the children missed out.
(d)the likely effort of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
(i)either of their parents; or
(ii)any other child or other person (including any grandparent or other relative of the child) with whom they had been living;
61The father’s position is that there is no evidence to suggest [Charles] would not handle a change to equal shared care.
62On the father’s proposal, [Charles] would be separated from his mother and siblings for a week at a time. [Charles] has been separated from his mother and siblings during contact visits in recent months, since [Shaun] has not been accompanying him. It is a matter of some significance if he was to be separated for lengthy periods from the rest of the family. The mother’s evidence is that this has led to some arguments between the children, in particular about benefits received by [Charles] while with his father. The mother believes that the rift in the family will be extended by an equal time arrangement.
63I accept that being separated from his mother and siblings for half the time may well not be in [Charles]’s interests, or that of the other children.
(e)the practical difficulty and expense of the children spending time with and communicating with each 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;
64A positive aspect of the parties’ situation is that they live close to each other, five minutes drive apart, and there are very limited practical difficulties in the children spending time with either parent. Many are practical issues regarding collection and delivery of the children because of their extensive sporting commitments and the fact that they attend different schools.
65The mother claims the father has consistently, over a long period of time, shown himself unwilling to be punctual for events involving the children and for school pickups. The father denies this, and he will now have an opportunity to demonstrate his commitment.
(f)the capacity of:
(i)each of the children’s parents; and
(ii)any other person (including any grandparent or other relative of the children);
to provide for the needs of the children, including their emotional and intellectual needs;
66I accept that both parties have an ability to provide for all the children’s needs, but the mother has considerably more experience in this regard. She is a very committed parent who has accepted most of the responsibility for the children’s school and sporting activities. The father has attended school and sporting events, but has not been as involved as the mother in the daily grind.
67The mother’s position is that the father has not shown a capacity to provide for the children’s emotional needs in every respect, for example, in involving them directly in the proceedings and in child support issues, and it was this issue which led to the cessation of his contact with the children in 2005. I accept that to some extent his focus on such issues has had an impact on the children. However, both parties have some responsibility for permitting the conflict between them to continue.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Court thinks are relevant;
68The mother refers to the fact that [Charles] was referred to by [Ms C], as an emotionally sensitive child. For some time, [Charles] has been attending [Mr H] an art psychotherapist. He has had ongoing problems with bedwetting. [Shaun] has been attending a counsellor since about 2005. He started as a result of some incident at school.
69The only other relevant characteristics in this regard are the fact that all the children, [Patricia] and [Shaun] in particular, are very involved in sporting activities, and their accepted commitments in this regard must be taken into account in making any parenting orders.
(h)the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
70The father maintains that while both parents, in isolation, exhibit a good attitude towards the responsibilities of parenthood, they do come into conflict, at times, as to what is the best and most appropriate way to exercise those responsibilities. He maintains at times, the mother has not been a responsible parent in being unduly restrictive of the children’s relationship with him.
71The mother’s position is that she has demonstrated a consistently self-sacrificing and devoted attitude to her obligations as a parent, being involved in everything the children do and facilitating, at some personal cost, all of their various activities and interests. At the same time she displays appropriate boundaries and limits for the children.
72I accept she is a very committed parent in difficult circumstances and that the father has not given her sufficient credit for this. Not only is this because of the ongoing conflict and lack of communication with the father, and the fact she has not been able to count on consistent child support payments, but because the children are very “high maintenance”, being involved in a number of academic programmes, for example, at trial, [Patricia] was apparently attending many training sessions per week, in different sports. At the moment, the children are attending three different schools.
73The mother says the father, on the other hand, has repeatedly ignored his obligations to pay child support, having, in 2006, had arrears of $23,000. In 2007, his arrears had again reached over $4,000 and the applicant appears to have ignored the possible impact of this upon the children. The mother claims that the father has an interest in a number of properties, and he owns the former matrimonial home. The father said there are family financial issues, he does not have access to funds and had to borrow the child support lump sum payment from several friends. At trial, the father’s evidence was that he was assessed to pay $1,471 per month and he was up to date, even though he said the assessment was excessive, being based on an incorrect income figure. The mother complains that the father has been prepared to incur extensive legal fees, rather than pay child support. Apparently, he has not regularly lodged tax returns. I find it very difficult to understand how a responsible parent could fall so far in arrears.
74The mother also complains about the father being ungenerous about ad hoc needs of the children, for example, she says [Patricia] is the only child in her surf [sporting] group using a borrowed [equipment]. She is prepared to meet half these costs. The father’s position is he should not have to chip in further when he is paying child support, and he has no say in the decision-making.
75The mother also criticises many other aspects of the father’s application to the responsibilities of parenting, in particular:
•a lack of punctuality when collecting and delivering the children – the father says he is not allowed to collect the children, even one minute early. He admits sometimes being a few minutes late because of the traffic;
•lack of balance in his approach to the children, particularly in giving [Charles] much better presents than the other children and taking him on interstate trips. The father denies this, and I refer to it later;
•in the past at least, failure to appreciate the results of his actions in directly involving the children in disputes, for example, discussing court proceedings and child support issues with them.
76To some extent, I accept the mother’s complaints are justified. However, the father seems to be able to do nothing right in her eyes, and I am concerned about her lack of respect for his parenting, and how this may affect the children.
77While I appreciate there is an enormous amount of difficult history to the situation, it should be possible for the parties to improve their relationship. I fear any improvement in the situation is more likely to occur just by effluxion of time as the children grow up and become independent.
(i)any family violence involving the children or a member of the children’s family;
78There was a violent incident between the parties in November 2005, which led to an interim restraining order being made on the mother’s application, and also assault charges being laid against the father. However, a final VRO was not made and the assault charges were not proceeded with. This occurred two years ago, and there have been no further violent incidents. There are no family violence orders in force.
(j)whether it would be preferable to make the order that would be [the mother]st likely to [the mother]d to the institution of further proceedings in relation to the children;
79I do not consider that any order I make is more or less likely to lead to further proceedings.
(k)any other fact or circumstance that the Court thinks is relevant;
80Any other issue will be referred to in my conclusion.
81Section s 66C(4) of the Act provides:
(4)Without limiting subsection (3)(c) and (h), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents —
(a)has taken, or failed to take, the opportunity —
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
and
(b)has facilitated, or failed to facilitate, the other parent —
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child;
and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
82There have not been many major long term decisions to make and, since separation, the father has not really been involved with them. He could have done more to pursue involvement. The father has taken the opportunity to spend time with, and communicate with, [Charles], but has not very actively pursued his relationship with [Patricia], and more recently, [Shaun], when problems developed. Both parties could have done much more to actively help improve the situation.
Conclusion
Equal shared parental responsibility
83The father’s position was that it was in the children’s interest for him to have equal shared parental responsibility, and there was no reason for him not to be actively involved in major decision making for the children. To the extent that he has not been so involved in the past, he blames the mother for not consulting him.
84The mother’s position is that it is not appropriate for the parties to have equal shared parental responsibility when they are unable to communicate about anything of significance, and have a very poor relationship. The mother very strongly believes that the father has shown little consistent interest in all aspects of the children’s life and she has been by far the most responsible parent.
85The present position, I believe, is that pursuant to orders made on 12 January 2006, the parties have sole responsibility for the day to day care for the day to day care, welfare and development of the children during the periods in which the children reside with them. Pursuant to orders made at the very beginning of the proceedings in May 2001, the mother had sole responsibility for the day to day and long term care, welfare and development of the children.
86As to the applicability of the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility, I am prepared to accept that the presumption may not apply in this case because there was the incident of fairly serious family violence in November 2005, but the real issue is whether it is in the best interests of any of the children for their parents to have equal shared parental responsibility for them.
87I have concluded that, having regard to all the evidence, it is in the best interests of [Shaun] and [Charles] for the parties to have equal shared responsibility for them. While I accept that the mother has been the more responsible parent overall, I do not accept that this means that the father should, in the future, not have an opportunity to be involved in major decision making. In reality, I find it difficult to envisage a major issue where this is likely to cause significant difficulties. It is highly likely that [Charles] will consult with both parents prior to making a decision as to his secondary education in any event, and [Shaun] has already made his own decision, over which the father should have been consulted. I was informed [Charles] may well attend [the local high school]. While I am reluctant to separate the children, in principle, it is pointless making an order for equal shared parental responsibility in relation to [Patricia], having regard to her age, and her very limited relationship with her father.
88In the event that a major issue arises, and the parties are unable to agree, if necessary, the matter may be relisted probably just for determination of that issue. I would have no hesitation in varying the orders in relation to parental responsibility, if the father is not being prepared to engage in reasonable efforts to reach a consensus. I consider this is unlikely to occur, not so much because the parties will reach agreement, but because the parents will have limited opportunity to make major decisions about the children.
Equal shared care
89The father’s position was that the parties should have equal shared care, and that [Charles] should live with each parent on a week about basis.
90Since I have determined the parties are to have equal shared parental responsibility, s 89AA of the Act is applicable. This provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
91Much of the case has been engaged in consideration of this issue. While equal shared care may be reasonably practicable, I am not confident that the father would necessarily properly provide for all aspects of the child’s care if he was living with him on a week about basis - although he says his work is flexible, he does have limited experience of this. It would appear that he does not have as much additional practical support as the mother has.
92In closing, counsel for the father suggested that equal time could be introduced on a trial basis for a term. Alternatively, as a fall-back position, he proposed that the child spend from Friday after school to Wednesday before school with his father in one week, and then overnight on Tuesday with his father in the other week. The father’s position is that [Charles] had expressed views which should be respected. His evidence was that he could arrange his work to fit in with obligations to care for the child, and that he would be able to undertake the transport of the child for school and sporting activities.
93The mother’s position was that the present arrangements of the child spending from after school Friday to Sunday afternoon and Tuesday nights, overnight, with his father should continue as she accepted that they had been successful. She was particularly concerned that if there was equal shared care, or if [Charles] spent further time away from his siblings, let alone her, that this would not be in the family’s best interests overall, as it would be likely to cause difficulties in his relationship with the other children. Her position was that there are already some tensions because the older children perceive [Charles] as receiving preferential treatment over the other children, for example, in receiving far superior presents. While the father denies this, I accept that, to some extent, it is the case, understandably so, when [Patricia] has little to do with her father, and [Shaun] has seen him on a very limited basis for most of 2007. It is not in dispute that the father has taken [Charles] on interstate trips to sporting events, which is available to him through his employment. The other children have not had this opportunity, although the father says that he did propose taking them all to a wedding in Sydney, but the mother was uncooperative about this so it did not occur.
94As was said by the court counsellor, the parties’ poor relationship is not a good predictor for the success of a shared care regime.
95I am not satisfied that it is [Charles]’s best interests for him to live with his father on a week about basis, but I do accept that it is presently in his best interests to have some extended time with his father. While I am not prepared to accede to the request of extending the time in alternate weeks from Friday after school until Wednesday morning, I have concluded that it should be extended to Tuesday morning, and then that [Charles] also stay with his father in the intervening Tuesday overnight. This will increase [Charles]’s time spent with his father from four nights in 14 days to five nights, and give him a longer “clear run” with his father. The father will need to purchase a set of school uniforms. It will be for his father to demonstrate that he is able to undertake what the mother has not accepted he can be trusted to do and that is, ensure [Charles] attends his school and extra-curricular activities. This will mean [Charles] still has the majority of nights with his mother, and the other children, and has a “clear run” with the rest of the family on intervening weekends.
96Although I am reluctant to make the orders “until further order”, as foreshadowing further proceedings between the parties, which are to be discouraged, I am satisfied that this change in living arrangements should be trialled, at least for this year. I suspect that whether or not the arrangements are working, and whether [Charles]’s views to spend more time with his father are maintained, will soon become apparent.
Other orders
97The mother had sought an order that the fortnightly pattern of contact be arranged to accommodate the [football team] home games and that the father be offered an extra weekend of contact to compensate him for this inconvenience. The mother accepted that [Charles] was now a supporter [ of a different team], but still may like to attend games with her and her family. It was also an opportunity to catch up with his grandparents, with whom he has a close relationship and who live close to [the oval].
98The father’s position was that the child does not really now want to attend [the team] games anyway.
99I have concluded that [Charles] should have an opportunity to attend the games should he wish to do so, and should certainly have an opportunity to be involved in the family football outing. If he really does not want to attend the game, he can spend the time with his grandparents, with whom he has requested to have some time anyway.
100The father should also have an opportunity to continue to take the child interstate to sporting events if he wishes.
101The mother proposed that the sharing of long weekends between the parties and the [football team] pattern of contact be determined each year by 15 November to assist the parents to share long weekends and public holidays, with the mother to be allocated a long weekend in June which falls close to her birthday. I accept this could be desirable, but now not practicable, having regard to the fact we are well past 15 November. I would have thought by 1 January each year would be sufficient notice.
102As to school holidays, it was accepted that [Charles] should spend time with his father for the first week of school holidays during the school year. The father proposed that he have half of the school holidays from 4:30 pm on the last day of school ending at 9:00 am on the first day of school when school returns. The mother proposed that the father have the first week of the school holidays from Friday night at 4:30 pm until the following Saturday evening at 4:30 pm.
103As to the summer school holidays, the father proposed that [Charles], in alternate years, spend the first seven days of the school holidays with his father and, in the alternative years, [Charles] spend the first seven days of the school holidays with his mother. The father proposed that the parent who does not have [Charles] with them for the first week of the holidays have the last week of the holidays in that year. Otherwise, he proposed that the child spend a period of two weeks with his father, commencing on 26 December 2007 and every alternate year thereafter, and a period of two weeks with his mother, commencing on 26 December 2008 and every alternate year thereafter, then the next two weeks with the other parent.
104The mother proposed that the father be allocated the first week of the school holidays each summer, commencing at 4:30 pm until the following Saturday at 4:30 pm. Thereafter, she proposed that the parties alternate the first two weeks of the holidays after Boxing Day each year, with the mother to have the period 2007/2008 – since she referred first to 2006/2007, I am not sure if her dates were correct. She also agreed to the other parent having the next two weeks in alternate years. She sought the final week of the summer school holidays each year to enable the children to get ready and organised for the school year ahead.
105The previous orders, made 12 December 2006, provided in 2006/2007 that [Shaun] and [Charles] spend time with their father:
•from 9:00 am on 18 December 2006 until 3:00 pm on Saturday, 23 December 2006;
•from 3:00 pm Christmas Day 2006 until 7:00 pm 7 January 2007;
•from 7:00 pm 14 January 2007 until 7:00 pm 22 January 2007;
106The orders I made at the conclusion of the hearing provided for [Charles] to spend time with his father:
•from 4:30 pm on Friday, 14 December 2007 until 4:30 pm on Friday, 21 December 2007;
•from 3:00 pm Christmas Day until 6:00 pm Boxing Day; and
•from 9:00 am Wednesday, 2 January 2008 until 4:30 pm Thursday, 17 January 2008.
107There was virtually no evidence on this issue. It seems appropriate for the father to have the first week of the holidays and for the mother to have the last week of the holidays, with the two fortnightly periods after Christmas to be alternated between the parties as proposed by them.
108This probably leaves little time prior to Christmas, and possibly towards the end of the holidays, unassigned. I am prepared to hear further submissions on this point, but I propose that orders be made that that period be divided equally between the parties.
109I regard the important consideration as being an equal division of the holidays between the parties and certainty in the arrangements.
110As to Christmas Day, the father sought that the children spend from 2:00 pm until 8:00 pm with him each Christmas. The mother does not appear to refer to this in her Minute. The father did not see the children on Christmas Day 2005, but had the children from 3:00 pm Christmas Day in 2006. In 2007, pursuant to my orders, the children were to be with him from 3:00 pm on Christmas Day until 6:00 pm Boxing Day.
111I accept that the time spent with the father should commence from 3:00 pm, so lunch is not rushed, and continue to extend through until 6:00 pm on Boxing Day.
112The father sought that the child spend his birthday, and his father’s birthday, overnight with him, and the mother proposed that the child spend a few hours with the other parent on those days. I believe the latter is more in accord with arrangements up until now and is fair to both parties.
113Obviously, [Charles] should spend Mother’s Day and Father’s Day with the parent whose special day it is.
114The father sought an order that “as far as practicable, both parents ensure that the children attend their sporting, schooling and cultural activities, including training, rehearsals and performances, providing each parent has consented to the involvement in advance”.
115The mother sought an order “that as much as practicable, the father ensure that the children attend their sporting, school and cultural activities, including training, rehearsals and performances, during his periods of contact with the children”.
116The difference between the parties was therefore that the father proposed that the obligation only apply if each parent has consented to the same in advance.
117Again, it is now really going to be up to the children in which activities they are to be involved, and each parent is going to have to make arrangements with the children, so that they only undertake activities which are practically possible.
118The father proposed that both parents be permitted to have telephone contact with any of the children at any time. Neither party shall interfere with telephone contact. I do not believe the mother sought an order about telephone contact.
119Telephone contact has sometimes been problematic – the mother, for example, placing what appears to be reasonable restrictions on [Charles]’s mobile telephone usage, for example, at dinner time, and the father feeling his contact is being restricted. The mother’s evidence was recently she had to discipline [Charles] because he had sent inappropriate text messages. There have been some problems about the cost of calls. Obviously, the children are of an age when telephone contact should be in accord with the children’s wishes, provided these are reasonable.
120Both parties sought similar orders about the provision of information regarding the children, which obviously should be provided.
121The mother sought an order that the father contact the mother within 48 hours of the scheduled Tuesday night contact, informing her if he cannot exercise contact, and that the notice period be 28 days for school holiday contact. The father did not refer to this. Obviously, he should give as much notice as possible of his intentions, as I understand that he will be away on some occasions. The mother’s proposed order appears reasonable in the circumstances. It was not suggested, but I consider it would be too complex, for there to be make-up time in these circumstances.
Proposed orders
1.The mother have sole parental responsibility for the child, [PATRICIA] , born [in] February 1992, and the parties have equal shared parental responsibility for the children, [SHAUN] born [in] March 1994, and [CHARLES] , born [in] June 1996.
2.Both the mother and the father have day to day responsibility when the children are in their care.
3.The children, [Patricia] and [Shaun], live with their mother and spend time with their father pursuant to their views.
4.The child, [Charles], live with both his parents on the following basis:
(1)During school terms, with his father:
(i)each alternate Tuesday night, with the child to be collected from the mother’s home at 4.00 pm, and returned to school no earlier than 8.30 am on Wednesday morning, unless the child has a commitment before school;
(ii)every second weekend, with the child to be collected from mother’s home or training venue at 4.30 pm Friday, or such other time as advised by the mother, and returned to school on Tuesday morning at no earlier than 8:30 am, unless the child has a commitment before school,
and otherwise with his mother;
(iii)(a)the fortnightly pattern be arranged to permit the mother to take the child to [football] home games, but so as to ensure the child spends half of the weekends during school term with each parent;
(b) during his weekends with the child, the father be permitted to take the child interstate;
(2)During school holidays, [Charles] live with his parents as follows:
(i)with the father for the first week of the school holidays during the school year from Friday afternoon at 4:30 pm until the following Saturday afternoon at 4:30 pm, when the child is to be delivered to the mother;
(ii)the Tuesday night and weekend arrangements be suspended during school holidays;
(iii)with the father for the first week of the summer school holidays commencing at 4:30 pm on the first Friday until the following Saturday evening at 4:30 pm;
(iv)with the father from 3:00 pm Christmas Day until 6:00 pm Boxing Day at 6:00 pm;
(v)with the father for the first two weeks of holidays after Boxing Day in each alternate year commencing 2008, and in the intervening year, the two weeks of the holidays after the two weeks from Boxing Day;
(vi)with his mother for the last week of the school holidays and at other times he is not to live with his father;
(vii)any summer school holidays not allocated between the parties be equally divided between them.
5.The division of long weekends, the [football team] home games arrangements and the summer school holidays be determined each year by 1 January if practicable, extending to the conclusion of the summer school holidays at the end of that year, with the mother to be allocated the long weekend in June which falls close to her birthday;
6.(i)[Charles] spend time with his father on his birthday (11 June) and on his father’s birthday (13 November) from 4.30 pm – 7.30 pm on his birthday and 4.30 pm – 8.30 pm on his father’s birthday if these days fall on a day he would not normally see his father, and otherwise [Charles] spend the day, if not at school, with the mother;
(ii) [Charles] spend time with his mother on his birthday from 4:30 pm to 7:30 pm and on his mother’s birthday between 4:30 pm and 8:30 pm, if either occurs on a day the child would otherwise be staying with the other parent.
7.[Charles] be able to spend Mother’s Day and Father’s Day with his mother and father respectively from 6.00 pm on the Saturday prior, to 6.00 pm on the Sunday, if it is not a day that parent would otherwise spend time with him.
8.(1)The parties be permitted to travel overseas and interstate with the children, and provide notice of their arrival and departure dates to the other parent no less than 28 days prior to her departure, and relevant contact, accommodation and telephone details.
(2) Any time scheduled to be spent with the other parent be subject to make-up time if either party wishes to take the child on holiday, and this interferes with the other parent’s time with the child.
9.The parties be restrained by injunction from:
(i)denigrating the other parent, or allowing any other person to denigrate the other parent, in front of the children.
(ii)discussing any Family Court or child support matter or related correspondence with any of the children.
10.As far as practicable, the father ensure that the children attend their sporting, schooling and cultural activities including training, rehearsals and performances during his periods of contact with the children, to be in accord with the children’s wishes.
11.Both parties ensure they have regular access to emails, and communicate preferably by email, or by telephone.
12.The parents provide any necessary authorisation to enable the other parent to receive all relevant medical and medical emergency and educational reports.
13.Each parent ensure the other is provided with an up-to-date landline and mobile telephone numbers and email address and inform the other of any changes to these contact details.
14.If reasonably practicable, the father contact the mother no later than 48 hours prior to a Tuesday night contact and seven days prior to a weekend contact to inform her if he is not available to spend time with the child, and 28 days’ prior to the holiday if he is to be unavailable to spend time with the child during a school holiday.
15.The parties be permitted to have telephone contact with any of the children at any reasonable time.
16.There be liberty to apply in relation to implementation of this order.
17.The applications otherwise be dismissed.
I certify that the preceding [121] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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