Galanis & Macris
[2015] FCCA 2567
•12 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GALANIS & MACRIS | [2015] FCCA 2567 |
| Catchwords: FAMILY LAW – Children – parenting orders – parental responsibility – equal shared parental responsibility – best interests of the children – shared care – whether shared care is in the best interests of the children – two children aged ten years and nine years – wishes of children considered. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CD, 61DA, 62G, 65DAA |
| Cases cited: Hall & Hall (1979) 5 Fam LR 509; FLC 90-713 |
| Applicant: | MS GALANIS |
| Respondent: | MR MACRIS |
| File Number: | WOC 576 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 6-7 November 2012, 8 February, 19 July 2013, 29 August 2014 |
| Date of Last Submission: | 4 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 12 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Ms Gillies |
| Solicitors for the Respondent: | Rita Thakur & Associates |
ORDERS
All earlier parenting Orders are discharged.
The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for all long term decisions for the care, welfare and development of the children X born (omitted) 2004 and Y born (omitted) 2006.
Each party is to have sole parental responsibility for all day to day decisions concerning the care or welfare of the children during all times that the children are in the care of that party in accordance with these Orders.
The children X and Y are to live with the Mother.
The Father is to spend time with the children as follows:
(a)Each alternate weekend during the school term from immediately after school on Friday until the commencement of school on the following Tuesday;
(b)For half of each of the Autumn, Winter and Spring school holiday periods, being the first half in 2015 and all odd numbered years thereafter and the second half in 2016 and all even numbered years thereafter;
(c)For two weeks during the Christmas/January school holidays, commencing at 9:00am. on 2 January in each year and concluding at 5:00pm. on 16 January in each year;
(d)From 5:00pm on the Saturday immediately prior to Fathers’ Day until the commencement of school on the following Tuesday;
(e)On each of the children’s birthdays if the children are not otherwise in the Father’s care in accordance with these Orders, from immediately after school until 7:00pm if the birthday falls on a school day or from 10:00am until 2:00pm if the birthday falls on a day when the children are not required to attend school;
(f)On the Father’s birthday if the children are not otherwise in the Father’s care in accordance with these Orders, from immediately after school until 7:00pm if the day falls on a school day or from 10:00am until 2:00pm if the Father’s birthday falls on day when the children are not required to attend school;
(g)From 12:00 noon on Christmas Eve until 2:00 pm on Christmas Day in 2015 and all odd numbered years thereafter;
(h)From 2:00pm on Christmas Day until 6:00pm on Boxing Day in 2016 and all even numbered years thereafter;
(i)At Orthodox Easter if the children are not otherwise in the care of the father in accordance with these Orders on the weekend that Orthodox Easter falls, from 2:00pm on Orthodox Easter Sunday until the commencement of school the next day or 10:00am if the following day is not a school day; and
(j)At such other times, if any, as the parties shall agree.
To avoid confusion, for the purposes of the above Orders:
(a)The parties’ time with the children for the first half of the Autumn, Winter and Spring school holiday period will commence at 9:00am on the Saturday immediately after the end of the school term and conclude at 12:00 noon on the middle Saturday of the school holiday period; and
(b)The parties’ time with the children for the second half of the Autumn, Winter and Spring school holidays will commence at 12:00 noon on the middle Saturday of the school holiday period and conclude at 5:00pm on the day immediately before the children are required to attend school at the commencement of the next school term.
Changeovers in accordance with the above Orders are to take place at the children’s school as the case may and on other occasions the Father is to collect the children from the Mother’s residence at the commencement of the children’s time with him and the Mother is to collect the children from the Father’s residence at the conclusion of their time with him, unless the parties agree otherwise in writing.
Notwithstanding the above Orders, the Father’s time with the children is to be suspended on the following occasions:
(a)From 5:00 pm on the Saturday immediately prior to Mothers’ Day until the commencement of school on the day immediately after Mothers’ Day;
(b)At Orthodox Easter if the children are not otherwise in the care of the mother in accordance with these Orders on the weekend that Orthodox Easter falls, from 2:00pm on Orthodox Easter Sunday until the commencement of school the next day or 10:00 am if the following day is not a school day.
Each party must inform the other party as soon as reasonably possible of any illness or injury suffered by either of the children whilst that child is in the care of that party.
Each party may attend all school sporting events, social functions, parent-teacher interviews, prize-giving ceremonies, special assemblies and all other school functions to which parents of children attending the school are normally invited.
Each party is entitled to receive from the school or schools attended by the children copies of all school reports, newsletters, information about school photographs and other material normally provided to parents of children attending the children’s school or schools.
IT IS NOTED that publication of this judgment under the pseudonym Galanis & Macris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 576 of 2010
| MS GALANIS |
Applicant
And
| MR MACRIS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for parenting orders by the Mother of the parties’ two children, a girl named X who was born on (omitted) 2004 and a boy named Y, who was born on (omitted) 2006. She seeks orders that the children should live with her and spend time with their father, the Respondent.
The Father opposes those proposed orders.
Orders sought
The Mother, by her Application filed on 21st July 2010, sought these orders:
1. That both parents have equal shared parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2006.
2. That the children live with their mother.
3. That the children spend time and communicate with their father as follows:
a)From after school or daycare until 7.00 pm each Tuesday and Thursday.
b)Each alternate week from after school or daycare on Friday until the commencement of school or daycare on Friday until the commencement of school or daycare on the following Monday.
c)During school holidays in week one of a rotating fortnightly cycle from 3.00 pm on Wednesday until 9.00 am on the following Friday and in week two of that cycle from 3.00 pm on Monday until 9.00 am on Wednesday and from 3.00 pm Friday until 9.00 am on the following Monday.
d)On Father’s Day each year from 9.00 am until 5.00 pm.
e)From 2.00 pm Christmas Day until 6.00 pm Boxing Day in all even numbered years and from 2.00 pm Christmas Eve until 2.00 pm on Christmas Day in all odd numbered years.
f)Such further and additional times as the parties may from time to time agree upon.
4. That notwithstanding any order herein to the contrary the time that the children spend with their father shall be suspended from 5.00 pm on the Saturday before Mother’s Day until 9.00 am on the day after Mother’s Day in each year.
5. That each parent shall have sole parental responsibility for the day to day decisions concerning the children’s care and welfare during those times that the children shall be in that parent’s care.
By his Response filed on 28th September 2010, the Father sought the following parenting orders:
1.That both parties have equal shared parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2006.
2. That the children live with the mother as follows:
2.1Each alternate week from after school or day care each Tuesday until before school or day care each Thursday.
2.2Each alternate weekend from after school or day care on Friday until the commencement of school or day care the following Monday.
2.3 For half the school holidays
2.4From 9am until 5pm on Mother’s Day should Mother’s day fall on a weekend when the children would otherwise have been with the father.
2.5From 2pm Christmas Day until; Boxing Day in all even numbered years and from 2pm Christmas Eve until 2pm Christmas Day in all odd numbered years.
2.6 At other times as agreed between the parties.
2.7Should Father’s Day fall on a weekend when the children are otherwise to be with the mother then the mother shall return the children to the father at 9am Father’s Day and the children shall then remain with the father for the rest of the weekend.
3. At all other times the children shall live with the father.
4. That both parents shall have the responsibility for the day to day care welfare and development of the children during those times when the children are in their care.
The Father also sought property orders in his Response.
On 1st October 2010 Altobelli FM[1] made orders that the Mother should file and serve documents in reply to the property orders sought in the Response. His Honour also ordered that the parties should attend upon a Family Consultant for the purposes of preparation of a Family Report under the provisions of s.62G of the Family Law Act 1975 (Cth).
[1] As his Honour then was
On 29th October 2010 the Mother filed an Amended Initiating Application in which she sought property orders as well as parenting orders. The parenting orders sought in the Amended Initiating Application are:
1. That both parents have equal shared parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2006.
2. That the children live with their mother.
3. That the children spend time and communicate with their father as follows:
a)From after school or daycare until 7.00 pm each Tuesday and Thursday.
b)Each alternate week from after school or daycare on Friday until the commencement of school or daycare on Friday until the commencement of school or daycare on the following Monday.
c)During school holidays in week one of a rotating fortnightly cycle from 3.00 pm on Wednesday until 9.00 am on the following Friday and in week two of that cycle from 3.00 pm on Monday until 9.00 am on Wednesday and from 3.00 pm Friday until 9.00 am on the following Monday.
d) On Father’s day each year from 9.00 am until 5.00 pm.
e)From 2.00 pm Christmas Day until 6.00 pm Boxing Day in all even numbered years and from 2.00 pm Christmas Eve until 2.00 pm on Christmas Day in all odd numbered years.
f)Such further and additional times as the parties may from time to time agree upon.
4. That notwithstanding any order herein to the contrary the time that the children spend with their father shall be suspended from 5.00 pm on the Saturday before Mother’s Day until 9.00 am on the day after Mother’s Day in each year.
5. That each parent have sole parental responsibility for the day to day decisions concerning the children’s care and welfare during those times that the children shall be in that parent’s care.
The Mother also sought property orders which are not reproduced here.
On 20th May 2014 the mother brought an Application in a Case seeking that the proceedings be urgently relisted for interim hearing pending the delivery of judgment in the substantive parenting proceedings, that all previous orders were to be discharged and that the following Orders should be made:
1. That both parents have equal shared parental responsibility for the children X born (omitted) 2004 and Y born (omitted) 2006.
2. That pending further Order the children live with their mother.
3. That the children spend time and communicate with their father as follows:
(a)Each alternate week from after school Friday until the commencement of school on the following Tuesday.
(b)From 5pm on the Saturday prior to Fathers’ Day until 9am on the morning after Fathers’ Day each year.
(c)From 2.00 pm Christmas Day until 6.00 pm Boxing Day in all even numbered years and from 2.00pm Christmas Eve until 2.00 pm on Christmas Day I all odd numbered years.
(d)If the children are not living with the father on the weekend that Orthodox Easter falls, the children shall live with the father from 2pm Orthodox Easter Sunday until the commencement of school the next day or in the event that the following day is not a school day, until 10am.
(g)[2] Such further and additional times as the parties may from time to time agree upon.
4. Unless otherwise agreed to in writing the father will collect the children from the mother’s residence at the commencement of their time with him and the mother collecting[3] the children from the father’s residence at the conclusion of their time with him.
5. The father’s time with the children shall be suspended on the following occasions:
a. From 5pm on the Saturday before Mother’s Day until 9am on the morning after Mother’s Day in each year.
b. From 2pm Christmas Day until Boxing day in all odd numbered years and from 2pm Christmas Eve until 2pm Christmas Day in even numbered years.
c. If the children are not living with the mother on the weekend that Orthodox Easter falls, the children shall live with the mother from 2pm Orthodox Easter Sunday until the Commencement of school the next day or in the event that that the following day is not a school day, until 10am.
7.[4] That each parent have sole parental responsibility for the day to day decisions concerning the children’s care and welfare during those times that the children shall be in that parent’s care.
[2] There was no proposed order 3.(f)
[3] sic
[4] There was no proposed order 6
On 18th July 2014 the Father filed a Response to an Application in a Case in which he sought the following Orders:
1. That all previous Orders be set aside.
2. That the children of the parties, namely X born (omitted) 2004 and Y born (omitted) 2006 live with the father and the Father have sole parental responsibility for the day-to-day care, welfare and development of the children when they are in his care.
3. That the children spend time with the Mother as follows:
i) Each second weekend from after school Friday until before school Monday morning.
ii)Each other weekend from after school Friday until 7.00 pm Saturday.
iii)For half of the school holidays as agreed but failing agreement in the first half of each odd numbered years[5] and the second half of each even numbered years[6].
[5] sic
[6] sic
iv) From Friday after school or 3.00 pm until Sunday 10:00 am should Orthodox Easter fall on a weekend when the children are otherwise with the Father.
v)From after school until 6.00 pm should the children’s birthday or the Mother’s birthday fall on a weekday when the children are otherwise with the Father.
vi) From 9.00am until 7.00pm should the Mother’s birthday fall on a day when the children are with the Father but it is not a school day.
vii)From 9.00am until 1.00pm should the children’s birthday fall on a day when the children are not otherwise at school and are with the Father.
viii)For Mother’s Day from 6.00pm Saturday until before school Monday should Mother’s Day fall on a weekend when the children are otherwise with the Father.
ix) From 2.00pm Christmas Day until 6.00pm Boxing Day in each even numbered year.
4. The Mother’s time with the children to be suspended as follows:
i)From 10.00am Sunday until before school Monday for Orthodox Easter should it fall on a weekend when the children are with the Mother.
ii)From 9.00am until 1.00pm should the children’s birthday fall on a day when the children are not at school and are otherwise with the Mother.
iii)For Father’s Day from 6.00pm Saturday until before school Monday should the children otherwise be with the Mother for Father’s Day.
iv)From 2.00pm Christmas Day until 6.00pm Boxing Day in each odd numbered year.
5. At other times as agreed.
6. That the Applicant pay the Respondent’s costs of and incidental to these proceedings.
Background
The Mother was born on (omitted) 1971. She is now 43 years of age.
The Father was born on (omitted) 1969. He is almost 46 years of age.
The parties were married on (omitted) 2003. They separated, initially under the one roof, on 1st March 2010. They were divorced by Order of this Court on 13th July 2011. The divorce became effective one month later.
There are two children of the marriage. The parties’ daughter X was born on (omitted) 2004. She is now ten years old. Their son Y was born on (omitted) 2006. Y is now nine years old.
The parties took part in a mediation on 1st April 2010. As a result of that mediation they entered into an agreement, described as a “Parenting Plan Under The Family Law Act 1975”, which dealt with an agreement by the father to vacate the former matrimonial home and, as a consequence, certain parenting arrangements for the children.
A copy of the agreement, dated 7th May 2010, forms Annexure “A” to the mother’s affidavit of 21st July 2010. The agreement says, relevantly:
1. Mr Macris and Ms Galanis agree that they will continue to have equal shared parental responsibility for the children of the marriage X born (omitted) 2004 and Y born (omitted) 2006.
…
5. Ms Galanis and Mr Macris agree that when Mr Macris moves out of the home, that there will be a shared care arrangement for the children as set out in the following paragraphs 6 and 7 and 8A.
6. The children will live with Ms Galanis as follows:-
a. In week one of the rotating fortnightly cycle, from Monday 17 May 2010 morning until before school or day care of Wednesday 19 may morning and from Friday 21 May 2010 morning until before school or day care on the following Monday 24 May 2010.
b. In week two of the cycle, from Wednesday 12 May 2010 morning until before school or day care on Friday 14 May 2010 morning.
c. For one half of each NSW school holiday period as agreed but failing agreement in the first week during odd numbered years.
d. For Mother’s Day each year from 9.00 am until 5.00 pm and if the children are living with their father on Mother’s Day, Mr Macris shall return the children to Ms Galanis by 9.00am on Mother’s Day and Ms Galanis shall return the children to Mr Macris at 5.00pm.
e. In 2010 and in all even numbered years, from 2.00pm on Christmas Eve until 2.00pm on Christmas Day, and in odd numbered years from 2.00 pm Christmas Day until 6.00pm Boxing Day.
7. The children shall live with Mr Macris as follows:-
(a)In week one of the rotating fortnightly cycle, from after school or day care on Wednesday until before school or day care on Friday.
(b)In week two of the cycle, from after school or day care on Monday 10 May 2010 until before school or day care on Wednesday 12 May 2010 and from after school or day care on Friday 14 May 2010 until before school or day care on the following Monday 17 May 2010.
(c)For one half of each NSW school holiday periods[7] as agreed but failing agreement in the first week in even numbered years.
(d)On Father’s Day each year from 9.00am until 5.00pm and if the children are living with their mother on Father’s Day, Ms Galanis shall return the children to Mr Macris by 9.00am on Father’s Day and Mr Macris shall return the children to Ms Galanis at 5.00pm.
(e)In 2010 and in all even numbered years from 2.00pm Christmas Day until 6.00pm Boxing Day and in odd numbered years from 2.00pm Christmas Eve until 2.00pm on Christmas Eve until 2.00pm on Christmas Day.
[7] sic
…
8A.Mr Macris and Ms Galanis agree that school holidays are deemed to commence the day schools break up and conclude on the day schools recommence and further they agree that the weekly ‘live in’ arrangements are to be suspended during school holiday periods.[8]
[8] Affidavit of Ms Galanis (the mother subsequently reverted to using her previous surname of Galanis) Annexure “A”
The Agreement also stated, at paragraph 16:
Mr Macris and Ms Galanis agree that these arrangements will be reviewed by the two of them in about six months’ time from the date of the agreement, where consideration will be given to whether or not this parenting plan ought to be amendment[9] or made into a formal parenting order under the Family Law Act.
[9] sic
The review did not take place, as the Mother commenced proceedings by filing an Application for parenting orders on 21st July 2010.
On 28th February 2011 the parties entered into Interim Consent Orders stating:
1. The Court notes that the parenting agreement dated 7 May 2011[10] previously entered into is discharged.
2. That commencing at 9am on Friday 4th March 2011 and continuing thereafter the children X (DOB (omitted) 2014) and Y (DOB (omitted) 2006) live with each of their parents in accordance with the following
(a) For five continuous days with their father
(b) For five continuous days with their mother;
(c) For two continuous days with their father; and
(d) For two continuous days with their mother.
3. That in the event that any changeover shall fall on a non-school day then changeover shall be effected by the parent with whom the children shall have been living immediately prior to such changeover, delivering the children to the other parent’s home at 9am.
[10] This is clearly a typographical error. The correct date is 7 May 2010.
Evidence
The Mother relied on the following affidavits:
a)her affidavit of 21st July 2010;
b)her affidavit of 15th September 2011;
c)her affidavit of 19th June 2012;
d)her affidavit of 12th May 2014;
e)the affidavit of Ms A of 19th June 2012; and
f)the affidavit of Ms D of 28th June 2012.
The father relied on the following affidavits:
a)his affidavit of 20th June 2012;
b)his affidavit of 24th October 2012; and
c)the affidavit of Ms A of 3rd May 2012.
It was the Mother’s evidence that by 1st March 2010 she found living under the one roof with the father increasingly difficult and she asked him to leave. She deposed that he said:
“I am not going anywhere until I get 50% of the children”[11] or
“I’m not moving out of here or going anywhere until I get the kids half the time”.[12]
[11] Affidavit of Ms Galanis (later Galanis) 21.7.2010 at paragraph [5]
[12] Affidavit of Ms Galanis 15.9.2011 at paragraph [61]
The parties attended a mediation on 1st April 2010 and came to an agreement reflected in the document referred to in [16] and [17] above. It was the Mother’s evidence that the Father refused to move out of the parties’ home until the agreement was signed, which it was on 7th May 2010. The Mother deposed that she was reluctant to enter into the agreement as she “always had doubts about the impact of the parenting arrangement upon our children who are still so young”.[13] She said that she was “never happy with that plan and only agreed to it reluctantly” because she felt she had no choice.[14]
[13] Affidavit of Ms Galanis 21.7.2010 at [7]
[14] Affidavit of Ms Galanis 15.9.2011 at [65]
The Mother further deposed that soon after the shared parenting arrangement was implemented, she noticed problems with the children, as they began telling her that they missed her and did not want to stay at their father’s place.[15] This unhappiness on their part continued, particularly with their daughter X.[16]
[15] Affidavit of Ms Galanis 21.7.2010 at [9]
[16] Affidavit of Ms Galanis 15.9.2011 at [69], [70], [72]-[75]
The Mother deposed that the Father did not perform work in the house like cooking or cleaning, taking the view that this was her role. She was critical of his attitude to her, particularly as to his practice of ending an argument with her by taking the children and driving off with them in the car.[17] The Mother spoke to the Father about seeing a counsellor, on her doctor’s suggestion, but the Father refused.
[17] Affidavit of Ms Galanis 15.9.2011 at [50]
The Mother expressed concern about the Father refusing to take the children to their family doctor for treatment but to another doctor, because the other doctor did not have the children’s medical history. She deposed that he said to her:
“He’s my doctor – I can take them wherever I like” and “take me to Court”.[18]
[18] Ibid at [78]
The Mother took the children to see a counsellor, Ms R, for assistance in dealing with X’s unhappiness when staying at her father’s place because she missed her mother. The Father denied that he saw either of the children being upset when they were with him. The Mother deposed that Ms R told her that Y was “generally not troubled by the arrangement” but X was “angry, frustrated and sad”.[19]
[19] Ibid at [83]
The Mother in her later affidavit of 19th June 2012 deposed to difficulties that she had experienced with the Father about her spending time with the children at Christmas. She assumed that as the Interim Orders of 28th February 2011 were silent about any arrangements concerning Christmas the earlier arrangements concerning Christmas would continue. She deposed that the Father texted her that he would bring them to her at 9:30 pm on Christmas Eve and she was to return them to him at 2:00 pm on Christmas Day.[20]
[20] Affidavit of Ms Galanis 19.6.2012 at [4]
However, the Father did not deliver the children to her on Christmas Eve, so the Mother assumed that he would deliver them to her at 2:00pm on Christmas Day, as she had originally requested. However, as she said at paragraph [6]:
When the children did not arrive at 2:00 pm I sent Mr Macris a message asking him was he running late and reminding him that I was at (omitted). He replied advising me that the children were going to be with him all day and that he was prepared to negotiate for me to see the children for a few hours on Boxing Day.[21]
[21] Affidavit of Ms Galanis 19.6.2012 at [6]
The Mother then decided to travel to Sydney where the children were at the home of the Father’s uncle and aunt and give them their Christmas presents. Her friend Ms D drove her to Sydney. When the Mother arrived the children ran to greet her, however the Father came and seized X’s hand and an altercation developed. The Mother deposed that the husband’s mother, her two daughters and the Father all shouted abuse at her and Ms D, calling them “sluts”, “dirty sluts”, “cock suckers” and “home wreckers”.[22]
[22] Ibid at [11]
The Mother further deposed that:
The children appeared to be very frightened. Y ran back inside. X was crying uncontrollably to the point where she was sobbing so heavily that she was dry wreching (sic).[23]
[23] Ibid at [12]
The Mother and Ms D left and the Mother stated that she did not see the children again until 28th December 2011.
The Mother brought an Application in a Case seeking interim orders as set out in [9] above. This Application was supported by an affidavit of 12th May 2014.
In that affidavit the Mother expressed her concerns about the parties’ daughter X, saying:
Over the past year X has continued to struggle with the current care arrangements and I am concerned about her emotional wellbeing…
…X has continued to struggle with the equal time arrangement. X becomes sad and withdrawn prior to changeover and on most occasions she is visibly upset. X constantly wakes up throughout the night prior to changeover and requests to sleep in my bed. X continuously tells me before changeover how much she misses me and how much she loves me. Upon returning from her father’s home X reverts to baby talking including not completing sentences and becoming very quiet and babbling words which are incoherent. These symptoms are at their worst following significant block periods of time with their father over each school holiday period.
…
I have observed X becoming severely anxious prior to spending block periods of time with her Father, for instance, during the holiday periods. She tells me over and over that she will miss me and that she does not want to go. I have to encourage her to go and spend time with her father. She is often withdrawn and upset at changeover.[24]
[24] Affidavit of Ms Galanis 12.5.2014 at [5],[6] and [12]
The Mother gave oral evidence. In cross-examination by Ms Gillies of Counsel she confirmed that she had described the Father as “still a decent, loving man, he loves his children, yes”. The Mother was of the view that there should be special arrangements for time with the children at Easter.
According to my contemporaneous notes, the Mother was a confident and articulate witness.
The Mother said that she did not believe she was making X anxious about seeing her father. However, she expressed concern that the Father would pass the care of the children on to his mother and his sisters.
Neither Ms A nor Ms D was required for cross-examination.
The Father relied on his affidavits of 20th June and 24th October 2012. He deposed that he and the Mother entered into the Consent Parenting Orders of 28th February 2011 following receipt of a Report from Dr H.[25] He stated that:
In accordance with the new arrangements the children spend longer blocks of time with Ms Galanis and myself so that they are with me for 5 consecutive days then with Ms Galanis for 5 consecutive days and then for 2 days with each of us. We continue this arrangement even through the school holidays.[26]
[25] Although the wrong Orders were annexed to his affidavit
[26] Affidavit of Mr Macris 20.6.2012 at paragraph [7]
It was his evidence that he helped care for the children from the time they were born. As he was self-employed he could be flexible (with his work arrangements) and could be home on a regular basis.[27] After the parties’ younger child Y was born the Father stated that he “assumed the major care” for X[28] and also helped the Mother with looking after Y.
[27] Affidavit of Mr Macris 20.6.2012 at [8]
[28] Ibid at [13]
The Father deposed that:
Following separation, my first priority was to ensure the continuity of the children’s loving and close relationship with both Ms Galanis and myself as I recognised that the children needed both of us.[29]
[29] Ibid at [16]
The Father was critical of the Mother for her stipulation that he should not live with his mother or his siblings after separation, even on an interim basis, saying that there was no way that the children would stay with him at his mother’s or sister’s homes as she hated them.[30] He was also critical of the Mother for swearing at him on various occasions in front of the children, saying such things as “Fuck off” and “Fuck off Mr Macris”.[31]
[30]Ibid at [17]
[31] Ibid at [19]
The Father also deposed that, whilst he initially took the children to his family doctor, but “upon Ms Galanis’s request I started taking them to the doctor nominated by her. I believe this is best for the children in maintaining consistency for them however there have been times when I have been unable to secure an appointment with Ms Galanis’s doctor and have been required to take the children to a local Medical Centre.[32]
[32] Ibid at [31]
It was the Father’s evidence that he had provided a stable routine for the children when they were in his care and had set up the children’s bedrooms in his home with their own themes.[33] He stated that he is conscious of feeding the children a healthy and balanced diet.[34]
[33] Ibid at [36]
[34] Ibid at [38]
The Father was of the view that the children were comfortable with the shared care arrangements, saying at [63]:
I’ve always been encouraged by comments made by the children that the current arrangements are working satisfactorily and that Ms Galanis and I have a good working relationship in caring for the children and providing for their needs. There are never any problems at changeover which generally takes place at the children’s school.[35]
[35] Affidavit of Mr Macris 20.6.2012 at [63]
The Father had a different take on the events at Christmas 2011, deposing that under the Interim Orders the children were to be with him from 23rd to 27th December 2011. He stated that the first he knew about the Mother’s wish to spend time with the children at Christmas was when he received an SMS message from her on 23rd December saying:
“You drop the children to me at (omitted) on Christmas Day”.[36]
[36] Ibid at [67]
The Father deposed at [68]:
As Ms Galanis had said nothing about Christmas Day previously I made arrangements to travel to Sydney with the children on Christmas Day. It is a tradition in my family, on my father’s side, that they gather at my uncle’s house in Sydney on Christmas Evening between about 4:00 pm and 11:00 pm…From the time that we were married Ms Galanis and I have always attended these family get togethers.[37]
[37] Ibid at [68]
The Father stated that he wrote to the Mother on 23rd December suggesting that the children spend time with her from 9.00pm Saturday 24th December until 2.00pm Christmas Day but she insisted that he was to drop the children off to her at 2:00pm on Christmas Day and pick them up at 6:00pm on Boxing Day. When the Father said that it was a forty two year tradition that he had Christmas night at his uncle’s house her reply was:
“2 bad what you do every year. Things are different now. You’d be silly to pursue this. I suggest that you do what is fair according to previous orders we both had agreed 2”.[38]
[38] Affidavit of Mr Macris 20.6.2012 at [70]-[72]
The Father stated that he replied to her saying “Don’t harass me” and when he did not hear anything more from the Mother he assumed that she was prepared to let the children spend Christmas night with his family. When she later texted him on Christmas Day asking if he was running late his reply was:
“I gave you an option yesterday kids with me all day today I will negotiate with you for tomorrow if you like for a few hours”.[39]
[39] Ibid at [74]-[75]
Perhaps not surprisingly, the Father’s account of what occurred on Christmas night varies considerably from the Mother’s evidence.
In his affidavit of 24th October 2012 the Father described events that took place when the parents and the children attended upon Dr H for interviews to update the Family Report. Curiously, he made a point of saying:
Dr H arrived late for the interview.[40]
[40] Affidavit of Mr Macris 24.20.2012 at paragraph [4]
He also complained that the interview with Dr H “for about 15 minutes but no longer than 20 minutes”.[41]
[41] Ibid
The Father deposed that he saw the Mother hand a piece of paper to X when they came out of one of the toilets. Later that evening the Father asked X about the note and she replied:
“It was a note that I had written so that I could stay with mummy and daddy. I wrote it when I was at mums…I wrote the note for mum so that I could stay with you whenever I wanted so I could pick the times that I stay.”[42]
[42] Ibid at [6]
The Father expressed concern that the Mother had placed pressure on the child.
Despite this, the Father went on to depose that:
Given the passage of time since our separation my relationship with Ms Galanis is now much better. We are able to speak to each other in an amicable manner and cooperate for the benefit of the children.[43]
[43] Affidavit of Mr Macris 24.10.2012 at [9]
The Father maintained his evidence that X was happy in his care, deposing at [25]:
Despite the recommendations in Dr H’s report I have observed that X continues to become more and more comfortable in my care. On one occasion when she looked a bit sad I gave her the option to either phone her mother or go back to see Ms Galanis. At that time X said “No”…(W)hen X was sick she was not even very keen to speak to Ms Galanis and I had to force her to speak to Ms Galanis. I was keen for X to speak to Ms Galanis because I felt that it would give Ms Galanis some peace of mind to speak to the children directly as she was concerned about them being sick.[44]
[44] Ibid at [25]
The Father also relied on his later affidavit of 17th July 2014. This affidavit was in reply to the Mother’s affidavit in support of her Application in a Case.
It was the Father’s evidence that he had concerns about the Mother’s attitude to the children, saying at [9]:
At all times I have had concerns about the fact that Ms Galanis finds it difficult to separate from the children and creates situations where she makes X feel responsible for her and therefore X finds it distressing to leave Ms Galanis.[45]
[45] Affidavit of Mr Macris 17.7.2014 at [9]
Again, he deposes at [11]:
I continue to be conscious of the fact that Ms Galanis is still finding it difficult to let go of the children…[46]
[46] Ibid at [11]
In reply to the specific concerns raised by the Mother about X’s behaviour the Father deposed that when the child is with him she does not display any anxiety. He stated that he had not observed the child to be sad or withdrawn and at no time has he observed the child to indulge in baby talk. He expressed concern that “X gets cross-examined to such an extent in Ms Galanis’s household that she has to report to Ms Galanis on everything that takes place in my household.”[47]
[47] Affidavit of Mr Macris 17.7.2014 at paragraph [21(vii)]
The Father also deposed at [24]:
I am concerned at the pressure that Ms Galanis continues to put upon X by which I believe she is attempting to destabilise the current arrangement. By all accounts and especially going by X's School report card and interviews with her teachers and the children’s sporting coaches they are well adjusted. Their Sunday School teacher compliments me on their good manners and happy attitude. Based on all this feedback I say that X and Y are both well-adjusted and progressing satisfactorily.[48]
[48] Ibid at [24]
The Father maintained his evidence in cross-examination.
Ms A was not required for cross-examination.
The Family Reports
A Family Report was prepared by Dr H, a Family Consultant, and completed on 7th November 2011. The Report was comprehensively updated by Dr H on 28th June 2012. Dr H at the final hearing.
For the purposes of her earlier Report, Dr H interviewed both parents and the children.
Dr H noted that the parents were in dispute about residence and the time the children spent with the other parent. She identified the following issues:
a)the children’s needs for stability and routine to support school adjustment;
b)the children’s attachments;
c)the parenting capacity of each parent; and
d)the parenting teamwork of the parents.[49]
[49] Family Report 7.1.2011 page 3 paragraph [4]
The Family Consultant noted that the Father “explained that he wanted to be a ‘full-time Dad’ and to participate fully in the children’s everyday lives. He thought a 50:50 arrangement would work best for this.” [50]
[50] Ibid page 4 at [7]
Dr H recorded that the Father had not seen “X’s distress over the current care regime, as described in (the Mother’s) affidavit.”[51]
[51] Ibid page 4 at [10]
The Mother told Dr H that:
…(S)he considers the time they (the children) go to their father should be spent entirely with their father, and mentioned that on several recent Mondays she had reason to believe he had gone to work leaving them in the care of his mother and/or sister. She asked “Who am I sharing the care with?’[52]
[52] Ibid page 5 [12]
The Mother told the Family Consultant that she thought all the coming and going was too disruptive for the children and that X always seemed reluctant to leave and resentful that she was only home for two days before she had to be off again.
Dr H said that the Father tended to react to emotions evoked by the topic rather than respond pertinently to some questions but was more fluent when describing child-parent interactions which involved only him.
On the other hand, Dr H said that the Mother struck her “as having a good capacity to see things from her children’s viewpoint. She knows both the children love their father and enjoy being with him, but believes X is unsettled by all the chopping and changing in their current regime.”[53]
[53] Ibid page 8 [20]
The Family Consultant noted that both children seemed comfortable and relaxed with both parents. They sought proximity to both parents and moved freely between them. She stated that the children seemed to be developing normally and were well-socialised for their ages. They were polite and co-operative with adult requests.
Dr H described the children as “happy, well-adjusted normal children who are well-cared for by both their parents and affectionately attached to both parents.”[54]
[54] Family Report 7.1.2011 page 12 [37]
The Family Consultant’s conclusions and recommendations were that:
a)The parents were adequately child-focused and may be able to make a substantially shared care (5:9/14 nights) arrangement work acceptably for the children;
b)The children were less likely to be disrupted if the time spent with each parent were to occur in longer sets of sequential nights rather than in alternating bursts of two nights and three nights;
c)As the children had not spent seven nights in a row away from their mother, and as Y was making the transition to school, it may be best to begin with five nights with the Father and nine nights with the Mother; and
d)As both parents had the flexibility to arrange work commitments around childcare it should be expected that each parent would care for the children during their days and leave the children in the care of the other parent on days when this was not possible “rather than routinely outsourcing child care to members of extended family”.[55]
[55] Ibid page 15 [45]-[48]
Dr H prepared an updated Family Report on 28th June 2012. She noted that when she had first seen the parties the children, then aged 5 and 6, were spending equal time with both parents in alternating blocks of two nights and three nights. She also noted that the Interim orders made in February 2011 provided that the children would spend five nights with their more, then five nights with their father, then two with their mother and then two with their father.
The Family Consultant identified the following issues:
a)the children’s attachments , temperaments and emotional needs; and
b)parenting teamwork of the parents.
Again, those interviewed were the parents and the two children.
Dr H said that the Father considered the current 5:5:2:2 arrangement to be working well and that both parents were able to participate in the children’s after school activities. She also said:
Mr Macris claims not to have observed in X the emotional distress over the current care regime which Ms Galanis alleges. He considers his daughter is sad to leave Mum ‘because she worries about her mother’ but that she quickly cheers up after handover…He did complain that the communication between himself and the children’s mother was poor, and that she had not cooperated about a communication Book. They communicate by SMS (also telephone calls if essential).[56]
[56] Family Report 28.6.2012 page 7 [15]
The Mother told the Family Consultant that she considered that the 5:5:2:2 arrangement was not working well for X but it was impossible for her to raise any of her concerns with the Father. Also:
It is the view of Ms Galanis that she was bullied by Mr Macris during the marriage and all the parenting arrangements she has agreed to against her better judgement since 2010 represent a continuation of that bullying. She says she was bullied into the original shared care arrangement (alternating residence every couple of days) in 2010 as that was the only condition under which Mr Macris would agree to leave the house. In February 2011 she agreed reluctantly to the father’s proposal for 5:5:2:2 arrangement for fear of being seen as uncompromising by the Court and getting a worse outcome.[57]
[57] Ibid page 9[19]
When she saw the children, Dr H described them as “lovely children” who complied with all adult requests politely.[58] X produced the note she had written. X told her that the 5:5:2:2 arrangement was not working for her but Y said spontaneously “It works for me”. Both children though that their father would feel sad if he were to know that X wanted to spend more time with her mother.
[58] Ibid page 10[22]
Dr H spoke to Ms R, who had been counselling the children to enquire what support she considered might still be appropriate for them:
She confirmed my impression that Y was coping better with the current arrangement than X, and was a more confident, untroubled child overall. She also confirmed that she found both parents loving, devoted and attentive.[59]
[59] Family Report 28.6.2012 page 13[28]
The Family Consultant’s conclusions were that “events since 2011 have shown that these parents lack the benchmark qualities which are required for 50:50 shared residential care to work well…[60]
[60] Ibid page 18[41]
Further, Dr H stated:
It becomes a matter of identifying the least harmful option practicable under operating constraints. X is the canary-down-the mine in this case. As her mother is the main source of her attachment security it will be in X’s best interests to maximise the time she spends with her mother and minimize the transitions between her two homes.[61]
[61] Ibid page 18[42]
The Family Consultant’s recommendations were:
a)The children should live mainly with their mother but see their father very regularly, at least once a week. For example, they could spend 3 or 4 consecutive nights with their father with a midweek overnight in the off weeks, days selected to preserve their father’s participation in their after school activities.
b)All changeovers should be at school.
c)The children should spend half of the school holidays with each parent. “It may work better for X to break the stays into a one week and then a two week block, or even into week-about (although this has the disadvantage of increasing the number of handovers).[62]
d)The parents are advised to seek counselling assistance for X.
e)X may benefit from speech therapy.
[62] Family Report 28.6.2012 page 19[44]
Dr H gave oral evidence over the telephone. In cross-examination by Mr Wong of Counsel, for the Mother, she said that X’s main attachment figure seems to be her mother. She seemed to be a more timid, anxious child than her brother. X felt she should be responsible for her mother’s problems. Further, X is more closely aligned and dependant on her mother than Y is. He is adaptable enough to cope with anything, she said.
Dr H made the point that the children are not abused. The parents are good, kind, loving parents, if at times misguided.
It was the Family Consultant’s view that X spending less time with her mother than she was doing at the present time would be disastrous. She went on to say that it was not good for X’s father to impose his will on her and thereby turn her against him.
Further, Dr H said that the Father had a misguided idea of what child/parent contact is about. She maintained her recommendation that there should be three or four consecutive nights for the children with the Father with a midweek overnight.
Further, she said that she did not think it would be a good idea to separate Y from his sister. X does not have a secure attachment to her father. She obviously did not feel free to express to her father her feelings about being separated from her mother. She does not wish to hurt her father’s feelings.
In cross-examination by Ms Gillies of Counsel for the Father, Dr H said that the children had been in a shared care arrangement for three years. They are very well socialised, agreeable children.
However, Dr H said she was not approaching the matter from the default setting of shared care. There is no magic in seven nights with each parent. She preferred the more conservative approach of a five to nine night per fortnight arrangement.
Dr H said that when the children were in the waiting room she observed that the children moved freely between their parents.
Dr H maintained her position that, given that X is more emotionally aligned with her mother, it would be less disruptive for her to spend more time with her mother.
Submissions
Counsel for each party provided written submissions and supplementary submissions, arising out of the Mother’s Application in a Case which led to a decision to reopen the evidence of the substantive hearing.
Mr Wong submitted that the children continued to live in the 5:5:2:2 arrangement as a result of the Interim Orders agreed to by the parties on 28th February 2011. The Mother had argued that equal shared time was not in the best interests of the children. Instead, she proposed that they should live with her and spend time with the Father for four nights per fortnight during school terms. This was consistent with the evidence of Dr H to the extent that she had remarked that the parents lack the benchmark qualities which are required for 50:50 shared residential care to work.
Whilst the Father had argued during the trial had sought to preserve the shared care arrangement on a final basis, he had abandoned that position and sought that the children should live with him in accordance with the orders set out in his Response to an Application in a Case filed on 18th July 2014.
Mr Wong submitted that the father asserted in his affidavit of 17th July 2014 that he was concerned at the pressure the mother was putting on X by which he believed that she was attempting to destabilise the current arrangements, but despite being given multiple opportunities under cross-examination could not particularise or identify the nature of this alleged pressure by the Mother.
It was also submitted that in the second Family Report, X had indicated to Dr H that she wanted to spend more time with her mother than with her father without her father being upset. Y, on the other hand, said that equal time worked for him but did not object to the fact that his sister had a different preference. He thought that his father would feel sad.
Mr Wong also submitted that on either party’s case, Y remained his adaptable self. However, the Mother’s more recent evidence was that there was nothing to suggest that X’s feelings had changed.
Against this, the Father, when cross-examined about his proposal being inconsistent with X’s feelings, gave evidence that she had changed her view.
Mr Wong submitted that the Mother’s evidence was demonstrative of X’s ongoing difficulties, which include:
a)her sadness and withdrawal before changeover;
b)her waking up at night prior to changeover and wanting to sleep in her mother’s bed;
c)continually telling her mother that she loves her;
d)talking in “baby talk” after spending time with her father;
e)her crying about her living circumstances; and
f)her anxiety prior to block periods of contact.
Against this, counsel for the Mother submitted that the Father sought to lay the causation for this behaviour on the Mother, citing some emails sent by the Mother to X as evidence of emotional pressure placed by the Mother on the child.
It was submitted that there was nothing to suggest that the situation regarding X’s attachments as assessed by Dr H had changed:
As her mother is the main source of her attachment security it will be in X’s best interests to maximise the time she spends with her mother and minimise the transitions between the two homes.
In short, it was submitted that the expert evidence and the lay evidence support the conclusion that the Mother’s proposal is in the best interests of the children.
Counsel for the Father, Ms Gillies, submitted that there was no contest between the parties that the Court should make an order for equal shard parental responsibility. The legislation then dictates that the Court must consider the question of equal shared care. After mediation the parties entered into a parenting plan on 7th May 201 that provided for the care of the children to be shared equally.
On 28th February 2011 the parties entered into consent Orders that provided for the children to live with each parent for a total of seven days per fortnight. That arrangement has continued to the present time. The time is configured so that the children spend time with the parents each fortnight:
a)5 nights with the Father;
b)5 nights with the Mother;
c)2 days with the Father; and
d)2 days with the Mother.
It is submitted on behalf of the Father that continuation of shared care is in the children’s best interests and in fact supported by legislation.
Ms Gillies submitted that it is important to note that the Orders of 28th February 2011 were entered into when the matter was before the Court for an interim hearing. Both parties were represented. The first Family Report of Dr H of January 2011 had been released to the parties on 19th January 2011 and both parties had had an opportunity to consider the report writer’s recommendations.
It was submitted that if there were any real difficulties with the equal shared care arrangement of 28th February 2011 the Mother would have proceeded with her application for reducing the time between the Father and the children. However, by the time the parties and the children were interviewed for the purposes of the second Family Report “one complicating incident” had occurred, the incident on Christmas Day 2011. Without in any way seeking to minimise the upset that the incident caused to all concerned, Ms Gillies submitted that it was “:a solitary glitch” in what had otherwise been a good working relationship between the parties.
It was further submitted that the parenting relationship had worked well since then and the indicators for shared care still exist between these parents. On one view, it was submitted, they have in fact strengthened.
Ms Gillies took aim at the same remark by Dr H to which Mr Wong had referred, namely:
…events since 2011 have shown that these parents lack the benchmark qualities which are required for 50:50 shared residential care to work well.
She submitted that whilst there may have been some basis for that pessimism in June 2012, given the workable relationship that then existed between the parents, the passage of time had negated that view by Dr H.
It was submitted that Dr H sought to say that X was anxious, and did so on the basis of what the Mother, the child and Ms R had said. The history obtained by Ms R was hearsay and there was no suggestion that she herself had witnessed anxiety in the child. There was no suggestion that any anxiety the child might have suffered was a consequence of spending time with the Father.
Again, it was submitted that little or no weight should be given to the note submitted by X to Dr H. There is little evidence about how the note came into existence or what pressure might have been brought to bear on the child to express the view that she did. The value of the note was highly compromised.
In short, it was submitted that the child’s anxiety was not related to time spent with her father and it was going to be present in any event.
The evidence supported that Y was coping well and satisfied with the equal shared care arrangement. In addition, the Father had shown a capacity to handle any concerns that X might have.
In her further submission on behalf of the father, Ms Gillies submitted that the issue of the child’s anxiety had already been addressed in the primary submissions filed by the parties. It was submitted that:
a)It had always been the Mother’s position that the children’s time with the Father should be scaled back so as to alleviate the anxiety from which the mother alleges X suffers;
b)There is no evidence to support the finding that any anxiety suffered by the child emanates from the time that she spends with her father;
c)The Court would have significant difficulty in accepting the Mother’s evidence as to the nature and extent of this alleged anxiety;
d)The Father has not seen this anxiety and the child spends seven nights a fortnight in his care;
e)Nobody else is reported to have seen the anxiety of which the Mother complains;
f)The child has had the assistance of a counsellor, agreed to by the parties, since 2012;
g)The child makes no complaint about the Father or wanting to return to the care of the Mother;
h)The Mother has not followed up on her alleged request for the child to see a school counsellor despite her evidence that she has become increasingly concerned about X’s emotional well-being
i)The Mother has displayed antipathy and an inability to support the Father; and
j)The Mother cannot be relied upon to present unbiased, untainted and accurate evidence where it does not assist her case.
Ms Gillies further submitted that if the Court were to find that the parties lack the requisite communication to implement a shared care arrangement, the Father seeks that the children reside primarily with him. The reasons given are:
a)The Father has a demonstrated ability to promote and facilitate the children’s relationship with the Mother, which she appears to be unable to reciprocate;
b)The Mother’s antipathy towards the Father is likely to be problematic;
c)The Mother has sought to undermine the shared care arrangement;
d)The Father is able to parent the children appropriately and individuate their needs from his own; and
e)The Father is concerned that Y and X would suffer if their time with him were to be reduced.
Applications for Parenting Orders
When a Court is dealing with applications for parenting orders, it must consider various sections contained in Part VII of the Family Law Act 1975 (Cth). In particular, they are:
a)Section 60B, setting out the objects of Part VII and the principles underlying those objects;
b)Section 60CA, providing that the Court must regard the best interests of the child as the paramount consideration;
c)Section 60CC, which shows how the Court determines what is in a child’s best interests;
d)Section 61DA, which contains the presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility; and
e)Section 65DAA, which applies if a parenting order provides that that a child’s parents are to have equal shared parental responsibility for the child; it requires the Court to consider whether it is both in the child’s best interests and reasonably practicable for the child to spend equal time with each parent or, in the alternative, to spend substantial and significant time with each parent.
All of those matters have been considered, so far as they are relevant.
Equal shared parental responsibility
There is no issue that the parties should have equal shared parental responsibility for the children,. Although the wording of the Father’s Response to an Application in a Case is somewhat vague in this regard. The parties, despite their differences, are committed and loving parents who can communicate with each other, even if their communication is at times acrimonious.
I propose to order that the parties should have equal shared parental responsibility for the children
Whether equal shared care is in the children’s best interests
As an order is to be made for equal shared parental responsibility, the Court must consider under s.65DAA(1) of the Family Law Act 1975 whether it is both in the children’s best interests and reasonably practicable for them to spend equal time with each of their parents. This should be considered in the context of the fact that there has been an equal shared care arrangement in force, one way or another, since the parties separated. Interestingly, each party has now moved away from that position.
The Mother seeks an arrangement that is more akin to substantial and significant time, with the children spending a block of four nights with the Father each fortnight, plus half the school holidays and other special days.
The Father is now seeking an order in his Response to the Mother’s Application in a Case that the children should live with him and spend three nights a fortnight in one week and one night in the other week and half the school holidays with their mother, even less time than the Mother proposes for him. Presumably that is a serious proposal, although on its face it looks suspiciously like a tactical ploy. If the Father is in fact serious, then it would appear that he had at last abandoned his view that equal shared care is a viable option and in the children’s best interests. His position has been up until this time that the equal time arrangement was working well, despite the Mother’s expressed concerns.
When the history of the care arrangements is considered, the first arrangement provided for alternating blocks of two nights and three nights. This was set out in the parenting plan produced after the parties had attended mediation. It is the Mother’s case that the parties were still living under the one roof and the Father had refused to move out unless there was an arrangement that the children would spend half the time with him.
The consent orders of 28th February 2011 were entered into after the release of the first Family Report. Those orders provided for the 5:5:2:2 arrangement that has persisted. The Father claimed in his affidavit of 20th June 2012 that the consent orders were entered into “following the receipt of Dr H's Report”.[63] Indeed they were, but the inference is that the consent orders were made in accordance with the recommendations of Dr H. That is not quite the case.
[63] Affidavit of Mr Macris 20.6.2012 at [7]
True it is that Dr H referred to a longer period of five nights with the Father, but nowhere in her Report did Dr H recommend the five nights, five nights, two nights, two nights arrangement that formed the subject of the consent orders. What she said was:
45.These parents are adequately child-focused and may be able to make a substantially shared care (i.e. 5:9/14 nights) arrangement work acceptably for children. Their chances of success will be enhanced by completing the RA programs they have begun and which they should be required to continue.
46.The children are less likely to be disrupted if the time spent with each parent occurs in longer sets of sequential nights rather than in alternating bursts of two nights and three nights.
47.As the children have not spent 7 nights in a row away from their mother, and as Y is making the transition to school this year, it may be best to begin with 5 nights with Dad (e.g. Friday-Tuesday) and 9 nights with Mum (Tuesday to Thursday of following week). Dad might see them midweek also…[64]
[64] Family Report 7.1.2011 page 15 [45]-[47]
So, whilst there was a change to a five night block with the Father, there was not an arrangement that the children would spend the next nine nights with the Mother, with a midweek time for a few hours. It was still an equal shared care arrangement, with five nights with each parent followed by two nights, notwithstanding that Dr H advised against disrupting the children with “alternating bursts of two nights and three nights”.
It is the Mother’s case, and has been for some time, that this arrangement was entered into against her better judgment. I believe that there is some truth to this claim, because the Father was still getting half the fortnight with the children, even with a reshuffling of the nights.
The Mother has maintained that this arrangement is not one that X is comfortable with, although Y is apparently able to cope with it. The Father has always maintained that it is an arrangement that suits the children, at least until his Response of 18th July 2014, when he seeks that the children should spend most of the time with him.
The Father has consistently maintained that he has not seen any sign of anxiety in X, but the Mother, and the Family Consultant, both consistently say that this arrangement is not one that the child is comfortable with.
I am of the view that the Court should follow the recommendations of the Family Consultant. There is evidence both from the Mother and particularly from Dr H, who has spoken directly to the child, that an equal time arrangement is a source of anxiety to the child. In my view equal shared care is not in X’s best interests.
The Family Consultant did not support a different arrangement for Y. Thus, it must follow that there should be one arrangement for both children.
The evidence that I accept is that X wishes to spend more time with her mother but, when she spoke to Dr H, she did not wish to hurt her father’s feelings. The Father maintains that he has seen no signs of anxiety in X, but, if the child does not want to hurt his feelings, it seems likely that she is not saying to her father that she wants to spend less time with him.
Substantial and significant time
The Court is required by s.65DAA(2) of the Family Law Act 1975 whether it is both in the children’s best interests and reasonably practicable for the children to spend substantial and significant time with each parent.
The best interests of the children
Section 60CA of the Act requires the Court to regard the children’s best interests as the paramount consideration. Section 60CC sets out how a Court determines what is in children’s best interests.
Looking at the primary considerations in subsection 60CC(2), the evidence clearly shows that there is a benefit to the children in having a meaningful relationship with both of their parents. There is no risk of harm to the children from abuse, neglect or family violence.
The primary considerations are set out in subsection 60CC(3). One method of obtaining the views of a child is by having regard to anything contained in a report under subsection 62G(2) (see s.60CD). The Court has the benefit of two Family Reports from Dr H, along with her oral evidence.
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 Family Consultant (formerly “counsellor”) is usurping the role of the Court. Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his or her ultimate conclusions (see Hall & Hall[65]). However, in this case I am of the view that I should follow the recommendations of the Family Consultant contained in the Family Reports, especially as I have had the benefit of her oral evidence in cross-examination. I found Dr H to be an informative and persuasive witness.
[65] (1979) 5 Fam LR 609; FLC 90-713
Paragraph 60CC(3)(a) of the Act requires the court to consider any views expressed by the children and any factors such as their maturity and level of understanding that the Court thinks are relevant to the weight it should give to their views. I accept the fact that the children are still relatively young, but I am of the view that some weight should be given to their views.
The children appear to have a positive and loving relationship to each of their parents.
The parents are taking every opportunity to spend time and communicate with their children and participate in making decisions about long term issues.
The likely effect of a change in the children’s circumstances is a relevant consideration. I am of the view that a continuation of the equal shared care arrangement is not a suitable long term arrangement. An increase in the amount of time that X spends with her mother would appear to meet her needs and would be in her best interests. Y would not necessarily approve spending less time with his father but he appears to be an adaptable child.
Aside from what appears from the evidence to be a less than perfect communication relationship between the parents, there would not appear to be any practical difficulty and expense in the children spending time with and communicating with each of their parents.
The parents appear to have a capacity to cater for the children’s needs, although the father believes that the anxiety attributed to X is caused at least in part by her mother.
The children are a girl aged ten (eleven in November) and a boy aged nine years. They are of Greek background. They appear to be of an appropriate level of maturity for their respective ages.
The attitude to the children shown by each parent is one of love and affection. Each parent wants to spend a significant amount of time with their children.
There are no family violence issues and no family violence orders.
The Mother’s proposal is that the children would live with her and spend four nights a fortnight plus half the school holidays with their father. This would equate to substantial and significant time with each parent and would also be more in line with X’s wishes.
The Father’s proposal would have the children spend a similar amount of time with their mother, three nights in one week and one night the next week plus half the school holidays. The disadvantages of this would be that there are more changeovers in a fortnight and, more significantly, that it would significantly reduce the amount of time that X would spend with her mother. I accept the evidence of Dr H that this would be “disastrous” for this little girl.
The Court is not bound to adopt one party’s proposal in its entirety to the exclusion of the proposal of the other. The Court must make orders that are in the children’s best interests. In this case, though, I am satisfied that the Mother’s proposed arrangements are in the best interests of the children and I will order accordingly.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 18 September 2015
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